COURT OF APPEAL FOR ONTARIO

CITATION: Windsor Housing Providers Inc. v. Windsor (City), 2025 ONCA 78

DATE: 20250203

DOCKET: COA-24-CV-0419

Gillese, Roberts and Sossin JJ.A.

BETWEEN

Windsor Housing Providers Inc.

Applicant (Appellant)

and

Windsor (City)

Respondent (Respondent)

Steven Pickard and Aleksa Nikolic, for the appellant

Sharon Strosberg, for the respondent

Heard: January 21, 2025

On appeal from the judgment of Justice Kelly A. Gorman of the Superior Court of Justice, dated March 25, 2024.

REASONS FOR DECISION

[1] The appellant appeals from the dismissal of its application to quash By-Law 14-2023, which was enacted by the respondent.

[2] After several years of study, including receipt of reports and consultation with stakeholders, on February 13, 2023, the Council of the City of Windsor passed the Residential Licensing By-Law 14-2023 (the “By-Law”). As stated in Council’s Resolution CR 171/2022 passed on April 25, 2022, approving the By-Law, the residential rental licensing framework would serve as a two-year pilot study to license residential rental housing in Wards 1 and 2 out of 10 wards, after which time Administration was instructed to report back to Council on the results of the two-year pilot study. Council would then decide whether to expand the By-Law to all wards or rescind it. On May 29, 2023, Council passed several housekeeping amendments to the By-Law.

[3] The stated purpose of the By-Law is “to regulate the renting of residential premises for the purpose of protecting the health and safety of the persons residing in residential rental premises”. The By-Law intends to carry out this purpose “by ensuring that certain regulations are met, that required essentials such as plumbing, heating and water are provided”, as well as “ensuring that the residential rental premises do not create a nuisance to the surrounding properties and neighbourhood”, with the view of protecting “the residential amenity, character and stability of residential areas”.

[4] The appellant is a coalition of landlords of properties in the City of Windsor that was incorporated in 2023 to represent housing providers and their interest in the rental housing market in the City of Windsor. The appellant brought an application to quash the By-Law and, in particular, the various conditions imposed by the By-Law on landlords in the operative wards. It argued that the By-Law was enacted in bad faith, is arbitrary, and is ultra vires because it violates ss. 2, 6, 8, 11 and 15 of the Canadian Charter of Rights and Freedoms and is inconsistent with various statutes. In detailed reasons, the application judge disposed of each of the appellant’s arguments and dismissed the application.

[5] The appellant repeats the same arguments on appeal, adding that the application judge failed to address certain of the issues raised or give sufficient reasons in dismissing its application.

[6] We are not persuaded that the application judge made any error.

[7] First, the appellant argues that the By-Law was arbitrary and discriminatory in imposing conditions against some but not all landlords in the City of Windsor and was therefore enacted in bad faith because: 1) the By-Law itself was permanent as it did not expressly indicate that it was a two-year pilot project; and 2) the respondent provided no rationale for targeting just Wards 1 and 2 in the By-Law.

[8] We did not call upon the respondent to respond to this argument and can dispose of it summarily.

[9] As the application judge correctly noted, a generous, deferential standard of review is to be adopted toward the decisions of municipalities: Shell Canada Products Ltd. v. Vancouver (City), 1994 CanLII 115 (SCC), [1994] 1 S.C.R. 231, at p. 247, per McLachlin J. (dissenting, but not on this point); Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, [2000] 1 S.C.R. 342, at paras. 35-37; Equity Waste Management of Canada v. Panorama Investment Group Ltd. (1997), 1997 CanLII 2742 (ON CA), 35 O.R. (3d) 321 (C.A.), at pp. 339-340. A municipality has broad by-law-making authority to enable it “to govern its affairs as it considers appropriate and to enhance the municipality’s ability to respond to municipal issues”: Municipal Act, 2001, S.O. 2001, c. 25 s. 8(1). Therefore, a municipality may make by-laws respecting a wide variety of matters, including the health, safety and well-being of persons and the protection of persons and property: Municipal Act, 2001, S.O. 2001, c. 25, ss. 8(1), 10, 11; 2211266 Ontario Inc. (Gentlemen’s Club) v. Brantford (City), 2013 ONCA 300, 307 O.A.C. 34, at paras. 8-11.

[10] The application judge properly considered the question of whether the powers of Council were exercised in good faith in the interest of the public without arbitrary or unfair conduct and with the degree of fairness, openness and impartiality required of a municipal government: Equity Waste Management of Canada, at p. 340. She concluded, correctly in our view, that the By-Law was clearly passed in good faith for its stated purposes which were within the respondent’s jurisdiction to enact for the good of its residents, including how to roll out its pilot project. As the application judge found, there was no evidence to support the appellant’s suggestion that the pilot project improperly targeted student housing.

