Court Information
Court: Ontario Court of Justice, Brampton, Ontario
Judge: Quon J.P.
Trial Date: September 3, 2014
Judgment Date: January 21, 2015
Parties
Prosecutor: The Corporation of the City of Brampton
Defendant: Asmat Shahnaz
Counsel:
- K. Wiedekowsky, prosecutor for the City of Brampton
- A. Shahnaz, unrepresented
Charge
Using or permitting the use of lands for purposes not permitted by section 16.5.1 of City of Brampton Bylaw 270-2004, namely operating a lodging house, contrary to section 2.2 of City of Brampton Bylaw 270-2004 and section 67(1) of the Planning Act, R.S.O. 1990, c. P.13.
Specific Allegation: Between June 11 and August 8, 2013, at 53 Craigleigh Crescent, Brampton (Unit 53, Level 1, Peel Condominium Plan No. 5), the defendant used or permitted the use of her residential townhouse as a lodging house, which is not a permitted use in the R3A(4) zoning designation.
Reasons for Judgment
1. INTRODUCTION
[1] In this prosecution, the defendant is Asmat Shahnaz, who is the owner of a residential townhouse dwelling located at 53 Craigleigh Crescent, in the City of Brampton. It is alleged that she was using her townhouse illegally as a lodging house between June 11 and August 8, 2013. The City of Brampton had received a complaint that the defendant's townhouse was being used as a lodging house, which use was not legally permitted under the City of Brampton zoning classification R3A(4), which is the designation for that particular residential area in which the townhouse was located. A Bylaw Enforcement Officer had attended the defendant's property at 53 Craigleigh Crescent on April 18, 2013, and spoke to the defendant's daughter and to two individuals present in the townhouse. After speaking with them and after observing locks on the door handles for the bedrooms and rooms with sleeping accommodation on April 18, 2013, the Bylaw Enforcement Officer formed a belief that the defendant's townhouse was being used as a lodging house, and consequently requested a zoning review by the Brampton Planning and Development Department of the defendant's property.
[2] After their review, the Brampton Planning and Development Department sent a registered letter dated April 26, 2013, to the defendant, informing the defendant that the inspection of her property located at 53 Craigleigh Crescent had revealed that it was being operated as a lodging house, which was not legally permitted and was contrary to section 16.5 of City of Brampton Zoning Bylaw 270-2004. The letter also informed the defendant that her townhouse was situated in an area that was zoned R3A(4) and that she had to cease operation of the lodging house located at 53 Craigleigh Crescent by no later than May 21, 2013. On June 11, 2013, the Bylaw Enforcement Officer re-inspected the defendant's townhouse for compliance and observed there were still locks on the door handles for the upstairs bedrooms and for other rooms in the townhouse that had beds, and after speaking with the two individuals he had observed in the townhouse on that occasion, he still believed that the defendant's townhouse was still being used as a lodging house.
[3] As such, an information was sworn on October 24, 2013, charging the defendant for using or allowing her residential townhouse dwelling to be used as a lodging house between June 11 and August 8, 2013, which is not a use permitted under section 16.5.1 of City of Brampton Zoning Bylaw 270-2004, and which is contrary to section 2.2 of Bylaw 270-2004 and section 67(1) of the Planning Act, R.S.O. 1990, c. P.13.
[4] The trial of the charge was then held on September 3, 2014. After submissions, judgment was reserved and adjourned to January 21, 2015, for the judgment to be rendered. These therefore are the reasons for judgment:
2. THE CHARGE
[5] The defendant has been charged with the following Part III regulatory offence:
Asmat SHAHNAZ
Between the 11th day of June, 2013 and the 8th day of August, 2013 at 53 Craigleigh Crescent, described as Unit 53, Level 1, Peel Condominium Plan No. 5, Block N, Plan 688, Parts 1 and 2, PLR3, in the City of Brampton, Regional Municipality of Peel did commit the offence of using or permitting the use of lands for purposes not permitted by section 16.5.1 of City of Brampton By-law 270-2004, as amended, namely, operating a lodging house,
Contrary to City of Brampton By-law 270-2004, section 2.2 and section 67(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended.
3. BACKGROUND
[6] After receiving a complaint that the defendant's property was being used as an illegal lodging house, Bylaw Enforcement Officer Steve Brown first attended the property at 53 Craigleigh Crescent, in the City of Brampton, on April 8, 2013. However, no one was home on that occasion so Brown posted a "no access" letter on the townhouse, in which he made a request for an inspection of the townhouse for a possible zoning violation as a multi-unit house.
[7] The townhouse located at 53 Craigleigh Crescent is property that has been zoned with the R3A(4) designation as a "residential townhouse zone" under City of Brampton Zoning Bylaw 270-2004. Under that particular zoning designation, multi-unit use for that townhouse is not permitted.
[8] Then on April 18, 2013, Bylaw Enforcement Officer Brown re-attended 53 Craigleigh Crescent and spoke with "Niyab", the daughter of the registered owner of the property. Brown was permitted to enter the townhouse and look around. During his inspection of the house, Brown took photographs of the various rooms located on all three floors of the townhouse (see Exhibits 1A, 1B, and 1C). Brown also noticed there were locks on the door handles of the doors for different rooms in the townhouse, especially on the bedroom doors. In addition, Brown observed two individuals who were present in the townhouse along with the owner's daughter.
[9] Bylaw Enforcement Officer Brown said that based on what he had observed in the townhouse and from his conversations with the two individuals and with the owner's daughter, Brown believed that the defendant's townhouse was being used as a lodging house, which was not a permitted use for the townhouse under City of Brampton Zoning Bylaw 270-2004. In addition, Brown testified that the townhouse had been investigated twice before in regards to the same complaint. Brown then requested a zoning review by the City of Brampton Planning and Development Department for the defendant's property situated at 53 Craigleigh Crescent.
[10] After their review, the City of Brampton Planning and Development Department sent a registered letter dated April 26, 2013, to the defendant, as the registered owner of the 53 Craigleigh Crescent property, informing the defendant that the inspection of her property had revealed that it was being operated as a lodging house, which was not legally permitted and was contrary to section 16.5 of Zoning Bylaw 270-2004. The letter also informed the defendant that her townhouse was situated in an area that was zoned R3A(4) and that she had to cease operation of the lodging house located at 53 Craigleigh Crescent by no later than May 21, 2013.
[11] Then, on June 11, 2013, Bylaw Enforcement Officer Brown returned to the 53 Craigleigh Crescent property to do another inspection. On that particular date, Brown said he had observed two people present in the house, who he described and believed to be "boarders" in the house. Moreover, Brown said he had formed this belief based on information that he had obtained from talking to those two particular individuals who were present in the house. He also said he had observed that there were still locks on the handles for the bedroom doors located on the upstairs floor. Brown also took photographs that day of the locks on the door handles of those doors. However, Brown did not obtain any rental agreements or identification from the individuals he had observed and talked to that day at 53 Craigleigh Crescent, who he had believed were "boarders".
[12] On October 24, 2013, a Part III information was then sworn out charging the defendant of committing the offence of using or permitting the use of lands for purposes not permitted by section 16.5.1 of City of Brampton Zoning Bylaw 270-2004, namely that she had been operating a lodging house at her residential townhouse located 53 Craigleigh Crescent which is not a permitted use, contrary to section 2.2 of City of Brampton Zoning Bylaw 270-2004 and section 67(1) of the Planning Act, R.S.O. 1990, c. P.13.
[13] The trial of the defendant's charge was then held on September 3, 2014. Three witnesses testified in the trial. Two were for the prosecution and one for the defence.
(a) SUMMARY OF TESTIMONY
(1) Testimony of Steve Brown, a Bylaw Enforcement Officer for the City of Brampton
[14] Steve Brown testified that he is a Bylaw Enforcement Officer for the City of Brampton. In respect to the present charge, Brown testified that due to a complaint he had attended a townhouse on April 8, 2013, located at 53 Craigleigh Crescent in the City of Brampton. However, he said that he did not gain access to the townhouse to do an inspection and posted a "no access" letter on the townhouse, in which he had requested an inspection of the townhouse for a possible zoning violation, as it may have been used as a multi-unit home.
[15] Bylaw Enforcement Officer Brown also explained that a home which is being used as a multi-unit home could mean it was being used as a lodging house, a three-unit house, or that it contained a basement apartment.
[16] Ten days later, on April 18, 2013, Brown said he re-attended the 53 Craigleigh Crescent property and spoke with "Niyab", the daughter of the registered owner of the property. He also said that he had informed the owner's daughter that she had the right to refuse him entry and not allow him to enter the house. However, Brown said the owner's daughter permitted Brown to enter the house.
