Ontario is a hot-spot for immigration. The Greater Toronto Area (“GTA”) has experienced substantial population growth, but the pandemic and other factors have slowed construction. There are more and more people moving to the GTA, but new housing is struggling to keep pace. Moreover, affordable housing in the GTA is scant. These factors sometimes lead to multiple persons and families residing in one condominium unit.

In this article, we will flesh out the differences between the single family dwelling unit restrictions found in declarations and rules and occupancy standards set out in by-laws.

What is a single-family dwelling unit restriction?

The purpose of including this provision in a condominium corporation’s declaration is to prevent rooming houses or unrelated persons (i.e. students) from residing in the same residential unit. Questions of whether such provisions are antiquated and otherwise a breach of the Ontario Human Rights Code have been raised, but are a conversation for another day.

There have been a few cases addressing this specific issue: Ballingall v. Carleton Condominium Corporation No. 111, 2015 ONSC 2484 (CanLii) (“Ballingall”), Nippissing Condominium Corporation No. 4 v. Kilfoyl, 2010 ONCA 217 (CanLII) (“Kilfoyl”) and Chan v. Toronto Standard Condominium Corporation No. 1834, 2011 ONSC 108 (CanLII) (“Chan”). These cases provided some much needed clarity on what exactly comprises a single-family unit.

If a condominium corporation’s governing documents contain a single family restriction, but do not define what this comprises, Kilfoyl and Chan have confirmed that the following definition shall be used:

“family means a social unit consisting of parent(s) and their children, whether natural or adopted, and that includes other relatives if living with the primary group.”

Of course, condominium corporations may attempt to broaden the definition. To do so, they may create a rule provided such definition is reasonable and not contrary to any provisions in the condominium’s declaration.

The challenge with such restrictions is enforcement. How do you confirm if persons are related or unrelated? How do you confirm if persons are partners or otherwise. As a result, an alternative approach to consider when addressing the number of occupants per unit would be the enforcement of the occupancy standards by-law.

What is an occupancy standards by-law?

Section 57(4) of Ontario’s Condominium Act, 1998 (the “Act”) permits condominium corporations to create by-laws to establish the maximum occupancy of occupants per unit provided that such restrictions are in compliance with municipal by-laws or standards for which the units were designed.

Ontario’s Building Code requires the occupancy load for dwelling units and suites to be based on two persons in each sleeping room or sleeping area. The City of Toronto occupancy standards are set at one person per nine square meters of floor area.

Section 57(4) of the Act was enacted specifically to deal with circumstances where there is a legitimate need for an additional occupant in the unit and to avoid a claim of discrimination based on family status.

In the event that the occupancy standards are exceeded, the Board may, by resolution, levy an additional amount against the unit for:

  • an assessment for the amount that reasonably reflects the amount by which the contravention increases the cost of maintaining the common elements and repairing them after damage; and
  • an assessment for the amount that reasonably reflects the amount by which the contravention increases the cost of using the utilities that form part of the common expenses.

Rather than removing people from the unit, the additional assessment could be used in circumstances where a large family is occupying one unit and likely using more hydro, water, etc.

It some cases, it may be more prudent to levy a surcharge, rather than requiring persons to vacate the unit. Of course, each circumstance will need to be reviewed on a case by case basis to determine what, if any, approach should be employed.