1736095 ONTARIO LTD. v. WATERLOO (CITY), 2015 ONSC 6541

CITATION: 1736095 ONTARIO LTD. v. WATERLOO (CITY), 2015 ONSC 6541

DIVISIONAL COURT FILE NO.: DC-13-514

DATE: 20151022

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

DiTOMASO, HARVISON YOUNG, ELLIES J.J.

BETWEEN:

1736095 ONTARIO LTD. Applicant

– and –

THE CORPORATION OF THE CITY OF WATERLOO Respondent

COUNSEL:

Joe Hoffer/Maria Mavrikkou, for the Applicant

Michael A. van Bodegom/Daniel W. Veinot, for the Respondent

HEARD: June 2, 2015 at Hamilton, Ontario

REASONS FOR DECISION

DiTOMASO J.

THE APPLICATION

[1] The Applicant 1736095 Ontario Ltd. (“173”) applies for judicial review of the Respondent The Corporation of the City of Waterloo’s (“the City”) Residential Rental Housing Licensing By-law #2011-047 (“By-law 047”). 173 contends that By-law 047 is a taxing statute and therefore ultra vires the legislative jurisdiction of the City.

[2] 173 also seeks a declaration that the exemption for apartment buildings from By-law 047, but its application to townhouses, amounts to “constructive discrimination” under the Human Rights Code against occupants in townhouse tenancies on the basis of “family status”.

[3] The City opposes this Application. It asserts that By-law 047 falls squarely within its jurisdiction and constitutes a lawful and reasonable exercise of Council’s policy-making powers. Further, the City submits that this Application for judicial review was commenced well after the expiry of the one year limitation period as set out in the Municipal Act, 2001.

OVERVIEW

[4] 173 is an Ontario corporation carrying on a residential rental business in the City of Waterloo and is the operator of two purpose-built, properly zoned and developed multi-unit residential townhouse complexes in the City (“subject townhouse rental properties”). In total, between the two complexes, there are 61 townhouse rental apartments.

[5] The City is a municipal corporation under the laws of the Province of Ontario and is a lower-tiered municipality for the purposes of the Municipal Act, 2001, S.O. c.25 (the “Municipal Act”).

[6] In 1986, the City passed its first by-law addressing rental housing. That by-law (“Lodging House By-law”) was passed in response to a recommendation by a Coroner’s Inquest following the fire-related death of a University of Waterloo student. However, the Lodging House By-law was very modest in scope, and it applied only to lodging houses. As a result, it was of only limited effectiveness in dealing with health and safety in rental housing in Waterloo.

[7] In 2007, the Municipal Act, 2001 was amended to provide municipalities with expanded licencing powers.

[8] In 2011, following four years of public consultation and significant Council deliberations, the City replaced its Lodging House By-law with the more comprehensive Rental Housing Licensing By-law (By-law 047) which implemented a new, comprehensive Rental Housing Licensing Program (“RHL Program”).

[9] The City passed By-law 047 on May 29, 2011 with respect to rental housing in the City of Waterloo. City staff held numerous public meetings and City Council dealt with the issue at three open and eight in-camera council meetings.

[10] Following the passage of By-law 047, the City then proceeded to educate landlords and tenants regarding the RHL Program in an effort to ensure awareness and to encourage voluntary compliance with By-law 047.

[11] In summary, the RHL Program requires landlords of most low-rise rental units to obtain a rental housing licence, renewable annually, and to pay the prescribed licence or renewal fee to the City. The rental housing licence application process requires landlords to certify that the rental property is in compliance with the Building Code Act, 1992, S.O. 1992, c.23 and the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 and the Electrical Safety Code, O. Reg. 164/99 and to submit, inter alia, the following: (a) a general inspection certificate report from the Electrical Safety Authority (“ESA”) (required every five years; (b) an HVAC certificate (required every five years); (c) proof of insurance (required annually); (d) a criminal record check (required every five years); and, (e) a floor plan for the rental property.

[12] The rental housing licencing application process has identified health and safety issues and violations of by-laws and provincial regulations including ESA defects and violations of the Zoning and Building Code at rental properties. 173 claims that it was notified by the City that it was required to apply for a licence and to pay municipal charges for the rental townhouses on August 14, 2013. 173 filed a Notice of Application on December 18, 2013 beginning these proceedings. In the meantime, 173 requested to defer compliance from By-law 047. The deferral was not granted by the City. As a result, 173 submitted an application for both properties but omitted to include drawings for each rental unit, stating that the City already had copies of these drawings. The City found the applications to be incomplete and rejected them.

[13] The City held an information session with the tenants of 173’s rental townhouses in March of 2004. Charges were laid against 173 on March 31, 2014. At the time of this hearing, 173 faces 305 charges for breaches under By-law 047 and has failed to comply with 61 outstanding work orders under the same By-law.

[14] 173 submits that the municipal fees under By-law 047 are assessed on a “per unit” basis, with no financial correlation to the cost associated with the administration of the By-law relative to the licenced business owner or its tenancies. 173 asserts that the by-law in question is a taxing statute and therefore, ultra vires the legislative jurisdiction of the City.

