Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 10, 2025

CASE NO(S).: OLT-24-000796

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Roca Investment Holdings Inc.

Subject: Minor Variance

Description: To permit the redevelopment of two lots for the construction of two semi-detached dwellings.

Reference Number: A-00135

Property Address: 1112 Lisgar Road

Municipality/UT: City of Ottawa

OLT Case No.: OLT-24-000796

OLT Lead Case No.: OLT-24-000796

OLT Case Name: Roca Investment Holdings Inc. v. Ottawa (City)

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Roca Investment Holdings Inc.

Subject: Minor Variance

Description: To permit the redevelopment of two lots for the construction of two semi-detached dwellings.

Reference Number: A-00136

Property Address: 1 Maple Lane

Municipality/UT: City of Ottawa

OLT Case No.: OLT-24-000797

OLT Lead Case No.: OLT-24-000796

OLT Case Name: Roca Investment Holdings Inc. v. Ottawa (City)

Heard: October 28-29, 2024 by Video Hearing

APPEARANCES:

Party Roca Investment Holdings Inc. (Appellant / Applicant)

Counsel Michael Polowin Crystal McConkey

DECISION DELIVERED BY K.R. ANDREWS AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This appeal concerns the Appellant’s application under s. 45(2)(a)(i) of the Planning Act (the “Act”) for permission to enlarge an existing legally non-conforming building. The Appellant’s development plans involve the demolition of two century-old semi-detached dwellings, one on each adjoining but separately conveyable parcels of land municipally known as 1112 Lisgar Road and 1 Maple Lane (the “Subject Lands”), and the subsequent reconstruction of two larger semi-detached dwellings on the same sites. Notably, semi-detached dwellings are not permitted within the subject area, hence the reliance on legally non-conforming use-rights to allow this type of building to continue to remain on the property. Additionally, the Subject Lands are within the Rockcliffe Park Heritage Conservation District of the City of Ottawa (“City”). Rideau Hall, the official residence of Canada’s Governor General, is situated across Lisgar Road from the property.

2This appeal is unopposed, with the City declining to participate, and the Rockcliffe Park Residents’ Association (“RPRA”) having been denied party status by a previous motion.¹ The RPRA is nevertheless involved in the proceedings, having been granted “Participant Status” and filed a comprehensive “Participant Statement” in opposition to the Appellant’s plans. The Tribunal has received, reviewed, and considered the RPRA’s Participant Statement in contemplation of this decision.

3Despite the City’s lack of participation, it has previously demonstrated support for the proposal, having studied and approved the Appellant’s development plans from a heritage standpoint. Correspondingly, the City has issued permits under the Ontario Heritage Act to allow the demolition of the existing dwellings, and reconstruction of two new dwellings in accordance with the Appellant’s plans.

4Having obtained these permits, the only planning process that now stands in the Appellant’s way to proceed with the development is the present application for permission to enlarge the semi-detached dwellings in accordance with s. 45(2)(a)(i) of the Act. Although the Appellant’s plans were clearly supported by the City through the above noted permit application process, permission under s. 45(2)(a)(i) of the Act was denied by the City’s Committee of Adjustment, bringing the present matter to the Tribunal.

5As will be discussed in detail below, there is a threshold question to be answered before the Tribunal may consider the relief being sought by the Appellant; namely, the Tribunal must first be satisfied that the existing semi-detached dwellings qualify as a legally non-conforming “use” of the Subject Lands, as contemplated under s. 34(9)(a) of the Act. The Tribunal notes that s. 34(9)(a) of the Act works to codify legally non-conforming use-rights, upon which the Appellant relies to seek relief under s. 45(2)(a)(i) of the Act. Clearly, the Tribunal finds that an applicant cannot be granted permission to enlarge or extend an existing legally non-conforming building or structure without first being satisfied that the subject building or structure qualifies as a legally non-conforming use.

6If the Appellant succeeds with convincing the Tribunal that the existing semi-detached dwellings constitute a legally non-conforming use, then and only then will the Tribunal consider whether to grant the requested permission to enlarge the dwellings.

7Additionally, as with any Planning Act-appeal, the application must also satisfy the requirements of s. 2 and 3(5) of the Act, insofar as the Tribunal must have regard for matters of provincial interest under s. 2 when making its decision, and the decision must be consistent with the Provincial Planning Statement, 2024 (“PPS”) in accordance with s. 3(5) of the Act. Given the Subject Lands’ location within the Rockcliffe Park Heritage Conservation District, heritage considerations contemplated under s. 2(d) of the Act and policy 4.6.1 of the PPS are particularly relevant.

