Brampton (City) v. Chowdhury, 2019 ONCJ 702

CITATION: Brampton (City) v. Chowdhury , 2019 ONCJ 702 DATE: October 2, 2019 IN THE MATTER OF City of Brampton Bylaw No. 87-2015 (Second Unit Registration), City of Brampton Bylaw No. 270-2004 (Zoning), and the Planning Act, R.S.O. 1990, c. P.13 . Between The Corporation of the City of Brampton prosecutor and Tasmin CHOWDHURY and Shah ISLAM defendants Ontario Court of Justice Brampton, Ontario Quon J.P.

Reasons for Judgment Trial held: July 10, 2019 Judgment rendered: October 2, 2019 Charges: both defendants are charged with the same two offences but on separate informations (#6302 and #6303): Count #1 : on or about the 4 th day of January, 2018, at 35 Delphinium Way, described as LOT 241, PLAN 43M1748, in the City of Brampton, Regional Municipality of Peel, Shah ISLAM and Tasmin CHOWDHURY did commit the offence of using or permitting the use of lands for purposes not permitted by section(s) 10.16, 13.4, and 3459 of City of Brampton Zoning By-law No. 270-2004, as amended; namely, a second dwelling unit, contrary to the Planning Act , R.S.O. 1990, c.

P.13, section 67(1) .

Count #2: on or about the 4th day of January, 2018, at 35 Delphinium Way, described as LOT 241, PLAN 43M1748, in the City ofBrampton, Regional Municipality of Peel, Shah ISLAM and Tasmin CHOWDHURY did commit the offence of failing to register aSecond Unit in a Two Unit House, contrary to City of Brampton Second Unit Registration By-law No. 87-2015, as amended,

section 6. Counsel: A. Patterson, prosecutor for the City of Brampton. Tasmin CHOWDHURY and Shah ISLAM, both unrepresented. Cases Considered or Referred To: R. v. Jarvis, 2002 SCC 73 , [2002] 3 S.C.R. 757, [2002] S.C.J. No. 76 (S.C.C.). Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 (S.C.C.). Statutes, Regulations and Rules Cited: Legislation Act, 2006, c. 21, Sched. F, s. 64(1). Municipal Act, 2001, S.O. 2001, c. 25. Planning Act, R.S.O. 1990, c. P.13, ss. 2, 3, 3(1), 16, 16(1)(a.1), 16(3), 16(3)(a), 16(3)(b), 34, 34(1), 35.1(1), and 67(1). Province Offences Act, R.S.O. 1990, c. P.33 Strong Communities through Affordable Housing Act, 2011, S.O. 2011, c. 6,

Schedule 2, ss. 8(1) and 8(2). Bylaws Cited or Considered: The Corporation of the City of Brampton By-law No. 86-2015 (By-law to amend Zoning By-law 270-2004 – Second Units Policy). The Corporation of the City of Brampton By-law No. 87-2015 (Second Unit Registration By-law), ss. 5, 6, 7, 17, 17(2), and 18. The Corporation of the City of Brampton By-law No. 270-2004 (Zoning By-law), ss. 2.2, 2.3, 5, 6.17, 10.9, 10.9(a), 10.16, 10.16(b),10.16(c), 10.16(d), 10.16(e), 10.16(f), 10.16(i), 13.4, 13.4.1(a), 17(24.1), and s. 3459 of

Schedule A. City of Brampton By-Law 117-2017 (amending s. 10.16 of City of Brampton Zoning By-law 270-2004 in regards to a second unit in TwoUnit Dwellings).

Provincial Policy Statements Cited or Considered: “Provincial Policy Statement, 2014”, Ministry of Municipal Affairs and Housing website, online: << https://www.ontario.ca/document/provincial-policy-statement-2014 >>. ss. 1.4.3 and 1.4.3(b)(2). Reference Material Cited or Considered: Cambridge Dictionary, d ictionary.cambridge.org. we bsite, online: << https://dictionary.cambridge.org/dictionary/english/self-contained >> , definition for “self-contained”. Sullivan, R., Statutory

Interpretation ( Toronto, Ontario: Irwin Law Inc., 1997 ), pp. 54, 134, 137. Thompson, D., ed. The Concise Oxford Dictionary of Current English, ninth edition (New York: Oxford University Press, 1995), “accessory” at p. 8 and “self-contained” at p. 1254. Exhibits entered: Exhibit "1" - City of Brampton By-law 87-2015 (8 pages). Exhibit "2" - Evidence Act Notices sent by mail on October 16, 2018, to Tasmin CHOWDHURY and Shah ISLAM (6 pages). Exhibit "3" - City of Brampton Zoning By-law No. 270-2004 (4 binders located in courtroom B2).

Exhibit "4" - A document of five pages that includes a two-page certified document from Service Ontario in respect to the Parcel Register indicating the names of the owner of a property described as Lot 241, Plan 43M1748, Brampton, prepared on 2018/02/16 at 12:01:48 (14251-2211 (LT)) as Shah ISLAM and Tasmin CHOWDHURY as joint tenants and as of 2008/09/18; and a three-page Transfer document indicating that Shah ISLAM and Tasmin CHOWDHURY were transferred the title to the property at 35 Delphinium Way on September 18, 2008 from Paradise Homes Mayfield Inc. for $361,000.24.

Exhibit "5" - “Access Notice” letter dated December 7, 2017, written by Property Standards Officer Richard Mohammed, notifying the registered owners of the property at 35 Delphinium Way, Brampton, of a possible contravention of the Second Unit Registration By- law for having an unregistered or illegal two-unit or multi-unit dwelling at Delphinium Way and a request for their cooperation. The letter also advised that it was necessary for them to contact the Property Standards Officer no later than December 14, 2017 (7 days after the issuance of the letter).

The December 7, 2017 Access letter had been posted on the front door of Delphinium Way on December 7, 2017 (1 page). Exhibit "6" - Photographs of the front of the property at 35 Delphinium Way, Brampton, and the business card and Access Letter posted on front door of 35 Delphinium Way taken on December 15, 2017 at 10:08 by Richard Mohammed, Property Standards Officer for the City of Brampton (2 pages).

Exhibit "7" - Photographs of the front of the property at 35 Delphinium Way, Brampton, and the business card and Access Letter posted on front door of 35 Delphinium Way taken on December 28, 2017 at 11:16 by Richard Mohammed, Property Standards Officer for the City of Brampton (2 pages).

Exhibit "8" - Set of 46 photographs of the property at 35 Delphinium Way, Brampton, taken on January 4, 2018, by Richard Mohammed, Property Standards Officer for the City of Brampton (46 pages). Exhibit "9" - Photographs of the front of the property at 35 Delphinium Way, Brampton and the business card posted on front door of 35 Delphinium Way and views of both sides of the house taken on July 13, 2018, at 10:57 by Richard Mohammed, Property Standards Officer for the City of Brampton, which shows discarded furniture and items (4 pages).

Exhibit "10" - Photographs of the front of the property at 35 Delphinium Way, Brampton taken on October 11, 2018, at 10:51 by Richard Mohammed, Property Standards Officer for the City of Brampton, which shows discarded furniture, mattresses, and items at the curb at the front of the property and two cars on the driveway and the business card posted on front door of 35 Delphinium Way and photographs of the rear licence plates of the two cars in the driveway (4 pages). Exhibit "11" - A package of 31 pages of documents comprising of the zoning report for 35 Delphinium Way, Brampton, which includes s. 3459 of

Schedule A of City of Brampton Zoning By-law 270-2004 (1 page); s. 13.4 of City of Brampton Zoning By-law 270-2004 (4 pages); excerpts of City of Brampton Zoning Bylaw 270-2004 (9 pages); s. 10 of City of Brampton Zoning By-law 270-2004 (4 pages); the City of Brampton Second Unit Registration By-Law 87-2015 (8 pages); the City of Brampton Two Unit Dwellings By-Law 86-2015 (2 pages); and City of Brampton By-Law 117-2017 amending s. 10.16 of City of Brampton Zoning By-law 270-2004 in regards to a second unit in Two Unit Dwellings (2 pages). The report was generated on July 9, 2019 at 10:09:33 AM. 1.

INTRODUCTION [ 1 ] Some homeowners in Brampton rent out part of their house to tenants to help pay their mortgage or for additional income. They either rent out a room while sharing the kitchen or bathroom with their tenant or they rent out a separate and self-contained dwelling unit in their house, such as a basement apartment that contains a bedroom, separate kitchen, and bathroom that does not have to be shared with the homeowner.