[15] Further, 173 seeks a declaration that the exemption of apartment building tenancies from By-law 047, but the application of same to townhouse tenancies, amounts to “constructive discrimination” against occupants in townhouse tenancies on the basis of “family status”. It alleges that townhouse tenancies have a disproportionality higher number of families with children than do exempt apartment building tenancies. 173 asserts that the substantial and disproportionate financial hardship to townhouse tenants constitutes “constructive discrimination” against them by the City on the basis of family status.

[16] Also, 173 submits that this Application is properly brought by way of judicial review as the Divisional Court has the jurisdiction to make the findings of fact in declarations sought by 173 and because the statutory period within which to challenge the enactment of By-law 047 under the provisions of the Municipal Act, 2001 expired. However, 173 contends that the City made no attempt to enforce its by-law until expiry of a statutory period was imminent, thereby prejudicing members of the public, particularly landlords and tenants in townhouse rental complexes, adversely affected by By-law 047.

[17] In the City’s view, By-law 047 is effectively addressing numerous health and safety issues which directly affect landlords and tenants throughout the City. Accordingly, the City opposes this application for judicial review.

[18] The City denies that By-law 047 violates the Human Rights Code. In addition, the City submits there is no reasonable explanation for the delay in commencing and perfecting this Application for judicial review and the Application was commenced well after the expiry of the one-year limitation period set out in the Municipal Act, 2001.

THE ISSUES

[19] This application raises the following issues:

(a) What is the court’s jurisdiction to hear the Application?

(b) What is the standard of review of municipal legislative enactments?

(c) Are the impugned provisions of By-law 047 ultra vires the licencing powers of the City under s.151 of the Municipal Act, 2001?

(d) Is By-law 047 discriminatory as to occupancy of accommodation in its application and effect based on family status, contrary to the Human Rights Code, and therefore ultra vires the authority of the City?

Issue #1: What is the Court’s jurisdiction to hear this Application?

[20] This Application is governed by the Judicial Review Procedure Act, R.S.O. 1990 c.J. 1 (“JRPA”) which provides, at s.2(1), as follows:

Applications for judicial review

2.(1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:

1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.

2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.

[21] Section 6(1) of the JRPA provides that an application for judicial review shall be made to the Divisional Court.

[22] 173 submits that where the statutory appeal period has passed, an application for a declaratory judgment declaring the By-law invalid is not barred.[^1]

[23] An Application for judicial review may be made to the Divisional Court for a declaration that a by-law is discriminatory and therefore void.[^2]

[24] 173 submits that although the legislature may provide a statutory means and venue for determining the validity of by-laws, this does not deprive the court of its jurisdiction to set aside a by-law and to pronounce declaratory decrees concerning the validity of a by-law, even if the right to pursue the statutory remedy has expired. A statutory limitation period will not prevent an application for judicial review to quash a by-law on the grounds that it is void. Statutory limitation periods cannot protect a by-law which a municipality has no statutory authority to pass.[^3]

[25] The City submits that the remedy of judicial review is discretionary. The Municipal Act, 2001, provides an express, time-limited process to challenge a municipal by-law: upon the application of any person, the Superior Court of Justice may quash a by-law in whole or in part for illegality. Section 273(5) of the Municipal Act, 2001 imposes a limitation period:

An application to quash a by-law in whole or in part, subject to section 415, shall be made within one year after the passing of the by-law.

[26] 173’s application for judicial review was commenced on December 18, 2013, more than two years and seven months after the passing of the By-law 047 on May 9, 2011. 173 did not perfect its application until June 11, 2014, almost six months later (notwithstanding that the Rules of Civil Procedure require that judicial review applications be perfected within 30 days).[^4]

[27] For the following reasons, I find that this court has jurisdiction to hear this application. The question of whether the relief sought should be granted in these circumstances, given the discretionary nature of judicial review, is a separate though related question which I will address further below.

[28] In Lansdowne Park Conservancy vs. Ottawa (City)[^5] the Divisional Court has held that it is an abuse of process to proceed by judicial review after the expiry of the one-year limitation period set out in s.273(5) of the Municipal Act, 2001, especially if the municipality has taken further steps to implement the by-law as is the case at hand.

[29] In Gigliotti v. Conseil d’Administration du Collège des Grands Lacs,[^6] the court identified three factors to determine whether it should dismiss an application for judicial review on the grounds of undue delay:

(a) the length of the delay;

(b) whether there is a reasonable explanation for the delay; and,

(c) whether any prejudice has been suffered by the respondent or a third party as a result of the delay.

[30] This Court has held on numerous occasions that delay on the part of an applicant of more than six months in the commencement of an application or twelve or more months in the perfection of an application could be serious enough alone to warrant the dismissal of the application.[^7]

[31] The City submits there is simply no reasonable explanation for the delay in commencing this application for judicial review. There is also no reasonable explanation for the delay in perfecting this application for judicial review. The City submits that 173 is responsible for delay in that 173 was “laying in the weeds” until it was caught when work orders were issued to the prejudice of the City. Further, there has been no reasonable explanation for the delay.