[17] Upon entry, Brown said he had entered the townhouse at the ground level, which is the basement level of the house. He said he then observed on the right-hand side a staircase leading to the upper part of the house. He then said he walked straight through and observed a door that led to the kitchen on the left. He then said he observed a second door with a lock on the door handle. For that room with the lock on the door handle, he said he had observed one bed in the room and described it as a "bachelor" room.
[18] Brown then said he had taken photographs on that visit of different parts of the townhouse, which he then said he had personally printed out the 26 photographs he had taken onto three separate pages, where he had placed 9 photographs on each of pages 1A and 1B, respectively, and 8 photographs on page 1C (see Exhibits 1A, 1B, 1C).
[19] Furthermore, Brown then described what was contained in the photographs that were in Exhibit 1A, as being photographs of the basement area, which showed an electrical panel, a glass doorway that led into the basement area, and an electrical outlet or receptacle for a stove although he said there had been no actual stove there.
[20] For Exhibit 1B, Brown described the photographs as being of a bedroom with a table, chairs and a bed, a door with a lock to a room, a door that led to the second floor of the three-floor house, a kitchen on the main floor, a laundry behind the kitchen, a sink on the main floor, and a dining room and living room on the right-hand side on the main floor that was vacant and being renovated.
[21] Next, Brown described the eight photographs that were contained in Exhibit 1C, as being photographs of the third floor of the townhouse. He also said the photographs showed doors to bedrooms and an upper floor washroom. In addition, he said the last photograph on that particular page showed a futon bed located in the basement level, which he said had been located to the left of the entrance to the house.
[22] In addition, Brown said there are four bedrooms on the upper level. He also said he had looked inside each of the doorways and had approached the doors for those rooms with the owner's daughter. He also noted that the doors had been unlocked, but that each door had a lock on the door handle. However, Brown said he had no information concerning whether the owner had been asked to remove the locks on those doors.
[23] Furthermore, Brown said that there was only a kitchen on the main floor, while there were no electrical or cooking appliances in the kitchenette that was located in the basement.
[24] Brown also said he had formed the opinion on that particular visit that two tenants resided in the basement, while two tenants resided on the upper floor, based on his conversation with the owner's daughter and with those two individuals who were present in the house. He also said he had observed two people in the basement, in which one of them had been a woman using a computer.
[25] In addition, Brown said he has investigated this particular townhouse twice for the same complaints about the townhouse. He also said there had been a zoning review requested.
[26] Furthermore, Brown said that the City of Brampton Planning and Development Department had sent out a registered letter on April 26, 2013, which had been a notice to the owner of 53 Craigleigh Crescent, advising the owner that her property was zoned as a single-family residence and that it could not be used as a multi-unit house (see Exhibit 2).
[27] Then on June 11, 2013, Brown said he returned to the 53 Craigleigh Crescent property to do another inspection. He also said he had observed on that day two people in the townhouse who he described and believed to be "boarders" in the house, which he said had been based on information that he had obtained from talking to those two people. He also said he had observed that there were still locks on the doors for the bedrooms located upstairs.
[28] In addition, Brown said that during his June 11th inspection, he had also taken photographs of the locks that were still on the doors (see Exhibit 3). Brown also commented that those locks needed to be removed from the doors in order to be in compliance with the zoning requirements for that townhouse. However, he said the owner had not contacted him about the removal of the locks from the doors, but he said that he did speak with the owner on June 11th. He also said he had looked inside the rooms on that day, as the doors to the rooms were not locked and the rooms were open for him to look in. However, he reiterated that there were still locks on the door handles on June 11, 2013.
[29] On the other hand, when asked if he had seen any tenant receipts, Brown had replied that he had not.
(2) Testimony of Ross Campbell, Zoning Plans Examiner for the City of Brampton
[30] Ross Campbell testified that he is employed with the City of Brampton as a Zoning Plans Examiner. He also said he deals with the zoning bylaw every day.
[31] Campbell also explained that the term "lodging house" is defined in the Brampton Zoning Bylaw. He also indicated that a lodger is someone who does not have access to all habitable areas of a house, and that a lodging house is also comprised of more than three units, or where there are three or more persons residing there, with or without meals.
[32] In addition, Campbell read out the definition of "lodger" from the dictionary.com website printout (see Exhibit 4), which had referred to the phrase "rented quarters" to describe the term. Campbell then opined that this definition would meet the definition of a "lodging house" under the City of Brampton zoning bylaw.
[33] Furthermore, Campbell read out the details of the Transfer Deed document (see Exhibit 5A) and the Title Abstract document (see Exhibit 5B) that indicated that the legal ownership of the property located at 53 Craigleigh Crescent had been transferred to the defendant, Asmat Shahnaz, on April 4, 2008.
[34] Then when Campbell had been asked how the property at 53 Craigleigh Crescent was zoned, Campbell replied that the property was zoned R3A as a "residential townhouse zone", and that multi-unit use for that townhouse was not permitted under that zoning designation.
(3) Testimony of Asmat Shahnaz, the Defendant
[35] The defendant had testified through an Urdu language interpreter that her townhouse was not being used as a lodging house. When asked who rented the house, the defendant replied that a member of her own family had rented the house from her and that it had been only one family who had rented her house for a short period.
[36] In addition, the defendant produced a photocopy of a rental agreement dated January 2, 2013 (see Exhibit 7), which indicated that her tenant was Sajjad Hussain and that the occupancy of the 53 Craigleigh Crescent townhouse would also commence on the same day of January 2, 2013, with a monthly rent of $1200. Furthermore, the defendant said the lessee on the rental agreement was her cousin, Sajjad Hussain. The prosecution then conceded that there was no issue with the defendant renting her townhouse to a family member. However, it is puzzling that the rental agreement purportedly completed by her cousin, Sajjad Hussain, included the name of Nasir Bajwa, a personal reference, on the rental application form that was attached to the lease agreement. Especially, when Sajjad Hussain was purportedly the defendant's cousin, and who would not need a personal reference, since the two were family members.
[37] Furthermore, the defendant testified that as of the date that she had bought the townhouse, there have been locks on the doors, and that those locks had already been there when she bought the townhouse. However, the defendant testified that she had the locks removed, and that the locks had been removed prior to the date of the last inspection, but had been unable to inform the court of what that date had been when those locks had been removed from the doors, or what the actual date was for that last inspection.
4. APPLICABLE LAW
[38] In this matter, the defendant has been charged by the City of Brampton with using or permitting her townhouse to be used as a lodging house, which is not a permitted use under section 16.5.1 of City of Brampton Zoning Bylaw 270-2004, and thereby committing an offence under sections 2.2 of Bylaw 270-2004 and 67(1) of the Planning Act, R.S.O. 1990, c. P.13.
[39] Since the defendant's townhouse is in an area of Brampton zoned as R3A(4), her townhouse is only permitted under section 16.5.1 of Zoning Bylaw 270-2004 to be used as a residential dwelling, a group home type 1, an auxiliary group home, and a supportive lodging house, but such use does not include an ordinary lodging house. Therefore, an ordinary lodging house would be an impermissible use in an R3A(4) designated zone:
SECTION 16.5 RESIDENTIAL TOWNHOUSE A(4) - R3A(4) ZONE
The lands zoned R3A(4) on Schedule A to this by-law:
16.5.1 shall only be used for the following purposes:
(a) Residential
- (1) a townhouse dwelling
- (2) a group home type 1
- (3) an auxiliary group home
- (4) a supportive lodging house
(b) Non-Residential
- (1) purposes accessory to the other permitted purposes
[40] In addition, section 2.2 of City of Brampton Zoning Bylaw 270-2004, provides that every person who contravenes any provision of this by-law is guilty of an offence and on conviction is liable to a fine as provided for in the Planning Act, R.S.O. 1990, c. P.13:
2.2 Violation and Penalty
Every person who contravenes any provision of this by-law is guilty of an offence and on conviction is liable to a fine as provided for in the Planning Act.
[41] The penalties for an individual convicted of contravening a provision of City of Brampton Zoning Bylaw 270-2004 is set out in section 67(1) of the Planning Act, R.S.O. 1990, c. P.13, which in the defendant's case could be a fine of up to $25,000 for a first conviction:
67(1) Every person who contravenes section 41, section 46, subsection 49 (4) or section 52 or who contravenes a by-law passed under section 34 or 38 or an order made under section 47 and, if the person is a corporation, every director or officer of the corporation who knowingly concurs in the contravention, is guilty of an offence and on conviction is liable,
(a) on a first conviction to a fine of not more than $25,000; and
(b) on a subsequent conviction to a fine of not more than $10,000 for each day or part thereof upon which the contravention has continued after the day on which the person was first convicted.
