Whether there’s an unauthorized dwelling inside a storage building should not be resolved by peering inside, taking pics, judge finds. Appeal court disagrees.

A storage unit would seem an unlikely abode and municipal officials may have questions.

Should a municipal building inspector be allowed to peer into the windows of a private dwelling without permission, and take photos of the interior?

That was the issue in an April, 2024 case which was heard by a three-judge appeal panel of the Divisional Court.

Novar, Ont. is a small town located on Highway 11 between Huntsville and Burks Falls. Jonathan and Celine MacKay own a residential property there. In 1991, the prior owners had constructed a storage building on the site in accordance with a building permit.

Two years ago, Mike Wilmon, the chief building official for Perry township, learned that a dwelling unit had been built without permits inside the storage building.

After he tried to discuss these issues with the owners, Jonathan MacKay visited the township office and delivered a “no trespass” notice to the township and its officials.

Wilmon then attended at the property with OPP officers to conduct an inspection, but the owners refused to answer questions about whether the storage building was being used as an unapproved dwelling.

Wilmon observed children’s toys and other signs of occupation outside the building but did not go inside. On April 8, 2022, he went back to the property, looked in a window of the storage building and saw a kitchen and dining area inside. He took photographs through the window to record his observations.

Shortly afterward, Wilmon issued three formal orders requiring the owners to apply for building and septic permits, but the MacKays failed to comply with the orders.

The township then applied to the Superior Court of Justice for court orders resulting from the owners’ non-compliance.

The judge found that looking in the window of a storage building and taking photographs of the interior to determine whether it was being used unlawfully was an unauthorized and warrantless search of a dwelling unit. Those actions were contrary to the MacKays’ right to be free from unreasonable search and seizure under the Canadian Charter of Rights and Freedoms.

The judge excluded the evidence, and dismissed the township’s application with respect to whether there was an unauthorized dwelling inside the storage building.

The township appealed to the Divisional Court in April of this year. It argued that looking through the window of a building for the purpose of determining whether it is being unlawfully used as a dwelling is not a formal entry under the Building Code Act, and is therefore authorized by the legislation.

The three judges of the Divisional Court reversed the lower court decision and unanimously agreed with the township. They ruled that the township official had the right to look into the window and take pictures.

As a strong advocate of individual rights, I believe that the application judge was right and the Divisional Court was wrong.

The lessons from the case? Don’t play games with municipal building inspectors, get building permits when they are required, don’t leave kids’ toys outside an illegal dwelling, and always put opaque curtains on the windows!

The Corporation of the Township of Perry v. MacKay, 2024 ONSC 2127 (CanLII), <https://canlii.ca/t/k42xn>