Court File and Parties
Court File No.: CV-24-00002468-0000 Date: 2024-10-31 Superior Court of Justice – Ontario 491 Steeles Avenue East, Milton ON L9T 1Y6
Re: Zaafir Ahmed Munir, Applicant And: Mahesh Kumar Garg & Shama Garg, Town of Milton, and Milton Fire Department, Respondents
Before: Justice Mills
Counsel: Zaafir Ahmed Munir, self-represented Mahesh Kumar Garg & Shama Garg, Self-represented Konstantine Stavrakos for the Respondents, Town of Milton and Milton Fire Department
Heard: October 9, 2024, by video conference
Endorsement
[1] The applicant, Zaafir Ahmed Munir, is a tenant under a signed Residential Tenancy Agreement, dated October 27, 2023, for a fixed term tenancy commencing on December 1, 2023, and ending on November 30, 2024 (the “Lease”). The respondents Mahesh Kumar Garg and Shama Garg, collectively “the Gargs”) are the owners of 1235 Mulroney Heights, Milton ON (the “Property”) which is the subject of the Lease, a three-bedroom townhouse.
[2] Mr. Munir brought this application seeking a declaration the Short-Term Rental (“STR”) by-law enacted by the Town of Milton is ultra vires and therefore is unenforceable. He also seeks declarations that the STR does not apply to the Property, and that the enforcement of the STR by-law infringes on his Section 7 and Section 15 rights under the Charter of Rights and Freedoms. He further seeks monetary compensation in the amount of $3,980,000 for the damages he alleges to have suffered from the emotional distress of this matter which aggravated and exacerbated his pre-existing anxiety and depression conditions. Mr. Munir also seeks damages for the loss of income suffered from his inability to utilize the Property for STR purposes.
[3] The application is dismissed.
The Garg Defendants
[4] The application should never have been brought against the Gargs. The enactment of the STR by-law is entirely out of their control and the law is well established that claims of Charter breaches cannot be advanced against individual citizens.
[5] There is no legal or factual basis on which to make any of the claims or to seek any damages against the Gargs. They were entirely within their right as landlords to register a complaint with the Town of Milton to report that the Property was being used as a STR without a license and without their consent. Further, contrary to the submissions of Mr. Munir, the Gargs had no obligation to provide their consent to permit him to obtain the STR license. Their refusal to do so does not amount to discrimination against Mr. Munir as a tenant with a right of occupancy to the Property. Rather, it is the Gargs exercising their legal rights as owners of the Property.
Legislative Conflict
[6] Mr. Munir alleges the STR by-law conflicts with the Residential Tenancies Act (“RTA”), legislation enacted by the Province of Ontario. He submits the RTA grants tenants the right to use the rented property for residential purposes, including having occupants or guests stay at the property for an indeterminate time if they contribute toward the paying the monthly rent obligation. He therefore alleges the licensing requirements under the STR by-law conflict with the RTA and must be declared ultra vires.
[7] There is no legislative or operational conflict between the RTA and the STR by-law and there is no basis on which to declare the latter ultra vires.
[8] The Town of Milton has the broad legislative authority pursuant to s. 151 of the Municipal Act to require residential rental businesses operate with a license. [1] More specifically, the Town of Milton has the authority to require persons operating a STR do so with a license and in compliance with fire and safety regulations.
STR By-law
[9] The STR by-law applies to short term rentals of less than 28 days. Section 5 of the RTA exempts temporary rentals from the application of the Act. Mr. Munir admits he lists the Property on the Airbnb platform. The Landlord and Tenant Board has taken judicial notice that properties listed on Airbnb are generally intended for temporary occupation and therefore are not captured by the RTA. [2]
[10] Mr. Munir submits the STR does not apply to him personally as he has always remained living at the Property and is therefore entitled to have guests stay with him for an indeterminate length of time. As these guests contribute towards the rent, it is Mr. Munir’s submission the RTA governs their occupation of the Premises and therefore, he is not required to comply with the STR by-law.
