CITATION: Puslinch v. Monaghan, 2015 ONSC 2748
COURT FILE NO.: 314/14
DATE: 2015-04-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THE CORPORATION OF THE TOWNSHIP OF PUSLINCH
John Hart, for the Applicant
Applicant
- and -
TASHA BRIQUELLE MONAGHAN
David Sunday, for the Respondent
Respondent
HEARD: August 25, 2014
REASONS FOR JUDGMENT
Barnes, J.
INTRODUCTION
[1] The Corporation of the Township of Puslinch (“Puslinch”) seeks an order pursuant to s. 440 of the Municipal Act restraining Tasha Briquelle Monaghan from using her property municipally known as 11 Lake Avenue East, R.R. #22, Cambridge, Ontario, N3C 2V4 (“11 Lake Avenue”) as a Tourist Establishment contrary to s. 2 and s. 7 of the Puslinch Zoning By-Law No. 19/85 (“Zoning By-Law”).
[2] In effect, the order would restrain Tasha Briquelle Monaghan from contravening ss. 2 of s. 7 of the Zoning By-Law.
[3] Ms. Monaghan makes a counter application to this Court for a Declaration that her use of 11 Lake Avenue is legally permissible under ss. 2 and 7 of the Puslinch Zoning By-Law.
[4] In the alternative Ms. Monaghan, seeks a declaration that the Zoning By-Law, to the extent that the Township states that it regulates the short term rental of a “single detached dwelling”, is unacceptably vague, uncertain, and insufficiently specific, and that it is therefore of no force or effect to the extent that “it purports to regulate short term rentals within the “Resort Residential (“RR”)” zone.
[5] In the further alternative, Ms. Monaghan seeks directions from the Court on the extent to which the zoning by-law regulates short term rental of a “single detached dwelling” within the RR zone.
[6] I have concluded the zoning by-law discriminates against persons who rent the property for short term purposes as a “single detached dwelling” in the RR zone. It is unacceptably vague, uncertain and insufficiently specific. The zoning by-law regulates persons and not use, therefore, it is ultra vires the Planning Act and of no force or effect to the extent that “it purports to regulate short term rentals within the “RR (“RR”)” zone.
[7] Puslinch has the option of enacting a by-law to address the issue of short term rentals in the RR zone.
BACKGROUND FACTS
[8] Ms. Monaghan is the owner of 11 Lake Avenue. This property is a detached residential house containing three bedrooms and one bathroom.
[9] 11 Lake Avenue is situated on the Shore of Puslinch Lake. The area around Puslinch Lake has historically been associated with recreational uses such as fishing, boating, water skiing, canoeing, ice fishing, snowmobiling, skating, cross-country skiing, and ice boat racing. There is a seasonal trailer resort and kayak rental, boat launch and water ski school located in close proximity to 11 Lake Avenue.
[10] 11 Lake Avenue and its immediate surrounding area is zoned “RR” in the Puslinch by-law.
[11] Ms. Monaghan’s primary residence is in the City of Cambridge. Ms. Monaghan and her family use 11 Lake Avenue as a recreational dwelling.
[12] In the summer months, when Ms. Monaghan is not making personal use of 11 Lake Avenue, she offers 11 Lake Avenue for rent on a weekly or longer-term basis.
[13] After Labour Day, Ms. Monaghan leases 11 Lake Avenue on a longer-term basis. Typically a tenant will rent 11 Lake Avenue from after Labour Day (early September) to mid-May of the following year.
[14] Ms. Monaghan does not provide any type of staff for the premises. It is not run as a motel or hotel.
[15] The Township of Puslinch has received complaints about noise made by the occupants of 11 Lake Avenue.
LAW
[16] The municipality may seek an order to restrain conduct that is in contravention of its by-laws: s. 440 Municipal Act, 2001.
[17] The municipality is entitled to seek an injunction to enforce and protect a public right: Polai v. Toronto (City) [1972 22 (SCC), [1973] S.C.R. 38 para 6.
[18] Council of local municipalities are authorized to pass by-laws prohibiting the use of land, except for the purposes set out in the municipality by-law: s. 34(1). 1 Planning Act RSO 1990 Chapter P13 as amended.
[19] A broad and purposive approach is to be adopted in interpreting municipal by-laws: United Taxi Driver’s Fellowship v. Calgary (City), [2004 SCC 19, [2004] 1 S.C.R. 485.
[20] Statutes must be read in their entire context; the words given their ordinary meaning harmoniously with the scheme of the Act and the intention of parliament: Bell Express Vu LIP v. Rex [2002] 29 S.C.R. 554.
