Transactions & Cases Detail
Residential neighbourhood’s zoning requirements are upheld by the Superior Court of Justice
August 28, 2008
Real Property / Construction
McCarthy Tétrault represented the Neighbourhoods of Windfields (“Neighbourhoods”) Limited Partnership in its Application in the Superior Court of Justice against 43 homeowners in the Neighbourhoods of Windfields Farm subdivision (“Windfields”). The Neighbourhoods and the City of Oshawa (“City”) alleged that these homeowners, who control a total of 33 Windfields properties, were violating City zoning by-law 60-94, which permits only single detached dwellings in the R1 Windfields zone. Specifically, the Neighbourhoods and the City claimed the landlords were renting their houses to four to nine students, and others, on short-term leases, thereby creating land-use conflict in the Neighbourhoods. Accordingly, they sought an order that these landlords cease and desist their operations.
On April 27, 2008, Justice P.H. Howden granted the relief sought, finding that 28 of the 30 properties remaining in the Application (landlords representing three of the properties had settled prior to the hearing by reselling their houses to the Neighbourhoods) were indeed in violation of the by-law, and ordering their owners to conform to R1 zoning requirements. Key to Justice Howden’s decision was his interpretation of the term “single housekeeping establishment,” the central feature of a single detached dwelling, as defined in the by-law. He found that a “single housekeeping establishment” in this context generally means a typical single-family arrangement or similar basic social unit, and is fundamentally inconsistent with an arrangement where individuals are bound together only by the need for economical short-term accommodation. That the houses in question were advertised by the landlords as “student housing” had been modified to accommodate additional tenants (without building permits or with building permits containing false declarations of purpose), and in some cases were insured as commercial properties, further confirmed their use as lodging houses rather than as single detached dwellings.
The decision was affirmed on appeal on April 2, 2009.