[11] Mr. Munir provided no evidence as to the length of his Airbnb rentals. I therefore infer the rentals are typically less than 28 days and are, by definition, short term rentals captured by the RTA exemption and for which the STR by-law applies. The provisions of the RTA do not apply to Mr. Munir’s Airbnb rentals. If the funds collected by Mr. Munir from his Airbnb listings are used to assist him in paying the rent, it is of no consequence. This does not change the character of the rentals.
[12] Although Mr. Munir did not take this position on the application, if he now seeks to characterize his “paying guests” as fellow tenants, he has sublet the Property without the consent of the Gargs, contrary to s. 96(1) of the RTA.
[13] Mr. Munir asserts that a commercial interest in the Property belongs solely to the owner/landlord. As a tenant, Mr. Munir submits he has no commercial interest in the Property. He submits that any payments he collects from the occupants of the Property are used solely to pay his residential rent obligation and therefore, the financial arrangements cannot be characterized as business transactions.
[14] Mr. Munir offers no legal basis for any of these submissions. I do not accept them as being factually or legally accurate. By posting the Property on the Airbnb platform, he is operating an STR business.
[15] Following an investigation, the Town of Milton by-law enforcement officer confirmed Mr. Munir was operating a STR via the online Airbnb platform. A compliance order was issued on May 8, 2024 (the “STR Compliance Order”) requiring he obtain an STR license or cease operating the STR.
Fire and Safety Inspection
[16] Mr. Munir vaguely alleges the actions of the Town of Milton and the Milton Fire Department violated his Charter rights pursuant to s. 7 (the right to life, liberty, and security of the person) and s. 15 (equality before the law). There are no particulars of the alleged breaches identified by Mr. Munir other than the threat of excessive fines and other enforcement actions will result in financial ruin and the posting of an inspection order caused him public embarrassment and psychological harm. These concerns do not constitute Charter breaches under either s. 7 or s. 15 of the Charter.
[17] Mr. Munir willingly permitted Milton Fire and Rescue Services (“Fire Services”) access to the Property for an inspection pursuant to the powers conferred by the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 (“FPPA”). The FPPA empowers Fire Services to enter any premises without a warrant for the purpose of assessing fire safety. Mr. Munir was present throughout the inspection and readily admitted to the officer that he was operating an STR without a license as the Gargs refused to sign the permit applications.
[18] During the inspection, numerous violations of the Fire Code were identified. The Property had been modified to create additional sleeping quarters, with a laundry room turned into a bedroom and two makeshift bedrooms set up in the unfinished basement. The Property was converted to allow for a total of 12 occupants. There was no appropriate fire separation between the bedrooms, and the basement bedrooms had no means of egress in the event of an emergency. One of the basement bedrooms was located directly beside the furnace.
[19] The Fire Services noted that the increased occupancy and the use of the unfinished basement for makeshift bedrooms resulted in a change of use from a personal occupancy rental home to a lodging/rooming/boarding house designation. This status designation gives rise to numerous additional fire and safety requirements, including the installation of a sprinkler system, emergency lighting to identify and sign the exits, the upgrade of bedroom doors to meet Fire Code requirements, the immediate availability of fire extinguishers, and the posting of a fire safety plan. The total absence of these fire and safety measures led to a finding of further violations.
[20] These serious violations resulted in a compliance order being issued by Fire Services (“Fire Services Compliance Order”). A notice to occupants was posted on the front door of the Property alerting of the fire and safety deficiencies, as required by the FPPA. Mr. Munir claims the posting of the notice on the front door amounted to harassment and caused him psychological harm.
[21] Mr. Munir was treated no differently than any other property owner or occupant who engages in a violation of the STR by-law or the Fire Code. The appropriate statutory procedures were followed with the issuance of the STR Compliance Order or the Fire Services Compliance Order.
[22] Mr. Munir exercised his statutory right to request a review of the Compliance Order. This resulted in an automatic stay of the Compliance Order. The review process has not been completed and therefore, no steps have been taken to remediate or address the fire and safety concerns identified during the inspection.
[23] Mr. Munir denies he has converted the Property to a rooming house. He claims he remains a resident and further, there are only nine people residing at the Property. The threshold for a rooming house designation is ten persons.
