



COURT OF APPEAL FOR ONTARIO

CITATION: Balmoral Developments Hilda
    Inc. v. Orillia (City), 2013 ONCA 212

DATE: 20130405

DOCKET: C56312

MacFarland, Rouleau and Pepall JJ.A.

BETWEEN

Balmoral Developments Hilda Inc.

Applicant (Respondent-in-appeal)

and

The Corporation of the City of Orillia and Kelly
    Smith, Chief Building Official

Respondents (Appellants)

Michael M. Miller, for the appellants

E. Marshall Green and E. Brohm, for the respondents

Heard:  March 25, 2013

On appeal from the judgment of Justice Susan E. Healey of
    the Superior Court of Justice, dated October 24, 2012.

ENDORSEMENT

[1]

The appellants, the City of Orillia and Kelly Smith, Chief Building
    Official, appeal the October 24, 2012 judgment of S. E. Healey J.

[2]

Before the application judge, the City took the position that a proposal
    by the respondent to increase the occupancy of each unit to seven students,
    each with his or her own lease would bring the units within the definition of a
    boarding, lodging or rooming house.  As such, the respondents proposal was
    contrary to the Citys zoning by-law and non-compliant with Ontario Regulation
    350/06 of the
Building Code Act
(the
Building Code
).  The
    application judge found against the City on both issues.

[3]

The appellants appeal the application judges finding that the respondents
    proposal would not result in the units being boarding, lodging or rooming
    houses under the
Building Code
. They argue that as constructed, the
    buildings cannot accommodate the increase to seven without violating the fire exit
    requirements mandated by the
Building Code
for boarding, lodging or
    rooming houses.

[4]

It is conceded on behalf of the respondent that if the townhouse units
    are boarding, lodging or rooming houses, then they would not comply with the
    exit requirements of the
Building Code
.

[5]

It is also conceded that the units meet the requirements of subsections
    (a) and (c) of the definition of boarding, lodging or rooming house found in s.
    1.4.1.2 of the
Building Code
. The only dispute concerns whether the
    proposed use would result in the units meeting the final requirement, the
    requirement in  subsection (b) which reads:

in which lodging is provided for more than four persons in return
    for remuneration or for the provision of services or for both.

[6]

In our view, it is clear that the respondents proposed use of the units
    provides lodging for more than four persons in return for remuneration.  This
    is apparent from the following facts:

·

there will be seven individual leases, one for each of the
    bedrooms, which the occupants of those bedrooms will enter into with the
    landlord

·

the occupants will rent for terms that vary between 10 and 12
    months

·

the individual bedrooms all will have locks on their doors

·

the furniture by and large will be provided by the landlord

·

there is no evidence of any anticipated collective decision
    making among the occupants

·

there is no evidence that the occupants will be required to pay a
    share of the utilities other than as encompassed in the rent

·

although the landlord will take requests into consideration, the
    occupants will be selected by the landlord, and

·

apart from their attendance at university or college there is no
    evidence of any other connection among the seven proposed occupants.

[7]

In our view, the application judge erred in her interpretation of the
Building
    Code
and its application to the facts before her when she determined that
    the proposed use would not result in the units being boarding, lodging or
    rooming houses as defined in the
Building Code
.

[8]

Accordingly, we would allow the appeal, set aside the judgment of the
    application judge and in its place, substitute a judgment in accordance with
    this endorsement.

[9]

In view of the appellants success, they are entitled to costs in this
    court on a partial indemnity scale fixed in the sum of $25,000 inclusive of
    disbursements and applicable taxes.

[10]

In
    view of the divided success in the court below as the result of our decision,
    we accept the appellants submission that there be no costs of the application
    to either party in the court below.

J.
    MacFarland J.A.

Paul
    Rouleau J.A.

S. E.
    Pepall J.A.


