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Law firm says Ottawa has more capabilities to tackle 'renovictions' but City disagrees

ACORN Ottawa solicited the advice of Ravenlaw law firm, which said it found the City could lend from other municipalities across Canada, but a response from the City says the law firm failed to consider a few things.
2018-02-28 Ottawa City Hall2 MV
Ottawa City Hall, February 28, 2018. (Photo/ Mike Vlasveld)

Nothing prevents the City of Ottawa from enacting similar by-law policies that other municipalities have adopted to tackle the issue of “renovictions,” despite the City saying that it cannot or should not regulate in this area.

That’s according to the response provided to Ottawa ACORN via Claire Michela of Ravenlaw law firm, which was provided on June 14.

However, the City maintains its response and that the matters raised in RavenLaw’s letter “do not alter the legal opinion set out in the staff report.”

“There is agreement that the City is not precluded from regulating renovations in some form, provided that it does not frustrate the purpose of the provincial Residential Tenancies Act (RTA),” a memo from City solicitor David White to city council sent out on Wednesday, June 22, said.

In the letter addressed to head ACORN organizer Ashley Reyns, Michela says Ravenlaw was asked to assess whether the City of Ottawa has the authority to “implement certain regulatory instruments that other municipalities have implemented to reduce renovictions and uphold maintenance standards.”

These include:

  • An anti-renovictions by-law like the one in New Westminster, B.C.;
  • A landlord licensing or registration by-law, like the one in Toronto;
  • a Tenant Assistance Policy, like the one in Burnaby, B.C.

However, White responded with the following in his memo to council: “Staff did not recommend a landlord licensing regime (such as that in New Westminster B.C. or in Toronto) based on both efficiency, enforceability and sustainability considerations, as well as legal uncertainties. The Ravenlaw Opinion failed to consider relevant statutory provisions which informed staff’s opinion and does not change staff’s opinion that the existing legal uncertainties associated with this approach are such that staff do not recommend it.”

Further, Michela writes, is that the firm has been asked to respond to the City’s statements which imply that it cannot enact such by-laws within the scope of its municipal powers.

“If properly drafted, such by-laws would not run afoul of the City’s authority within the Municipal Act, nor would they frustrate the purpose of the RTA,” the letter states. “The case law has consistently confirmed that the scope of municipal authority is broad and challenges to cities’ by-law making powers are rarely successful.”

In cases from Ontario and B.C., Michela says courts have been clear that, within legal limits, municipalities do have the authority to regulate residential tenancies by enacting by-laws.

“The City’s view overall appears to be that it already has some by-laws in place to deal with tenant issues, and in addition, the province is in the best position to regulate further protections for tenants,” the letter continues. “However, the City’s view obfuscates the fact that it has already regulated alongside the RTA. Further, the case law clearly indicates that municipalities are entitled to regulate in matters like housing which raise local concerns.”

Michela adds that Ravenlaw is not aware of any legal barrier that would prevent the City from addressing all the concerns that ACORN has raised with “a single regulatory response.”

For example, the City could consider regulating that a landlord’s rezoning application is conditional on providing financial assistance to tenants, as the Tenant Assistance Policy in Burnaby does.

As well, the City could require registration before offering certain permits to landlords.

However, in his rebuttal, White said that there continues to be a lack of clear legislative authority to take an approach on the Burnaby, B.C. model incorporating conditions on a zoning approval and that Ravenlaw does not point to any new legislative source for such authority.

Although, White does say that City staff is “largely in agreement” with Ravenlaw on the issue that the City has authority to pass by-laws related to renovictions, or whether any such by-law would necessarily frustrate the province’s RTA.

“The difference in opinion stems not from the scope of the City’s authority in this area, but the specific legal mechanisms available to impose conditions on renovictions,” White explained.

As for the issue of landlord licensing, White said staff did not recommend such a “regime.”

The route, however, was previously considered by council in the November 2019 report on rental accommodations study and regulatory regime.

In the report, staff recommended against the adoption of landlord licensing based on efficiency, enforceability and sustainability considerations, as well as the legal uncertainty identified in that report.

In regards to Ravenlaw’s suggestion of conditional zoning, like that in Burnaby, White says it was concluded that there was a lack of clear legislative authority to take this approach and that the Ontario legislation contains no clear authority to permit a municipality to make rezoning conditional on provisions of tenant assistance.

As White points out, the Ontario Planning Act and current regulations do not permit municipalities to enhance conditional zoning by-laws.

The City also says that Ravenlaw did not consider the use of a by-law under s. 99.1 of the Municipal Act to regulate conversion and demolition of rental properties.

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