8To summarize, for the Tribunal to grant the relief being sought by the Appellant, the application must pass the following steps:

1. Determine whether the Subject Lands possess legally non-conforming use-rights as contemplated by s. 34(9)(a) of the Act, insofar as the Tribunal must decide whether the existing semi-detached dwellings constitute a continued legally non-conforming use of the Subject Lands;

2. If Step 1 is satisfied, the Tribunal must then decide whether to grant permission to enlarge the legally non-conforming dwellings, pursuant to s. 45(2)(a)(i) of the Act. This step is determined by the following test set out in Fraser v. Rideau Lakes (Township) (hereinafter, the “Fraser Test”):

a. Is the application desirable for the appropriate development of the Subject Lands? (the answer must be “yes”); and

b. Will the application result in undue adverse impacts on the surrounding properties and neighbourhood? (the answer must be “no”).²

3. In conjunction with Step 2, the Tribunal must apply the requirements of sections 2 and 3(5) of the Act, including as it relates to heritage considerations.

Witnesses

9The Appellant called four duly qualified expert witnesses (hereinafter, the “Appellant’s witnesses”) to provide both factual and expert opinion evidence. The names of said witnesses are listed below, with their respective expertise indicated:

• Simran Soor (retained by the Appellant) – Land Use Planning

• Barry John Hobin (retained by the Appellant) – Architecture and Heritage Architecture

• Ashley Kotarba (City staff, summoned by the Appellant) – Heritage Planning

• Elizabeth King (City staff, summoned by the Appellant) – Land Use Planning

Analysis

Legally Non-conforming Status of the Semi-detached Dwellings

10To determine whether the semi-detached dwellings on the Subject Lands maintain legally non-conforming use-status, the Tribunal will consider the following:

1. A review of the basic principles and evolution of the law respecting legally non-conforming use-rights;

2. The intended scope and meaning of the word “use” (and its derivatives) within sections 34(9)(a) and 45(2)(a)(i) of the Act; and

3. The effect of the existing dwellings’ state of disrepair, as it relates to maintaining its status as a legally non-conforming use.

Principles and evolution of the law respecting legally non-conforming use-rights

11In general, legally non-conforming uses are uses of lands, buildings, and structures that were established and continued prior to the enactment of a by-law which would otherwise restrict or limit such uses. In such circumstances, the law is clear that a property owner is legally entitled to continue such prior uses, despite it not conforming to the more recently enacted by-law. From the standpoint of the by-law, the restrictions imposed by the by-law still apply, but only to the extent that it does not restrict prior and continued uses. Importantly, legally non-conforming use-rights are lost if the non-conforming use ceases at any point after the enactment of a restricting by-law. This is, in essence, what is codified by operation of s. 34(9)(a) of the Act:

No by-law passed under this section applies […] to prevent the use of any land, building or structure for any purpose prohibited by the by-law if such land, building or structure was lawfully used for such purpose on the day of the passing of the by-law, so long as it continues to be used for that purpose;

12The term “legally non-conforming” is sometimes colloquially referred to as “grandfathering”, and it is termed “legally non-compliant” in some legal texts (especially in reference to building standards, such as limits on heights, sizes, setbacks, etc.). Jurisprudentially, the term is also referred to as “acquired rights” under the common law, including by the Supreme Court of Canada.

13Counsel for the Appellant provided the Tribunal with a summary of the leading cases on the subject. Two seminal Supreme Court of Canada cases were cited: Central Jewish Institute v. Toronto (City)³ and Saint Romuald (City) v. Olivier ⁴. Additionally, the Appellant referenced several relevant cases of the Ontario Divisional Court and this Tribunal (or its predecessors), in which findings were made on the subject of legally non-conforming use-rights, specifically in accordance with the Act.

14As a brief summary, the decision of Central Jewish Institute v. Toronto (City) confirms that legally non-conforming uses within one part of a building may expand to other parts of a building as-of-right. In Saint Romuald (City) v. Olivier, the Supreme Court confirmed that property owners have a right to not only continue legally non-conforming uses, but also to the evolution, intensification, and/or expansion of such uses, subject to certain considerations.⁵ Of those considerations, the Tribunal finds the following to be of particular importance:

To the extent activities are added, altered or modified within the scope of the original purpose (i.e., activities that are ancillary to, or closely related to, the pre-existing activities), the Court has to balance the landowner’s interest against the community interest, taking into account the nature of the pre-existing use (e.g., the degree to which it clashes with surrounding land uses), the degree of remoteness (the closer to the original activity, the more unassailable the acquired right) and the new or aggravated neighbourhood effects (e.g., the addition of a rock crusher in a residential neighbourhood is likely to be more disruptive than the addition of a fax machine). The greater the disruption, the more tightly drawn will be the definition of the pre-existing use or acquired right. This approach does not rob the landowner of an entitlement. By definition, the limitation applies only to added, altered or modified activities.

15The Tribunal finds that the above statement is instructive to the Tribunal on a broad scale as it relates to legally non-conforming use-rights codified under the Act. Furthermore, the Tribunal finds that Saint Romuald (City) v. Olivier makes it clear that maintaining the status quo, in terms of the use of lands, buildings, and structures, is an unassailable right.