In Brampton, as well as in many municipalities in Ontario, a house designated or zoned as a “single detached residential dwelling” can only have a separate and self-contained dwelling unit or apartment as a second residential dwelling unit, if that particular dwelling has been legally zoned to allow for a “second unit” and the homeowner has complied with any registration requirements with the municipal authorities for that “Two-Unit House” or two-unit residential dwelling, and the Two-Unit House complies with the applicable Ontario Fire, Building, Electrical Safety, and Plumbing Codes, as well as complying with the off-street parking requirements. [ 2 ] Specifically, in the City of Brampton, Brampton’s Zoning By-law No. 270-2004 and Brampton’s Second Unit Registration Bylaw No. 87-2015 regulate and apply to homeowners who wish to establish “second units”, such as basement apartments, in their residential houses.

Second residential dwelling units are legally permitted to be established in detached, semi-detached and townhouse dwellings in Brampton, as long as they comply with the applicable zoning requirements and restrictions. But, in order to be legal, “second units” must also be registered with the City of Brampton Building Division.

Moreover, the legal requirement for homeowners in Brampton to obtain a building permit for establishing a second unit and to also register their Two-Unit Houses with a second unit with the City of Brampton, as part of the legalization process of that second unit, allows the City of Brampton to inspect the Two-Unit residential dwelling and the second unit for compliance with Ontario’s Fire, Building, Electrical Safety, and Plumbing Codes, and compliance with the Zoning By-law, which is for the protection of owners’ and tenants’ safety and health. [ 3 ] Of the Brampton homeowners who do rent out second dwelling units contained in their homes, some ensure that their houses and “second units” do legally comply with the Ontario Planning Act , R.S.O. 1990, c.

P.13 , the City of Brampton Zoning By-law, the City of Brampton Second Unit Registration By-law, and with the off-street parking requirements, as well as ensuring that their homes and these second dwelling units in their homes also comply with the applicable Ontario Building, Fire, Electrical Safety, and Plumbing Codes, for the safety and well-being of themselves and their tenants.

Unfortunately, there are many homeowners in Brampton, who do rent out separate and self-contained second dwelling units, such as basement apartments, in their homes to a tenant, without legally complying with the applicable statutes, by-laws, and Codes. [1] As a consequence of this unlawful activity of renting out illegal basement apartments or second dwelling units, where many of these illegal second dwelling units do not comply with the Ontario Fire, Electrical Safety, Plumbing, and Building Codes, there have been fires and even deaths in these illegal basement apartments or second dwelling units in the City of Brampton. [2] Moreover, many of these illegal basement apartments or second dwelling units have come to the attention of the City of Brampton because of complaints from neighbours, due to the over-crowded street parking of motor vehicles and the presence of numerous people living in homes that are being used as rooming houses.

Unfortunately, some of these illegal basement apartments or second dwelling units are only discovered after a fire has actually occurred in that illegal basement apartment or second dwelling unit. [ 4 ] In the present matter, the defendants, Tasmin CHOWDHURY and Shah ISLAM, have been both charged with committing the

same two offences, as the registered owners on January 4, 2018, of a residentially-zoned property located at 35 Delphinium Way in the City of Brampton. One charge is for using or permitting the use of lands for purposes not permitted by ss. 10.16, and 13.4, and s. 3459 of

Schedule A of City of Brampton Zoning By-law No. 270-2004, by having a second dwelling unit (an illegal basement apartment) in their house on January 4, 2018, which would be a contravention of s. 67(1) of the Planning Act , R.S.O. 1990, c.

P.13 ; while the second charge is for failing to register their Two-Unit residential house containing a second dwelling unit with the City of Brampton, which would be a contravention of s. 6 of Brampton’s Second Unit Registration By-law No. 87-2015. [ 5 ] The defendants’ charges arose as a result of Richard Mohammed, a City of Brampton Property Standards Officer, attending and being permitted to inspect the interior of the defendants’ house at 35 Delphinium Way on January 4, 2018, in respect to a complaint made on December 6, 2017, about an illegal lodging house or an illegal basement apartment at that particular address.

During his inspection of the defendants’ house on January 4, 2018, Property Standards Officer Mohammed testified that he did observe a self- contained basement apartment with bedrooms, a kitchen and a bathroom in that particular house.

Consequently, Property Standards Officer Mohammed charged both Tasmin CHOWDHURY and Shah ISLAM separately on March 14, 2018, with committing those two offences in respect to that impugned “second unit”. [ 6 ] Furthermore, t he prosecution contends that on January 4, 2018, there had indeed been two separate and self-contained residential dwelling units in the house at 35 Delphinium Way , which was not a legally authorized “use” for that particular house.

In other words, the City of Brampton Building Division had not authorized the defendants’ house to be legally used as a Two-Unit House containing a second unit, since the defendants’ house had been only zoned for “use” as a “single detached residential dwelling” under s. 13.4.1(

a) o f Brampton Zoning By-law No. 270-2004.

In addition, the prosecution further contends t hat the defendants had also on January 4, 2018, failed to register their Two-Unit house containing a second unit with the City of Brampton that is legally required under s. 7 of the City of Brampton’s Second Unit Registration By-law No. 87-2015. [ 7 ] In their defence, the defendants contend that there had not been a separate second residential dwelling unit in their house at 35 Delphinium Way on January 4, 2018, because there was no stove in the basement and that the defendants themselves had been living in the basement while no one else had been living on the main floor and upstairs of the house.

In addition, the defendants submit that they had only warmed up food in a microwave appliance in the basement kitchen.

Moreover, the defendants contend that even if there had been a tenant residing in their house, the house would have been shared with the tenant. [ 8 ] Therefore, in order to prove both of the defendants’ respective charges, does the prosecution have to prove that there is an actual tenant residing in the defendants’ house on January 4, 2018, in order for the prosecution to prove beyond a reasonable doubt that the defendants had a Two-Unit house with a separate self-contained second dwelling unit in their house at 35 Delphinium Way?

In addition, does the prosecution have to prove that there is a stove in the basement in order to prove that there is a separate self-contained second dwelling unit or basement apartment in the defendants’ house?

As well, it will also have to be decided whether there is a self-contained second dwelling unit in the basement of the defendants’ house in the circumstance where it had been the defendants who had resided in the basement of their house and not a tenant, and whether homeowners residing in the contended second unit of a house is relevant in deciding whether there is the existence of a second unit in the defendant’s house.

Moreover, if the defendants were in fact renting out part of their house to a tenant, were the defendants and the tenant in the circumstances simply sharing the entire house and not indeed living in two separate self-contained residential dwelling units on January 4, 2018, respectively? [ 9 ] Consequently, after considering the governing legislation, the totality of the evidence and the circumstances of this case, the prosecution is not required to prove that there is an actual tenant residing in the defendants’ house on January 4, 2018, to prove either of the two counts.

For the Zoning By-law charge in count #1, the prosecution only has to prove that there are “two residential dwelling units” in the defendants’ house to prove the house was being unlawfully used on January 4, 2018 as “Two-Unit House” to prove the offence in count #1. And for the Second Unit Registration By-law charge in count #2, s. 7 of Brampton Second Unit Registration By- law No. 87-2015 only requires homeowners to register their “Two-Unit House” with the City of Brampton if they have “established a second unit” or “operated a second unit” or “permitted to be occupied a second unit” in their house.

Therefore, to prove the offence in count #2, the prosecution needs to only prove one of those three alternate circumstances had occurred.

In this case, the prosecution has proven beyond a reasonable doubt that a “second unit’ has been physically “established” in the defendants’ house to make the defendants’ house a Two-Unit House containing a second unit, which is one of the circumstances under s. 7 of Brampton Second Unit Registration By-law No. 87-2015, that legally obligates or requires the defendants to register their Two-Unit House containing the second unit with the City of Brampton. [ 10 ] Moreover, for the circumstances of this case, the prosecution can prove that both of the defendants had committed the offences in the two counts by proving the physical existence or presence of a “second unit” in the defendants’ house without having to necessarily prove that a tenant had been actually residing in that second unit in order to establish the existence of a “second unit” in the house.

On the other hand, in other circumstances, it may be necessary for the prosecution to prove the existence of tenant in order to establish the other two alternate circumstances set out under s. 6 of the City of Brampton’s Second Unit Registration By-law No. 87-2015 of “operating a second unit” or “permitting the occupation of a second unit”.

[ 11 ] In addition, the absence of a stove in the basement kitchen does not mean that there is no second self-contained residential dwelling unit in the basement, since there were small electrical appliances present in the kitchen in the basement which could be used to prepare meals, as well as the existence of an electrical plug installed in the basement kitchen where a stove could be easily brought in and hooked up.

