Airbnb hearings are over but no date set for Toronto decision

Thestar.com
October 16, 2019
Tess Kalinowski

A provincial planning tribunal hearing an appeal of the city’s short-term rental rules has wrapped nine days of hearings. But there is no deadline by which Local Planning Appeal Tribunal (LPAT) adjudicator Scott Tousaw must deliver his written decision on whether the new zoning bylaw and licensing program will ever take effect.

The LPAT said that decisions are generally issued within 60 days after a hearing concludes but it can take longer depending on the complexity of the case. If either side disagrees with the ruling they can request a review of the decision or request a leave to appeal to the Divisional Court.

Discussion of an appeal is premature, said Alex Dagg, public policy manager for Airbnb Canada, who attended the LPAT on Tuesday. The company is paying the legal costs of Alexis Leino, one of the landlords who is asking the LPAT to dismiss the city’s approved bylaws. He says they restrict his property rights because he would no longer be allowed to rent the basement apartment of his residence on a short-term basis. He doesn’t want a long-term tenant because he likes to use the suite sometimes as guest quarters for his own friends and family.

It has been almost two years since Toronto council approved zoning and licensing rules designed to restrict Airbnb-style rentals that are accused of disrupting residential neighbourhoods and turning condos into ghost hotels with more short-stay units than permanent residents.

The rules would limit to 180 the number of days a landlord could rent their entire home on a short-term basis. Up to three single rooms in a home could be rented year-round. But short-term rentals would be limited to terms of no more than 27 consecutive nights under the city rules.

Landlords would only be allowed to rent their principal residence and homeowners with legal secondary suites would not be permitted to use them as short-term rentals, although a full-time tenant could sublet those apartments for less than 28 days. The regulations and accompanying licensing system were supposed to take effect in June 2018 but have been delayed by the landlords’ appeal.

The city has argued that the short-term rental bylaws are designed to protect Toronto’s stock of long-term rentals at a time when the city is facing a severe housing affordability challenge and a decade-low vacancy rate.

The city has adopted “appropriate, balanced” measures that are supported by provincial policies “that speak to the orderly development of safe, livable, healthy communities,” Toronto’s lawyer Sarah O’Connor told the LPAT.

The crux of the planning arguments is whether short-term rentals are a residential or commercial use of a home, she said. The city argued that it has the right to create a zoning distinction between a residence that the owner rents occasionally to make extra money and a business that rents multiple units where there are no permanent occupants.

“Providing accommodation for tourists should not be done at the expense of the livability and the quality of life for the people who actually live here,” said O’Connor.

Landlords want the LPAT to dismiss the city’s bylaws or at least exempt landlords who maintain they were operating before the bylaws were introduced. Their lawyers said the bylaws won’t make a material difference in the city’s housing challenge even if as many as 5,300 units go back into the long-term supply.

It’s not the responsibility of homeowners to fill in the gaps in the city’s affordable housing, said Jason Cherniak, the lawyer for several commercial short-term landlords. “We’re talking about sacrificing an entire industry on the alter of housing for a drop in the bucket,” he said.

Leino’s lawyer Sarah Corman said that city council only took on the bylaw when “NIMBYism complaints surfaced.” Barring homeowners from renting their secondary suites is poor planning, she argued.

“These bylaws actually provide a perverse incentive not to create a legal secondary suite,” said Corman, “because as soon as the homeowner invests they would no longer be able to use it how they want.”