The Law
It is a common message delivered in first year law classes around the world that has been uttered for decades to
students that “the law is an ass”, but what does that mean? In Canada our non-criminal legal system is rooted in Torts or
in it’s most basic of definitions, a system guided by fundamental rules and precedent. However, those rules – or laws –
are rarely specific in nature to every single possible violation that can occur, which is where precedent and a good
lawyer can take a law (which is assumed benign), previous cases where it was applied, and (if appropriate) argue how
those factors support your claim. It is a system that thrives on creativity and strategic thinking and interpreting and
utilizing the law and precedent to advance one’s argument.
Zoning By-Laws however, are a completely different animal. Sometimes referred to as “administrative law for dummies”,
By-laws and zoning by-laws in particular, are intentionally written to not be subject to the creative or interpretive
process. They are “Permissive” as opposed to “Exclusionary” rules to the extent that they specifically permit certain uses
of land to the exclusion of all others....
“.... The only uses permitted in a Zone are those that are specified in the By-law. If a use is not specifically
mentioned as a permitted use in a Zone, then it is not permitted. Similarly, if a use defined in Section 3.0 (Definitions) of
the By-law but does not appear as a permitted use in any Zone, then it is not a use permitted on your property by the By-
law.” Section 6.0 – Permitted Uses, pg v Tiny By-law 06-001
“As a further observation, the ZBL contains common provisions for interpreting the by-law. A use is permitted in a
zone if it is included on the list of permitted uses for that zone, and if a use is not listed as permitted, it is not allowed and
further, a listed or defined use may not be interpreted to include any other use. All of this instruction seems obvious.”
Hodgart et al v. City of Toronto, LPAT 2019
This is done intentionally, as By-laws remain a part of a municipalities planning policy indefinitely and when drafted, the
writer has no way of predicting new uses of land in the future. That means that when a new use arises, it is not
permitted until it has been through the vetting process. Such is the case of Short-Term Rentals.
While it can be argued that Short Term Rentals (STR’s) are a new use of land, the concept is not unfamiliar to this
municipality, as two very similar specific land uses exist within the current Tiny Zoning By-law 06-001. Bed and Breakfast
and Tourist Establishment. Let’s look at those definitions as described in the By-law:
BED AND BREAKFAST ESTABLISHMENT
Means a part of a single detached dwelling unit in which not more than three bedrooms are used or maintained for the
accommodation of the traveling public, in which the owner of the dwelling unit resides and supplies lodgings with or without meals for hire or pay but does not include a group home or tourist establishment.” Tiny Township Zoning By-law 06-001 3-2
TOURIST ESTABLISHMENT
Means premises designed for the traveling or vacationing public, and that has facilities for accommodation and may serve meals or provide kitchen facilities within each unit and may furnish equipment, supplies or services to persons for recreational purposes, but does not include a campground, trailer park or private park.” Tiny Township Zoning B-Law 06-001 3-23
Premises is highlighted above and is also defined within Zoning By-law 06-001:
PREMISES
“Means an area of a building occupied or used by a business or enterprise..........” Tiny Township Zoning By-Law 06-00’ 3-19
Both definitions specifically refer to the nature of not only these two land uses, but also that displayed by STR’s. They provide lodging for the travelling or vacationing public, may offer kitchen facilities and other features of a “...detached dwelling unit...” for hire or pay indeed, “Premises” further identifies a Tourist Establishment as a “business or enterprise”, so while the nature of an STR operation is pretty much detailed in either one of the above definitions, two major distinctions exist. The first is obvious with the Bed and Breakfast use requiring the owner of the “dwelling unit” to be on site, as well as limitations as to the allowable rentable space. The second however is relevant to both uses – neither one is permitted in a Residential zone. They are restricted to Shoreline Commercial and Hamlet Commercial zones only.
In fact, the only uses currently permitted in Shoreline Residential zones are those of “Dwelling, single detached”, “Home occupation” and “Private home daycare”. Again, let’s examine the definition of “Dwelling” as defined by Tiny Zoning By-law 06-001:
DWELLING UNIT
Means two or more rooms used, designed or intended for the domestic use of one or more individuals living as a single
housekeeping unit, with living, sleeping and sanitary facilities, and one kitchen facility, having a private entrance from outside the building or from a common hallway or stairway inside or outside the building.” Tiny Township Zoning By-Law 06-001 3-6
The word “domestic” has been highlighted for a reason and is of significance as you will see later.
The Argument
When considering the above and reading the Township’s zoning by-law as intended, it becomes rather evident that the operation of an STR within a residential zone in Tiny is not a permitted use of land. To emphasize the point, operating a salvage yard, an animal rendering operation or hazardous waste disposal facility are also not permitted uses in the municipality’s residential zones.