[21] An appropriate interpretation is described in Ruth Sullivan, Sullivan and Driedger, Construction of Statues 4th edition at page 202:
An appropriate interpretation is one that can be justified in terms of (a) it’s plausibility, that is in compliance with the legislative text; (b) its efficacy, that is, its promotion of legislative purpose, and (c) its acceptability that is, the outcome is reasonable and just.
See also Neighbourhoods of Windfields Limited Partnership v. Death (2008) 48 M.P.L.R. paras 33 – 36.
[22] Zoning by-laws are statutorily required to conform with an Official Plan, Provincial Policy, Planning Legislation and matters of Provincial Interest.
[23] A proper contextual approach into the interpretation of zoning by-laws requires an interpretation in accordance with their plain meaning in the context of the zoning by-law, the policy reasons for its enactment and the basis within the Official Plan.
[24] This principle is aptly described by Howden J. in Aon Inc. v. Peterborough (City), [1999] O.J. No. 1225 para 18 as follows:
Thus, while certainly normal rules of statutory construction are properly held to apply to zoning by-law, they are a somewhat unusual type of law in their statutorily required inter-relationship with the Official Plan. A proper contextual approach to their interpretation requires that zoning by-laws should be interpreted in their ordinary and plain meaning in light of the by-law as a whole and its policy derivation and basis within the Official Plan. However, it must be born in mind that it is the zoning by-law which is the applicable law to be applied. Both Official Plans and zoning by-laws rely for their creation and life on the provisions of the Planning Act, and it clearly provides the power to municipalities to enact zoning by-laws as the effective law governing land usage and buildings and structures. It is therefore a zoning by-law which must implement or convert the Official Plan into a body of law regulating the use of land and it does so only to the extent that it actually sets forth in its provisions, interpreted in their ordinary sense in light of the policy framework of the official plan and the context of the by-law as a whole.
See also s. 2, 3(5), 20 and 27 Planning Act R.S.O. 1990 a. p. 13, as amended; s. 14(1), Places to Grove Act, 2005, [S.O. 2005 c 13, as amended.
DISCUSSION
Unacceptably vague, uncertain and unspecific
[25] I have conluded that the Puslinch RR zone bylaw does not regulate short term use in the RR zone and even if it did, it is unacceptably vague, uncertain and unspecific to the extent that it purports to do so.
[26] I have also concluded that to the extent that the Tourist Establishment use by law purports to regulate short term use in the RR zone it is unacceptably vague, uncertain and unspecific.
[27] Ms. Monaghan uses 11 Lake Avenue in the following ways:
(a) For her personal recreational use during the summer. Puslinch agrees this is a permitted use (Owner use);
(b) For the recreational use of her family and friends during the summer at no charge to her family and friends. Puslinch submitts that this a use as trouist establishment, as defiend by a Puslinch zoning by-law and it is not permitted use for the RR Zone (Friends and Family use);
(c) For the recreational use of third parties during the summer months for a rental fee (Vacationers). Puslinch submitts that this use is use as a tourist establishment and is not a permitted use in the RR zone; and
(d) For the residential use of third parties during the non-summer months for a rental fee. Puslinch submitts that these persons are tenants and this use is a permitted use.
[28] 11 Lake Avenue is in the RR zone. The uses permitted in this zone are described in s. 7 and ss. 2 of the zoning by-law:
Section 7 – Resort Residential – Zone – RR Zone
USES PERMITTED
(2) No person shall, within any RR zone, use any lot or errect, alter or use any building or structure for any purpose except one or more of the following RR uses, namely
(a) a single detached dwelling
(b) a home occupation
(c) a public use
[29] Ms. Monaghan uses 11 Lake Avenue as a dwelling place and not as a home occupation or as a public use. It is apparent from the ordinary meaning of the RR bylaw that it does not seek to regulate short term uses of the Resort Residential Zone. This by-law seeks to prohibit all uses of “any building or structure” except as a single family dwelling; a home occupation or for public use.
[30] Puslinch submitts that when the RR zone by-law is read in the context of the Puslinch by-law, as a whole, it is apparent that the use of 11 Lake Avenue by vacationers and Ms. Monaghan’s family and friends is a violation of Puslinch’s Tourist Establishment use by-law, however, owner use and tenant use of 11 Lake Avenue is permitted under the Tourist Establishment use by-law. I will discuss this argument at a later point in these reasons.
[31] Ms. Monaghan submitts that the use Puslinch objects to is included in the use of a single detached dwelling.
[32] Ms. Monaghan position is that “Single Family Dwelling” is defined by s. 2(65)(a) of the Puslinch zoning by-law. It is defined within the definition of “Dwelling”:
“Dwelling” means a building containing one or more dwelling units.
