Law Times

PAGE 14 FOCUS June 28, 2010 • Law Times Are students living in boarding houses? BY GLENN KAUTH Law Times I t's a difficult issue for mu- nicipalities across Ontario: how and whether to regu- late student housing. The matter surfaced once again recently when a group of landlords in Windsor, Ont., launched lawsuits claiming $6 million for alleged malicious prosecution stemming from a 2006 arson at a student rental house. One set of landlords, a couple, faced charges of arson by negligence, the Windsor Star reported. Charges against them were eventually dropped, ac- cording to the paper. Two other landlords are also alleging the city mistreated them, including one who says he was the target of officials claiming he was operating illegal rooming houses. None of the allegations have been proven in court. Part of what's at the heart of the issue is the potential classifica- tion of student accommodations as lodging or boarding houses and the tougher Ontario Fire Code re- quirements that come with such a designation. The plaintiffs say their properties aren't boarding houses and therefore argue the city's actions were improper. Ontario laws prohibit mu- nicipalities from treating stu- dent accommodations differ- ently, which has put cities in a difficult situation, says Windsor city solicitor George Wilkki. "In general, the issue of student housing is a problem in many municipalities where there are universities," Wilkki tells Law Times. "The difficulty we have is to try to keep stu- dents safe in terms of what we can and can't do." In some cities, licensing by- laws regulate boarding houses, something municipalities can't do with an ordinary house. But determining what is a lodging house can be difficult. While Wilkki says officials have no interest in tailoring regula- tions according to who is living somewhere, they are concerned about the number of people in a house. But typically, he notes, landlords have gotten around rules dealing with large num- bers of people living together by, for example, having one student named on the lease who's nominally the tenant rather than designating sepa- rate units within a house. "That's not a lodging house even though they're not relat- ed," Wilkki says. He notes the city at one point considered an interim control bylaw to deal with the concerns but decided against it. Elsewhere, the issue has been the source of litigation. In Oshawa, Ont., two years ago, for example, the Ontario Superior Court dealt with such questions in Neighbourhoods of Windfields Ltd. Partnership v. Death. In that case, the city sought to declare certain homes in a subdivision that housed large numbers of students from the nearby University of On- tario Institute of Technology to be against a bylaw reserving the area for what equates to single- family dwellings. Another key case dealing with boarding houses arose in 2003 in Good v. Waterloo (City). The owners in that mat- ter sought a declaration that, contrary to the city's asser- tion, a home containing two units, each with four or six bedrooms, didn't constitute a lodging house. In ruling in fa- vour of the landlord, Superior Court Justice Donald Gordon focused on the issue of control over the premises as well as the residents' lifestyles. "Control, in a lodging house, is by the owner and the occupants on an individual basis, whereas in a residential unit, it is by the group," he wrote. "According- ly, for a residential unit, there must be evidence of collective decision-making regarding the use of the premises." Gordon went on to note that while students don't necessar- ily eat together, "as in a nuclear family," that's simply a reflec- tion of their varying schedules. As a result, signs of collectivity, including assigning bedrooms, managing housekeeping, en- tertaining, and dealing with furniture play a role in decid- ing whether or not a home is a boarding house. The fact that the occupants of the Waterloo, Ont., home continually changed wasn't necessarily a determining factor, he added. "Individu- als changing within the group merely reflects of the reality of the university student lifestyle. It is not unique to this property. The three occupants stated the group continues collectively af- ter such replacements." The homeowners in the Os- #1 Software application for Real Estate Law Offices in Canada. Used by over 6,000 professionals in 2,500 law firms. The Conveyancer is the centerpiece of a data and services network connecting law firms to valuable information, title insurance companies, mortgage instructing platforms and other law firms. hawa Death case raised Good as being supportive of their side, but Justice Peter Howden ruled otherwise. Instead, he noted the application of a licens- ing bylaw, as was the case in the Waterloo matter, differed from the zoning issue at hand in Death. "I accept the submis- sion . . . that there is a funda- mental difference in purpose between a zoning bylaw and a licensing bylaw (in addition to the procedural differences) and that the distinction must inform the approach to inter- preting each," he wrote, refer- ring to the former's function of restricting land use and the lat- ter's focus on regulating a par- ticular business or activity. "A definition of 'single housekeeping unit' which would include homes used for three to 10 lodging units for exclusive sleeping accommoda- tion, with sharing of food and/ or washroom facilities, would simply ignore the definition of lodging houses and would ren- der meaningless the distinction between a lodging house and a single-detached dwelling," Howden added. The Ontario Court of Ap- Enjoy FREE Support and our 30 Day No Risk Trial Offer*! 1 866.367.7648 I freetrial@doprocess.com *Our free support and 30 Day trial limited time offer only applies for new customers. This offer is valid for one time only, per company and can't be combine with any other offer. Please quote the promotional code 2010FT. ©2010 Do Process Software Ltd. The Conveyancer is a registered trademark of Do Process Software Ltd. All rights reserved. peal later upheld Howden's decision in favour of the city, but the issue isn't yet over for Oshawa. A municipal licensing bylaw that affects potential stu- dent housing is the subject of a complaint by a landlord before the Human Rights Tribunal of Ontario, according to city so- licitor David Potts. At the same time, the issue has sparked vigorous debate, with student groups particularly concerned about the bylaw's effects on them. Potts notes the matter is also before the Superior Court over complaints from neigh- bours that the city isn't enforc- ing the restrictions. Back in Windsor, Wilkki says the city has a town-and- gown committee attempting to deal with the concerns. But in terms of the fire matter, he focuses primarily on one key issue. "What we're really con- cerned about is the issue of safety," he says. LT Untitled-2 1 www.lawtimesnews.com 6/7/10 9:41:48 AM

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