In Davis v. Guelph, the Ontario Court of Appeal clarified the definition of a “room or place actually being used as a dwelling” for the purposes of the Municipal Act and the Building Code Act. The Court held that the term means "a building, room or physical structure that is actually being occupied and used as a residence or live-in accommodation", and that a backyard swimming pool did not meet this definition. The Court also held that the appropriate test for bias in a situation where a municipal officer issues a repair order or bylaw compliance order is a "loose" version of the reasonable apprehension of bias standard.
Under the Municipal Act and the Building Code Act, municipalities may pass by-laws permitting their officials to enter property for purposes of inspection without consent and without a warrant, excluding any “room or place actually being used as a dwelling.” Blair J. pointed out that there is no definition of "dwelling" in any Ontario legislation, but looked to legislation from other provinces and definitions of similar terms in Ontario legislation to conclude that the term refers to a room or place being used as living space. Stating that there is a distinction between a private dwelling and a person's backyard on the basis that there is a significantly reduced expectation of privacy in the latter, Blair J. reasoned that a backyard swimming pool does not fall within the definition of "room or place actually being used as a dwelling" under the relevant legislation.
Blair J.A. also noted that the appropriate test for bias in a situation where a municipal officer issues a repair order or bylaw compliance order had not yet been determined in previous caselaw. He reasoned that such decisions were closer to "enforcement" than to "adjudicative" decisions on the spectrum between the two categories. He nonetheless concluded that the reasonable apprehension of bias standard, rather than the "closed mind" test, should apply, but that the test should not to be applied in its strictest form.
December 6, 2011
Link to Decision
Rebecca Crangle & Kai Sheffield
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