Court of Appeal for Ontario

Citation: Balmoral Developments Hilda Inc. v. Orillia (City), 2013 ONCA 212

Date: 2013-04-05

Docket: C56312

Before: MacFarland, Rouleau and Pepall JJ.A.

Between:

Balmoral Developments Hilda Inc.

Applicant (Respondent-in-appeal)

and

The Corporation of the City of Orillia and Kelly Smith, Chief Building Official

Respondents (Appellants)

Counsel:

Michael M. Miller, for the appellants

E. Marshall Green and E. Brohm, for the respondents

Heard: March 25, 2013

On appeal from the judgment of Justice Susan E. Healey of the Superior Court of Justice, dated October 24, 2012.

Endorsement

[1] The appellants, the City of Orillia and Kelly Smith, Chief Building Official, appeal the October 24, 2012 judgment of S. E. Healey J.

[2] Before the application judge, the City took the position that a proposal by the respondent to increase the occupancy of each unit to seven students, each with his or her own lease would bring the units within the definition of a boarding, lodging or rooming house. As such, the respondent’s proposal was contrary to the City’s zoning by-law and non-compliant with Ontario Regulation 350/06 of the Building Code Act (“the Building Code”). The application judge found against the City on both issues.

[3] The appellants appeal the application judge’s finding that the respondent’s proposal would not result in the units being boarding, lodging or rooming houses under the Building Code. They argue that as constructed, the buildings cannot accommodate the increase to seven without violating the fire exit requirements mandated by the Building Code for boarding, lodging or rooming houses.

[4] It is conceded on behalf of the respondent that if the townhouse units are boarding, lodging or rooming houses, then they would not comply with the exit requirements of the Building Code.

[5] It is also conceded that the units meet the requirements of subsections (a) and (c) of the definition of boarding, lodging or rooming house found in s. 1.4.1.2 of the Building Code. The only dispute concerns whether the proposed use would result in the units meeting the final requirement, the requirement in subsection (b) which reads:

in which lodging is provided for more than four persons in return for remuneration or for the provision of services or for both.

[6] In our view, it is clear that the respondent’s proposed use of the units provides lodging for more than four persons in return for remuneration. This is apparent from the following facts:

• there will be seven individual leases, one for each of the bedrooms, which the occupants of those bedrooms will enter into with the landlord
• the occupants will rent for terms that vary between 10 and 12 months
• the individual bedrooms all will have locks on their doors
• the furniture by and large will be provided by the landlord
• there is no evidence of any anticipated collective decision making among the occupants
• there is no evidence that the occupants will be required to pay a share of the utilities other than as encompassed in the rent
• although the landlord will take requests into consideration, the occupants will be selected by the landlord, and
• apart from their attendance at university or college there is no evidence of any other connection among the seven proposed occupants.

[7] In our view, the application judge erred in her interpretation of the Building Code and its application to the facts before her when she determined that the proposed use would not result in the units being boarding, lodging or rooming houses as defined in the Building Code.

[8] Accordingly, we would allow the appeal, set aside the judgment of the application judge and in its place, substitute a judgment in accordance with this endorsement.

[9] In view of the appellants’ success, they are entitled to costs in this court on a partial indemnity scale fixed in the sum of $25,000 inclusive of disbursements and applicable taxes.

[10] In view of the divided success in the court below as the result of our decision, we accept the appellants’ submission that there be no costs of the application to either party in the court below.

“J. MacFarland J.A.”

“Paul Rouleau J.A.”

“S. E. Pepall J.A.”