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RTA - Municipal Licencing. Windsor Housing Providers Inc. v. Windsor (City)
In Windsor Housing Providers Inc. v. Windsor (City) (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from a dismissed JR attempting to quash a municipal by-law that licensed "residential rental housing":[2] After several years of study, including receipt of reports and consultation with stakeholders, on February 13, 2023, the Council of the City of Windsor passed the Residential Licensing By-Law 14-2023 (the “By-Law”). As stated in Council’s Resolution CR 171/2022 passed on April 25, 2022, approving the By-Law, the residential rental licensing framework would serve as a two-year pilot study to license residential rental housing in Wards 1 and 2 out of 10 wards, after which time Administration was instructed to report back to Council on the results of the two-year pilot study. Council would then decide whether to expand the By-Law to all wards or rescind it. On May 29, 2023, Council passed several housekeeping amendments to the By-Law.
[3] The stated purpose of the By-Law is “to regulate the renting of residential premises for the purpose of protecting the health and safety of the persons residing in residential rental premises”. The By-Law intends to carry out this purpose “by ensuring that certain regulations are met, that required essentials such as plumbing, heating and water are provided”, as well as “ensuring that the residential rental premises do not create a nuisance to the surrounding properties and neighbourhood”, with the view of protecting “the residential amenity, character and stability of residential areas”.
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[15] Second, the By-Law does not allow for unlawful entry that breaches s. 8 of the Charter or that exceeds a landlord’s right of entry permitted by the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”) or the Building Code Act, 1992, S.O. 1992, c. 23. Specifically, as the application judge correctly stated, ss. 9.8 and 9.9 of the By-Law only permit entry of officers onto the property, but not into any dwelling, for the purpose of inspection, and not search and seizure, except with the permission of the resident, upon notice having been given to the tenant pursuant to the RTA, or with a duly obtained warrant.
[16] Third, the By-Law does not interfere with a tenant’s right to sublet premises in accordance with the RTA by requiring a tenant to obtain a licence before it can sublet. There is nothing in the By-Law that interferes with a tenant’s right to sublet in accordance with the provisions of the RTA. The definitions of “Operate”, “Operator” and “Tenant” do not refer to or interfere with a tenant’s right to sublet under the RTA. The By-Law defines these terms as follows:“Operate”, “Operated” or “Operating” means to rent out, provide, offer to rent out or provide, or cause to be Marketed, the offer or rental, whether directly or indirectly, including, without limitation, via the internet or other electronic platform, of a Rental Housing Unit and shall include a person collecting a fee or handling payments in respect of a Rental Housing Unit;
“Operator” means any person who operates, maintains, or is otherwise responsible for managing or addressing issues in relation to a Rental Housing Unit but is not an Owner;
“Tenant” includes a person who pays Rent or provides services in lieu of paying Rent in return for the right to occupy a Rental Housing Unit and includes the person’s heir, assigns (including subtenants) and personal representatives. [17] We agree with the application judge’s interpretation that on a plain reading of these definitions, “[t]here can be no suggestion that a ‘Tenant’ is an ‘Operator’ as defined in the [By-Law]”.
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