Hyperbole? Not really. While the examples may be extreme the point is that an illegal use of land is just that – illegal, regardless of its nature. So why is it then that when the Township of Tiny, which has seen an uncontrolled explosive proliferation of illegal STR operations over the last 36 months, has not taken action as they would against the afore mentioned salvage yard or waste disposal facility.... or a therapy goat?
The Planner rests his original position regarding the legality of STR operations on an opinion obtained from the municipality’s Solicitor Jameson Clow of Burgar Rowe Professional Corporation, dated March 29, 2011. In his opinion, Mr. Clow addressed the Planners question which was is the renting of a single detached dwelling on a yearly, monthly or weekly (notice not daily) duration permitted under By-law 06-001. While Clow concluded that the simple act of renting one’s cottage did not fall outside of the Townships current by-law, he did emphasize that the arrangement must be such that it fall within the definition as operating as a “single housekeeping unit”. To that point, Mr. Clow cited several cases in which the courts have dealt with determining what exactly that definition entailed when read in the context of the by-law.
In Neighbourhoods of Winfields Ltd, Partnership and Oshawa (City) v. Death 2008, the court found that:
“..... single housekeeping establishment required that the unit be designed and intended for something akin to a “typical
single family unit” with a “singleness” characteristic to the occupants required.”
The Court concluded that in this case, the student housing in question:
“.... Characterized by renting out detached houses to a group of individuals (as individuals or as a group) did not meet the
“single housekeeping establishment” definition and therefore the unit fell more properly under the lodging house definition than thedwelling unit definition....”
Mr. Clow’s opinion continues:
“Factors which weighed against the finding that the houses were dwelling units included: owners not residing and never
having resided in the house, conversion of family rooms into additional bedrooms, continuous rental of the house, short term leases, and no ties amongst the renters but a need for short term housing.”
As has been pointed out, Mr. Clow did state that the simple act of renting one’s “cottage” on a yearly/monthly/weekly basis did not in his opinion constitute a breach of the “dwelling unit” definition, he did caution the Planner with respect to mitigating factors:
“While it is ultimately possible that something that would otherwise be considered a dwelling unit be rented out constantly
and be designed and appear to be operated not for the overall purpose of personal use but for a commercial use, it could be characterized as a commercial use.”
It is worth noting again that Mr. Clow’s report was issued in early 2011, and he commented on several occasions about a lack of reported case law at the time. It also should be pointed out that internet home sharing platforms like Airbnb were still in their infancy, and that Airbnb did not even have a Canadian presence until May of 2014.
What is clear is that the Township clearly did not consider this report in its entirety and simply saw what they wanted to see. The opinion did not state that STR operations were a legal use of land as defined by the “dwelling unit” definition, he stated that the “occasional” rental of a cottage was allowed under the current by-law. Big difference.
So, while case law was in short supply in 2011, such is no longer the case.
While there currently is a great deal of precedent in support of the claim that STR’s are indeed NOT a residential use as defined under the definition of dwelling unit, we will focus on only a few cases that have been decided in Ontario.
The first was levied shortly after the previously discussed legal opinion to Tiny Township was drafted and specifically addressed the legality of STR’s operating in low density residential areas of The Town of The Blue Mountains delivered on June 22, 2011. Vice Chair of the OMB K.J. Hussey stated on page 15 of her ruling:
“.... the Board has considered LBM’s argument that STA [STR] units are dwellings and that they are compatible in
any residential area. The Board, however, disagrees. The Board finds that STA units are distinct commercial entities with
the goal of making a profit. They are often managed by a professional manager who uses a system of reservation,
collects taxes and accepts credit cards from paying guests whose permanent residences are elsewhere and who have no
right of renewal. Those premises are occupied by paying guests for a short span of time and for the purpose of allowing
enjoyment of the recreational and tourist facilities in the area. This commercial entity has the potential to conflict with
the character and stability of existing neighbourhoods because of the constant turnover of people and the difficulty that
turnover brings in controlling noise and other nuisances. In the Town of the Blue Mountains, “the proof of the pudding is
in the eating”; the evidence of conflict is categorical. The Board finds that the Town must ensure that compatibility is
achieved between the commercial STA use and existing residential neighbourhoods in order to be in conformity with its
Official Plan.” Rosen et al v. Town of The Blue Mountains PL 080455 OMB (2011)
That ruling was upheld on Appeal to Ontario Divisional Court, ONSC 4215 (“Rosen 2012”) in which Herman, J. added in
par. 54:
“.... the promotion of tourism and economic development cannot be looked at in isolation from other legitimate goals,
such as the preservation of the residential nature of neighbourhoods.”