[42] Furthermore, section 34(1)(2) of the Planning Act, R.S.O. 1990, c. P.13, indicates that the councils of local municipalities, such as the City of Brampton, may pass zoning bylaws that restrict the use of a building within the municipality for or except for such purposes as may be set out in the bylaw, which would override the defendant's common law right to do anything that she wishes to her property in order to protect or benefit the community:
Zoning by-laws
34(1) Zoning by-laws may be passed by the councils of local municipalities:
Restricting use of land
- For prohibiting the use of land, for or except for such purposes as may be set out in the by-law within the municipality or within any defined area or areas or abutting on any defined highway or part of a highway.
Restricting erecting, locating or using of buildings
- For prohibiting the erecting, locating or using of buildings or structures for or except for such purposes as may be set out in the by-law within the municipality or within any defined area or areas or upon land abutting on any defined highway or part of a highway.
[43] In addition, section 4.1 of City of Brampton Zoning Bylaw 270-2004 indicates that the scope of the bylaw is for promoting the public health, safety, convenience, and general welfare of the residents of the area governed by the by-law:
Scope of bylaw
4.1 Scope
The provisions of this by-law shall be interpreted and applied so as to recognize that their purpose is to promote the public health, safety, convenience, and general welfare of the residents of the area governed by the by-law.
[44] Furthermore, the following definitions contained in section 5.0 of City of Brampton Zoning Bylaw 270-2004 are applicable to this proceeding:
SECTION 5.0 DEFINITIONS
DWELLING, TOWNHOUSE shall mean a building that is divided vertically above established grade into three (3) or more dwelling units where each dwelling unit is attached with another dwelling unit by a common wall, which may be a garage wall, not less than ten (10) square metres in area from the ground level to the roofline of the wall; and where each dwelling unit has an independent entrance to the front and rear yard immediately abutting the front and rear wall of the unit.
LODGING HOUSE shall mean a single detached dwelling in which residential accommodation is provided, or is intended to be provided in which each lodger does not have access to all of the habitable areas of the building and consists of more than three (3) lodging units; or a single detached dwelling in which lodging is provided for more than three (3) persons with or without meals.
LODGING UNIT shall mean a room with sleeping facilities supplied to a lodger or lodgers for the use of such person (s).
RESIDENTIAL UNIT shall mean a unit that:
(a) consists of a self-contained set of rooms located in a building or structure;
(b) is used or is intended to be used as a residential premises;
(c) contains kitchen and bathroom facilities that are used only by the occupants of the unit;
(d) is used as a single housekeeping unit, which includes a unit in which an occupant has exclusive possession of any part of the unit; and
(e) has a means of egress to the outside of the building or structure in which it is located, which may be a means of egress through another residential unit.
SUPPORTIVE LODGING HOUSE shall mean a supportive housing facility located within a single detached dwelling which accommodates no less than three (3) and no more than six (6) lodgers exclusive of staff and is subject to one or more of the following conditions:
- the operator or employees of the supportive lodging house are effectively paid to give guidance and assistance in the activities of daily living;
- the operator makes it known to the public or to persons such as hospital discharge planners, that care to residents is provided by the operator; and/or
- care is regularly provided to residents by the operator or an adult person employed by the operator to furnish guidance and assistance to the lodgers in the activities of daily living.
A supportive lodging house shall not include a lodging house, a group home type I, a group home type 2, a foster home, an auxiliary group home or a supportive housing facility.
USE OR TO USE shall include anything that is done or permitted by the owner or occupant of any land, building or structure directly or indirectly or by or through any trustee, tenant, servant or agent acting for or with the knowledge or consent of such owner or occupant, for the purpose of making use of the said land, building or structure.
ZONE shall mean an area of land designated for certain uses by this by-law.
[45] In addition, the zone classification R3A(4), which is the designation for the defendant's townhouse, is contained in section 3.1 of City of Brampton Zoning Bylaw 270-2004, and it is indicated there that the R3A(4) designation pertains to residential uses, but does not pertain to commercial, industrial, institutional, open space, flood plain, and agricultural uses:
SECTION 3.0 ZONES AND SCHEDULES
3.1 Zones
For the purpose of this by-law, the following zones are hereby established:
| Residential Rural Estate One | REI |
| Residential Rural Estate Two | RE2 |
| Residential Rural Estate Holding | REH |
| Residential Hamlet One | RHmI |
| Residential Hamlet Two | RHrn2 |
| Residential Holding | RH |
| Residential Single Detached A | RIA |
| Residential Single Detached A(1) | RIA(1) |
| Residential Single Detached A(2) | RIA(2) |
| Residential Single Detached A(3) | RIA(3) |
| Residential Single Detached B | RIB |
| Residential Single Detached B(1) | RIB(1) |
| Residential Single Detached B(2) | RIB(2) |
| Residential Single Detached B(3) | RIB(3) |
| Residential Single Detached C | RIC |
| Residential Single Detached C(1) | RIC(1) |
| Residential Single Detached D | RlD |
| Residential Semi-Detached A | R2A |
| Residential Semi-Detached A(1) | R2A(1) |
| Residential Semi-Detached A(2) | R2A(2) |
| Residential Extended | R2B |
| Residential Extended One | R2B(l) |
| Residential Semi-Detached C | R2C |
| Residential Townhouse A | R3A |
| Residential Townhouse A(1) | R3A(1) |
| Residential Townhouse A(2) | R3A(2) |
| Residential Townhouse A(3) | R3A(3) |
| Residential Townhouse A(4) | R3A(4) |
| Residential Street Townhouse B | R3B |
| Residential Street Townhouse B(1) | R3B(I) |
| Residential Street Townhouse C | R3C |
| Residential Apartment A | R4A |
| Residential Apartment A(1) | R4A(I) |
| Residential Apartment A(2) | R4A(2) |
| Residential Apartment A(3) | R4A(3) |
| Residential Apartment B | R4B |
| Composite Residential Commercial | CRC |
[46] Furthermore, under section 11.1 of the Municipal Act, 2001, S.O. 2001, c. 25, a "lodging house" is defined as any house or other building or portion of it, in which persons are lodged for hire, but does not include a hotel, hospital, long-term care home, home for the young or institution if it is licensed, approved or supervised under any other Act:
11.1 In this Part,
"lodging house" means any house or other building or portion of it in which persons are lodged for hire, but does not include a hotel, hospital, long-term care home, home for the young or institution if it is licensed, approved or supervised under any other Act; ("pension")
[47] Also, under section 1.4.1.2(1)(c) of the Ontario Building Code, O. Reg. 332/12, where particular minimum building standards are applicable to a building which is being used as a lodging house, a "lodging house" is defined to be a building in which its height does not exceed three storeys and its area does not exceed 600 m², and in which lodging is provided for more than four persons in return for remuneration or for the provision of services or for both, and in which the lodging rooms do not have both bathrooms and kitchen facilities for the exclusive use of individual occupants:
1.4.1.2. Defined Terms
(1) Each of the words and terms in italics in this Code has,
(c) the following meaning for the purposes of this Code:
Boarding, lodging or rooming house means a building,
(a) that has a building height not exceeding three storeys and a building area not exceeding 600 m²,
(b) in which lodging is provided for more than four persons in return for remuneration or for the provision of services or for both, and
(c) in which the lodging rooms do not have both bathrooms and kitchen facilities for the exclusive use of individual occupants.
[48] In addition, under section 9.3.1.1 of the Ontario Fire Code, O. Reg. 213/07, where there are particular statutory standards of fire protection and prevention that is applicable to a building which is being used as a lodging house, a "lodging house" is described as a building in which its height does not exceed three storeys and its area does not exceed 600 m², and in which lodging is provided for more than four persons in return for remuneration or for the provision of services or for both, and in which the lodging rooms do not have both bathrooms and kitchen facilities for the exclusive use of individual occupants:
SECTION 9.3 BOARDING, LODGING AND ROOMING HOUSES
Subsection 9.3.1. Application
Application
9.3.1.1.(1) This Section applies to boarding houses, lodging houses, rooming houses and private rest homes in which residents do not require care or treatment because of age, mental or physical limitations, where
(a) the building height does not exceed 3 storeys and the building area does not exceed 600 m²,
(b) lodging is provided for more than four persons in return for remuneration or the provision of services or both, and
(c) lodging rooms do not have both bathrooms and kitchen facilities for the exclusive use of individual occupants.
[49] Moreover, lodging houses are permitted to be operated in the City of Brampton, but the owner has to first obtain a municipal license issued under the City of Brampton Licensing Bylaw 1-2002 before they can operate such a business in Brampton. Under section 1 of Licensing Bylaw 1-2002, a "lodging house" is defined as a dwelling in which residential accommodation is provided or intended to be provided, with or without meals, for hire or gain, to three (3) or more lodgers, in which each lodger does not have access to all of the habitable areas of the building:
1. For the purposes of this By-law:
"lodging house" means a dwelling in which residential accommodation is provided or intended to be provided, with or without meals, for hire or gain, to three (3) or more lodgers, in which each lodger does not have access to all of the habitable areas of the building …
[50] Furthermore, under the City of Brampton Minimum Maintenance (Property Standards) Bylaw 104-96, a "lodging house" is defined under section 1(13) to mean a dwelling in which rooms or room and board are supplied for hire or gain, for more than two persons, but shall not include a hotel, motel or group home:
In this By-law:
1. …
(13) "lodging house" means a dwelling in which rooms or room and board are supplied for hire or gain, for more than two persons, but shall not include a hotel, motel or group home.