[11] Moreover, the appellant’s submission that the interpretation of the By-Law should be divorced from the respondent’s actions and specified intentions leading up to its enactment, including its resolution that states this is a pilot project, runs counter to well-established principle that the interpretation of by-laws must be contextual. As the Supreme Court instructed in United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R., at para. 8:

A broad and purposive approach to the interpretation of municipal legislation is also consistent with this Court’s approach to statutory interpretation generally. The contextual approach requires “the words of an Act…to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”. [Citations omitted.]

[12] Second, the appellant argues that the By-Law was ultra vires the respondent because it is constitutionally infirm and infringes a number of statutes. We disagree.

[13] As we explain, none of the impugned provisions breaches the Charter or is inconsistent with provincial legislation. We note further that by-laws should be read as consistent with federal and provincial legislation unless obeying one necessarily means disobeying the other: Croplife Canada v. Toronto (City) (2005), 2005 CanLII 15709 (ON CA), 75 O.R. (3d) 357 (C.A.), at para. 63, leave to appeal refused, [2005] S.C.C.A. No. 329; R. v. Pahal, 2023 ONCA 13, at para. 46.

[14] First, the marketing provisions under s. 4.3 of the By-Law do not violate the freedom of expression rights guaranteed under s. 2(b) of the Charter. We disagree that the application judge failed to address the argument as submitted before her. The appellant argued that the By-Law restricted the location of marketing rental units and the application judge rightly observed that the May 2023 amendments to the By-Law removed any restriction with respect to where or how a property can be marketed. The appellant argues on appeal that the remaining provisions of ss. 4.2 and 4.3 of the By-Law unlawfully restrict marketing to licensees. The appellant’s argument is not borne out by the plain wording of ss. 4.2 and 4.3 of the By-Law that permit the licensee to allow anyone to market the property.

[15] Second, the By-Law does not allow for unlawful entry that breaches s. 8 of the Charter or that exceeds a landlord’s right of entry permitted by the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”) or the Building Code Act, 1992, S.O. 1992, c. 23. Specifically, as the application judge correctly stated, ss. 9.8 and 9.9 of the By-Law only permit entry of officers onto the property, but not into any dwelling, for the purpose of inspection, and not search and seizure, except with the permission of the resident, upon notice having been given to the tenant pursuant to the RTA, or with a duly obtained warrant.

[16] Third, the By-Law does not interfere with a tenant’s right to sublet premises in accordance with the RTA by requiring a tenant to obtain a licence before it can sublet. There is nothing in the By-Law that interferes with a tenant’s right to sublet in accordance with the provisions of the RTA. The definitions of “Operate”, “Operator” and “Tenant” do not refer to or interfere with a tenant’s right to sublet under the RTA. The By-Law defines these terms as follows:

“Operate”, “Operated” or “Operating” means to rent out, provide, offer to rent out or provide, or cause to be Marketed, the offer or rental, whether directly or indirectly, including, without limitation, via the internet or other electronic platform, of a Rental Housing Unit and shall include a person collecting a fee or handling payments in respect of a Rental Housing Unit;

“Operator” means any person who operates, maintains, or is otherwise responsible for managing or addressing issues in relation to a Rental Housing Unit but is not an Owner;

“Tenant” includes a person who pays Rent or provides services in lieu of paying Rent in return for the right to occupy a Rental Housing Unit and includes the person’s heir, assigns (including subtenants) and personal representatives.

[17] We agree with the application judge’s interpretation that on a plain reading of these definitions, “[t]here can be no suggestion that a ‘Tenant’ is an ‘Operator’ as defined in the [By-Law]”.

[18] Fourth, the licensing requirement in s. 5.4 of the By-Law of a criminal record check of a landlord does not encroach upon federal criminal law powers. We agree with the application judge’s conclusion that this requirement does not create a punishment but serves as a proper limitation on the eligibility of certain applicants to ensure the safety of residential tenants, which, as already noted, is within the broad license-making authority of the respondent.

[19] Finally, the requirement that landlords provide certain information does not violate s. 7 of the Charter nor does it infringe the protections under the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 (“MFIPPA”). The application judge correctly concluded that the information required to be disclosed is not personal information and therefore comes within the exclusion set out in s. 2(2.1) of MFIPPA, see: London Property Management Association v. City of London, 2011 ONSC 4710, at para. 92.

[20] The appeal is therefore dismissed. The respondent is entitled to its costs from the appellant in the agreed upon, all-inclusive amount of $13,000.

“E.E. Gillese J.A.”

“L.B. Roberts J.A.”

“L. Sossin J.A.”