Furthermore, even though there was evidence on January 4, 2018, that the defendants were residing in the basement and that no one else was residing on the main floor or second floor of the defendants’ house, the door leading to the basement from the main floor could not be opened from the main floor side and getting down into the basement could only be done through the door leading to the basement that is located in the garage and which is only accessible by going through the garage.

This is further evidence that a self- contained second residential dwelling unit had been established in the basement of the defendant’s house, which could then be used to accommodate tenants either in the basement or on the main floor and second floor of the house, as two separate self-contained residential dwelling units. [ 12 ] Moreover, by closing off or making the door leading to the basement that is located on the main floor of the house inaccessible for entry into the basement by someone on the main floor, and that entrance into the basement could only be gained by using the door leading into the basement that is located inside the garage and which can only be accessible by going through the garage, is not evidence of or indicative of the defendants sharing the house with a tenant on January 4, 2018.

On the other hand, it is indicative of the defendants establishing a self-contained “second unit” or basement apartment in the basement of their house. [ 13 ] Furthermore, on the issue of the defendants occupying the basement apartment or second unit and whether that would still make the basement apartment a “second unit”, the answer is the same as the question on whether the prosecution has to prove the existence of a tenant in order to establish the existence or presence of a second unit.

Once more, the prosecution needs to only prove that a second self-contained residential dwelling unit has been physical “established” in a house zoned as a single residential dwelling unit in order to prove the existence of a “second unit”. Moreover, the Planning Act , R.S.O. 1990, c. P.13 , does not permit zoning and legal use to be dependent on or distinguished by whether the homeowners reside in the principal unit or reside in the second unit of a Two-Unit House or dependent on the relationship between the homeowner and the people residing in the second unit of a Two-Unit House .

So, whether the homeowner is residing in the second unit or residing in the principal unit of the house does not matter as the “use” of the house would still be that of a “Two-Unit House” containing a second unit which is not permitted under the Brampton Zoning By-law 270-2004, for a house that is zoned for use as a “single residential dwelling unit”.

Moreover, the same public safety, health, and livability concerns about an illegal second unit or basement apartment not being in compliance with the Ontario Building, Fire, Electrical, and Plumbing Codes would still be present whether the homeowner resides in the second unit or the principal unit of the house. [ 14 ] Ergo, based on the totality of the evidence, the prosecution has proven beyond a reasonable doubt that there is contained in the defendants’ house at 35 Delphinium Way on January 4, 2018, a self-contained basement apartment with a kitchen for preparing meals, a bathroom for sanitary purposes and rooms for sleeping, which is a “second unit” within the meaning of Brampton Zoning By-law No. 270-2004 and Brampton Second Unit Registration By-law No. 87-2015.

Moreover, this is evidence that proves beyond a reasonable doubt that the defendants had committed the offence set out in count #1 of their respective informations of using or permitting the use of lands for purposes not permitted under ss. 10.16 and 13.4, and s. 3459 of

Schedule A of Brampton Zoning Bylaw No. 270-2004 on January 4, 2018, by having improperly “established” a second residential dwelling unit in their house which had been only zoned for use as a single detached residential dwelling, and as such the defendants have contravened s. 67(1) of the Planning Act , R.S.O. 1990, c.

P.13 . [ 15 ] And, because the defendants’ house is a Two-Unit House with a second unit (self-contained basement apartment) the defendants were legally required to register their Two-Unit house with the City of Brampton Building Division by virtue of s. 7 of the Brampton Second Unit Registration By-law No. 87-2015 , and because the prosecution has proven beyond a reasonable doubt that they had failed to do so on January 4, 2018, then both defendants have respectively committed the offence set out in count #2 of their respective informations, of failing to register their Two-Unit House containing a second unit, contrary to s. 6 of Brampton’s Second Unit Registration By-law. [ 16 ] The trial of Shah ISLAM’s and Tasmin CHOWDHURY’s respective charges had been held on July 10, 2019.

Both defendants, Tasmin CHOWDHURY and Shah ISLAM, were present for the trial. Three witnesses had testified in the trial: two for the prosecution and one for the defence. The prosecution’s two witnesses were Richard Mohammed, the City of Brampton Property Standards Officer, who had investigated and laid the charges against the defendants, and Todd Payne, a Zoning Plans Examiner for the City of Brampton, who had explained which sections of Brampton’s Zoning By-law applied to the defendant’s property at 35 Delphinium Way.

For the defence, Shah ISLAM, one of the defendants, had testified at the trial. [ 17 ] After final submissions were made by both the prosecution and the defence on July 10, 2019, judgment was reserved and adjourned to October 2, 2019 for judgment. These, therefore are the written reasons for judgment: 2. THE CHARGES

[ 18 ] The defendant Tasmin CHOWDHURY’s charges are as follows: CHOWDHURY, Tasmin 35 Delphinium Way Brampton Ontario, L7A 0N4 Count #1 on Information #6302: on or about the 4th day of January, 2018, at 35 Delphinium Way, described as LOT 241, PLAN 43M1748, in the City of Brampton, Regional Municipality of Peel, did commit the offence of using or permitting the use of lands for purposes not permitted by section(s) 10.16, 13.4, and 3459 of By-law 270-2004, as amended; namely, a second dwelling unit, contrary to the Planning Act, R.S.O. 1990, c. P.13, section 67(1) .

Count #2 on Information #6302: AND FURTHER THAT CHOWDHURY, Tasmin on or about the 4th day of January, 2018, at 35 Delphinium Way, described as LOT 241, PLAN 43M1748, in the City of Brampton, Regional Municipality of Peel, did commit the offence of failing to register a Second Unit in a Two Unit House, contrary to City of Brampton By-law 87-2015, as amended,

section 6. [ 19 ] And for the defendant, Shah ISLAM, his charges are as follows: ISLAM, Shah 35 Delphinium Way Brampton Ontario, L7A 0N4 Count #1 on Information #6303: on or about the 4th day of January, 2018, at 35 Delphinium Way, described as LOT 241, PLAN 43M1748, in the City of Brampton, Regional Municipality of Peel, did commit the offence of using or permitting the use of lands for purposes not permitted by section(s) 10.16, 13.4, and 3459 of By-law 270-2004, as amended; namely, a second dwelling unit, contrary to the Planning Act, R.S.O. 1990, c. P.13, section 67(1) . Count #2 on Information #6303: AND FURTHER THAT

ISLAM, Shah on or about the 4th day of January, 2018, at 35 Delphinium Way, described as LOT 241, PLAN 43M1748, in the City of Brampton, Regional Municipality of Peel, did commit the offence of failing to register a Second Unit in a Two Unit House, contrary to City of Brampton By-law 87-2015, as amended,

section 6. 3. BACKGROUND [ 20 ] The defendants, Shah ISLAM and Tasmin CHOWDHURY, were the registered owners of a property zoned for residential use that is located at 35 Delphinium Way in the City of Brampton on January 4, 2018 (see Exhibit #4). The house on their property is a two- storey house with a garage. The defendants had purchased the house at 35 Delphinium Way on September 18, 2008 (see Exhibit #4 and Exhibit #11) directly from the builder, Paradise Homes Mayfield Inc.

It was a new house at the time the defendants had purchased it and they were the first homeowners to have occupied the 35 Delphinium Way house. As such, this is not a situation where the defendants had indicated that they had purchased the house with an already existing basement apartment that had contained bedrooms, a kitchen, and a washroom. However, on October 14, 2018, approximately 9 months after the charges were laid, the defendants sold their house at 35 Delphinium Way to new homeowners.

But, on the offence date of January 4, 2018, the defendants, Shah ISLAM and Tasmin CHOWDHURY, were still the registered owners of the 35 Delphinium Way house (see Exhibit #4). [ 21 ] In addition, the house at 35 Delphinium Way is a single detached residential dwelling.

And, according to Exhibit #11, 35 Delphinium Way is classified under the City of Brampton Zoning By-law No. 270-2004, as the following: Zone Code: R1E-12.4-3459 Category: RESIDENTIAL Type: R1E Special Sec: 3459 Split Zoned: NO [ 22 ] Furthermore, s. 10.16 of Brampton Zoning By-law No. 270-2004, permits basement apartments or second dwelling units to be established and constructed in a single detached residential dwelling according to its provisions.

The defendants’ house is a single detached residential dwelling and is zoned where a legal second unit could be established. [ 23 ] In respect to charges laid against both defendants in regards to their house at 35 Delphinium Way, Property Standards Officer Richard Mohammed had been assigned to inspect the house to determine if the house had an illegal second unit or whether it had been operating as an illegal lodging house, due to a complaint received by the City of Brampton on December 6, 2017.

