The ambiguity of Tiny STR bylaw's 'entry and inspection' provision

With short-term rental season fast approaching and Tiny Township set to dive into regulating and enforcing a bylaw aimed at curbing 'ghost hotels', several residents have latched onto a segment of the bylaw which isn't quite as clear as the municipality might be promoting.

As per bylaw 22-017, "a by-law to Licence, Regulate and Govern Short-Term Rental Accommodation", passed in August and amended twice since, Section 12 "entry and inspection" contains four parts.

The first subsection, 12.1, involves who may enter "at any time" onto any land to determine whether the bylaw is being complied.

Of interest to this subsection: an officer -- defined in Section 2.18 as "a municipal law enforcement officer, building inspector, police officer or other person appointed by by-law to enforce the provisions of township by-laws" -- a chief fire official or building inspector. Building inspector is listed twice in subsection 12.1 as written.

Following that, subsection 12.2 notes that every owner shall permit the officer, chief fire official or building inspector to inspect "any part of the premises" to determine bylaw compliance.

The third subsection, 12.3, is in-depth toward warrants. It states that "notwithstanding any provision of this bylaw, an officer or building inspector" shall not enter or remain in any room or place used as a dwelling unit, unless certain consent is given or a warrant is obtained. There are deeper legal terms in this, involving the Provincial Offences Act, R.S.O 1990.

Finally, subsection 12.4 is the partner to 12.3 in that "a fire inspector may, without warrant, enter and inspect land and premises" to assess fire safety as per the FPPA (Fire Protection and Prevention Act, 1997, S.O. 1997).

At the recent committee of the whole meeting for Tiny Township, Coun. Kelly Helowka had made reference to warrantless entry as a point of concern for many residents. It was a talking point stated previously during a deputation from resident Glen Sloutsky on behalf of the community group Responsible Hosts of Tiny.

Said Helowka: "If I were an STR (short-term rental) owner -- which I'm not, my wife and I don't feel the need to reveal our privacy by renting out so I don't rent out, but if I were -- I would not sign off on granting a bylaw enforcement (officer) a warrantless entry onto my property."

Coun. Helowka, new to Tiny council, is a retired RCMP officer; Coun. Steffen Walma is active in fire services with the municipality as a professional firefighter, and has served as both councillor and deputy mayor in the years with Tiny Township. Walma spoke immediately after Helowka and responded to the issue of misinformation surrounding the community discourse.

Began Walma: “We have the warrantless – There’s misinformation. People are trying to paint pictures to support their side of the argument. And actually, I’m going to ask a direct question to Mr. Harvey right now: “We’ve had the one about warrantless entry. When I read the bylaw (22-017), my understanding is that the only individual that has the ability to enter the premise without a warrant is a fire inspector; the rest of our bylaw officers have to ask permission to enter the premises. Can you please clarify that component of the bylaw, Chief Harvey?"

“You’re correct," replied Harvey.

“Okay, so there is no warrantless entry," continued Walma. "That is misinformation, whether it was misunderstood or purposely miscommunicated; it’s ridiculous."

MidlandToday reached out to members of Tiny council and staff for clarification of Section 12 as per who specifically is allowed to be on land and on premises for each person, and what level of warranted or warrantless entry they may have.

"To be clear," replied Harvey by email, "a municipal law enforcement officer will not be entering any dwelling unit unless the consent of the occupier is obtained after the occupier has been informed that the right of entry may be refused OR a warrant is issued and obtained.

"The (FPPA) provides for rights of warrantless entry. Under the FPPA, no distinction is made between parts of your property that are used as a ‘dwelling’ and those that aren’t, and a fire inspector may enter and inspect land and premises, without a warrant and at all reasonable times, for the purpose of assessing fire safety. Moreover, the fire safety issue does not need to present an immediate health and safety concern."

Harvey added that bylaw 22-017, passed under the Municipal Act and FPPA providing municipal authority, was reviewed by legal counsel in ensuring legality, enforceability, and consistency with established case law court decisions. "This bylaw (as with most municipal bylaws) is posted on the township website and is a searchable document so that residents have easy quick access to the information they require to understand the rules and obtain information first-hand. It is important for those interested in the subject to review any legislation or in this situation Section 12 in its entirety. Residents are encouraged to review the website for details.

"Residents reading the bylaws themselves helps to avoid situations where third-hand information can become accidentally or otherwise be partially shared in a way to change the context or be misconstrued which can sometimes happen through uninformed discussion or social media, et cetera," said Harvey.

In a recent MidlandToday letter to the editor, resident Jonathon Hamburg pointed to "one important inaccuracy" in the February 24 article, pointing out Helowka's recognizing of "the privacy intrusion by the township" but also "the potential consequences" when inexperienced students respond to an STR bylaw call potentially worth $100,000 in fines.

The township urges any member of the public concerned over STRs in Tiny to contact the municipal law enforcement licensing officer through the short-term rental page of the website or by phone or email.

Derek Howard, Local Journalism Initiative Reporter,