[51] In sum although "lodging house" is defined in City of Brampton Zoning Bylaw 270-2004 to mean a single detached dwelling in which residential accommodation is provided, or is intended to be provided in which each lodger does not have access to all of the habitable areas of the building and consists of more than three (3) lodging units; or a single detached dwelling in which lodging is provided for more than three (3) persons with or without meals, it does not, however, make reference to the lodging that is being supplied as being for hire or gain or for remuneration. Nevertheless, for the other statutes or bylaws that would apply to lodging houses in Brampton, the term "lodging house" has been defined as a building, part or a building, or a dwelling in which sleeping accommodation with or without meals, but with shared cooking and washroom facilities is provided or intended to be provided, for "hire or gain" or for "remuneration", and for the most part, for at least three or more persons, or in which there are three or more lodging units. Ergo, for the purposes of Brampton Zoning Bylaw 270-2004, reference to a lodging house will by necessary implication mean that there is a rental relationship between the occupants of a lodging house and the proprietor or owner of that house.
5. ISSUES
[52] The issues that have to be resolved in determining whether the prosecution has proven that the defendant has committed the charge beyond a reasonable doubt are the following:
(a) Was the defendant, who is the owner of the townhouse located at 53 Craigleigh Crescent, Brampton, using or permitting her townhouse to be used as a lodging house between June 11 and August 8, 2013?
(b) Is evidence of locks on the door handles of the four upstairs bedrooms, a room containing a bed on the basement level, and a bedroom on the main level, sufficient to prove beyond a reasonable doubt that the defendant's townhouse was being used as a "lodging house" as defined under the City of Brampton Zoning Bylaw 270-2004?
6. ANALYSIS
[53] The City of Brampton's Official Plan functions as a road map for building and developing the municipality. It is also a legal document that guides the location and type of housing, industry, offices and shops, as well as the infrastructure needed to support the development of the city, such as building streets, parks, transit, schools and recreational amenities. In addition, the goals and objectives set out in Brampton's Official Plan operate to balance the interests of each property owner with those of the greater community. Moreover, Brampton's Official Plan contains comprehensive policies on all land use aspects to accommodate the growth forecasted to the year 2031, and to guide planning and development in the City of Brampton. The Official Plan is also required to conform to current Provincial legislation, plans, policies, and guidelines, such as to the Growth Plan for the Greater Golden Horseshoe, 2006 (Places to Grow Act, 2005, S.O. 2005, c. 13), O.I.C. No. 1221/2006. It must also conform to the Official Plan for the Regional Municipality of Peel.
[54] Brampton's current Official Plan was adopted in October of 2006 by Brampton City Council (see City of Brampton Bylaw 358-2006), which was then approved in October of 2008 by the Ontario Municipal Board. However, some parts of the Official Plan are still under appeal before the Ontario Municipal Board.
[55] More important, the Official Plan for the City of Brampton sets out the general objectives and policies for future land use in the municipality while the City of Brampton's Zoning Bylaw contained in Bylaw 270-2004 puts that plan into effect and also provides for its day-to-day administration.
[56] Furthermore, in respect to the present case, section 4.1.5.4 of the Official Plan for the City of Brampton permits "lodging houses" in any area of Brampton that permits residential uses, but is subject to zoning, licensing, and safety bylaws or regulations:
s. 4.1.5.4 The City shall permit rooming, boarding and lodging houses in residential designations, subject to zoning, licensing, and safety regulations and the ability to integrate such housing forms with the host neighbourhoods in an acceptable and appropriate manner, where such housing forms are permitted in the applicable Secondary Plan.
[57] Moreover, as it applies to the present case, section 5.2 of the City of Brampton's Official Plan defines a lodging house as a single detached dwelling with more than 3 lodging units or as a single detached dwelling in which lodging is provided for more than 3 persons with or without meals, and in which each lodger does not have access to all habitable areas of the building:
5.2 DEFINITIONS
For general clarification of terms used within the Plan, the following definitions are provided:
"Lodging House" shall mean a single detached dwelling in which residential accommodation is provided, or is intended to be provided in which each lodger does not have access to all of the habitable areas of the building and consists of more than three (3) lodging units; or a single detached dwelling in which lodging is provided for more than three (3) persons with or without meals.
[58] Furthermore, section 5.0 of Brampton Zoning Bylaw 270-2004 contains the same definition for a "lodging house" as Brampton's Official Plan and permits them in select residential and commercial zones:
SECTION 5.0 DEFINITIONS
LODGING HOUSE shall mean a single detached dwelling in which residential accommodation is provided, or is intended to be provided in which each lodger does not have access to all of the habitable areas of the building and consists of more than three (3) lodging units; or a single detached dwelling in which lodging is provided for more than three (3) persons with or without meals.
[59] As well, under section 10.15 of City of Brampton Zoning Bylaw 270-2004, a lodging house is required to be located in a single detached dwelling; it shall also occupy the whole or part of the single detached dwelling; it must also be separated by a minimum distance of 305 meters from any other lodging house; and it must also comply with all licensing requirements under the Brampton Lodging House Licensing Bylaw (Licensing Bylaw 1-2002). In addition, section 10.9.1(g) of Zoning Bylaw 270-2004 requires there be a minimum of 0.5 parking spaces provided for each lodging unit in addition to the 2 required parking spaces for the dwelling:
10.15 Provisions for Lodging Houses
Lodging Houses shall be subject to the following requirements and restrictions:
(a) a lodging house shall be located in a single detached dwelling;
(b) the lodging house shall occupy the whole or part of the single detached dwelling;
(c) a minimum separation distance of 305 metres shall be maintained between a lodging house and any other lodging house; and
(d) a lodging house shall comply with the requirements of the Lodging House Licensing Bylaw.
10.9 Parking Space Requirements
10.9.1 Parking spaces are required in Residential Zones in accordance with the following provisions:
(g) For lodging houses a minimum of 0.5 parking space for each lodging unit, plus two parking spaces for the proprietor, shall be provided.
[60] Furthermore, the City of Brampton requires lodging houses operated or situated within the municipality to be licensed under City of Brampton Licensing Bylaw 1-2002. Presently, these lodging house licenses must be renewed annually for a fee of $117 (see Appendix A to Licensing Bylaw 1-2002). For the renewal of the license, an inspection report from the City of Brampton Fire and Emergency Services and a Property Standards inspection report indicating that there are no apparent violations of applicable bylaws or legislation are also required for a renewal.
[61] In addition, City of Brampton Zoning Bylaw 270-2004 contains provisions that regulate the use, size, height, and location of buildings and structures on all properties within the City of Brampton. The zoning bylaw's provisions will also specify the permitted uses for certain areas or lands, such as for commercial or residential use, and will also establish the required standards, such as the building size and the location in each zone. Furthermore, the goal of Brampton's zoning bylaw is to create harmonious neighbourhoods and communities by ensuring that adjacent land uses are compatible and by setting regulations that govern various aspects of a building's form or plan, its lot coverage, and its architectural style.
[62] Equally, because of the number of deaths that have been caused by fires in illegal rooming or lodging houses that had not been in compliance with Fire or Building Codes, such zoning bylaws have been enacted by municipalities to control the creation and operation of lodging houses, which would then protect the health and safety of people who reside in rooming or lodging houses. Hence, for the protection of the public, especially for those of lower income, the City of Brampton must be made aware or informed of which residential dwellings or houses are being used as multi-unit houses, in order to protect vulnerable people from unscrupulous landlords who may not provide the necessary and adequate building standards or fire protection and other safeguards that would protect the safety and health of the inhabitants of such multi-unit houses.
[63] Moreover, City of Brampton Zoning Bylaw 270-2004 prohibits single-family residential homes or dwellings, which are located in certain areas of the municipality, from being used as a multi-unit rooming or lodging house. This legal control over the uses that a residential property may have is intended to protect the nature and character of the neighborhood and to protect the safety of tenants from owners, who may wish to turn their properties into an income-generating venture where rooms in these homes may be rented out to as many tenants as they can possibly squeeze into the house. Especially, considering that by turning their single-family house into a rooming or lodging house, the owner could generate substantial income from rents. However, this illegal practice would also add many more people and vehicles to a residential neighborhood that had not been designed for such density or to accommodate an increase in traffic or the need for municipal services, and may also put tenants at risk if the homes do not meet minimum standards under applicable building and fire codes for multi-unit buildings. Additionally, if such rooming or lodging houses were allowed to operate in an area zoned only for single-family residential use then the market value of other properties located in that neighbourhood could be negatively affected by the operation of these illegal rooming or lodging houses.