Charter Breaches
[24] The application fails to identify how the operation of the engaged legislation, or the conduct of the legislative authorities breached his Charter rights.
[25] Mr. Munir offers no evidence as to how the right of inspection under the FPPA violates his s. 7 Charter rights. The cases referenced by Mr. Munir in his Supplementary Factum address very different allegations and are not relevant to the issues raised in this application. The Fire Services inspection was conducted in accordance with their statutory mandate, and it was done with the consent of Mr. Munir. There is no s. 7 Charter breach.
[26] Mr. Munir does not specify precisely how his s. 15 Charter rights were violated. He does not allege the powers of inspection conferred by the FPPA constitute a violation of his s. 15 Charter rights. There is no evidence to suggest the inspection by Fire Services was conducted in a way that discriminated against Mr. Munir on any of the enumerated or analogous grounds identified by s. 15 of the Charter. Issuing a notice of violations against Mr. Munir as a tenant does not give rise to a s. 15 Charter breach. “Tenancy” is not an enumerated or analogous ground. There is no s. 15 Charter breach.
Damages
[27] Mr. Munir seeks $3,980,000 in damages allegedly suffered for the psychological impacts of the enforcement actions taken by the Town of Milton and by Fire Services, and for the loss of income from his STR. He has provided no documentary evidence to support this substantial claim other than a copy of one prescription receipt. Mr. Munir has provided no expert medical report nor any evidence of his alleged business losses.
[28] I have found the STR by-law is not ultra vires, the Fire Services inspection was conducted with the consent of Mr. Munir, the enforcement actions taken by the Town of Milton and the Fire Services were in accordance with their legislative authority, and there were no Charter breaches. Mr. Munir is entitled to no damages.
[29] The application is dismissed in its entirety. The respondents are entitled to their costs of this proceeding.
Costs
[30] The Gargs were self-represented at the hearing. They did file a Notice of Appearance, an Affidavit of Service, and a factum addressing the substantive issues raised by Mr. Munir together with supporting caselaw. They did not file a Bill of Costs but advised at the hearing that they had retained a paralegal to assist with the preparation of their responding materials at a cost of $15,000. It is clear from the materials filed that they were prepared by someone with legal training. The scope of the materials would suggest significant time was spent on their preparation. I accept the Gargs did pay $15,000 in legal services.
[31] Counsel for the Town of Milton and the Fire Services filed a Bill of Costs seeking $15,504.86 on a partial indemnity basis.
[32] When invited to make cost submissions at the hearing, Mr. Munir requested a cost order to match the counsel fees. He offered no evidence of any costs incurred in the preparation of the Application Record or the two facta he delivered, all of which appeared to have been prepared without the assistance of counsel or anyone with legal training.
[33] When considering an appropriate quantum for costs, I am to examine the factors listed in Rule 57.01(1) of the Rules of Civil Procedure. They include the complexity and importance of the matter, the conduct of a party including a party’s denial or refusal to admit anything, any offers to settle and the principle of proportionality. In this regard, the amount of time spent, and the hourly rates charged are to be considered together with the amount that a losing party would reasonably expect to pay.
[34] The fees sought by counsel are reasonable and proportionate having regard to the importance and complexity of the matters raised in the Application. Mr. Munir challenged the legal authority of the Town of Milton to enact the STR by-law and he accused Fire Services of breaching his fundamental rights. His legal positions changed throughout the proceeding, including at the hearing. This undoubtedly increased the costs incurred in responding to the Application.
[35] I find the time incurred and the rates charged by counsel are reasonable. Where appropriate, the work was conduct by a law student at a much lower rate than counsel, whose rate is entirely reasonable for a lawyer with 19 years experience. Moreover, as Mr. Munir sought the same amount if successful, the costs were clearly within his expectations as the losing party.
[36] Therefore, Mr. Munir shall pay costs to the Respondents, on a partial indemnity basis. He shall pay the legal costs incurred by the Town of Milton and the Fire Services in the amount of $15,504.86, inclusive of fees, disbursements, and HST, and he shall pay the Gargs $9,000 inclusive of fees, disbursements, and HST. The costs are payable within 30 days.
J. E. Mills J.