According to Property Standards Officer Mohammed, before he actually went to the house at 35 Delphinium Way, he said he had checked their computerized database system to determine if that house had been registered with the City of Brampton as a legal Two-Unit house, which is legally required under City of Brampton Second Unit Registration By-law No. 87-2015. Mohammed said that 35 Delphinium Way had not been registered as a Two-Unit house.

Mohammed had also said that on the date the defendants were charged on January 4, 2018, the City of Brampton’s computerized database also did not indicate that 35 Delphinium Way was registered with the City of Brampton as a Two- Unit house. [ 24 ] On December 7, 2017, Property Standards Officer Mohammed made his first visit to 35 Delphinium Way, where he had observed a motor vehicle on the front driveway. He said he had also knocked on the front door, but that no one had answered the door.

Mohammed then left his business card and an “Access Notice” (Exhibit #5) on the front door advising the homeowners, Shah ISLAM and Tasmin CHOWDHURY, that they should call or contact him about the second unit or lodging house complaint in respect to the 35 Delphinium Way property. The “Access Notice” indicated that the homeowners had 7 days to contact him. [ 25 ] After several more attendances by Property Standards Officer Mohammed at 35 Delphinium Way on December 15 and

December 28, 2017, and attempts by Mohammed to speak to the homeowners of 35 Delphinium Way had been made, Shah Islam, one of the registered owners of the property, had called Mohammed on January 3, 2018, and arranged an appointment for Property Standards Officer Mohammed to attend at 35 Delphinium Way on January 4, 2018. [ 26 ] On January 4, 2018, Property Standards Officer Mohammed attended 35 Delphinium Way and met with both the registered homeowners, Shah ISLAM and Tasmin CHOWDHURY.

Mohammed said he had first informed both of the registered homeowners that they did not have to allow Mohammed to enter their house and that he had been there to investigate the complaint that there was an illegal second unit in their house or that the house was being used as a lodging house. Mohammed also cautioned them that their statements to Mohammed could be used in court. The homeowners then permitted Mohammed to enter the house and view the interior of the house.

Mohammed then said he had looked at all the rooms on the main floor, second floor, and in the basement of the house, and that he had also taken photographs of the different rooms and doors in the house. Mohammed said he had taken about 46 photos altogether. [ 27 ] After Property Standards Officer Mohammed had completed his inspection and investigation of the house at 35 Delphinium Way, Mohammed had decided, based on what he had observed, to charge Shah ISLAM and Tasmin CHOWDHURY, as the registered owners of 35 Delphinium Way with committing two offences each.

The two separate charges are the same two charges for both defendants for the offence date of January 4, 2018, in respect to the property they had jointly owned at 35 Delphinium Way in the City of Brampton. Separate informations in respect to each individual homeowner were then sworn on March 14, 2018.

Tasmin CHOWDHURY’s two charges were set out in Information #6302, while Shah ISLAM’s two charges were set out in Information #6303. [ 28 ] For the first count on each of these two Informations, the two registered homeowners were separately charged with committing the offence of using or permitting the use of lands for purposes not permitted by ss. 10.16 and 13.4, and s. 3459 of

Schedule A of Brampton Zoning By-law 270-2004, by improperly using their house as a Two-Unit House containing a second dwelling unit, which would be contrary to s. 67(1) of the Planning Act , R.S.O. 1990, c.

P.13 . [ 29 ] And, for the second count on each of the two Informations, the two registered homeowners were separately charged with committing the offence of failing to register a Second Unit in a Two Unit House, contrary to s. 6 of City of Brampton By-law 87-2015, as amended. [ 30 ] Summonses were also issued by the Ontario Court of Justice on March 14, 2018, to Shah ISLAM and Tasmin CHOWDHURY, notifying them that they had to both appear in court on July 18, 2018, in respect to the present charges.

And, according to the Affidavit of Service of Summons, both summons had been served on April 10, 2018, upon Joel Uhunmwagho a tenant at 35 Delphinium Way, Brampton, by P. Martin #7210, a provincial offences officer. However, the statement in the two Affidavits of Service for both of the summonses from the process server which had stated that the two summonses had been served on a tenant on March 14, 2018, is not evidence that there had been a tenant residing at 35 Delphinium Way on January 4, 2018. (

A) SUMMARY OF TESTIMONY FOR THE PROSECUTION’S WITNESSES

(1) Testimony of Richard Mohammed, a Property Standards Officer for the City of Brampton. [ 31 ] Richard Mohammed testified that he is a Property Standards Officer for the City of Brampton and has been with the City of Brampton in that capacity since 2015. [ 32 ] In respect to 35 Delphinium Way in Brampton, Property Standards Officer Mohammed said that he had first attended that residential property on December 7, 2017, because of a complaint made to the City of Brampton on December 6, 2017, about a lodging house or an illegal basement apartment being at 35 Delphinium Way.

Property Standards Officer Mohammed also said that on December 7th he had observed a motor vehicle parked on the driveway and that he had knocked on the door, but that no one had answered, so he then left his business card and an Access letter on the front door of 35 Delphinium Way (see Exhibit #5). The Access letter had informed the owners of 35 Delphinium Way that they had 7 days or until December 14, 2017 to contact Property Standards Officer Mohammed in person or by telephone.

The Access letter also notified the owners of the property that their property was in possible contravention of City of Brampton Zoning By-law No. 270-2004 for either having an illegal second unit or that their house was being used as a lodging house. [ 33 ] As the owners of 35 Delphinium Way did not contact him during those 7 days, Property Standards Officer Mohammed then re-

attended 35 Delphinium Way on December 15, 2017. Again, he said he had knocked on the door, but no one had answered the door. So, he then said he had left a second business card and another Access letter on the front door of 35 Delphinium Way (see Exhibit #6). The new Access letter had also informed the homeowners that they had to contact Mohammed within 7 days of December 15. Again, Mohammed said that no one had contacted him within those 7 days. [ 34 ] Then, on December 28, 2017, Property Standards Officer Mohammed said he had attended 35 Delphinium Way for a third time.

He said that he had again knocked on the door and had received no answer. He then placed his business card and another Access Letter on the front door (see Exhibit #7).

He also said he had observed on that day that the garage door was slightly open and that a garbage bin had been placed at the curb at the front of the property. [ 35 ] A few days later, on January 3, 2018, Property Standards Officer Mohammed then said that Shah ISLAM, one of the registered homeowners of 35 Delphinium Way, had contacted him by telephone, and a visit at 35 Delphinium Way was arranged and scheduled between them for January 4, 2018. [ 36 ] On January 4, 2018, Property Standards Officer Mohammed attended 35 Delphinium Way and met with both the registered homeowners, Tasmin CHOWDHURY and Shah ISLAM.

Mohammed had also said that he had been given permission by the homeowners to access and enter the house after he had informed them that they had the right to refuse him access. Furthermore, Mohammed said that he had cautioned the homeowners and that they had understood his caution, that if there was evidence of a second unit that they could be charged with an offence.

After being granted access to the house at 35 Delphinium Way, Mohammed said he took 46 photographs of the inside and outside of the house (see Exhibit #8). [ 37 ] Property Standards Officer Mohammed also said he had concluded that there was a “second unit” at 35 Delphinium Way that was a separate self-contained unit or apartment in the basement of the house, which had been based on Mohammed observing locked doors separating the basement apartment from the main floor and upstairs part of the house and because he had observed sleeping quarters, cooking appliances, and bathing or washing facilities in the basement, as well as there being a separate kitchen on the main floor and bedrooms and a bathrooms on the second floor of the house.

Furthermore, Mohammed said that the primary unit in the house was on the main floor. [ 38 ] Based on his observations that he made of the house at 35 Delphinium Way that day, Mohammed said he had concluded that there was evidence of two units at this property and that the house had not been registered with the City of Brampton as a Two-Unit House, so Mohammed then proceeded to lay charges against both of the registered homeowners in respect to that apparent second unit at 35 Delphinium Way. [ 39 ] In addition, Property Standards Officer Mohammed said he had attended at 35 Delphinium Way on a fifth occasion on July 13, 2018, for a compliance check.

Mohammed also said he had taken four photographs that day of a vehicle in the driveway and the open windows on the second floor, of his business card that he placed on the front door that day, of the north side of the house, and of the south side of the house (see Exhibit #9). [ 40 ] Furthermore, Property Standards Officer Mohammed said that he had attended 35 Delphinium Way on a sixth occasion on October 11, 2018, for another compliance check and had also taken four photographs that day of discarded furniture and other things on the boulevard area at the front of the house, of the two cars in the driveway that he had not seen before on the driveway at that house and their licence plates, and of his business card that he had placed on the front door (see Exhibit #10).