(a) What are the criteria and factors to consider in deciding whether a particular residential dwelling is being used as a "lodging" house?
[64] A lodging house, as defined under section 5.0 of City of Brampton Zoning Bylaw 270-2004, means a single detached dwelling in which residential accommodation is provided and where each lodger does not have access to all of the habitable areas of the building, and consists of more than three lodging units or a single detached dwelling in which lodging is provided for more than three persons with or without meals.
[65] More important, one of the criteria for the definition of a residential unit under section 5.0 of City of Brampton Zoning Bylaw 270-2004 is that it is supposed to be used as a "single housekeeping unit", which includes a unit in which an occupant has the exclusive possession of any part of the unit, and which contains kitchen and bathroom facilities that are used only by the occupant or occupants of the unit:
RESIDENTIAL UNIT shall mean a unit that:
(a) consists of a self-contained set of rooms located in a building or structure;
(b) is used or is intended to be used as a residential premises;
(c) contains kitchen and bathroom facilities that are used only by the occupants of the unit;
(d) is used as a single housekeeping unit, which includes a unit in which an occupant has exclusive possession of any part of the unit; and
(e) has a means of egress to the outside of the building or structure in which it is located, which may be a means of egress through another residential unit.
[66] Now for the instant case, the evidence adduced by the prosecution in the trial indicates that the defendant's townhouse at 53 Craigleigh Crescent is three-level townhouse where there are four bedrooms on the upper level, a bedroom on the main floor, a room with a futon bed on the basement level, one kitchen on the main level, a kitchenette in the basement level with an electrical outlet for a stove but without there being a stove in the kitchenette. In addition, Bylaw Enforcement Officer Brown had noticed locks on the door handles of the four bedrooms on the upper level and a lock on the door handle of a room containing a futon bed on the basement level and a lock on the door handle of the bedroom on the main floor. In short, there are at least six bedrooms or rooms for sleeping accommodation in the defendant's townhouse. However, during Brown's inspections respectively on April 18 and June 11, 2013, he had observed all the rooms in the townhouse being unlocked, which permitted him to be able to go inside various rooms and inspect those unlocked rooms.
[67] Moreover, Enforcement Officer Brown had also testified he believed that the two people that he had observed being in the defendant's townhouse on two separate occasions, when he was conducting an inspection of the townhouse at 53 Craigleigh Crescent for a possible zoning bylaw contravention, had been "boarders", and that the townhouse was being used as a lodging house, which he had deduced from his conversation with them and with the owner's daughter who was present in the house on the first inspection conducted on April 18, 2013. Brown had also formed the opinion on April 18, 2013, that there were two tenants living in the basement and two tenants living in the upstairs bedrooms.
[68] However, is that evidence enough to prove beyond a reasonable doubt that the defendant had been using or permitting her residential townhouse to be used as a lodging house? Bear in mind, that the defendant had not been charged the offence of intending to use her townhouse as a lodging house, but only charged with actually using or permitting her townhouse to be used as a lodging house under section 16.5.1 of City of Brampton Zoning Bylaw 270-2004.
[69] In Neighbourhoods of Windfields Limited Partnership v. Death, [2008] O.J. No. 3298 (S.C.J.O.), at para. 56, Howden J. in considering whether 30 houses in a particular neighbourhood in the City of Oshawa, which is close to the University of Ontario Institute of Technology and to Durham College, were being illegally used as lodging houses in contravention of the City of Oshawa zoning bylaw (Oshawa By-Law 60-94), had held that the definition of "lodger" informs the other definitions of "lodging house" and "lodging unit" by indicating that occupants of a lodging house have a rental relationship to the proprietor. In particular, Howden J. noted that in such a relationship rent is paid for the sleeping accommodation and for the shared cooking and washroom facilities. In addition, Justice Howden held that the Oshawa zoning bylaw had differentiated between a lodging house and single detached dwellings, and that the key differentiators between the two concepts were function and design. Justice Howden also held that the only use permitted under that particular zoning designation under the City of Oshawa Zoning Bylaw is use as a single detached dwelling, which in turn means one dwelling unit designed to function as a single housekeeping establishment:
For instance, in an R1 zone, the only use permitted is single detached dwelling, which in turn means one dwelling unit designed to function as a single housekeeping establishment. All other uses are prohibited in the R1 zone. Lodging houses, which are specifically defined to include lodging units, are not permitted in the R1 zone. The by-law clearly differentiates between the two. The changes to the "lodging house" and "lodging unit" definitions in 2000 reflected a desire by the City to differentiate between single detached dwellings and lodging houses. The key differentiators used by the City are function and design. The definition of "Lodger" informs the other definitions by indicating that occupants of a lodging house have a rental relationship to the proprietor. Rent is paid for sleeping accommodation together with shared cooking and washroom facilities.
[70] It should also be mentioned that the definition of "lodging house" in City of Oshawa Zoning Bylaw 60-94 is similar to the definition of "lodging house" in Brampton's Zoning Bylaw 270-2004, in that both definitions differentiate between a lodging house and a residential dwelling or unit that is designed for use as a "single housekeeping establishment", and in which a residential or dwelling unit is designed to be used as a "single housekeeping establishment" that contains kitchen and bathroom facilities that are used only by the occupants of the residential unit, unlike a lodging house where kitchen and bathroom facilities are shared by all the lodgers. However, the City of Brampton zoning bylaw is different from the Oshawa zoning bylaw to the extent that the Brampton zoning bylaw defines a "lodging house" as a dwelling in which residential accommodation is provided, or "is intended to be provided", while the City of Oshawa Zoning Bylaw does not include in its definition of lodging house an intention to function as a lodging house. As such, a home owner under Brampton's zoning bylaw may be found to contravene section 16.5.1 by actually using her townhouse as a lodging house or by intending to use her townhouse as a lodging house.
[71] Furthermore, the terms "lodger", "lodging house", and "lodging unit" are defined under section 2.1 of City of Oshawa Zoning Bylaw 60-94. Under the Oshawa zoning bylaw, "lodger" means any person who pays rent, fees or other valuable consideration to a proprietor for living accommodation in which cooking or washroom facilities are shared with other persons; a "lodging house" means a building or a part of a building, that contain three to ten lodging units, which does not appear to function as a dwelling unit; and a "lodging unit" means one or more rooms within a lodging house used or designed to be used for sleeping accommodations which may contain cooking or washroom facilities, but not both:
SECTION 2: DEFINITIONS
2.1 For the purpose of interpreting the provisions set forth in this By-law, the following definitions shall apply.
"LODGER" means any person who pays rent, fees or other valuable consideration to a proprietor for living accommodation in which cooking or washroom facilities are shared with other persons.
"LODGING HOUSE" means a building or a part of a building, containing three to ten lodging units, which does not appear to function as a dwelling unit, although one may be included with the lodging units. It includes, without limitation, a rooming house and a boarding house, a fraternity or sorority house. It does not include a hotel, a crisis care residence, a hospital, a group home, a correctional group home, a bed and breakfast establishment, a nursing home, a flat, an apartment building or a block townhouse. A lodging house may involve shared cooking or washroom facilities. Meals may or may not be provided to residents. Common areas, such as living rooms, may or may not be provided.
"LODGING UNIT" means one or more rooms within a lodging house used or designed to be used for sleeping accommodations. Lodging units may contain cooking or washroom facilities, but not both.
[72] In addition, a dwelling unit is also defined under section 2.1 of City of Oshawa Zoning Bylaw 60-94 to mean a unit consisting of one or more rooms, in which the unit contains toilet and cooking facilities and which is designed for use as a single housekeeping establishment:
"DWELLING UNIT" means a unit consisting of one or more rooms, which unit contains toilet and cooking facilities and which is designed for use as a single housekeeping establishment.
[73] Ergo, a "residential unit" under the Brampton zoning bylaw is defined as a "single housekeeping unit", while under the Oshawa zoning bylaw, a "dwelling unit" is defined as a "single housekeeping establishment". As such under both zoning bylaws, a lodging house would not be considered to be a single housekeeping unit or establishment.
[74] Furthermore, in Neighbourhoods of Windfields Limited Partnership v. Death, [2008] O.J. No. 3298 (S.C.J.O.), at paras. 76 and 77, Howden J. set out a list of criteria and factors which would indicate whether a particular house was being actually used as a lodging house operation for the purposes of City of Oshawa Zoning Bylaw 60-94:
In this case, I find, in accordance with the purpose of the by-law and the contextual meaning of the R1 provisions, that the following are the criteria or factors which comprise a "lodging house" operation:
(a) There must be between three and ten lodging units or bedrooms used by individual lodgers.
(b) The lodging units are occupied by lodgers paying rent, fees or other consideration.