One would think that any Planner of conscience in dealing with a hot button matter such as the legitimacy of STR’s in
residential neighbourhoods would take heed of such rulings... not so in Tiny in fact, municipalities throughout Simcoe
County seem to be oblivious to the numerous rulings that continue to be levied throughout Canada declaring STR’s as
commercial entities. But let’s leapfrog forward to 2019.
Hodgart et al v. City of Toronto PL180082 LPAT (2019) was an appeal by the Appellants to challenge numerous ZBA’s
issued by the City to eliminate “dedicated” STR’s within the municipality. The full decision delivered November 18, 2019,
is attached for review but can be summarized as the most comprehensive clarification of what an STR operation is to
date and the compatibility of these businesses in residential zones. The ruling truly speaks for itself:
“[89] Like the difference between a one-off versus an ongoing garage sale, a residential home and a dedicated STR are
separate and distinct uses of land, differentiated by their purpose and by the way in which persons occupy the units. One is non-commercial and the other is commercial.”
“[90] Residential areas are designed and intended to be non-commercial areas where people reside, with some exceptions
for in-home activities such as a home occupation as-of-right, and small-scale services and retail uses by rezoning. Commercial areasare designed and intended as locations for business where commerce is practiced. Zoning by-laws routinely separate uses into classes and subclasses to prevent one type of use from infiltrating another. The differences between the use of a house as a place of permanent residence and the dedicated use of that same house for daily paying guests is sufficient to warrant differentiation under s.34(1) and (2) of the [Planning] Act. A dedicated STR is an identifiable and distinguishable use of land.”
“[125] The Tribunal finds that the intensity of use arising from a successful, dedicated STR, with its business intention of
regular turnover of STR customers, even if just one dwelling, operates as and exhibits a commercial use of land that changes the character of a neighbourhood. The short, temporary stay of the occupants, repeated day after day year-round results in a land use that is not residential as intended by the policy framework. Zoning provisions to constrain STR uses to levels compatible with the planned function of residential areas are considered appropriate.”
But if there remains any doubt with how the courts define commercial over a residential use, look to Ottawa-Carleton
Condominium Corporation No. 961 v. Menzies 2026 ONSC 7699 which states:
“[51] “Single family use” cannot be interpreted to include one’s operation of a hotel-like business, with units being offered to complete strangers on the internet, on a repeated basis, for durations as short as a single night. Single family use is incompatible with the concepts of “check in” and “check out” times, “cancellation policies”, “security deposits”, “cleaning fees”, instructions on what to do with dirty towels/sheets and it does not operate on credit card payments.”
The Ontario Municipal Board in its various forms, the Courts and the overwhelming evidence clearly demonstrate that
STR’s are indeed NOT a residential use of land over and over again yet, this appears to have little influence over the
Township’s administration and decision-making process (sic). In fact, Tiny’s current legal counsel has presented a “legal
opinion” stating that STR’s are a residential use and therefore permitted under the current zoning by-law. This opinion
however provides no law, precedent or any other supporting materials to substantiate that claim. When questioned,
lawyer Sara Hahn inferred that because STR renters are conducting “residential” activities (sleeping, bathing, lighting
bonfires) within the dwelling, it meets the definition of residential use. That position completely defies case law that
dictates the requirement of the occupants must behave as a “single domestic household unit” to meet the threshold of a
residential dwelling unit. I encourage all to read Hahn’s report dated August 11, 2021..... complete gobbledygook.
Another angle put forward by the Township’s planning consultant, Jamie Robinson of MHBC Planning, is that because
STR’s are not identified by the current residential zoning by-law, it must then be a residential use.
Ah, no.
That argument was also put forward in Hodgart et al v. City of Toronto where one of the appellants contended that
because Toronto’s ZBA did not identify a dedicated STR that was not operating in the owners Principal Residence, then it
must be a permitted use:
‘[72].... Westhaver argues..... that a dedicated STR is not captured by the STR regulations and is therefore not
regulated by the ZBAs. He suggests that because a STR is defined as a dwelling in which the operator resides (under the
Toronto By-law), if the operator does not reside there then it is not a STR by definition. Put another way, Westhaver is
arguing that the ZBAs regulate home sharing but fail to regulate dedicated STRs.”
“[73] .... zoning by-laws routinely operate by defining uses and then regulating those uses within specified zones.
“If a use is not listed as permitted, it is not allowed””
“[74] Westhaver is correct that a dedicated STR is excluded by the STR definition, but the consequence is one of
prohibition not permission.....Those zones do not permit a use expressly permitting a STR that is not within a PR
(Principal Residence in Toronto). The very basis of zoning by-laws would be rendered ineffective if one aspect of a use
could be altered to release it from a definition and thus be permitted.”