(a) “Single Detached Dwelling” means a single dweling which is free standing, separate and detached from other main buildings or mian structures, including a split level dwelling but does not include a mobile home.
[33] It is agreed that 11 Lake Avenue is a “single detached dwelling” as defined by the zoning by-law.
[34] Ms. Monaghan explains that the term “dwelling unit” is incorporated into the definition of the term “single detached dwelling”. Under the zoning by-law: s. 2(65)(a); “Dwelling” means a building with dwelling units. Therefore, a single detached dwelling is a “dwelling unit” under zoning by-law s. 2(65)(a).
[35] Zoning by-law s. (66) defines a dwelling unit as:
“Dwelling Unit” means a suite of habitable rooms which:
(i) is located in a building;
(ii) is used or intended to be used in common by one or more persons as a single, independent and separate housekeeping establishement;
(iii) contains food preparation and sanitary facilities provided for by the exclusivie use of the occupants thereoff; and
(iv) had a private entrance directrly from the outside the building or from a common hallway or stairway inside the building.
[36] Ms. Monaghan explains that based on the definition of “single detached dwelling” which incoporates the concept of “dwelling unit” the constituent elements of the “single detached dwelling” use are the following:
• a single dwelling [see single detached dwelling definition];
• containing a suite of habitable rooms [see “dwelling unit” definition];
• used or intended to be used in common by one or more persons as a single, independent and separate housekeeping establishment [see “dwelling unit” definition];
• containing food preparation facilities provided for the exculsive common use of the occupants [see "dwelling unit definition”]; and
• containing sanitary facilities provided for the exclusive common use of the occupants [see “dwelling unit” definition].
[37] During the questioning, Puslinch’s representative, Robert Kelly, agreed that although a “house keeping establishment” is not defined in the by-law, “house keeping establishment” would be understood to be a dwelling in which occupants “keep house” and that incorporates:
• food preparation facilities provided for the exclusive common use of the occupants [see “dwelling unit” definition]; and
• sanitary facilities provided for the exclusive common use of the occupants [see “dwelling unit” definition].
[38] Ms. Monaghan submitts that it is clear from this legal reasoning and deduction that the short term use objected to by Puslinch is included within the definition of “single detached dwelling” as described in the zoning by-law. Ms. Monaghan argues that if this Court comes to the same conclusion this resolves the matter in her favour.
[39] Thus a convoluted process of legal reasoning and deduction is required to demonstrate that the use that Puslinch submitts is prohibited is included in the “single detached dwelling” use. Such a conclusion is not obvious from the plain and ordinary meaning of the by-law. An indictation that, to the extent that it seeks to regulate short term use in the RR Zone, the RR zone by law, as currently drafted, is unacceptably vague, uncertain and unspecific .
[40] It should not be necessary to navigate this labyrinth of legal reasoning to determine whether short term use is a permitted use in the RR Zone.
Utra Vires the Planning Act
[41] I have concluded that to the extent the Tourist Establishment by-law seeks to regulate short term use in the RR Zone, it seeks to regulate people not use and, therefore, it is ultra vires the Planning Act.
[42] Puslinch submitts that short term use, by vacationers and Ms. Monaghan’s family and friends, constitutes use as a Tourist Establishment and such use is prohibted in the RR zone.
[43] According to Puslinch, Ms. Monaghan’s personal use of the 11 Lake Avenue or her rental of 11 Lake Avenue to tenants is not a prohbited use because it does not constitute a Tourist Establishment use.
[44] Puslinch Zoning By-law No. 19/85 definition 183 defines “Tourist Establishment” as:
any premises operated to provide sleeping accomodation for the travelling public or sleeping accomodation for the use of the public engaging in recreational activities and includes the services and facilities in connection with which sleeping accomodtion is provided, and without limited the generality of the term, also includes a cabin establishment, a tourist cottage and a houeskeeping cottage but does not include:
(i) a camp operated by a charitable corporation approved under the Charitable Intitutions Act, R.S.O. 1980, Chapter 64;
(ii) a recreation camp within the meaning of the regulations under the Health Protection and Promotion Act, 1983; or
(iii) a club owned by the members and operated without profit or gain.
[45] Puslinch explains that the fee Ms. Monaghan charges to Vacationers is an indicia that 11 Lake Avenue is being operated to provide…. “(emphasis added)”.
[46] 11 Lake Avenue Cottage Rules and Regulations state that “no unregistered guests (are) permitted on the property”. (emphasis) added. Puslinch argues that this is further evidence that Ms. Monaghan “operates” 11 Lake Avenue in the manner contemplated by the Tourist Establishment by-law.