16Of particular relevance to the present case, the Tribunal finds that the principles of Saint Romuald (City) v. Olivier are reflected through the operation of s. 45(2)(a) of the Act, which reads as follows:

[…] where any land, building or structure, on the day the by-law was passed, was lawfully used for a purpose prohibited by the by-law, [the Tribunal] may permit

(i) the enlargement or extension of the building or structure, if the use that was made of the building or structure on the day the by-law was passed […] continued until the date of the application […], or

(ii) the use of such land, building or structure for a purpose that, in the opinion of the [Tribunal], is similar to the purpose for which it was used on the day the by-law was passed or is more compatible with the uses permitted by the by-law than the purpose for which it was used on the day the by-law was passed, if the use for a purpose prohibited by the by-law or another use for a purpose previously permitted by the committee continued until the date of the application […]

17Here, as in Saint Romuald (City) v. Olivier, the Act provides a property owner with a right to the reasonable evolution, intensification, and/or expansion of an established legally non-conforming use. Subsection (i) is, of course, the operative section providing the Tribunal with the jurisdiction to provide the relief currently being sought by the Appellant.

18Furthermore, the Tribunal finds that the Fraser Test, which directs the application of the above section, clearly contemplates Saint Romuald (City) v. Olivier, insofar as the test concurrently considers the appropriate development of the subject property (being, at least in part, the interests of the property owner) and any undue adverse impacts on the surrounding properties and neighbourhood (being the interests of the community). In this sense, the Tribunal finds that the balancing exercise contemplated in Saint Romuald (City) v. Olivier, weighing the interests of the property owner against those of the surrounding community, is incorporated into the test.

19Keeping the principles set out in Saint Romuald (City) v. Olivier in focus, the Tribunal further finds that the case has historically provided key directions in other contexts in various notable Tribunal decisions involving legally non-conforming issues. For example, in Ottawa (City) v. TDL Group Corp., the Board (as the Tribunal was known then) confirmed that a property owner has an absolute right to voluntarily demolish all or part of a legally non-conforming building and rebuild it without losing legally non-conforming use-rights.⁶ In its decision, the Board considered the balancing exercise outlined in Saint Romuald (City) v. Olivier, and, while it did not specifically assess impacts on the surrounding area, its conclusions were nevertheless consistent with a finding that the demolition and reconstruction of a building introduces no new measurable impacts on the surrounding community.⁷ On appeal, the Divisional Court specifically found nothing in the Board’s decision that ran afoul of the balancing approach outlined in Saint Romuald (City) v. Olivier.⁸

20In a later decision, Brougham v South Frontenac (Township), the Board came to the same conclusion in the context of affirming that legally non-conforming building standards are similarly protected, absolutely, when it involves demolition and reconstruction of a building within the same building envelope.⁹ As part of the analysis, the Board once again relied on Saint Romuald (City) v. Olivier, specifically citing the obligation to balance the interests of the property owner against those of the community:

[…] in permitting renewal and changes to the legally non-complying building or structure, there is the objective of maintaining a fair balance between the interest of the owner of the building or structure and the community’s interest. The owner cannot “overreach” and the scale and size of the building or structure, and any expansions or additions to the building, cannot be too remote from the scale, intensity or size of the building that existed before the renovation or reconstruction. The permitted change cannot create undue additional or aggravated problems for the municipality, local authorities or the neighbours as compared with what went before. Such concerns, including adverse neighbourhood effects, must be balanced against one another where the owner is proposing a modification or extension of the building or structure.¹⁰

21In that case, the Board further found that there is no practical difference between a legally non-conforming use and a legally non-compliant building, insofar as the exception provided by s. 34(9)(a) of the Act applies in the same way.¹¹

22Such findings are relevant to the present case, given the Appellant’s position that their right to demolish and reconstruct the subject semi-detached dwellings are unquestionably unassailable, and the only matter for the Tribunal to decide is whether they may be permitted to expand the confines of the existing building envelope. On this point, while the Tribunal accepts that the jurisprudence dictates that a property owner has the unassailable right to demolish and reconstruct a legally non-conforming building, and, relatedly, maintain a continued legally non-conforming use of the underlying lands, buildings and/or structures, the Tribunal finds that there remains questions in the present case regarding the nature of the “use” that is protected under such rights, and whether such rights have been extinguished due to the relative condition of the subject dwellings. The next parts of the analysis will address these questions.

The intended meaning and scope of the term "use" within the relevant sections of the Act

23The scope of the word “use” is relevant to the Tribunal’s analysis because the relief being sought by the Appellant under s. 45(2)(a)(i) of the Act is only available “if the [legally non-conforming] use that was made of the building or structure on the day the by-law was passed […] continued until the date of the application”.

24The RPRA (through their Participant Statement) takes the position that “use” is to be narrowly interpreted in accordance with the Webster’s dictionary definition. By such a definition, they submit that “use” means “the act or practice of employing something; the fact or state of being used; [or] the legal enjoyment of property that consists in its employment or occupation” [emphasis added]. In other words, use = occupancy. The Tribunal notes that there is no question that the dwellings are currently unoccupied, so if the Tribunal accepts the RPRA’s interpretation, the subject “use” clearly did not continue until the date of the present application.