[32] The City submits it is prejudiced by 173’s delay in commencing this application for judicial review because:

(a) the City has fully implemented the RHL Program, and more than 3,300 licensed rental housing businesses are now operating in Waterloo;

(b) the City has repealed its Lodging House By-law – the predecessor to the RHL By-law – and transitioned previously licensed lodging houses into the RHL Program;

(c) the City has purchased equipment and software in excess of $180,000; and,

(d) the City has hired and re-assigned the funding of approximately nine employees for the purpose of administering the RHL By-law.

[33] 173 submits that, if there is any delay, the City is responsible as a result of the method it employed in passing and enforcing its by-law. On April 1, 2012, nearly one year after its passage, By-law 047 came into force and effect. This was 39 days before the expiry of the statutory one year limitation period to challenge the validity of the by-law. It is submitted that the City waited until the expiry of the statutory limitation period was imminent and then, waited a further year before it began to enforce By-law 047 against owners and tenants of purpose built, properly zoned and developed townhouse complexes. 173 further submits the City’s position regarding the filing of drawings on the application for licence created further delay. I find this Court has the jurisdiction to hear this application for judicial review. The question at the heart of this application is whether this court should exercise its discretion to dismiss the application on the grounds of undue delay. Assuming but not deciding that there has been undue delay on the part of 173, the court exercises its discretion in hearing all of the issues advanced on this judicial review application.

Issue #2: What is the standard of review of municipal legislative enactments?

[34] The parties agree that the proper standard of review is correctness.

[35] The standard of review of decisions of an administrative tribunal depends upon the nature of the question being reviewed. In this instance, the question is whether the City had the jurisdiction to pass By-law 047.[^8]

[36] The standard of correctness applies where the decision being reviewed raises true questions of jurisdiction or questions of general law that are of central importance to the legal system as a whole and outside the administrative tribunal’s specialized area of expertise.[^9]

[37] Whether a municipality has authority to pass a municipal by-law is a question of jurisdiction and, therefore, a question of law. The questions in this case are also of central importance to the legal system, being questions of constitutionality and human rights. Therefore, the issues are reviewable on the standard of correctness.[^10]

Issue #3: Are the impugned provisions of By-law 047 ultra vires the licensing powers of the City under section 151 of the Municipal Act, 2001?

[38] For the following reasons, I disagree that the impugned provisions are ultra vires the licencing powers of the City under s. 151 of the Municipal Act, 2001.

[39] Section 151 of the Municipal Act, 2001 permits a municipality to provide for a system of licences with respect to a business and permits a municipality to differentiate its licensing requirements between different types of businesses and between different classes of the same business. Since rental housing is a business, it is subject to licensing pursuant to section 151 of the Municipal Act, 2001.[^11]

[40] Section 8(1) of the Municipal Act, 2001 provides that a municipality’s powers “shall be interpreted broadly so as to confer broad authority on the municipality to enable the municipality to govern its affairs as it considers appropriate and to enhance the municipality’s ability to respond to municipality issues.” Section 8(3) of the Municipal Act, 2001, grants municipalities broad licensing powers. A by-law passed under the Municipal Act, 2001 may be general or specific in its application and may differentiate in any way and on any basis a municipality considers appropriate.[^12]

[41] Section 11(3) of the Municipal Act, 2001 permits a lower-tire municipality (such as the City) to pass by-laws with respect to, inter alia, health, safety and well-being of persons, as well as business licensing.[^13]

[42] The Court of Appeal has held that business licensing is, in and of itself, a legitimate municipal purpose pursuant to the Municipal Act, 2001 which permits municipalities to pass a by-law for this specific purpose without the need for any municipal purpose. Moreover, as identified in its preamble, the RHL By-law was passed to “protect the health and safety and human rights of the persons residing in rental units”.[^14]

[43] 173 does not dispute that the City has jurisdiction to pass by-laws regarding residential rental housing. Also, 173 does not dispute that the City has jurisdiction to create different classes of licensing and further, the City has jurisdiction to authorize payment of fees regarding different classes of licensing.

[44] 173 submits that the City has the authority to license businesses and to levy licensing fees or charges. However, the City does not have the authority to levy an indirect tax. 173 submits that the charge for the licence is a tax and not a proper license fee. Charges imposed under By-law 047 are assessed on a “per unit” basis i.e. number of bedrooms per unit, and not on the status of the business operator or the property itself. Rather, 173 submits the charges have no financial correlation to the cost associated with the administration of the by-law relative to the licenced business owner or its tenancies.

[45] In determining whether a levy is a tax or a fee, the courts have applied a five-part test. A levy will be found to be a tax where:

(a) it is enforceable by law;

(b) it is imposed under the authority of the legislature;

(c) it is levied by a public body;

(d) it is intended for a public purpose; and,

(e) there is no nexus between the charge and the cost of providing the service or program to those subject to the license fee.[^15]

[46] The City acknowledges that the first three criteria set out in the Eurig test are met – namely, that the licensing fee is enforceable by law, imposed under the authority of the legislature and imposed by a public body. However, the City submits that licensing fees under By-law 047 do not meet the fourth and fifth criteria of the Eurig test.