(c) The lodging units are rooms used or designed to be used for sleeping accommodation, with cooking or washroom facilities, not both.
(d) Cooking and/or washroom facilities are shared by the lodgers in the building.
(e) The building does not function as a dwelling unit.
In considering the final element, of course this returns us to the consideration and interpretation of "single housekeeping establishment." The elements of the "lodging house" use indicate the boundary to what can be considered "single housekeeping establishment". Additionally, in view of the type of advertising of these buildings for rental as (in effect) boarding houses and confirmation of their use in the insurance policies of most of the buildings as "student housing" and in view of the misrepresentations by home owners of their purpose in changing the design of the building in order to facilitate their use as lodging houses, in most cases they have become rental businesses not permitted in the R1 zone. Buildings whose use comes within the above criteria for a "lodging house" are not being used for the purpose of a "single housekeeping establishment". They are lodging houses and are not permitted in the R1 zone. In terms of any test requiring control, the payment of rent as a condition of occupation acknowledges the ultimate control of the owner. I will now proceed to deal with each of the properties singly with these criteria in mind, within the purpose and scheme of the by-law as a whole.
[75] On the other hand, Howden J. in Neighbourhoods of Windfields Limited Partnership v. Death, at paras. 91 to 93, held that evidence of intent to operate a lodging house in a particular home is not evidence that the building was actually being used as a lodging house in contravention of the Oshawa zoning bylaw, and had found that there had been no evidence that one particular property in question was being actually used as a lodging house. Furthermore, in respect to that particular house out of 30 houses that were under scrutiny, Howden J. held that although the house contained five bedrooms, as well as these rooms were being advertised for rental to students, and that there were four bedrooms that had been available for the rental rates that were advertised and furnished with beds and computer desks, and that there were three washrooms in the house, and that the latest ad on the internet indicated immediate occupancy for students, he found that this had only been evidence of the intention to use the house as a lodging house, but he did not find that that had been any evidence of the actual use of this property had been for three or more lodging units and that any lodgers had been paying rent, nor of any use other than by the owners as a single dwelling unit:
This house was built with four bedrooms. It now has five. Rooms were advertised for rental to students in 2007. There were four bedrooms that were available for the rental rates advertised, furnished with beds and computer desks. There are three washrooms. The latest ad on the internet prior to this application was on January 31, 2007, indicating immediate occupancy for students.
Mr. Bai has sworn that he, a professional engineer, lives with his wife Ms. Wen in this house. The home has not been altered to add bedrooms as potential lodging units. The affidavit evidence as to use from the investigator Paul Ferguson alleges that no additional alterations have occurred to this house to accommodate lodging units. He gives no source for his belief that neither owner lives in this home. He attached a blank "roomer" agreement obtained from the son who is not the registered owner.
There is some evidence of intent only, not actual use as a lodging house. In view of the lack of evidence of actual use of this property for three or more lodging units, of any lodgers paying rent, nor of any use other than by the owners as a single dwelling unit, the application is dismissed against the respondents Mr. Bai and Ms. Wen. …
[76] Howden J. also in Neighbourhoods of Windfields Limited Partnership v. Death, at para. 95, had found that several properties that were being managed by a particular individual had been actually used as lodging houses because the occupants in each home had been renting individually the exclusive use of one bedroom and the shared use of the rest of each house including kitchen facilities and washrooms; that there were five to eight lodging units in each home; that the occupants were on short term leases for 12 months or less with each paying rent to the owner of the house; that each occupant had exclusive sleeping accommodation, but that cooking or washroom facilities had been shared by all of the lodgers; and that each building had been altered to increase the number of bedrooms in order to accommodate sufficient lodgers for a return on the operation:
These properties are all managed by Jacky Chan and all but one are partially or wholly owned by him. Ms. Leung is the mother-in-law of Mr. Chan. The occupants in each home are renting individually the exclusive use of one bedroom. Use of the rest of each house including kitchen facilities and washrooms are shared. I find that the following elements of a lodging house are proven, on the evidence of Mr. Ferguson's affidavit and Mr. Chan himself:
- From five to eight lodging units are provided in each of these homes.
- The occupants are on short term lease arrangements for twelve months or less, each paying rent to the owners.
- Each lodger has exclusive sleeping accommodation
- Cooking or washroom facilities are shared by all of the lodgers. The lodgers decide how the sharing occurs and how housekeeping duties are carried out, except for the exterior yards. However that does not alter the function and design of the homes which now accommodate lodging house operations
- Each building has been altered to increase the bedrooms in order to accommodate sufficient lodgers for a return on the operation. None of the owners live in these houses, they live in Thornhill or Markham. The groups are together only because of their temporary need for short term rental accommodation. The bedrooms were increased beyond the number applied for and the purpose of each was said (on the permit application by Mr. Chan) to be not for student lodging houses, but for "single family" use. As in all of the similar cases of misrepresentation of the proposed use in the building permit applications, this indicates that Mr. Chan was well aware of what he was doing and therefore did it covertly as the use to which these properties were being put is not within the R1 zone provisions. Why would the person applying for the building permits not give accurate information to the City, but for the fact that it was known by him that these were not to be used as single detached dwellings but as lodging houses? The answer is obvious and Mr. Chan's evidence, as well as his admitted destruction of documents, only confirms it. (Cross-examination transcript brief, volume 2 pages 20-25 and 27) I find that each of these properties was being used in 2007 in contravention of By-law 60-94.
[77] In addition, in Neighbourhoods of Windfields, Howden J. found that the particular house under consideration at paras. 96 to 100, had been actually used as a lodging house because of the evidence that indicated that the registered owners of the house did not occupy it as a residence, despite their statutory declaration in order to get the G.S.T. occupancy rebate; that the house had been converted into six bedrooms; that the bedrooms with shared facilities were rented out on short-term tenancies geared to the university academic year; that the rental terms for use of each bedroom and the shared remaining facilities were for four to eight month terms; and that there had been no evidence that these students occupying the house had formed a living unit together, but that each had simply an individual need for short-term room rental:
This house was built with four bedrooms. The registered owners do not occupy it as a residence, despite their statutory declaration in order to get the G.S.T. occupancy rebate. It has been converted into six bedrooms, two on the main floor where the dining and living room had been, four on the upper level. The son of Mr. Dhodia advised Mr. Ferguson and his companion when they visited the property that three more bedrooms were to be added in the basement in May, 2007. As of May 2007, therefore nine bedrooms with shared facilities were to be rented out on short-term tenancies geared to the university academic year.
The rental terms for use of each bedroom and the shared remaining facilities were said to be four to eight month terms.
In April 2007, Vinod Dhodia applied for a building permit without mentioning any conversion of the home to additional bedroom space. He stated the home was to be used for "single-family residential", though it is continuously used for lodging accommodation.
I find this property to have all the elements of a lodging house - six lodging units going to nine, paid for through a rental arrangement, each lodging unit designed and used for sleeping accommodation, with shared cooking and washroom facilities. The home is now designed and is functioning as a lodging house business occupied by individual lodgers who share facilities and are together only due to their temporary educational and housing needs in sufficient numbers to provide a return to the owners. There is no evidence that these students formed a living unit together. Each simply has an individual need for short-term room rental.
I find that the use of this property meets all of the elements of a lodging house and was used therefore in contravention in 2007 of By-law 60-94's R1 zoning requirements.
[78] Moreover, Howden J. held, at paras. 111 to 113, in respect to another house under consideration in Neighbourhoods of Windfields, that the house was actually being used as a lodging house based on evidence that the house had been mortgaged to 100 percent of the purchase price; that the owner had advertised himself as a landlord of off-campus housing for that house; that each bedroom in the house had a key lock and had been rented separately to each tenant; that there were five tenants who were occupying the house; that each renter or boarder pays the owner rent on a ten-month lease; that each unit is designed for sleeping accommodation; that cooking and washroom facilities were shared in the house; and that the persons living in the house were simply boarders residing together out of a temporary need for housing:
The evidence of Mr. Ferguson is that this was built as a three bedroom home on a 30-foot lot. Mr. McGivery lives elsewhere. The home is mortgaged to 100 percent of the purchase price. On February 20, 2007, Mr. McGivery identified himself on the internet in a rental advertisement as the landlord, with rooms for "four to five fun and exciting Students", opening May 1/07 as an "off-campus Student Residence". Mr. McGivery told Mr. Ferguson on his visit to the property that two bedrooms were to be added to the existing three within two weeks of February 27, 2007. Each bedroom was rented separately to each tenant, with a key lock on each room.
Under cross-examination, Mr. McGivery admitted that five tenants are occupying this house, two in the basement bedrooms and three upstairs. He assumed that each used his or her own bedroom. (Cross-examination, Q. 42) He added two bedrooms in the basement and a washroom without any building permit. Each tenant or boarder pays him rent on a ten month lease (Cross-examination, Q. 61-74). Mr. McGivery refused production of rent cheques and failed to attach the last three pages of the sample lease which he annexed to his affidavit as an exhibit.