Mohammed also said that he had a conversation with someone at the house who had informed Mohammed that they were the new homeowners and that the sale and transfer of the house had occurred the previous day, and that they had just moved in and had emptied the house of the furniture left behind. [ 41 ] Property Standards Officer Mohammed also said that before he made his first visit on December 7, 2017, to 35 Delphinium Way, he had accessed the City of Brampton computer system known as “Amanda” to determine if the property at 35 Delphinium Way, Brampton had been registered by the homeowners as a two-unit dwelling house.

Mohammed also said that the “Amanda” system commenced being used in 2007 and that if the property at 35 Delphinium Way had been registered as a two-unit dwelling house, then it would be in the “Amanda” system. Mohammed also said that he had checked the system that had been used before 2007 and that his search of both systems did not reveal that the property at 35 Delphinium Way had been registered as a two-unit dwelling house.

In addition, Mohammed said he had checked the “Amanda” system after each of his visits to 35 Delphinium Way to see if the homeowners had actually registered the property as a two-unit dwelling house. Mohammed then said that the house at 35 Delphinium Way had not been registered with the City of Brampton Building as a two-unit dwelling house up to the date of the trial.

[ 42 ] In addition, Mohammed said that if the defendant had applied for a building permit for their second dwelling unit, then that action would have also been recorded in the “Amanda” system. [ 43 ] Furthermore, Mohammed said he had sent the defendants a registered “Access” letter.

Mohammed also said that for an open investigation it had been their department’s standard operating procedure to post a business card and an “Access” letter on the front door on each occasion in which there was a visit and there had been no response from anyone inside the house to his knock on the front door. [ 44 ] Moreover, Mohammed said that he had never met either of the two defendants before the investigation began on December 7, 2017, and that he had no previous knowledge about the property at 35 Delphinium Way, nor had he been aware of any previous dealings the defendants had had with the City of Brampton. [ 45 ] Furthermore, when challenged by the defendant about the seemingly excessive number of photographs Mohammed had taken at the defendants’ house on January 4, 2018, Mohammed explained that he had taken a lot of photographs of the house because it was normal procedure for him to take photographs of the entire house as part of the investigation into the complaint that the defendant’s house was being used as an illegal lodging house or that it had contained an illegal apartment.

In addition, Mohammed said that as part of the caution Mohammed had given to the defendants, Mohammed had informed and explained the process to the defendants and that they understood that Mohammed would take photographs and make notes in respect to the entire house and that the defendants were entitled to refuse access to Mohammed. Mohammed also said the defendants did not raise any concerns about being uncomfortable or pose any questions during Mohammed’s inspection of the house at 35 Delphinium Way.

In addition, Mohammed said there is no limit on the number of photographs that he can take and that he had taken photographs of the house so that others could see afterwards what he had seen during the inspection. [ 46 ] In regard to the tape that was on the door located on the main floor that led down into the basement, Property Standards Officer Mohammed said that the door would not open and that the tape was on the outside of the door and visible.

Mohammed also said that when he had asked Shah ISLAM to open that particular taped door, Mohammed said that Shah ISLAM had been unable to open or unlock that door from the main floor side of the door.

Furthermore, Mohammed said that in order for them both to get down into the basement, both Mohammed and Shah ISLAM had to exit the house and enter the garage in order to access and use the door leading down in the basement that was located in the garage. [ 47 ] Property Standards Officer Mohammed also acknowledged during cross-examination that the defendants had indeed indicated to him that they were living in the basement of the house, but Mohammed emphasized that just because the homeowners were living in the basement of their house does not mean they can have locks on the door to the basement that is located on the main floor of the house.

Furthermore, Property Standards Officer Mohammed had also confirmed in cross-examination that Shah ISLAM had told Mohammed that a tenant lived upstairs and that he and his wife lived downstairs in the house at 35 Delphinium Way.

(2) Testimony of Todd Payne, a Zoning Plans Examiner for the City of Brampton. [ 48 ] Todd Payne testified that he is a Zoning Plans Examiner for the City of Brampton and has been since October 2011 . [ 49 ] To determine the zoning for a specific property under the City of Brampton Zoning By-law, Payne said that he would enter the property’s address into “Brampton GeoHub”, their online system, and a report would be generated automatically detailing the particular zoning for that particular property.

The zoning report that was generated for 35 Delphinium Way by Todd Payne on July 9, 2019, was then entered as Exhibit #11. [ 50 ] As a result of that computer-generated zoning report, Payne said that according to p. 3 of that zoning report, 35 Delphinium Way is zoned as a residential, single detached dwelling. And, as indicated by Exhibit #11, the actual zoning code for 35 Delphinium Way under the City of Brampton Zoning By-law No. 270-2004 is “R1E-12.4-3459”.

Payne then explained that the first part of that particular zoning code of “R1E” refers to the parent zoning classification, while the second part of “12.4” refers to the minimum lot required, and the third part of “3459” refers to s. 3459 of the Zoning By-law, which is a special

section that supersedes the information which is set out for the parent zone of “R1E”. [ 51 ] In addition, Payne said that any modifications to the zoning of 35 Delphinium Way would require re-zoning or a minor variation.

(3) Testimony of Shah ISLAM, one of the joint owners on January 4, 2018 of 35 Delphinium Way, Brampton. [ 52 ] Shah ISLAM testified that him and his wife had intended to make their basement legal, but did not have the finances to do so. He also said there is no door that has been cut through the thick concrete to make an entrance to the basement and that it had been impossible for them to make this type of entrance through the concrete, since it would cost them $10,000 to $20,000 to make that entrance.

So, he said that they did not do the separate entrance to the basement. [ 53 ] In addition, Shah ISLAM said that the basement at 35 Delphinium Way had been covered with drywall, there was piping for a toilet and a toilet had been set up.

He also said there was drywall put up to make a washroom. [ 54 ] Shah ISLAM also said there were two bedrooms and a storage room in the basement of their house and not three bedrooms as Property Standards Officer Mohammed has said he had observed in the basement. [ 55 ] Moreover, Shah ISLAM said that for most of the time the basement was not occupied, but vacant because they were overseas. [ 56 ] As for the door that existed between the first floor (main floor) and the basement, Shah ISLAM said that the door had been made by the builder and that he and his wife had only taped it with Scotch tape and that the last renter, a company named Vista Care Communication had rented the main floor of the house.

Shah ISLAM also said that the accountant of Vista Care Communication, Joseph S. Shatilan, had wanted the basement separated from the main floor. However, Shah ISLAM said that neither the company nor Joseph S. Shatilan had actually moved in and that Shatilan had said that he would report the house to the City of Brampton. And shortly after that, Shah ISLAM said the inspector from the City had come to the house.

In addition, Shah ISLAM said that there had been nothing in the main floor and second floor of the house before the City Inspector arrived, as the people from Vista Care Communication had taken out all the furniture the day before the inspector had come to the house. Also, Shah ISLAM said that they had actually shared the house with the renter. [ 57 ] Shah ISLAM also said that he did not change the lock on the door and had tried to separate the basement from the main floor at a cheaper cost by putting tape on the door.

He also said that the door from the main floor to the basement had been left unlocked and that Scotch tape had been placed on the door so that in case of fire, escape could then be made from the basement through that Scotch-taped door. [ 58 ] Furthermore, Shah ISLAM said that when he and his wife had returned from being overseas they would share their house with whomever would be occupying their home. He also said that they would use the basement in the summer and use a microwave in the basement to reheat food and did not cook any meals in the basement.

Furthermore, he also said that they had used the two-slice toaster, but did not use the rice cooker in the basement, since they would use the things located upstairs. [ However, as seen by the photographs taken on January 4, 2018 (Exhibit #8) there were no plates, cutlery, or food items in the main floor kitchen or on the second floor of the defendants’ house .] [ 59 ] Furthermore, Shah ISLAM said he and his wife had bought the house at 35 Delphinium Way in 2008 and that in 2009 he had lost his job, and that by sharing his house with other people it had helped him pay part of his mortgage.

He also said he had used his credit cards to make mortgage payments. Then in 2018, he said that he and his wife had decided to sell the house and that they are now homeless again and live with friends and family. [ 60 ] In addition, Shah ISLAM said that he cannot understand how a door with tape on it and small appliances located in the basement would make or comprise two separate units in their house.