[47] The City submits that the licensing fees are not generated for a public purpose as that term is meant under the Eurig test; they are designed exclusively to fund the operating costs of the RHL Program. Any modest surplus is allocated by the City to a reserve fund specifically to fund potential RHL Program shortfalls in the future.

[48] The parties disagree on what constitutes a “public purpose” and the threshold for determining whether a nexus exists between the fee and the Program.

[49] In relation to the test for “public purpose”, 173 cites the preamble to By-law 047 to argue that its purpose is to: (a) protect the health and safety and human rights of the persons residing in certain rental units; (b) ensure that certain essentials are provided in certain residential rental units such as plumbing, heating and water; and (c) protect the residential amenity, character and stability of certain residential areas.

[50] The City argues that the fees pursuant to By-law 047 are not generated for a “public purpose” but rather the fees are deposited into a general revenue account which helps fund the cost of the licensing regime.

[51] The Court of Appeal has held that funds are not generated for a “public purpose” if the funds generated by the fee are not being deposited into a general revenue account.[^16]

[52] 173 submits that the effect of By-law 047 is to levy and impose a tax for the purpose of subsidizing the City’s cost of licensing and inspecting low density, low rise residential dwellings in residential neighbourhoods, converted and used for rental residential purposes. With respect, I disagree.

[53] I find that By-law 047 was intended by the City to be revenue neutral over the long term and to address effectively numerous health and safety issues directly affecting landlords and tenants throughout the City of Waterloo.

[54] The evidence discloses that By-law 047 licence and renewal fees were calculated by the City’s Finance Department based on estimated costs associated with the RHL Program, including staffing and non-staffing expenditures relating to processing applications (including certain economics of scale associated with townhouses), rental property inspection and enforcement efforts. The calculations also took into consideration the City’s best estimate as to the number of licences that would be issued within the first five years of the RHL Program.[^17]

[55] The staff report regarding dated March 31, 2011 presented at the April Council Meeting can be found in the City’s Application Record at Volume 1 Affidavit of Jim Barry sworn September 22, 2014 at p. 274. That report includes information concerning projected fees, time and expenses related to the RHL Program. At page 300 can be found Figure 5: Anticipated net Income by year by option (three options) and Figure 6: Fee per category. Figure 6 reflects the fees that would be associated with each class of licence, initial and renewal as well as the fee for a consultation under the three options referred to above. All of the options presented by staff to Council were revenue neutral. At page 348 of the said Application Record can be found Schedule G: Revenue and Expenditures which constitutes page 77 of that same staff report regarding residential rental housing by-law. I am satisfied that the breakdown of all of these numbers reflect considerable and significant good faith efforts on behalf of Council to match the cost of the Program with revenues expected to flow from the licensing fees.

[56] A further staff report can be found at Volume 2 of the City’s Application Record at Tab 13. This Report was prepared on May 9, 2011 and submitted to Council for the Council Meeting at which By-law 047 was passed. This report reflects that there were some minor changes by Council. However, this is the last staff report received by Council before the by-law was passed. The slight changes reflect a greater adherence by the City to look at the costs as they relate to different classes. The City cites the following passage at page 403 of Volume 2 of the City’s Application Record:

In the report tabled April 11, 2011, staff had introduced a proposed fee structure that would recognize that properties with block townhomes held under single ownership would have lower per-unit fees, recognizing potential efficiencies available in administering the program for units held in common ownership. Since that time, the fee structure has been modified slightly to recognize different rates for 1, 2 and 3 bedroom units. This has resulted in minor changes in licence fees for all classes (less than $1.00 per unit type) as set out below ….

[57] Further, a series of summaries can be found which carry through the figures of the two staff reports of March 31, 2011 and May 9, 2011. The last page of the report indicates the actual fees that were implemented after the by-law was passed. These summaries reflect the underlying assumption that the RHL Program was to be revenue neutral over the long term. Further, the evidence presented by the City underscores significant good faith efforts undertaken by the City to match fees to costs. While it is submitted on behalf of 173 that one must look to the true intention of the City regarding By-law 047 and not the City’s methodology, I find that the City’s methodology is entirely supportive of the City’s intention to pass a by-law that was revenue neutral in respect of the RHL Program and for no other purpose.

[58] The evidence supports that the RHL by-law licence and renewal fees were calculated by the City’s Finance Department based on estimated costs associated with the RHL Program, including staffing and non-staffing expenditures relating to processing applications (including certain economics of scale associated with townhouses), rental property inspection and enforcement efforts. The calculations also took into consideration the City’s best estimate as to the number of licences that would be issued within the first five years of the RHL Program.

[59] The surplus at the end of 2013 was a very small one.