25By contrast, the Appellant takes the position that the question of occupation is irrelevant because it contends that the act of situating the subject semi-detached dwellings on the Subject Lands constitutes the “use” of the underlying lands, and it is such a “use” (not the occupancy of the dwellings) which constitutes “use” as contemplated by s. 45(2)(a)(i) of the Act. Furthermore, the Appellant argues that such a “use” remains continuous as long as the dwellings remain on the site – regardless of occupancy. In support of this position, the Appellant highlights the fact that the City’s Zoning By-law 2008-250 (“City’s zoning by-laws”) lists certain building typographies as “permitted uses”, including “semi-detached dwelling”, whereas residing in such buildings (i.e., occupancy) is not similarly listed.

26To determine which interpretation the Tribunal should accept, and ultimately decide whether the remedy being sought under s. 45(2)(a)(i) of the Act is available to the Appellant, the Tribunal is obliged to undertake a statutory interpretation exercise.

27As recognized by the Appellant, the modern principle of statutory interpretation is to read the words of a statute in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature.¹² On this point, the Tribunal finds that the RPRA’s approach to interpreting the term “use” is deficient insofar as it proposes to narrowly look at only the dictionary definition of the word, without examining it in the broader context of the Act or the practical application of the relevant statutory sections.

28Delving into the broader context of the Act, the Tribunal finds that s. 45(2)(a)(i) of the Act works in conjunction with s. 34(9)(a), with the latter section providing the legal right to continue non-conforming uses despite the passing of an otherwise restricting by-law. While s. 34(9)(a) of the Act provides the exception to allow the continuation of the status quo, s. 45(2)(a)(i) allows for the enlargement of a building or structure in association with such a use. The Tribunal further finds it relevant that these two sections feature similar language surrounding the word “use” (or its derivatives), lending credence to a finding that the meaning of “use” in both sections is intended to be the same.

29Additionally, the Tribunal finds that the term “use” in both sections is clearly meant to specifically refer to what is considered a legally non-conforming use. As mentioned previously, legally non-conforming uses are not permitted, absent the exception that they enjoy under the law. The Tribunal finds that this distinction is important to consider given the relative positions of the Appellant and the RPRA. On the one hand, the Appellant maintains a position that the subject “use” in the present context is the semi-detached dwellings. This position is reconcilable with the understanding that semi-detached dwellings are not otherwise permitted on the Subject Lands without it being considered a legally non-conforming use – which explains the need for the present application. On the other hand, the RPRA claims that residential occupancy constitutes “use” as contemplated by the Act. However, the Tribunal finds that this does not make sense because there is no question about whether occupancy is permitted in the area – regardless of the establishment of legally non-conforming use-rights.

30Examining deeper into the context of the Act, the Tribunal further finds that s. 34(1) of the Act is instrumental in assessing the scope and function of s. 34(9)(a), and s. 45(2)(a)(i) by association. The Tribunal comes to this finding because s. 34(1) is the provision of the Act which provides authority to create use-restricting by-laws in the first place. This section reads:

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

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 […].

2. For prohibiting the erecting, locating or using of buildings or structures 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 […].

3. For regulating the type of construction and the height, bulk, location, size, floor area, spacing, character and use of buildings or structures to be erected or located within the municipality or within any defined area or areas […], and the minimum frontage and depth of the parcel of land and the proportion of the area thereof that any building or structure may occupy.

31Stemming from this purpose, the Tribunal finds that the exceptions provided by s. 34(9)(a) speak to the same authority provided by s. 34(1), insofar as such exceptions cover the same scope of authority. In other words, if a municipality has the authority under s. 34(1) of the Act to restrict any particular type of use, then s. 34(9)(a) of the Act correspondingly provides exceptions for the same. In this way, the meaning of the word “use” that is found at s. 34(9)(a), and by association s. 45(2)(a)(i), is informed by the breadth of the authority provided by s. 34(1).

32Upon review of s. 34(1), the Tribunal finds it clear that the legislature intended to delegate authority to municipalities to limit two principal types of uses: (1) human activity-uses, whether it be in relation to activities conducted on lands, or within buildings or structures; and (2) uses of lands to situate specific types of buildings or structures thereon, and the related performance standards of the same (i.e., heights, sizes, setbacks, etc.).

33To find specific examples of such types of uses, the Tribunal finds it logical to look within the City’s zoning by-laws created under the authority of s. 34(1). Examining the lists of “permitted uses” within the City’s zoning by-laws applicable to residential areas, the Tribunal finds that “semi-detached dwelling” is among several specific building typographies that are listed for various areas (see, for example: zones R2, R3, R4, and R5, governed by s. 157, 159, 161 and 163 of the City’s zoning by-laws).

34The important takeaway from this finding is the fact that “semi-detached dwelling” may constitute a “use” of lands in accordance with the City’s zoning by-laws (recognizing, of course, that “semi-detached dwelling” is not a “permitted use” within the specific R1 zone applicable to the Subject Lands). This leads to a finding that s. 34(1) of the Act contemplates “semi-detached dwelling” to be a potential “use” which may be restricted by the authority of this section, and s. 34(9)(a) correspondingly may provide an exception to such a restriction.