Shah Islam also said there was no tenant on January 4, 2018, as Vista Care Communication had been there only for one week or so and that they had moved out and had removed the furniture before Property Standards Officer had attended their house on January 4, 2018. (

a) No air of reality to Shah ISLAM’s claim that the charges were laid against the defendants as part of a larger conspiracy against him by the Government of Canada, the Province of Ontario, and the City of Brampton [ 61 ] In his testimony, Shah ISLAM had tried to insinuate that there was a large conspiracy against him from the Government of Canada, the Province of Ontario, and the City of Brampton because he had been charged in 2009 with a criminal offence of impaired driving, that he had also been charged several times since 2009 for driving a motor vehicle on a highway without insurance, and now he

and his wife had been charged with the present offences. However, as the defendants could not produce any credible or reliable evidence to support this insinuation of a larger conspiracy by government authorities against him and his wife, the defendants were not allowed to argue this defence, as there was no “air of reality” of a conspiracy by government authorities against him and his wife and that the impaired driving charge and driving without insurance charges were something that hundreds of people get charged with on a daily basis.

Nor has there been any evidence presented at trial that would show Shah ISLAM or his wife, Tasmin CHOWDHURY, had been specifically targeted by any government authority for an illegitimate reason or without a reasonable legal basis. (

b) No air of reality to Shah ISLAM’s claim that Property Standards Officer Mohammed had given out the defendants’ personal telephone number to someone who had called Shah ISLAM about providing him services to legalize his basement apartment [ 62 ] Shah ISLAM also suggested in his cross-examination of Property Standards Officer Mohammed that Mohammed had given Shah Islam’s private telephone number to someone named Tony Stevens, who Shah Islam claims had called Shah Islam and had offered a service to legalize Shah ISLAM’s basement apartment for a fee.

To that suggestion, Property Standards Officer Mohammed vehemently denied knowing anyone named Tony Stephens and that he had not given the defendants’ telephone number to anyone about legalizing his basement apartment. Moreover, the defendants also did not provide any credible or reliable evidence to prove these telephone calls had been made by someone named Tony Stevens to Shah ISLAM and that Property Standards Officer Mohammed had indeed given the defendants’ private telephone number to someone who had called the defendants offering to help them legalize their basement apartment for a fee.

Ergo, there is no “air of reality” to Shah Islam’s claim or insinuation that Property Standards Officer Mohammed had given the defendants’ private telephone number out to someone named Tony Stevens. 4. APPLICABLE LAW [ 63 ] Both defendants have been charged individually as the owners of a property located at 35 Delphinium Way in Brampton with committing two offences on January 4, 2018: (1) one for contravening s. 67(1) of the Planning Act , R.S.O. 1990, c.

P.13 by not complying with provisions of City of Brampton Zoning By-law 270-2004, by using their house as a Two-Unit House containing a second unit when it had been only zoned as a residential, single detached dwelling and (2) one for contravening s. 6 of the City of Brampton Second Unit Registration By-Law No. 87-2015, by failing to register the second unit in their Two-Unit House with the City of Brampton. (

A) Count #1 on Informations #6302 and #6303 : [ 64 ] The first offence for which both joint homeowners, Shah ISLAM and Tasmin CHOWDHURY, were separately charged with committing on January 4, 2018, had been for using or permitting the use of lands for purposes that are not permitted under Brampton By- Law Zoning By-law No. 270-2004 , by not complying specifically with three provisions of that by-law, namely ss. 10.16 and 13.4, and s. 3459 of

Schedule A , for having an unauthorized “second unit” contained in their house. And, as such, these contraventions of the Zoning By-law would constitute an offence under s. 67(1) of the Planning Act , 1990, c. P.13, for the purposes of a penalty that could be imposed.

In particular, the prosecution contends that the defendants were unlawfully using their property at 35 Delphinium Way as a two-unit residential house by “establishing, operating, or permitting the occupancy of a separate and self-contained basement apartment or second unit”, which had not been properly registered with or legally permitted by the City of Brampton, since the defendants’ house had been zoned only as singled detached residential dwelling. [ 65 ] The power for the City of Brampton to pass “zoning by-laws” restricting the use of land is provided for under s. 34(1) of the Planning Act , R.S.O. 1990, c.

P.13 : Zoning by-laws 34

(1) Zoning by-laws may be passed by the councils of local municipalities: Restricting use of land

1. For prohibiting the use of land, for or except for such purposes as may be set out in the by-law within the municipality or within any defined area or areas or abutting on any defined highway or part of a highway. … [ 66 ] Therefore, the by-laws governing the zoning of land and restriction of uses for lands in Brampton is contained in Brampton Zoning By-law No. 270-2004.

Section 1.1 of that By-law specifies that the Zoning By-law applies to all lands within the geographic boundaries of the City of Brampton, except those lands that are specifically excluded, while s. 2.3 of the Zoning By-law provides that no lands shall be used, nor the use of any building be changed in whole or part, except in conformity with the provisions of the by-law [ emphasis is mine below ]:

SECTION 1.0 APPLICATION 1.1 This by-law applies to all lands within the geographic boundaries of the City of Brampton, other than certain excluded lands referred to in

Section 1.3. … 2.3 Conformity with By-law No lands shall be used , and no building or structure shall be erected, located, used or altered, nor shall the use of any building, structure or lot be changed , in whole or in part, except in conformity with the provisions of this by-law . (1) s. 10.16 of Brampton Zoning Bylaw No. 270-2004 [ 67 ] The first provision which the prosecution contends had not been complied with by the defendants in count #1 is contained in s. 10.16 of the Brampton Zoning By-law, which sets outs the requirements and restrictions that apply to a “second unit” within a two-unit residential dwelling.

Some of those requirements or restrictions which apply to second units include the restriction under s. 10.16(

b) that a “second unit” is not permitted in a dwelling where the dwelling is located within a Floodplain or Open Space Zone, or within lands identified in

Schedule B-6: Downtown Floodplain Regulations area; the restriction under s. 10.16(

c) that the Gross Residential Floor Area of a “second unit” cannot exceed the Gross Residential Floor Area of the principal dwelling unit; the requirement under s. 10.16(

d) that the property owner of a two-unit residential dwelling is required to provide a total of three parking spaces located entirely within the boundaries of the subject property and measuring a minimum of 2.6 metres in width and 5.4 metres in length; the restriction under s. 10.16(

e) that there can only be a maximum of one “second unit” in a dwelling; the requirement under s. 10.16(

f) that access to a “second unit” may be permitted through a garage or common vestibule as long as it would satisfy the Building Code regulations; and the requirement under s. 10.16(

i) that the “second unit” within a two-unit dwelling be subject to the applicable Registration By-law [ emphasis is mine below ]: 10.16 Provisions for Two-Unit Dwellings: The following requirements and restrictions shall apply for a second unit within a two-unit dwelling: (

a) Shall not be permitted within a lodging house, group home, or an accessory building; (

b) Shall not be permitted in dwellings located within a Floodplain or Open Space Zone, or within lands identified in

Schedule B-6: Downtown Floodplain Regulations area ; (

c) The Gross Residential Floor Area of a second unit shall not exceed the Gross Residential Floor Area of the principal dwelling unit .

(

d) Notwithstanding Sections 6.17 and 10.9 of this By-law, a total of three parking spaces located entirely within the boundaries of the subject property and measuring a minimum of 2.6 metres in width and 5.4 metres in length shall be provided for a two-unit dwelling . Tandem parking spaces to facilitate a second dwelling unit shall be permitted. The width of the residential driveway shall not exceed the maximum permitted width as specified in

Section 10.9 of this By-law . (

e) A maximum of one second unit shall be permitted per dwelling ; (

f) Access to a second dwelling unit may be permitted through a garage or common vestibule, subject to satisfying Building Code regulations ; (

g) Where access to a second unit is provided through a door located in the side yard or rear yard, permitted encroachments, structures, utilities, or mechanical equipment shall not be permitted within 1.2 metres of the side lot line for the portion of the side yard between the access and the front wall of the dwelling; and, (

h) An above grade side door meeting the minimum 1.2 metre side yard requirement of

Section 10.24 and used as the principal entrance to a second unit may be accessed by a landing less than 0.6 metres above ground level having a maximum length and width of 0.9 metres. Steps shall be provided at both the front and rear of the landing to provide pedestrian access from the front yard to the rear yard. (

i) Shall be subject to the applicable Registration By-law . [ 68 ] In regard to s. 6.17, which is referred to in s. 10.16(

d) of Brampton Zoning By-law No. 270-2004, s. 6.17 is a general provision that regulates the dimensions of parking spaces on lots or parcels of land. However, s. 6.17 would not apply to a two-unit residential house that has a “second unit”, due to s. 10.16(

d) which specifically requires 3 parking spaces for two-unit dwellings containing a second unit that have to meet minimum measurements: 6.17 Parking Spaces 6.17.1 Each parking space shall be an angled parking space or a parallel parking space. (

a) An angled parking space shall be a rectangular area measuring not less than 2.70 meters in width and 5.4 meters in length. (

b) A parallel parking space shall be a rectangular area measuring not less than 2.75 meters in width and 6.5 meters in length, the long side of which is parallel to an aisle. 6.17.2 Where parking spaces are provided or required other than for a single detached dwelling, the following requirements and restrictions shall apply: (

a) the parking spaces shall be provided or maintained on the same lot or parcel as the building or use for which they are required or intended; (

b) the width of a driveway leading to any parking area shall be a minimum width of 3 metres for one-way traffic, and a minimum width of 6 meters for two-way traffic;

(

c) each parking space other than a tandem parking space shall have unobstructed access to an aisle leading to a driveway or street; and (

d) aisles leading to parking spaces and providing unobstructed access from each parking space to a driveway shall be established on the following basis: Angle of Parking Minimum Aisle Width (1) up to 50 degrees 4.0 metres (2) 50 degrees up to 70 degrees 5.75 metres (3) 70 degrees up to and including 90 degrees 6.6 metres [ 69 ] Furthermore, s. 10.9 which is also referred to in s. 10.16 of Brampton Zoning By-law No. 270-2004, regulates parking spaces for houses zoned residential in the City of Brampton in general, but would also not be applicable to a two-unit residential house that has a “second unit”.