[60] In relation to factor (5) of the Eurig test, 173 submits that there is no corresponding nexus between the licence charged and the cost of providing the service to owners and tenants of the townhouse complexes. 173 states that in 2012 and 2013, By-law 047 generated a total surplus of $1.3 million and that the surplus does not correlate to the cost of service for the licence. 173 argues that the surplus is designated to general revenues of the City and not to the administration of By-law 047. Further, 173 disputes that the licensing fee is a “user fee” because it has an obligatory requirement – that is to say, that the landlord must pay it – which is not the same as a “fee” for service, where the individual can choose to pay it or not. Lacking this requirement, 173 argues that the user fee for By-law 047 is actually a type of “municipal property tax”.

[61] I do not agree with this argument. It flies in the face of the evidence.

[62] The evidence discloses that the RHL Program’s net surplus as of December 31, 2013, was $68,391.05. This amounts to an average surplus of $22,011.02 per year over the first three years after the RHL By-law was passed. However, the City anticipates that the RHL Program will be very close to revenue neutral with no significant net surplus by the end of 2016.[^18]

[63] Generally speaking, the RHL Program provides the following services:

(a) processing applications, including time-consuming review for compliance and legal issues;

(b) ongoing, day-to-day administration of the program, including coordination with other City programs and departments, as well as constant review and improvement to the program;

(c) public education – educating landlords and tenants with respect to the RHL By-law; and,

(d) enforcement, including responding to complaints, conducting risk-based inspections, investigating suspected offences, responding to legal challenges against licence denials, work orders and the RHL By-law generally, operating the rental housing appeals tribunal and prosecuting offences.

[64] The operating costs of the RHL Program include:

(a) salaries and staffing-related expenditures of administrative and enforcement staff (including benefits);

(b) uniforms;

(c) training costs;

(d) association memberships and conferences;

(e) advertising and public education program costs;

(f) day-to-day operational costs including printing and stationery supplies, photocopies, postage and courier costs and telephone charges;

(g) the purchase cost and maintenance costs associated with a Ford Fiesta for rental housing inspections;

(h) legal expenses;

(i) dedicated software; and,

(j) contribution to shared corporate overhead.[^19]

[65] The RHL By-law licence and renewal fees were calculated by the City’s Finance Department based on estimated costs associated with the RHL Program, including staffing and non-staffing expenditures relating to processing applications, rental property inspection and enforcement efforts. The calculations also took into consideration the City’s best estimate as to the number of licences that would be issued within the first five years of the RHL Program.[^20]

[66] While municipalities are permitted to charge licensing fees to cover the costs of administration and enforcement of business licensing programs, this does not preclude municipalities from accruing surpluses in any given year provided that those surpluses were not an intentional design element. In determining whether a nexus exists, it is not for the Court to look behind the methodology used and question the assumptions made in calculating the licensing fee.[^21]

[67] I am satisfied that the expenditures and fees are correctly correlated.

[68] Further, certain expenditures were challenged by 173. I find that all four challenges were satisfactorily answered in the Supplementary Factum of the City regarding:

• General government overhead review

• Purchase of replacement vehicle for the fire prevention officer assigned to the RHL Program on a fulltime basis

• Tablet upgrade for municipal law enforcement officers assigned to the RHL Program

• Corporate management initiative.

I find all four expenditures were directly related to the Program.

[69] Any modest surplus generated by the RHL Program is being allocated to the Residential Rental Housing Reserve to fund future expenses and deficits incurred by the RHL Program. The expenditures from the Residential Rental Housing Reserve are limited to those expenditures necessary to fund the RHL Program expense lines on the operating budget and capital expenditures associated with same.[^22]

[70] I find that on all of the evidence, the licensing fees contemplated by By-law 047 are not intended for a public purpose but rather for a very specific purpose, i.e. to regulate general housing licensing including rental townhouse units in the City of Waterloo.

[71] Further, I find that there is ample evidence to support a nexus between the charges and the cost of providing the services or Program to those subject to the licence fee. All of the evidence supports that the licensing fees are a levy and not a tax. The charges are not taxes “because their purpose is to defray expenses, not to raise revenue”.[^23]

[72] In addition, I find that the City had jurisdiction to license townhouses despite not licensing apartment buildings.

[73] Section 8(4) of the Municipal Act, 2001 provides that “a bylaw under this Act may be general or specific in its application and may differentiate in any way and on any basis a municipality considers appropriate”.[^24]

[74] The Court has held that the Municipal Act, 2001 permits municipalities to differentiate its licensing requirements between different classes of the same business. For example, the City of London Taxi and Limousine By-law was held to be valid despite differentiating between taxis and limousines. In the City’s submission, taxis and limousines are more alike than are townhouses and apartment buildings.[^25]

[75] The Court of Appeal has held that a licensing by-law is valid provided that the municipality has acted honestly and that the by-law was rationally connected to a legitimate municipal objective.[^26]

[76] I find that the RHL By-law (By-law 047) was passed pursuant to s.151 of the Municipal Act, 2001 and passed in good faith for legitimate municipal objectives set out in s.11(3)(6) and 11(3)(11) of the Municipal Act, 2001 – namely health and safety and business licensing.