35This all leads the Tribunal to accepting the Appellant’s submission that the act of locating two semi-detached dwellings on the Subject Lands may constitute a “use” as contemplated by s. 34(9)(a) of the Act. Furthermore, the Tribunal finds that occupancy of the dwellings is irrelevant when determining if such a use is continuous, because the City has clearly elected to regulate residential uses by way of building typography, not by the human act of residing/occupying a building or structure.

36The Tribunal notes that if a lack of occupancy of the subject dwellings functioned to disqualify the Appellant from seeking a remedy under s. 45(2)(a)(i) of the Act, it stands to reason that it would necessarily also disqualify the dwellings from being re-occupied in their present form by the authority of s. 34(9)(a) of the Act. This is because, as mentioned above, these sections are clearly meant to work together, and it would not make functional sense to disqualify unoccupied buildings from one section and not the other. Furthermore, if occupancy is determinative of a finding of continued legally non-conforming use, countless legally non-conforming dwellings (including many heritage homes) would be prohibited from being restored and/or re-occupied after a period of vacancy. The Tribunal finds that such an outcome is clearly contrary to the housing and heritage objectives and purposes of the Act, other provincial legislation, and related policies of the City.

37In summary, the Tribunal accepts the Appellant’s position insofar as the subject semi-detached dwellings currently located on the Subject Lands may constitute a “use” of the lands as contemplated by both sections 34(9)(a) and s. 45(2)(a)(i) of the Act, and such a use, whether or not the buildings are occupied, may enjoy corresponding legally non-conforming use-rights. The Tribunal comes to this conclusion upon considering not only the dictionary definition of the word “use”, but also the context of the Act and its application, which is informed, in part, by the provisions of the City’s zoning by-laws passed thereunder. As such, the Tribunal finds that occupancy is irrelevant because the human act of residing in the dwellings does not constitute the legally non-conforming “use” relevant to the present application. Instead, subject to the Tribunal’s findings below regarding the buildings’ state of disrepair, the Tribunal accepts that the relevant use, being the act of locating two semi-detached dwellings on the Subject Lands, has continued to the date of the application in accordance with s. 45(2)(a)(i) of the Act. Thus, the Tribunal finds that the relief being sought is available to the Appellant, subject to the findings below regarding the buildings’ state of disrepair.

The effect of the existing dwellings' state of disrepair, as it relates to maintaining its status as a legally non-conforming use

38The Tribunal’s above findings are reached while initially setting aside issues concerning the subject dwellings’ state of disrepair. More specifically, the Tribunal comes to the above findings while not yet considering whether such a state of disrepair might interrupt the continued use of the lands, and thereby disqualify the dwellings’ status as a legally non-conforming use.

39Noting that legally non-conforming use-rights are extinguished when a use is discontinued, the question is: at what point of disrepair does a building or structure cease to be considered such a building or structure from a “use” standpoint? It is at such a threshold, in the Tribunal’s view, that the “use” of the lands to situate said building or structure thereon correspondingly ceases, together with any legally non-conforming use-rights.

40The Tribunal finds it is obvious that a habitable dwelling retains legally non-conforming use-rights, while it is equally obvious that such rights are extinguished by the time that there is no trace present of a prior existing dwelling. Logically, therefore, a threshold is crossed at some point in between, when a specific type of building’s state of disrepair has progressed to a degree where it can no longer be considered such a building from a “use” standpoint.

41To examine this question in the context of the present case, the Tribunal will first establish the stage of disrepair of the subject semi-detached dwellings. Once this is done, the Tribunal will consider the guiding principles set out in Saint Romuald (City) v. Olivier to determine whether this particular stage of disrepair falls below the threshold where the property’s legally non-conforming use-rights are lost.

42Regarding the history and physical condition of the dwellings, the Tribunal received factual evidence from the Appellant’s witnesses. The evidence shows that the buildings have been located on the Subject Lands for almost 100 years, long before any zoning by-laws were in effect. However, over recent years, the dwellings have clearly been unoccupied, and not heated or otherwise maintained.

43Notably, the interiors have deteriorated badly. Photos show ceilings’ plaster falling in, wall-plaster is collapsing, severe water damage throughout, some sections of the foundation shifting, and there are wide cracks in some areas of the foundation. The Tribunal has further heard and accepted evidence that mould and asbestos are present to a degree where renovations of the dwellings would present worker safety and/or health concerns.

44Consequently, the Tribunal finds that the homes are currently not only unsafe to live in, but they are also unsafe to work in. Without a doubt, the Tribunal finds that the dwellings are uninhabitable and most likely irreparable.

45At the same time, having reviewed images taken from outside, the Tribunal finds that the dwellings appear generally intact from the viewpoint of the public realm. The roof, walls, windows, and doors all appear to be mostly secure without obvious signs of major failings. Consequently, despite being uninhabitable, the Tribunal finds that the dwellings, from an outside perspective, still look like the semi-detached dwellings that have been located on the Subject Lands for almost 100 years.

