The Neighbourhoods of Windfields and City of Oshawa v. Death et al.

Since Canadian planning legislation was revised to prohibit zoning based on relationship, municipalities, developers and courts have sought to find the dividing line between zoning bylaws targeting "use" and those targeting "users." A decision of the Ontario Superior Court of Justice, affirmed by the Court of Appeal for Ontario, and from which leave was recently refused by the Supreme Court of Canada, explains that zoning based on how occupants relate to each other in their use of a building is a permissible use of the zoning power.

The Facts

The Neighbourhoods of Windfields Limited Partnership and the City of Oshawa brought an Application in the Superior Court of Justice against 43 homeowners in the Neighbourhoods of Windfields Farm subdivision. These homeowners controlled a total of 33 Windfields subdivision properties, some as individual owners and others as part of syndicates.

The Neighbourhoods and the City alleged that these homeowners were operating their properties as lodging houses, contrary to the City zoning bylaw, which permits only single detached dwellings in the lowest density residential zones.

The Neighbourhoods and the City claimed that these houses were each being rented to four to nine college/university students and others on short-term leases, creating land-use conflict in the Windfields subdivision.

The Ontario Superior Court of Justice found 28 of the 30 properties remaining in the Application (three landlords representing three properties settled prior to the hearing) to be in violation of the bylaw.

Key to the decision was the court’s interpretation of the term "single housekeeping establishment," the central feature of a single detached dwelling, as defined in the bylaw. The court found that a "single housekeeping establishment" in the context of a zoning bylaw generally means a typical single-family arrangement or similar basic social unit, and is fundamentally inconsistent with commercial properties being rented to groups of individuals bound together only by their common need for economical short-term accommodation.

The Court of Appeal for Ontario affirmed the Superior Court’s decision in all respects, stating that Ontario’s Planning Act did not prohibit the Superior Court from considering as a relevant factor how the renters related amongst themselves when determining whether they constituted a "single housekeeping establishment." The Supreme Court of Canada refused an application for leave to appeal these decisions, as well as a motion to intervene in the leave application by the Ontario Human Rights Commission.

McCarthy Tétrault Notes

The Windfields decision distinguished prior case law that, in the context of lodging house licensing, interpreted the term "single housekeeping establishment" to refer to collective decision-making and the internal functioning of a property. As a zoning matter, "single housekeeping establishment" refers to the way land is used in relation to the surrounding community.

This decision will prove useful for municipalities seeking to prevent land-use conflict in residential areas, in particular those near instiutions such as colleges and universities that attract transient populations. It will also aid private owners such as condominium corporations seeking to prevent commercial use of property zoned for long-term residential occupation.