[77] The City’s decision to differentiate between townhouses and apartment buildings was based on health and safety, enforcement and administrative concerns. The City specifically considered including apartment buildings in the RHL Program but, as set out in a public report to Council, City staff believed it was appropriate to exclude apartment buildings from the RHL Program because:

(a) apartment buildings generated fewer by-law complaints, which are more easily addressed through other types of enforcement;

(b) Waterloo Fire Rescue (the City’s Fire Department) had identified single family dwellings (which include townhouses but not apartment buildings) as a top priority in its 2009 Simplified Risk Assessment; and,

(c) budgetary resource constraints – the City was concerned with developing a RHL Program that it could effectively administer within its resources, and so chose to exclude apartment buildings during, at least, the first 5 years of the RHL Program – the sheer number of apartment units would make the RHL Program much more difficult to roll out in a well-organized fashion, and would significantly increase the staffing and other resources necessary to operate the RHL Program.[^27]

[78] The RHL By-law (By-law 047) is not unique in treating townhouses differently than apartment buildings – for example the Provincial Fire Code, the City’s Zoning By-laws, and rental housing licencing by-laws throughout the Province all do so.

[79] Typical apartments are treated differently than typical townhouses in the Fire Code.[^28]

[80] Further, the City’s Zoning By-laws differentiate as to where townhouses and apartment buildings may be constructed. For example, apartment buildings are permitted in certain commercial zones where townhouses are not permitted. Conversely, townhouses are permitted in certain medium density zones where apartment buildings are not permitted.

[81] The City’s RHL Program is one part of the City’s broader neighbourhood and planning strategy and is consistent with the City’s planning objectives that are set out in the City’s Official Plan, which seeks to encourage high density housing in areas with a higher density of renters, such as in the City’s downtown core.[^29]

[82] Further, four out of five other Ontario municipalities have rental housing licensing programs for licenced townhouses, but do not license apartment buildings.[^30]

[83] For these reasons, I find that the impugned provisions of By-law 047 are not ultra vires licensing powers of the City under section 151 of the Municipal Act, 2001.

Issue #4: Is By-law 047 discriminatory in its application and effect, contrary to the Human Rights Code, RSO 1990 c.H.19 on the basis of family status and therefore ultra vires the authority of the City?

[84] 173 submits that the fee imposed by the City to obtain a licence under By-law 047 discriminates on the basis of family status. 173 argues that there are more families living in townhouses than in apartments, as a result, the licensing fee discriminates against families renting townhouses by having an adverse impact on them through higher rental fees. These higher rental fees have been mandated to enable the landlord to cover the costs of obtaining the licence. This fee is not mandated on owners of apartment buildings or their tenants.

[85] The City relies on section 8(4) of the Municipal Act, 2001 which grants the municipality the power to enact a by-law that is general or specific in its application. The court has held that the Municipal Act, 2001 permits municipalities to differentiate its licensing requirements between different classes of the same business. The City claims that its decision to differentiate between apartments and townhouses is based on health and safety, enforcement and administrative concerns. The City has enumerated a number of ways it distinguishes between the two kinds of dwellings.

[86] The City further submits that the by-law does not discriminate on the basis of family status because the by-law applies to low rental properties regardless of who it is being rented to. Further, the City submits that the by-law benefits the renters of townhouses by ensuring that health and safety standards are met.

[87] For the following reasons, I find that By-law 047 is not discriminatory as to the occupancy of accommodation in its application and effect based on family status. The Human Rights Code has not been violated on the basis of family status. I find that By-law 047 is not ultra vires the authority of the City.

[88] The appropriate tests to apply when determining whether discrimination exists for the purposes of the Human Rights Code are as follows:

(a) Does the law create a distinction based on an enumerated or analogous ground?

(b) Does the distinction create a disadvantage by perpetrating prejudice or stereotyping?[^31]

[89] An applicant bears the onus of proving discrimination on a balance of probabilities. A respondent has the onus of establishing statutory a defence on a balance of probabilities only after discrimination has been proven on a balance of probabilities.[^32]

[90] 173 has not established that the RHL By-law does discriminate based on family status (or on any other Code-protected status). The RHL By-law applies to low-rise rental properties regardless of whether the property is being rented to a family or a non-family.[^33]

[91] The Court has previously held that the City of London’s Rental Housing By-law, which applied throughout the City of London, did not contravene the Human Rights Code.

[92] In London Property Management, Leitch J. considered whether the City of London licensing was in direct conflict with the Human Rights Code by discriminating in the right to housing accommodation on the basis of age, marital status and receipt of public assistance. She considered the appropriate test in Tranchemontagne and at para. 73 found that the law did not create a distinction based on an enumerated or analogous ground. She went on to consider whether the distinction created a disadvantage by perpetrating prejudice or stereotyping.