46The Tribunal therefore finds that the dwellings are “uninhabitable, but generally structurally intact”. Having come to this finding, the Tribunal must now determine whether such a state of disrepair is sufficient for the dwellings to retain their legally non-conforming use-status.

47No jurisprudential authority has been provided to the Tribunal to help answer this question directly. However, the Tribunal finds once again that Saint Romuald (City) v. Olivier is instructive. More specifically, the Tribunal finds that the issue once again boils down to balancing the interests of the landowner against those of the community.

48The Tribunal finds that the interests of the landowner are clear: it wants to rebuild the non-conforming dwellings. Meanwhile, the Tribunal finds that the community’s interests in a case like this are largely concerned with the acceptance (or not) of the subject non-conforming buildings in the neighbourhood, and such acceptance is informed by whether the community is accustomed to the presence of it. The Tribunal further finds that this sense of being accustomed to the presence of the buildings will depend largely on what semblance of the original non-conforming building’s structure and associated character remains.

49For example, the Tribunal finds that a community will presumptively remain accustomed to the presence of a non-conforming dwelling if is still habitable. In such a situation, the Tribunal finds that a community will still likely be acquainted with the building in a complete form, so rebuilding the dwelling will not likely introduce anything new in terms of fit or compatibility. In such a situation, the Tribunal further finds that the character of the neighbourhood is most likely defined, at least in part, by the continued presence of the building. This means that said neighbourhood character is not likely to be unacceptably disrupted by rebuilding it.

50Meanwhile, at the opposite end of the spectrum, a proposal to rebuild a non-conforming building that once existed on a property, but where no trace of it currently remains, would presumptively be jarring to a community, as it would freshly and abruptly re-introduce a non-conforming use when the neighbourhood is no longer accustomed to it. In such a context, the Tribunal finds that the character of a neighbourhood has most likely moved on from the presence of the subject non-conforming building, and it has otherwise evolved without it, creating a situation where a replacement building would be unacceptably disruptive. Here, when balancing the competing interests of the property owner against those of the community, the negative consequences on the community (in terms of compatibility) would weigh against recognizing the continued legally non-conforming use-rights that had once existed.

51Circling these considerations back to the present case, where the Tribunal has found that the subject semi-detached dwellings are “uninhabitable, but generally structurally intact”, the question is concerned with whether Rockcliffe Park is likely still accustomed to the presence of two semi-detached dwellings on the Subject Lands, and whether the dwellings remain correspondingly compatible with the character of the neighbourhood.

52On this point, the Tribunal finds that the state of disrepair on the inside of the dwellings is inconsequential, given that the surrounding neighbourhood’s exposure to the property is exclusively from the outside and generally from the street view. In coming to this conclusion, the Tribunal finds that habitability generally has no bearing on the issue.

53From the public realm, the Tribunal has already found that the buildings appear principally intact and still look like the semi-detached dwellings that have been present for almost 100 years. These findings lead the Tribunal to conclude that the existing dwellings still maintain a substantial presence within the community. The Tribunal therefore finds that the character of the community remains formed, at least in part, upon the existence of these semi-detached dwellings, so the proposal to rebuild the same type of dwellings on the Subject Lands will not be unacceptably jarring or otherwise abruptly reintroduce a non-conforming building within the community. Consequently, the Tribunal finds that the proposal will not unacceptably disrupt the community’s sense of character in terms of fit and compatibility.

54The Tribunal notes that, in the Participant Statement provided by the RPRA, the association indicates that it is “extremely disturbing” that the existing semi-detached dwellings cannot be salvaged. They further state that “[t]he dwelling [sic] is among the most important heritage buildings in Rockcliffe Park”. However, they also indicate that they are resigned to the fact that the dwellings cannot be saved, and, as the best alternative to restoration, they take no issue with rebuilding the subject non-conforming buildings within the existing building envelope. While they remain opposed to the application based on the size of the proposed rebuild, they are clearly unopposed based on the building’s typography. Having received these comments, the Tribunal is further convinced that the neighbourhood remains accustomed to the presence of these particular semi-detached dwellings at this particular site, and the character of the neighbourhood remains formed, at least in part, by the continued presence of the semi-detached dwellings on the Subject Lands.

55Based on the above analysis, the Tribunal finds that the balancing approach outlined in Saint Romuald (City) v. Olivier leads to a conclusion that the state of disrepair of the subject dwellings, being “uninhabitable, but generally structurally intact”, does not reach past the threshold to disqualify the property from maintaining its legally non-conforming status in accordance with s. 34(9)(a) of the Act. As a result, the relief being sought under s. 45(2)(a)(i) of the Act remains available to the Appellant.

The Fraser Test

56Having finally concluded that the semi-detached dwellings constitute a continued legally non-conforming use of the Subject Lands, the Tribunal now turns to the application of the Fraser Test. As previously stated, the Fraser Test determines whether the relief being sought under s. 45(2)(a)(i) of the Act shall be granted. In practice, it requires the Appellant to show that the application to enlarge the legally non-conforming use is desirable for the appropriate development of the Subject Lands, and that it will not cause undue adverse impacts on the surrounding Rockcliffe Park neighbourhood. In accordance with the directions set out in Saint Romuald (City) v. Olivier, the Fraser Test is assessed through a balancing of interests between those of the property owner and those of the community.

