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ODSP-OWA - Boarding Houses. Flood v. Boutette (Ont CA, 2021)
In Flood v. Boutette (Ont CA, 2021) the Court of Appeal considered the little-litigated issue of the defining features of boarding houses:[78] Mr. Boutette was aware of this court’s decision in Good (ONCA) which, as discussed, concluded that in that case, whether a building was a lodging house or a residential unit for the purpose of a municipal business licensing bylaw depended on “whether there was collective decision-making sufficient to create a single unit for housekeeping purposes”.
[79] The statutory context in this case is different than in Good and the trial judge held that Mr. Boutette’s view that Good might not apply to Fire Code investigations was reasonable in the circumstances. It was therefore reasonable to think that the definition of a boarding, lodging, or rooming house under Fire Code might be more expansive than the bylaws at issue in Good.
[80] Good was a business licensing dispute. The trial judge in Good favoured a restrictive interpretation of the relevant bylaw in favour of the right of an owner to deal freely with the property: see Good (ONSC), at paras. 12-13 (noting, however, that his decision did not turn on this point); see also Good (ONCA), at para. 2.
[81] The Fire Code, by contrast, is a public welfare regulation. Such regulations are given a liberal interpretation by the courts, as to do otherwise would “interfere with or frustrate the attainment of the legislature’s public welfare objectives”: Ontario (Ministry of Labour) v. Hamilton (City), 2002 CanLII 16893 (ON CA), 58 O.R. (3d) 37 (C.A.), at para 16.
[82] It was objectively reasonable to think the different statutory context might be relevant and that factors other than those identified in Good might militate in favour of the applicability of the Fire Code. As the trial judge observed, subsequent jurisprudence has confirmed the view that whether a property is a lodging house within the meaning of a bylaw depends on the particular bylaw at issue: see Neighbourhoods of Windfields Limited Partnership v. Death (2008), 49 M.P.L.R. (4th) 183 (Ont. S.C.), at paras. 70-71, aff’d, 2009 ONCA 277, at paras. 3-4, leave to appeal refused, [2009] S.C.C.A. No. 253; Payne (ONSC), at paras. 142-144.
Whether a residence is a lodging house is a contextual analysis
[83] In Good (ONCA), this court set out several factors relevant to whether the occupants of a residence exercise sufficient collective decision-making to form a single housekeeping unit, including the manner in which rent and utilities are paid, how the residence is furnished, and how housekeeping is organized. In addition to Good, Mr. Boutette was also aware of the Bentolila case.
[84] In Bentolila, the appeal judge found that a residence occupied by students was a boarding house within the meaning of the Fire Code. Drawing on Good and other relevant authorities, that case set out a range of factors, at para. 56, relevant to this conclusion. These included, among other things, “[a]part from their attendance at [a university], there was no mention of any other connection between the inhabitants”, “the only area where a resident could assert privacy was in his or her own bedroom,” and “each resident provided for his or her own nutritional needs, and shared the use of a number of refrigerators.”
[85] Taken as a whole, the caselaw stands for the proposition that the question of whether a residence is a lodging, boarding, or rooming house, within the meaning of the Fire Code, is a contextual one. Mr. Boutette understood that, ultimately, this determination would be for the judge to make.
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