[93] In relation to this question, the purpose of the by-law was considered to be important. In London Property Management at para. 75, Leitch J. cites the Court of Appeal in Tranchemontagne at para. 90:

In the human rights context, in most instances, it will be evident that a prima facie case of discrimination has been established based solely on the claimant’s evidence showing a distinction based on a prohibited ground that creates a disadvantage (in the sense of withholding a benefit available to others or imposing a burden not imposed on others). An inference of stereotyping or of perpetuating disadvantage or prejudice will generally arise based on that evidence alone.

However, in other instances a more nuanced inquiry may be necessary to properly assess whether a distinction based on an enumerated ground that creates a disadvantage actually engages the right to equal treatment under the Code in a substantive sense.

[94] The Ontario Human Rights Tribunal considered Tranchemontagne in Hendershott v. Ontario (Ministry of Community and Social Services), [2011] O.H.R.T.D. No. 478, and stated at para. 55:

I would not interpret the discussion of prejudice or stereotyping as adding a new element to the traditional human rights analysis. I adopt the reasoning of the Court of Appeal that in most cases under the Code, prejudice and stereotyping will be inferred where the claimant is able to link their identity to the prohibited ground and prove that the ground was a factor in the disadvantage they experienced. In those cases where the claimant’s identity and/or the subject-matter of their claim appear inconsistent with the purposes of the Code, consideration of issues such as prejudice and stereotyping may be useful in clarifying whether or not the allegations raise concerns for substantive equality.

[95] At para. 77 in London Property Management Leitch J. further considered the qualified advice of the Human Rights Commission regarding the City of London’s licensing by-law:

In general, by-laws can come into conflict with the Code when they either intend to target particular groups based on Code grounds in their creation or enforcement, or where they tend to have an adverse impact on people from Code protected groups. Where licensing by-laws are not connected to a rational purpose, target particular geographic areas where residents are known to be from Code-protected groups, and a negative impact results (example loss of affordable housing, or higher scrutiny from officials), this could be problematic from a human rights perspective. In this case, however, the licensing scheme is city-wide and based on structure type (example – four or fewer rental units), not on the characteristics of renters, and appears to be based on objective rationale that these units are more likely to be in a higher need for repair.

[96] At para. 78, Leitch J. held:

I agree with the City’s submission that there is no evidence to support a finding that the Licencing By-law contravenes the Code. It applies throughout the City. It does not target any particular person or group of people or whether or not the housing is affordable. Rather, it targets specific types of dwellings. The Licensing By-law does not conflict with the Code.

[97] This court adopts the reasoning of Leitch J. in London Property Management. There is no evidence in the case at bar to support a finding that By-law 047 contravenes the Human Rights Code. It applies throughout the City of Waterloo. It does not target any particular person or group of people or whether or not the housing is affordable. Rather, By-law 047 targets specific types of dwellings. By-law 047 does not conflict with the Human Rights Code.

[98] 173 attempts to rely on certain statistics to suggest that more families than non-families live in townhouses in the City of Waterloo. These statistics are inaccurate, unreliable and rejected for the following reasons:

(a) the statistics relate to the Region of Waterloo (comprised of Kitchener, Cambridge, Waterloo, Wellesley, Woolwich, Wilmot and North Dumfries) and not the City of Waterloo;

(b) the statistics are from 2006 and no longer accurately reflect the local housing market, which has experienced a rental housing boom; and,

(c) the statistics do not provide any particulars of the percentage of families residing in townhouses that are owners versus the percentage that are renters (which essentially renders the statistics worthless in the context of the rental housing).

[99] It is important to note that the Ontario Human Rights Commission has completed a statutory inquiry and expressly concluded in its Report on the Inquiry into Rental Housing Licensing in the City of Waterloo that the “[i]nformation before the OHRC does not establish that the City’s licensing fees discriminate against people because of their association with a code ground.”[^34]

[100] While 173 alleges constructive discrimination pursuant to s.11(1) of the Human Rights Code, this court finds that there is no reliable evidence to support the argument that families are being adversely affected or discriminated against even indirectly as a result of By-law 047.

[101] The City submits that there is uncontroverted evidence that the average rent for a three or more bedroom townhouse in the City of Waterloo has decreased. Canada Mortgage and Housing Corporation has reported that the average rent for a three or more bedroom townhouse in the City of Waterloo decreased from $1,092 in October 2012 to $1,074 in October 2013.[^35]

[102] This court agrees with the submissions on behalf of the City that in the event that By-law 047 may have a statistically greater impact on families than non-families, By-law 047 provides an advantage, not a disadvantage, to any such families by ameliorating potential health and safety issues in low-rise rental housing units. This court agrees that no family or other Code-protected group would be better off by having its rental premises removed from the benefits of the RHL Program.

DISPOSITION

[103] Accordingly, this Application for judicial review is dismissed. Costs submissions were heard. 173 submitted that the City should receive no costs as this litigation can be characterized as public interest litigation and it affects a broader number of people than only 173 and the City. The City seeks its costs and costs should follow the event.

[104] The City is the successful party on this judicial review application and is entitled to its costs. Costs follow the event. The parties agreed that if the City succeeded on this Application, costs should be awarded in the amount of $50,000 all inclusive. 173 shall pay the City the sum of $50,000 all inclusive of fees, disbursements and HST for costs of this judicial review application.