57In terms of assessing impacts on the surrounding area, it is understood that the baseline for measurement is that of what currently exists, not what the in-effect by-laws permit, because s. 34(9)(a) of the Act provides that the property owner has an absolute right to rebuild the existing dwellings in accordance with the dwellings’ existing performance standards.¹³ At the same time, however, the Tribunal finds that the as-of-right performance standards prescribed by the City’s zoning by-laws are nevertheless informative when gauging adverse impacts, because negative impacts do not presumptively arise from following the City’s zoning by-laws.

58Addressing Step 1, the Tribunal finds that assessing the desirability of the proposed enlargement is inextricably linked to the need to completely demolish the existing residences and the inevitable consequences of undertaking the construction of two new homes in place of two century-old dwellings. The Tribunal finds that, while the property owner could, in theory, rebuild within precisely the same envelope as the existing dwellings, it is likely impractical and further unreasonable to impose such a limitation from a desirability standpoint.

59The Tribunal comes to this finding upon accepting that modern homes feature different priorities and building codes which necessitate different configurations and proportions compared to something that was built almost 100 years ago. Furthermore, the Tribunal accepts that such priorities and requirements inevitably occupy more space, whether it be in the form of larger kitchens designed to accommodate modern appliances, or utility areas designed to accommodate modern heating, ventilating, and cooling systems. This is to say that the Tribunal accepts the fact that it would be unreasonable to expect the Appellant to rebuild the same residences to serve the same functions while remaining constrained within the existing building envelope. Consequently, the Tribunal finds that it is desirable to enlarge the subject semi-detached dwellings to enable construction of two reasonably configured and proportioned homes.

60Additionally, the Tribunal finds that redevelopment of the site in an enlarged form is more desirable than allowing the existing dwellings to continue to deteriorate. Allowing the existing dwellings to continue to deteriorate will eventually create a serious eye-sore (noting that the properties’ landscaping is already unkept) and likely also introduce eventual public safety concerns within the community. Lastly, the Tribunal recognizes that the Subject Lands are located within the Rockcliffe Park neighbourhood, which typically features larger and higher-appointed residences. The Tribunal finds that this means that the proposal to enlarge the dwellings will desirably fit within the scale of the houses of the surrounding neighbourhood.

61For all of these reasons, the Tribunal finds that enlargement of the subject semi-detached dwellings is desirable for the appropriate development of the Subject Lands.

62Looking next at Step 2, the Tribunal must determine whether the proposed enlargement will result in undue adverse impacts on the surrounding community. The Tribunal finds that examples of potential adverse impacts in this context may include unacceptable incompatibility, noise, traffic, public safety, and/or environmental issues.

63The Tribunal received no suggestions or evidence that the enlargement of the existing semi-detached dwellings will introduce any measurable impacts in terms of noise, traffic, public safety and/or environmental concerns. This is not surprising given the nature of the subject property and the surrounding neighbourhood, which both serve the same residential purposes.

64The Tribunal acknowledges that the RPRA claims that there will be adverse impacts due to the proposed enlargement. However, through its Participant Statement, its claims of said impacts are primarily focussed on mathematical calculations of the proposed changes, suggesting (without explanation) that a mere increase in size amounts to adverse impacts. They further provide the bald assertion that it is “impossible to increase a building’s footprint by [the scale proposed] and not have a significant adverse impact on neighbouring properties – and the larger neighbourhood”. The Tribunal gives very little weight to this claim, however, because the RPRA does not detail how the enlargement will adversely impact the neighbourhood.

65The RPRA also argues that the property owner will be rewarded for its neglect if it is allowed to enlarge the premises, and that “[a]pproving a significantly larger building creates a precedent which amounts to an assault on the heritage of this National Historic Site”, which they claim will adversely impact the neighbourhood. The Tribunal rejects this argument because, at its core, it is a criticism of the property owner’s conduct rather than a valid criticism of the development plans. This claim is further concerned with what might happen elsewhere, which has no bearing on the present application.

66Despite not accepting the above points raised by the RPRA, the Tribunal finds that they do raise one valid concern respecting adverse impacts. They state “[the neighbourhood] will be staring at a much larger building buffered by correspondingly less greenscape”. The Tribunal interprets this statement as a concern about compatibility and preservation of the existing structure’s key features on the property, notably the property’s prominent landscape. The Tribunal accepts that this is a genuinely important consideration when assessing adverse impacts. The following analysis is therefore focussed on it – keeping in mind that the Tribunal must consider only adverse impacts which arise from the enlargement of the existing dwellings beyond what is permitted as-of-right.

67To deal with this issue, the Appellant provided the Tribunal with evidence illustrating the key features of both the existing and proposed buildings. For reference, a comparative set of images are included below in Figure 2, with the existing dwellings shown on the left, and the proposed development on the right.