Section 10.9(

a) specifically provides that unless otherwise specified, each dwelling unit within a single detached dwelling requires a minimum of two parking spaces, but as otherwise specified under s. 10.16(d), a two-unit residential house that has a “second unit” requires 3 parking spaces that have to meet minimum measurements [ emphasis is mine below ]: 10.9 Parking Space Requirements 10.9.1 Parking spaces are required in Residential Zones in accordance with the following provisions: (

a) Unless otherwise specified in this By-law , for each dwelling unit within a single detached dwelling , semi-detached dwelling, duplex dwelling, triplex dwelling, double duplex dwelling or street townhouse dwelling a minimum of two parking spaces are required . (

b) Where parking spaces are required or provided for a single detached dwelling, semi-detached dwelling, duplex dwelling, triplex dwelling, double duplex dwelling or street townhouse dwelling unit, the following requirements and restrictions shall apply: (

i) except for a parking space on a driveway, no parking space shall be permitted in the front yard; (ii) the minimum width of a driveway shall be 3.0 metres and the width of a driveway shall not exceed 50 percent of the lot width unless such maximum driveway width would conflict with the minimum landscaped open space yard requirement in the applicable zone, in which case, the minimum landscaped open space requirement shall prevail; (iii) for a lot less than 0.2 hectare, no person shall pave the rear yard for the purpose of parking motor vehicles other than a driveway leading to a garage permitted by this By-law and provided that such a driveway shall not be wider than 3 metres or the width of the garage door whichever is greater. (

c) Where more than one parking space is required for a residential unit excluding visitor spaces, tandem parking arrangements may be permitted provided that at least one parking space per dwelling unit has an unobstructed access to a driveway. (

d) Where a medical or dental office is located in a private residence, a minimum of 6 parking spaces shall be provided for each practitioner.

(

e) For other home occupation uses a minimum of one parking space shall be provided for every 20.0 square metres of floor area occupied by the home occupation. (

f) Parking in a rear yard shall not be permitted for a home occupation use. (

g) For lodging houses a minimum of 0.5 parking space for each lodging unit, plus two parking spaces for the proprietor, shall be provided. 10.9.2 For each dwelling unit in an apartment or multiple family dwelling, the following number of parking spaces are required: (

a) Rental Apartment : Resident Spaces Visitor Spaces Total Spaces Bachelor Rental Unit 1.03 0.20 1.23 One-bedroom Rental Unit 1.21 0.20 1.41 Two-bedroom Rental Unit 1.41 0.20 1.61 Three-bedroom Rental Unit 1.53 0.20 1.73 Senior Citizen Rental Unit 0.50 0.25 0.75 (

b) Condominium Apartment Resident Spaces Visitor Spaces Total Spaces One-bedroom or bachelor Condominium Unit 1.25 0.25 1.50 Two-bedroom Condominium Unit 1.40 0.25 1.65 Three (or more)-bedroom Condominium Unit 1.75 0.25 2.00 10.9.3 For each dwelling unit in a townhouse dwelling that does not have a private garage and driveway, the following number of parking spaces shall be provided: Resident Spaces Visitor Spaces Total Spaces Two bedroom Rental Unit 1.30 0.25 1.55 Three-bedroom Rental Unit 1.46 0.25 1.71 Four (or more)-bedroom Rental Unit 2.00 0.25 2.25 Condominium Unit 2.05 0.25 2.30 10.9.4 For each dwelling unit in a rental or condominium townhouse dwelling that provides 2 parking spaces in a private driveway or garage, 0.3 space per dwelling unit of visitor spaces and recreation equipment spaces shall be provided. [ 70 ] Consequently, for a homeowner to establish a legal basement apartment or second unit in a single detached residential house in Brampton, s. 10.16 of Brampton Zoning By-Law 270-2004 sets out conditions or restrictions that have to be complied with, such as:

• Only one “second unit” is permitted in a two-unit dwelling. • A total of 3 parking spaces measuring 2.6 metres x 4.5 metres must be provided entirely on the property. • The “second unit” must be smaller in floor area than the principal unit.

The entrance to the “second unit” can be located in the side or rear yard provided there is a 1.2 metres unobstructed path of travel to the “principal entrance” that is located entirely on the property. • A landing serving a “second unit” entrance must be less than 0.6 metres above ground level and is limited to a maximum length and width of 0.9 metres. • Steps shall be provided at the front and rear of the landing for a “second unit” entrance. • Two-unit dwellings are not permitted on lands zoned “Open Space”, “Floodplain”, or within the area identified as the “Downtown Floodplain Regulation Area”. • Shall be subject to the applicable Registration By-law [ 71 ] Ergo, if the prosecution proves beyond a reasonable doubt that the defendants’ house at 35 Delphinium Way had indeed contained a self-contained basement apartment or a “second unit” on January 4, 2018, then the defendant’s house would be a “Two-Unit House” containing a “second unit” and be in contravention of s. 10.16 of Brampton Zoning By-law 270-2004, since it would no longer be used as “single detached residential dwelling”, for which the defendants’ house had been zoned as.

Hence, in order for the defendants’ house at 35 Delphinium Way to be a legal Two-Unit House with a second unit, the defendants would have to ensure that their house complies with s. 10.16 by meeting the criteria or restrictions contained in that provision. For example, according to s. 10.16(d), the defendants would have to provide a total of three parking spaces located entirely within the boundaries of their property and ensuring that the three spaces measure a minimum of 2.6 metres in width and 5.4 metres in length. And, according to s. 10.16(

f) the defendants could provide access to the second dwelling unit in the basement of their house through a garage or common vestibule, but only if the access satisfies the Ontario Building Code regulations. Furthermore, according to s. 10.16(

i) the defendants would also have to register their Two-Unit House containing the second unit with the City of Brampton to be in compliance with s. 10.16 of Brampton Zoning By-law 270-2004. (2) s. 13.4 of Brampton Zoning Bylaw No. 270-2004 [ 72 ] For the second provision for which the prosecution contends had not been complied with under the Brampton Zoning By-law by the defendants in count #1, it is contained in s. 13.4 of Brampton Zoning By-law No. 270-2004.

Section 13.4.1(

a) states that lands zoned or designated as “R1E”, as 35 Delphinium Way is zoned, can only be used as a “single detached residential dwelling”, a group home type 1, or as an auxiliary group home:

SECTION 13.4 RESIDENTIAL SINGLE DETACHED E-x – R1E-x Zone (x is the numerical number, for example, 9, 9.1, and 10.5 shown on

Schedule A as R1E-9, R1E-9.1, and R1E-10.5 respectively) The lands designated R1E-x (where x is a numerical number) on

Schedule A to this by-law: 13.4.1 shall only be used for the following purposes: (

a) Residential (1) a single detached dwelling (2) a group home type 1

(3) an auxiliary group home (

b) Non-Residential (1) a place of worship (2) purposes accessory to the other permitted purposes 13.4.2 shall be subject to the following requirements and restrictions: (

a) Minimum Lot Width Interior Lot: the numerical number following the Zoning symbol of “R1E-“ on