[47] Puslinch submitts that the word “operate” does not preclude a non profit operation because the by law makes no restrictions on how one may “operate”. Thus the definition of Tourist Establisment that the “premises be operated” is met for both friends and family. Therefore short term use by Ms. Monaghan’s friends and family is captured by the bylaw: Applicants Factum Paragarphs 34 – 36.
[48] Puslinch submitts that a vacationer, Ms. Monaghan’s friends and family:
(i) are either “the travelling public” or the public engaging in recreational activities”.
(ii) are “engaging in recerational activities”
[49] Ms. Monaghan and the tenants will also be “engaging in recreational activities” and yet Puslinch submits that their use of 11 Lake Avenue is not Tourist Establishment use as contemplated by that by-law.
[50] The only reasonable basis for this distinction is that unlike vacationers, friends and family of Ms. Monaghan; tenants and Ms. Monaghan are not members of the “travelling public” or the “public engaging in….”. The only reasonable basis for this distinction is that vacationers, Ms. Monaghan’s family and friends do not permanently reside at 11 Lake Avenue.
[51] This line of reasoning, however, fails to explain Ms. Monaghan’s exemption from the application of the Tourist Establishment bylaw. Ms. Monaghan’s primary residence is in Cambridge. The primary residences of vacationers, friends and family of Ms. Monaghan are also at a different location than 11 Lake Avenue.
[52] Although Puslinch seeks to exempt Ms. Monaghan’s short term use from being captured under the Tourist Establishment bylaw there is no reasonable basis to do so.The difficulty with Puslinch’s interpretation is that on the plain reading of the Tourist Establishment by law, either on its own or in the context of the Puslinch bylaws as a whole, it is clear that no exception for the Tourist Establishment use is made for the owner.
[53] Therefore, the owner of 11 Lake Avenue could not enjoy the use of her own property on a short term basis. This implausable and unreasonable result could not have been the intent of the legislators.
[54] Another consequence of Puslinch’s interperation is that vacationers and Ms Monaghan’s family and friends, can use 11 Lake Avenue as accomodation on a short term basis as long as they do not use it for recreational activity. This implausible and unreasonable result could not have been the intent of the legislators.
[55] These are implausable, unreasonable and unjust outcomes. It could not have been the intention of the legislators to create such an outcome. Puslinch’s description of who is captured or excluded from the Tourist Establishment by-law is inconsistent. In the absence of an express exclusion for an owner, the Puslinch interperation regulates people who are related to Ms. Monaghan and people not related to her who stay at 11 Lake Avenue for a short period of time. The time period of which is uncertain. In effect, it regulates people not use.
[56] The power to enact the zoning by-law in the RR Zone comes from [s. 35(1) of the Planning Act. This section authorizes Puslinch to enact by-laws that regulate the types of buildings that maybe errected and the use to which those may be put.
[57] The Puslinch zoning by-law in effect regulates people and not use in the RR Zone. Therefore, to the extent that the Tourist Establishment by- law seeks to regulate short term use and Tourist Establishment use in the RR zone, it is ultra vires of the Planning Act: See R. v. Bell, [1979 36 (SCC), [1979] S.C.J. No. 44.
[58] In addition, within the context I have previously described, the by-law is unacceptably vague, uncertain and unspecific to the extent that it seeks to regulate short term use in the RR Zone.
[59] If Puslinch seeks to regulate short term rentals in the RR Zone it should pass a by-law regulating such use.
CONCLUSION
[60] The Town of Puslinch Zoning By-law 19/85 s. 7 ss. (2) does not regulate short term use of a “single detached dwelling” in the RR zone.
[61] The Town of Puslinch Zoning By-law 19/85 s. 7, s. (2) and Puslinch Zoning By-law No. 19/85 definition 183, to the extent that these seeks to regulate short term rental of a “single detached dwelling”, in the RR Zone, is unacceptably vague, uncertain, insufficiently specific and ultra vires [s. 35(1) of the Planning Act and is therefore of no force and effect to the extent that it purports to regulate short term rental within the “RR (RR)” zone.
[62] Should the parties be unable to agree on costs parties shall submit a two page costs outline within 15 days from the date detailed written reasons of this decision are released.
Barnes, J.
Released: April 27, 2015
CITATION: Puslinch v. Monaghan, 2015 ONSC 2748
COURT FILE NO.: 314/14
DATE: 2015-04-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THE CORPORATION OF THE TOWNSHIP OF PUSLINCH
Applicant
- and –
TASHA BRIQUELLE MONAGHAN
Respondent
REASONS FOR JUDGMENT
Barnes, J.
Released: April 27, 2015