I find on the evidence of Mr. Ferguson and Mr. McGivery, and based on his refusal to produce information which he was lawfully required to do, that there are five lodging units in this house. Each lodger paid rent to him for his/her unit. Each unit is used or designed for sleeping accommodation, and washroom and cooking facilities are shared. The persons living there are simply boarders residing together out of a temporary need for housing and the house has been converted to accommodate rooms for rent as part of the lodging house operation of Mr. McGivery. I find that this property is now designed and used as a lodging house for five lodgers and so contravenes By-law 60-94.
[79] And, for another house under consideration in Neighbourhoods of Windfields, Howden J. held, at paras. 114 to 118, that particular house was actually being used as a lodging house based on evidence that the house had a high ratio mortgage that was 92% of the purchase price, which would have required the owner to occupy the house as his principal residence. However, the evidence indicated instead that on internet advertising, the owner had identified himself as the landlord of the house who did not reside in this house; that the house had been converted to six bedrooms with six boarders; that the living room was now being used as two bedrooms with key locks; that rent is paid individually to the owner; that the six boarders had exclusive use of a bedroom but had to share cooking and washroom facilities; that the boarders had no ties with each other as a group or unit other than the need for short term temporary housing; and that the house had been covertly converted into a lodging house without any notice or application to the City of Oshawa:
This house was purchased with four bedrooms. It is mortgaged to 92 percent of the price, a high ratio mortgage requiring occupation by the purchaser as his principle residence. Mr. Myers is in the business, owning three other rental properties in Pickering and Ajax. He identified himself in his internet advertising of this property as the landlord, but he does not reside in this house.
On a property visit, Mr. Ferguson was shown around by one of the roomers. The house now is converted to six bedrooms for six boarders. The living room is used as two bedrooms, each with a key lock. Two bedrooms were in the process of being built in the basement with a second kitchen and another washroom, making a total of eight for rent in 2007. Mr. Ferguson's information from Mr. Myers through Mr. Zidner (on another visit) was that the basement was to be completed by February 28, 2007. Rent is paid individually to Myers. No mention was made, in Myers' application for the building permit, of adding bedrooms to the original four. The proposed use stated in the application was "Res.". Mr. Myers informed a by-law officer that he was renting two rooms and residing himself in the home. The by-law officer warned him of possible charges if the "rec rooms and storage room" identified by him to the officer became used for other bedrooms, according to the inspector's note produced as an exhibit by Mr. Myers. Mr. Myers said in his affidavit that he was told that he was in full compliance and the file would be closed. This is not borne out by the inspector's note.
Mr. Myers' affidavit is guarded and makes no attempt at a frank history of the use of this property. From Mr. Ferguson's evidence, this property was being used by six roomers, each with exclusive use of a bedroom and shared use of washroom and cooking facilities. Two added bedrooms were in the process of being completed, allowing for eight boarders in the future.
Mr. Myers' own affidavit indicates he was less than frank with the by-law officer when he said he only rented two rooms. At the time, the officer noted that parts of the house were locked and so were not accessible to him.
I find that the use of this house in February and March, 2007 has all the attributes of a lodging house operation, including boarders with no ties as a group or unit other than the need for short term temporary housing. The house was covertly converted into a lodging house without any notice or application to the City. I find that its use in 2007 was in contravention of By-law 60-94 and the circumstances of its conversion indicate a continuing contravention of the R1 provisions of the by-law.
[80] Also, for another house under consideration in Neighbourhoods of Windfields, Howden J. held, at paras. 119 to 122, that the particular house was being used simply as a lodging house operation based on evidence that there were five or more bedrooms that had been advertised on the internet for use as student housing; that seven bedrooms of the house were occupied by eight students; that all the bedrooms had key locks; that rent is paid by each roomer; that there were three refrigerators in the house with one of them being in the basement; that the occupants of the bedrooms had to share washroom and cooking facilities; and that there was no evidence that the eight students were living there together as a "single housekeeping establishment", other than for a temporary short term need for housing:
This house was purchased with four bedrooms on a 50-foot lot. Five or more bedrooms were advertised on the internet in February 2007 for use as student housing. Mr. Ferguson's visit to the house in February indicated seven bedrooms in use, occupied by eight students, one unit including the girlfriend of a male resident. An eighth bedroom was planned in the basement rec room, the owner's son told Mr. Ferguson. All bedrooms have key locks. Rent is paid by each roomer.
The additional bedrooms were added without any application for a building permit for interior alterations. The house was being advertised as "all inclusive" and "good cheap alternative then Residence or those small homes," with all utilities and six parking spots; in fact, there is only a two-car garage.
I find that this house contained seven lodging units in 2007, each with sleeping accommodation. There were three refrigerators, one in the basement. The occupants of the bedrooms were sharing washroom and cooking facilities. That is an inference that I can reasonably draw as the house was described in the advertisement as "all inclusive" and as a "residence". Its use was converted without notice to the City.
I find there to be no evidence for the occupants to be living there together, other than out of a temporary short term need for housing. There is no single housekeeping establishment evidenced here within the meaning of By-law 60-94, simply a lodging house operation. I find that this house was being used in 2007 in contravention of By-law 60-94 as a lodging house, a use not permitted in this R1-zoned location.
[81] Furthermore, at paras. 123 and 124, for another house under consideration in Neighbourhoods of Windfields, Howden J. held that the particular house was actually being used as a lodging house based on evidence that four tenants or lodgers had occupied individually each of the four upstairs bedrooms; that each one of them had paid rent individually; that the house had been advertised for rental of rooms with new appliances provided and high speed internet in each room; that each rented a bedroom where they had to share cooking and washroom facilities; and that they did not form a similar unit to a family grouping with some ties to each, other than having a temporary need for housing as students:
This four-bedroom house (as built) is subject to a 93 percent high ratio mortgage. Mr. Ferguson's visit in February 2007 revealed that four tenants lived in the four upstairs bedrooms and Mr. Smith occupied the basement as a complete unit. The conversion of the basement was done without any application for a building permit or notice to the City in order to allow the four upstairs bedrooms to be devoted to four lodgers. Each occupant of the four bedrooms pays rent individually. The house was advertised for rental of rooms, with new appliances provided and high speed internet in each room.
I find that all the elements of a lodging house have been proven in this case. The boarders share cooking facilities, each rents a bedroom with shared washroom facilities and they form no similar unit to a family grouping with some ties to each, other than a temporary need for housing as students. I find that this property was being used in contravention of By-law 60-94 as a lodging house, a use not permitted in the R1 zoned area.
[82] In addition, at paras. 126 to 128, for another house at issue in Neighbourhoods of Windfields, Howden J., had to consider the argument put forth that five students had lived in the house together as a "single housekeeping unit" for the reasons that they did not lease individual rooms, that there were no locks on the bedroom doors, that they had agreed on how the bedrooms would be allocated, that their relationship had preceded their occupation of the house, that they had all renewed the lease together and were staying on as a group for one more year, and that the owner had not advertised individual rooms for rent in the house. However, Justice Howden did not agree with that argument, and concluded instead, that even though the five student were friends, the particular grouping of these five friends in one house had been for temporary individual housing needs and were not as a basic unit like a family or other similar bond of cohabitation in a state of singleness', as well as the leases had been short term for the temporary housing needs of those five individuals. Moreover, Howden J. had also determined that the house had been altered in design to accommodate the lodging house business or rental operation and its larger commercial expenses:
Counsel for Mr. and Mrs. Symes argues that, following Brown Camps, the five students lived together as a single housekeeping unit, they do not lease individual rooms, and no locks are on the bedroom doors. They agree on how the bedrooms are allocated. Their relationship is said to precede their occupation of this house and they all renewed and are staying on as a group for one more year. Unlike the other homes, Mr. and Mrs. Symes have not advertised rooms for rent.
Mr. Montgomery argues that the addition of two bedrooms and a bathroom does not change the single-dwelling use here, and there is no breach of the zoning by-law.
I find that the additional two bedrooms, added without seeking any permit from the City, coupled with rental of the five bedrooms, not simply two, does alter the use of this property. Mr. and Mrs. Symes rent bedrooms and washroom facilities to five individuals who each have one bedroom for sleeping accommodation. The home's design is altered to accommodate a rental operation and its larger commercial expenses. The leases are short term for temporary housing needs of the five individuals. They may be friends, but the particular grouping of these five friends in one house is for temporary individual housing needs, not as a basic unit like a family or other similar bond of cohabitation in a state of singleness'. I find that the house was altered in design to accommodate what is a lodging house business and as such its use contravenes By-law 60-94. The Browns Camps case is distinguishable in that the issue in that case was voluntariness of occupation which is not an issue here. As well, I am dealing with the particular zoning regulations in this case and not those found in the Browns Camps decision.