DiTOMASO J.

HARVISON YOUNG J.

ELLIES J.

Released: October 22, 2015

[^1]: Wiswell v. Greater Winnipeg (Metropolitan), 1965 SCC 106, [1965] SCR 512, 1965 CarswellMan 24 at pars. 3-4; Holyday v. Toronto (City) (2010) ONSC 3355, 2010 ONSC 3355, 2010 CarswellOnt 5229 at para 51 [^2]: Re H.G. Winton Ltd. and Borough of North York, (1978) 1978 ON SC 1566, 20 OR (2d) 737, 1978 CarswellOnt 491 [^3]: See Holyday supra at para. 51 [^4]: Rule 68.04(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [^5]: Lansdowne Park Conservancy vs. Ottawa (City) 2012 ONSC 1975 at para. 32 (Div.Ct.) [^6]: Gigliotti v. Conseil d’Administration du Collège des Grands Lacs, 2005 ON SCDC 23326, [2005] O.J. No. 2762 (Div.Ct.) at para. 28 [^7]: Gigliotti, supra, at para. 36; Bettes v. Boeing Canada/DeHavilland, [2000] O.J. 5413 at para. 7 (Div.Ct.) [^8]: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paras. 51-55. [^9]: Dunsmuir, supra, at paras. 55, 58-59 [^10]: RSJ Holdings Inc. v. London (City), 2007 SCC 29, 2007 CarswellOnt 3919 at para. 37; Cash Converters Canada Inc. v. Oshawa (City), 2007 CarswellOnt 4229 at para. 20 [^11]: Section 151 of the Municipal Act, 2001 [^12]: Section 8 of the Municipal Act, 2001; 2211266 Ontario Inc. (c.o.b. Gentlemen’s Club) v. Brantford (City), 2012 ONSC 5830 at para. 21 (SCJ), aff’d 2013 ONCA 300 [^13]: Section 11(3) of the Municipal Act, 2001 [^14]: Exhibit “2”: Affidavit of Jim Barry sworn September 22, 2014; 2211266 Ontario Inc. (c.o.b. Gentlemen’s Club) v. Brantford (City), supra, at para. 13 [^15]: Eurig Estate (Re), 1998 SCC 801, [1998] 2 SCR 565 at para. 15 and 21. [^16]: Urban Outdoor Trans Ad, a Division of Slaight Communications Inc. v. Scarborough (City), [2001] O.J. No. 2261 at para. 27 (CA); Kelly I.E. Farish & Lindsay M. Tedds, “User Fee Design by Canadian Municipalities: Considerations Arising from the Case Law” (2014) 62:3 Can Tax J 635 at 650. [^17]: Para. 23: Affidavit of Jim Barry sworn September 22, 2014; Respondent’s Undertakings [^18]: Para. 87: Affidavit of Jim Barry sworn September 22, 2014 [^19]: Para. 113: Affidavit of Jim Barry sworn September 22, 2014 [^20]: Para. 23: Affidavit of Jim Barry sworn September 22, 2014 [^21]: Greater Toronto Apartment Assn. v. Toronto (City), 2012 ONSC 4448 at para. 41 (Sup. Ct.) [^22]: Exhibit “A” from the Cross-examination of Jim Barry held on March 27, 2015; Exhibit 32: Affidavit of Jim Barry sworn September 22, 2014; Respondent’s Undertakings; Pages 607, Question 20 and Page 8, Question 24: Transcript from the Cross-examination of Jim Barry held on March 27, 2015 [^23]: Urban Outdoor Trans Ad, a Division of Slaight Communications Inc. v. Scarborough (City), supra, paras. 31, 32, 33, 35 and 36. [^24]: Section 8(4) of the Municipal Act, 2001 [^25]: London Taxicab Owners’ and Drivers’ Group Inc. v. London (City), 2013 ONSC 1460 at para. 54 (Sup. Ct.) [^26]: Gentlemen’s Club Appeal, supra, at para. 20; Toronto Livery Assn. v. Toronto (City), 2009 ONCA 535 at para. 49 [^27]: Paragraph 35 and Exhibit 13: Affidavit of Jim Barry sworn September 22, 2014 [^28]: Paragraph 19: Affidavit of Bradley Forwell sworn September 18, 2014 [^29]: Paragraph 69 and Exhibit 19: Affidavit of Jim Barry sworn September 22, 2014 [^30]: Paragraphs 78 and 79 and Exhibit 20-24: Affidavit of Jim Barry sworn September 22, 2014 [^31]: Ontario (Director, Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 86; London Property Management Assn., supra, para 47 at para 67 [^32]: Ontario (Director, Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 109 [^33]: Section 2(1) of the Human Rights Code, R.S.O. 1990, c.H. 19 [^34]: Paragraphs 158-159 and Exhibit 55: Affidavit of Jim Barry sworn September 22, 2014 [^35]: Paragraph 174 and Exhibit 59: Affidavit of Jim Barry sworn September 22, 2014