Schedule A shall be the minimum interior lot width in metres Corner Lot: 3.3 metres wider than the minimum Interior Lot Width (

b) Minimum Lot Area Shall be the value of 30 times the minimum lot width in square metres (

c) Minimum Lot Depth 30 metres (

d) Minimum Front Yard Depth 4.5 metres but 6.0 metres to the front of the garage (

e) Minimum Exterior Side Yard Width 4.5 metres

(

f) Minimum Interior Side Yard Width (1) where the minimum interior lot width is less than 12.5 metres: (i) 0.6 metres provided the combined total of the interior side yards on an interior lot is not less than 1.8 metres; (2) where the minimum interior lot width is greater than and equal to 12.5 metres but less than 15.8 metres: (i) 1.2 metres and 1.2 metres for an interior lot; (ii) 0.6 metres for a corner lot abutting an interior lot; (3) where the minimum interior lot width is 15.8 metres or greater: 1.2 metres (

g) Minimum Rear Yard Depth 7.5 metres (

h) Maximum Building Height 10.6 metres (

i) Minimum Landscaped Open Space The entire yard areas shall be landscaped open space other than a driveway, an encroachment, or an accessory building permitted by this by-law

(

j) Garage Control (1) where the minimum interior lot width is less than 15 metres, no garage shall project into the front yard more than 1.5 metres beyond a porch or front wall of a dwelling, but where the minimum interior lot width is 15 metres or more, no garage shall project into the front yard beyond a porch or front wall of a dwelling. (2) no garage shall face the flankage lot line. (3) the maximum cumulative garage door width for an attached garage shall be: (a) 3.7 metres if the lot width is less than 10.4 metres; (b) 4.6 metres if the lot width is less than 11.6 metres but greater than or equal to 10.4 metres; (c) 5.0 metres if the lot width is less than 12.5 metres but greater than or equal to 11.6 metres; (d) 5.5 metres if the lot width in is less than 14 metres but greater than or equal to 12.5 metres (4) the maximum interior garage width, of an attached garage, shall be 0.6 metres wider than the maximum permitted cumulative garage door width. (5) on lots greater than 14 metres wide, the maximum interior garage width shall be 50% of the dwelling unit width. (

k) Driveway Width The driveway width shall not exceed the width of the garage. (

l) Other Setbacks When abutting a TransCanada Pipe Line right-of-way, the minimum building setback shall be 10 metres.

(

m) Encroachment A balcony or porch may project into the minimum front or exterior side yard by a maximum of 1.8 metres including eaves and cornices. (

n) Accessory Building An accessory building shall have a minimum setback of 0.6 metres to a rear yard lot line or an interior side yard lot line. [ 73 ] Therefore, if the prosecution proves beyond a reasonable doubt that the defendants’ house at 35 Delphinium Way had contained a self-contained basement apartment or a “second unit” on January 4, 2018, then the defendant’s house would be a “Two-Unit House” containing a “second unit” and be in contravention of s. 13.4 of Brampton Zoning By-law No. 270-2004, since it would no longer be used by the defendants as “single detached residential dwelling”, for which the defendants’ house had been zoned as. (3) s. 3459 of

Schedule A of Brampton Zoning Bylaw No. 270-2004 [ 74 ] And, for the third provision for which the prosecution contends had not been complied with under the Brampton Zoning By-law by the defendants in count #1 is set out in s. 3459 of

Schedule A of the Brampton Zoning By-law, which states that the lands designated R1E-12.4 (single residential dwelling with a maximum 12.4 meters frontage) shall only be used for the purposes permitted in a R1E-12.4 zone and be subject to the requirements and restrictions relating to the R1E-12.4 zone and all the general provisions of the Brampton Zoning By-law [ emphasis is mine below ]: 3459 The lands designated R1E-12.4 –

Section 3459 of

Schedule A to this by-law: 3459.1 shall only be used for the purposes permitted in a R1E-12.4 zone . 3459.2 shall be subject to the following requirements and restrictions: (

a) the requirements and restrictions as set out in an R1E- 12.4 zone . (

b) porches and balconies, with or without cold cellars or foundations may project a maximum of 1.8 metres into the front yard, exterior side yard or rear yard. (

c) bay windows, chimney elements, projecting cornices and roof eaves, with or without foundations, may project a maximum of 1.0 metre into the front yard, interior side yard, exterior side yard or rear yard. 3459.3 shall also be subject to the requirements and restrictions relating to the R1E-12.4 zone and all the general provisions of this by- law, which are not in conflict with those set out in

section 3459.2 . [ 75 ] Hence, if the prosecution proves beyond a reasonable doubt that the defendants’ house at 35 Delphinium Way had contained a self-contained basement apartment or a “second unit” on January 4, 2018, then the defendant’s house would be a “Two-Unit House” containing a “second unit” and be in contravention of s. 3459 of

Schedule A of Brampton Zoning By-law 270-2004, since it would no

longer be used by the defendants as “single detached residential dwelling”, for which the defendants’ house had been zoned as.

(4) The potential penalties both defendants would be facing if convicted of committing the offence set out in count #1 [ 76 ] Furthermore, if the defendants are individually found to have contravened any provision of Brampton’s Zoning By-law No. 270- 2004, then they are adjudged under s. 2.2 of that By-law to have committed an offence.

Section 2.2 of Brampton Zoning By-Law 270- 2004 contains the general penalty provision and provides that every person who contravenes any provision of that By-law is guilty of an offence and on conviction is liable to the penalties provided for under s. 67(1) of the Planning Act , c.

P-13: 2.2 Violation and Penalty Every person who contravenes any provision of this by-law is guilty of an offence and on conviction is liable to a fine as provided for in the Planning Act. (5) s. 67(1) of the Planning Act [ 77 ] Ergo, if the defendants contravene a by-law that has been passed pursuant to s. 34 of the Planning Act , R.S.O. 1990, c.

P.13 , such as Brampton’s Zoning By-law 270-2004, they would be both subject to t he penalties provided for under s. 67(1) of the Planning Act , which provides for a maximum fine of $25,000 for a first conviction and the possibility of receiving an order prohibiting the continuation or repetition of the offence [ emphasis is mine below ]: Penalty 67

(1) Every person who contravenes

section 41,

section 46, subsection 49 (4) or

section 52 or who contravenes a by-law passed under

section 34 or 38 or an order made under

section 47 and, if the person is a corporation, every director or officer of the corporation who knowingly concurs in the contravention, is guilty of an offence and on conviction is liable, (

a) on a first conviction to a fine of not more than $25,000 ; and (

b) on a subsequent conviction to a fine of not more than $10,000 for each day or part thereof upon which the contravention has continued after the day on which the person was first convicted. Corporation

(2) Where a corporation is convicted under subsection (1), the maximum penalty that may be imposed is, (

a) on a first conviction a fine of not more than $50,000; and (

b) on a subsequent conviction a fine of not more than $25,000 for each day or part thereof upon which the contravention has continued after the day on which the corporation was first convicted, and not as provided in subsection (1). Order of prohibition

(3) Where a conviction is entered under subsection (1), in addition to any other remedy or any penalty provided by law, the court in which the conviction has been entered, and any court of competent jurisdiction thereafter, may make an order prohibiting the continuation or repetition of the offence by the person convicted. (

B) Count #2 on Informations #6302 and #6303 : [ 78 ] For count #2, both defendants have been charged on separate informations with contravening s. 6 of Brampton’s Second Unit Registration By-law No. 87-2015, by failing to register with the City of Brampton on January 4, 2018, when they were legally required to do so, their Two-Unit House at 35 Delphinium Way that contained a basement apartment or “second unit”, for which they had “established, operated or permitted to be occupied” in their house:

PART IV – REGISTRATION 6. No person shall establish, operate or permit the occupancy of a Second Unit, unless the Two-Unit House containing that Second Unit is registered in accordance with the requirements of this By-law. [ 79 ] Furthermore, s. 7 of Brampton Second Unit Registration By-law No. 87-2015 provides that every person who “establishes, operates or permits the occupancy of a Second Unit” is legally required to register that Two-Unit House containing that second unit with the City of Brampton: 7. Every Person who establishes, operates or permits the occupancy of a Second Unit shall register the Two-Unit House containing that Second Unit as required by this By-law.

(1) The potential penalties both defendants would be facing if convicted of committing the offence set out in count #2 [ 80 ] Moreover, if convicted of failing to register their Two-Unit house containing a second unit with the City of Brampton as legally required under Brampton Second Unit Registration Bylaw No. 87-2015, both defendants would be facing the penalty set out in ss. 17 and 18 of that By-law. In particular, because both defendants’ respective charges were commenced by a

Part III Information, then according to s. 17(2) they would be upon conviction liable to a maximum fine of $25,000 and such other penalties as provided for in the Province Offences Act , R.S.O. 1990, c. P.33 , and the Municipal Act, 2001 , S.O. 2001, c. 25 . Additionally, s. 18 provides that because of the potential for receiving an economic advantage from a Second Unit in a Two-Unit House that is not registered, then for the purposes of sentencing it may be considered as an aggravating factor which may attract a special fine, and that the maximum amount of the special fine that could be imposed may exceed $100,000 or such other maximum amount permitted by the Mu

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