[83] As well, in respect to two other houses in Neighbourhoods of Windfields, Howden J. had found at paras. 131 to 134 that even though the lodgers' names were all on one lease document and were responsible for the total rent for the house, it did not change the fact that the houses were being used illegally as actual lodging houses from the evidence that both houses had more than three bedrooms and were occupied by lodgers who had to share cooking and washroom facilities. Justice Howden also concluded that there had been no evidence of any reason for the renters grouping together other than the need of each for temporary housing, and that the two homes were no longer designed for use as a single housekeeping unit, nor would they function as a single housekeeping unit. In addition, for one of the houses, there had been locks for each bedroom:
I find that 2139 Minsky Place was changed in its internal design without notice to the City in order to accommodate six rental units, each one with sleeping accommodation. The lease includes all of the lodgers on one document, who are said to each owe the total rent. This does not change the fact that this property's use has been effectively converted to a lodging house operation containing accommodation for six lodgers, with shared cooking facilities and washroom facilities on a short term lease to cover the student's academic year. There is no evidence of any reason for the renters grouping together other than the need of each for temporary housing. The home is no longer designed for use for a single housekeeping unit nor does it function as a single housekeeping unit. Like the others in contravention, what is driving its use is the heavier expense load of mortgage, taxes, insurance and the need for a business return.
I find that this property as such is being used in contravention of By-law 60-94 as R1 provisions. If this home returned to its original number of bedrooms, there would be two for the owners and their household and two for rental which would not offend the by-law. A lodging house requires three units as a minimum.
44 Norland Circle has two added bedrooms; it now has five in all. The permit obtained for the renovation described the proposed use as "single family". In the affidavit of Ms. Tomlinson, each bedroom houses one boarder on no more than a one year rental arrangement. Each bedroom has a lock. As with 2139 Minsky Place and for the same reasons, this house was being used in 2007 as a lodging house in contravention of By-law 60-94.
[84] The owners and developer of the houses under scrutiny then appealed Howden J.'s decision where he had concluded that most of those houses were being put to an illegal use by the owners that had not been permitted by City of Oshawa Zoning Bylaw 60-94. The Court of Appeal for Ontario in Neighbourhoods of Windfields Limited Partnership v. Death, [2009] O.J. No. 1324, at paras. 2 to 4, found no error in Howden J.'s findings and conclusions that there had been no relationship among the renters in the individual houses, other than their use and occupation of single rooms rented for short-term accommodation, as well as no legal error in Howden J. considering as a relevant factor how the renters related amongst themselves when determining whether they constituted a "single housekeeping establishment":
… Essentially, this was a fact-driven application. The application judge had to draw a line between two types of accommodation, single dwelling establishment and lodging house as defined in by-law 60-94 of the Corporation of the City of Oshawa. He identified a broad range of factors to consider in relation to the definitions of the two categories of houses and then applied those factors individually to the 30 houses in question.
While there were some differences in the facts relating to the different landlords and their houses, the application judge found that generally the appellants purchased their houses for the purpose of renting out bedrooms on a room-by-room and a short-term basis to individual tenants, added extra rental bedrooms without building permits or with building permits that misrepresented use, and insured the properties as "rooming houses" and "student housing". He found that the essence of the relationship between the appellants and their renters was one of "lodger" and "proprietor" as defined in the by-law. He essentially found that there was no relationship between the renters other than their use and occupation of single rooms rented for short-term accommodation.
We see no legal error in the application judge's treatment of the relevant statutory provisions and case law. In particular, we reject the submission that s. 35(2) of the Planning Act which prohibits "distinguishing persons who are related and persons who are unrelated in respect of the occupancy or use of a building" barred the application judge from considering as a relevant factor how the renters related amongst themselves when determining whether they constituted a "single housekeeping establishment". Moreover, his assessment of the factual situations with respect to 30 different houses and his application of the law to those houses is a matter of mixed fact and law and, therefore, is subject to review on a reasonableness standard.
[85] Ergo, based on Howden's detailed analysis of the 30 houses under consideration as lodging houses in Neighbourhoods of Windfields Limited Partnership v. Death, [2008] O.J. No. 3298 (S.C.J.O.), there are many criteria and factors that could indicate that a particular house is being actually used as a lodging house, including evidence of a rental relationship between individuals residing in the house with the owner of the house; that the individuals in the house have exclusive use of a bedroom but share use of the kitchen and bathroom facilities; that individual rooms have been advertised for rent; that the leases are for short terms; that there is a high ratio mortgage on the house; that the owner does not reside in the house; that the house has been re-designed and altered without building permits or approval from the municipality; that the house had been altered to add more bedrooms; that there are three or more persons living in the house; that there are three or more bedrooms in the house; that the individuals living in the house do not form a "single housekeeping unit or establishment" nor have a bond to each other, other than a temporary need for housing; that the individuals living in the house each individually pay rent to the owner for the exclusive use of a bedroom or for sleeping accommodation and with shared kitchen and bathroom facilities; that the building does not function as a "single housekeeping unit or establishment"; and that there are locks for each bedroom in the house.
(a) For the case at bar, is there evidence beyond a reasonable doubt that 53 Craigleigh Crescent is being actually used as a lodging house?
[86] During the inspection of the property, Bylaw Enforcement Officer Brown had obtained information from a conversation that he had with people present in the residential townhouse including the owner's daughter and two other individuals and from observations he made in the house, such as locks on the door handles on the four upstairs bedrooms, to believe that the two individuals had been boarders and that the defendant's townhouse located at 53 Craigleigh Crescent was being used as a lodging house, which was not a permitted use under section 16.5.1 of the City of Brampton Zoning Bylaw 270-2004 for that particular area and residential dwelling.
[87] Although Enforcement Officer Brown had observed locks on the door handles for the four bedrooms upstairs, for the bedroom on the main level, and for a room on the basement level with a futon bed, which is one indication of a lodging house, the defendant had testified that those locks on the door handles for those rooms observed by Bylaw Enforcement Officer Brown had been already there before and when she had purchased the house.
[88] In addition, the defendant had testified that she had the locks removed before Enforcement Officer Brown had inspected her house, but she cannot identify which date and on which of several inspections conducted by Brown that she had been referring to. As such, the defendant's statement carries little weight and does not diminish any of the observations Brown had made during his inspections of the defendant's house.
[89] The defendant also testified that she is not using her townhouse as a lodging house and has only rented her house to one family for a short time. She also presented a lease agreement with an attached application form (Ex. 7) dated January 2, 2013, in which she had purported to rent out her townhouse to her cousin, Sajjad Hussain, for $1200 per month. However, the authenticity of the lease agreement and her testimony that she had only rented her townhouse to one family is questionable, since the purported cousin had supplied a name as a reference on the application form. If Sajjad Hussain is supposedly the defendant's cousin and family member then why was Sajjad Hussain required to complete an application form and supply the name of a reference?
[90] And, even though the defendant's credibility may be suspect, the only evidence presented that even indicates the defendant's townhouse at 53 Craigleigh Crescent was being used or intended to being used as a lodging house is the presence of locks on the door handles for the six bedrooms or rooms containing a bed in the townhouse. On the other hand, Enforcement Officer Brown's conversations with the two individuals and with the owner's daughter in which Enforcement Officer Brown formed the opinion that the two individuals were boarders is not evidence that carries any weight in proving the defendant's townhouse was being actually used as a lodging house, since it would be evidence that would be effectively hearsay evidence.
[91] In addition, Enforcement Officer Brown's evidence of observing locks on the door handles for the bedrooms in the townhouse on its own is not evidence that proves the defendant's townhouse was actually being used or intended to be used as a lodging house beyond a reasonable doubt. Locks on the doors to bedrooms or rooms with a bed in a dwelling is but one factor that could show that the dwelling is being actually used or intended to be used as a lodging house, but it is not sufficient in this case to prove that the townhouse at 53 Craigleigh Crescent was being actually used or permitted to be actually used by the defendant as a lodging house between June 11 and August 8, 2013, beyond a reasonable doubt. Furthermore, there is no evidence that the defendant is providing or intending to provide at 53 Craigleigh Crescent residential accommodation for hire or gain, with or without meals, to three or more lodgers, in which each lodger does not have access to all of the habitable areas of the building.
7. DISPOSITION
[92] Based on the totality of the evidence, the prosecution has failed to prove beyond a reasonable doubt that the defendant's residential townhouse located at 53 Craigleigh Crescent in the City of Brampton had been used or permitted to be used as a "lodging" house in contravention of section 16.5.1 of City of Brampton Zoning Bylaw 270-2004. As such, an acquittal will be entered for the defendant, Asmat Shahnaz.
Dated at the City of Brampton on January 21, 2015.
QUON J.P.
Ontario Court of Justice