Finally, the flaw in that argument is summarized:
“[77] In short, zoning by-laws are not dictionaries. They do not neutrally define uses without a purpose in mind.
The purpose of definitions is to frame what is meant by certain terms used in a list of permitted uses, to the exclusion of
other possible meanings or uses. The contents of those definitions are integral to the regulatory scheme of a zoning by-
law.”
What is the objective?
Why the emphasis on the illegitimate use of land in Shoreline Residential zones? It’s simple really
STR’s are at best, described as a nuisance threatening to destroy the very fabric of our residential
neighbourhoods. However, the Township since 2011 has inexplicably allowed and in essence promoted the operation of
STR’s in Tiny in direct contravention of their own zoning by-law. Not only that, this administration has announced that it
will “grandfather” all existing STR operations as legal, non-conforming operations, in spite of the fact that these operations
have sprung up in every neighbourhood completely unregulated, often grouped in clusters the total number of which the
municipality has absolutely no idea of.
There’s only one problem with that. You cannot “grandfather” an illegal use of land, which is what an STR is. You
can no more “grandfather” an STR in a Shoreline Residential zone than you could a marijuana grow op, or an unlicensed
after-hours club, or that salvage yard previously mentioned. Can’t be done – legitimately. Even if you buy in to the ability
for the municipality to classify all currently operating STRs in the Township as “Legal non-Conforming” as suggested by
Township legal counsel, such designation could only be given to operations that were in existence when the By-Law was
enacted (2006) and can demonstrate uninterrupted operation since that time to be so entitled:
“Non-Conforming Uses
No lands, buildings or structures shall be used except in conformity with the provisions of this By-law unless such use existed before the date of passing this By-law and provided that it has continued and continues to be used for such purpose, and that such use, when established, was not contrary to a By-law passed under Sec 34 of the Planning Act R.S.O. 1990, c. P.13 as amended or a predecessor thereof that was in force at the time” Tiny Township By-law 06-001 sec 4-8.
That means that an operating STR to be eligible to be designated Legal non-conforming, must have been in existence
and continually operating uninterrupted as an STR prior to the passing of By-law 06-001.... Which occurred funnily
enough in 2006. Bear in mind that Airbnb was incorporated in San Francisco in 2009, and the likelihood of an STR (a term
unknown at the time) being in operation prior to 2006 and remaining in operation without pause – including the transfer of
ownership, since then in Tiny, is highly unlikely. So why try?
Well, the answer comes from Tiny CAO Robert Lamb who is quoted numerous times in the press as stating that
because the municipality has been telling everyone since 2011 that STR’s were permitted and to now turn around and say
that they’re not, would open the door to massive litigation against the Township. Hmmm.
From whom?
STR operators? If you have read up to this point it should be fairly obvious that STR operations in residential
zones in Tiny Township are not a permitted – legal – use of land and as such, have no legal standing nor can claim for
damages, monetary or otherwise, as a result of being forced to comply with the law. It would be akin to an individual being
arrested while attempting to rob a bank having the grounds to sue the police for the loss of revenue that he would have
obtained if his robbery hadn’t been thwarted. Ludacris!
So the municipality screwed up. They didn’t understand their 2011 legal opinion. They have not adhered to
provincial planning policy, they rely on “pseudo-expert” advice, they have neglected to analyze legal precedent, they
scramble to reverse engineer a complicated, unenforceable “solution” to a problem they created all because they
apparently can’t admit that they were wrong, and the worst part is that they are sacrificing the rights of residents of this
community to the peaceful enjoyment of their own properties, all in an apparent effort for a few individuals to simply save
face. Pathetic.
Particularly when the solution is so simple.
Everyone admits that STR’s do serve a segment of the tourism industry and are a part of a comprehensive
community housing policy when properly regulated, but the current situation is untenable. Competent and fair regulation
can only start with a clean sheet of paper and right now, the municipality has the authority to order the closure of every
non-compliant STR (which is all of them) as other communities have done (Goderich for example). Free of encumbering
baggage, the Township can then institute a rational, enforceable and sustainable control regime that will address the
common issues that STR’s plague jurisdictions with across the region and around the globe; limiting their numbers,
ensuring the sustainability of local resources, financially contributing to the maintenance of the support system and the
privilege of operating within this community and finally establishing clear and enforceable codes of conduct. Only by
starting from square one can an effective licencing policy be enacted and enforced and anything short of that “do-over”
plan, will be a complete disaster for this community. The Township already demonstrates that ineptitude on a daily basis.
But Mr. Lamb was correct about the municipality possibly exposing itself to a tsunami of litigation, he just got it
wrong who the potential legitimate and entitled Plaintiffs would be.... the resident property owners of Tiny Township.