Figure 2: Comparative Images of Existing and Proposed Dwellings

68Through testimony, the Appellant’s witnesses demonstrated that the existing dwellings are designed and situated on the Subject Lands in a manner which makes them appear to be one large home on the collective properties. The two ‘halves’, constituting each of the two semi-detached dwellings (divided along the property line of the two parcels of land), are asymmetrical, with entranceways facing different directions. This orientation, it was opined, further provides an impression that the overall structure consists of one single residence. There are also no obvious exterior features which betray the look of a single home, such as fences or divisive landscaping.

69The Appellant’s witnesses further testified that another prominent feature of the existing property is the large, landscaped areas along all three road frontages, and how the house is considerably set back in each direction from the street, pressed tightly against the adjoining residential property lines to the north. As it was put by Barry Hobin, qualified as an expert in Heritage Architecture, it is a “building in a landscape” with the landscape featured prominently in the forefront.

70Other key features of the dwellings include:

• steeply sloped roofscapes which are notable insofar as it includes a variety of elevations;

• contrasting colours which highlight a variety of design elements;

• ‘two-and-a-half storey’ construction, which provides a third level of living space;

• ‘punched windows’ design;

• an entranceway portico; and

• no significant ‘car-impact’, with driveways and garage facilities discreetly tucked away to the (perceived) rear of the building when looking at it from the south.

71The Tribunal accepts all of the above evidence, including the opinion that the above noted features constitute the key characteristics of the existing dwellings.

72The Appellant’s witnesses further expressed a consensus sentiment and opinion that these key features are incorporated into the proposed plans in a meaningful way. The result, they opined, is a relatively seamless transition from what currently exists to the newly constructed dwellings. From a compatibility standpoint specifically, they opined that there is little measurable difference between what is proposed and what currently exists.

73The Tribunal accepts these opinions and similarly finds that the proposed reconstruction purposefully and successfully preserves the key features of the existing dwellings into the new design. The Tribunal finds this conclusion to be an important finding in favour of the proposed enlargement because the new design will closely resemble and carry forward the former impacts on the neighbourhood, minimizing new potentially adverse net impacts (if any) resulting from the scale of the proposed enlargements.

74Focussing next on measurements and the overall scale of the proposed enlargement, the Tribunal finds that the first thing to consider is whether a larger home, in general, is compatible with the surrounding neighbourhood. The Tribunal finds that it is, in the present case, because larger homes are customarily found in the Rockcliffe Park area.

75Regarding performance standards, the Tribunal compares the planned dwellings’ performance standards to the properties’ as-of-right performance standards (either as prescribed by the City’s zoning by-laws, or as permitted by its legally non-conforming status – whichever is more permissive is what the Tribunal finds relevant).

76This approach has an obvious challenge, of course, given that there are no performance standards prescribed by the City’s zoning by-laws regarding semi-detached dwellings in the Rockcliffe Park area. To overcome this challenge, the Tribunal finds it appropriate to examine the performance standards of the proposed building (as a collective) in comparison to the prescribed performance standards of a single-detached dwelling in the area. The Tribunal finds such a comparison appropriate because a single-detached dwelling is the closest building type to the subject semi-detached dwellings, and the Tribunal has received and accepted evidence that the existing and proposed semi-detached dwellings are purposely designed to appear like one large single-detached dwelling.

77Upon such an examination, the Tribunal finds that the lot width, lot area, front setback from the east (which appears to be a side setback when viewing at the property from the south), corner side setback, building height, lot coverage, and driveway width of the proposed dwellings are all within the prescribed/as-of-right standards. As a result, the Tribunal finds that none of these features are adversely impactful on the community.

78While the above standards are met, the following performance standards fall outside of what is permitted as-of-right for a single-detached dwelling:

1. the interior side setback to the north (which looks like the rear yard setback when viewing the property from the south) is 0.81 metres short of the legally non-conforming as-of-right standard;

2. the rear setback to the west (which looks like the side setback when viewing at the property from the south) is 0.95 metres short of the prescribed by-law standard; and

3. the Floor Space Index (FSI) exceeds the prescribed by-law standard by 1.4%.

79While these three performance standards all fall short, the Tribunal accepts the opinions of the Appellant’s witnesses insofar as the discrepancies are so minor as to be indiscernible from an area-impact standpoint. Combining this finding with the Tribunal’s earlier finding that the key features of the existing dwellings are maintained within the plans for the new dwellings, the Tribunal finds that the scale of the proposed enlargement falls well short of causing unacceptably adverse impacts on the surrounding properties and neighbourhood from a compatibility standpoint.

80In coming to this conclusion, the Tribunal finds that both steps of the Fraser Test are therefore satisfied.

Heritage Considerations Under the Planning Act

81As stated earlier in this decision, the Subject Lands are within the Rockcliffe Park Heritage Conservation District, which is a designated heritage district under Part V of the Ontario Heritage Act. Consequently, the Appellant cannot demolish or reconstruct the existing semi-detached dwellings without permission pursuant to the Ontario Heritage Act. As it relates to such permission, the Tribunal recognizes that the Appellant has already obtained heritage permits from the City for the demolition and reconstruction of the dwellings.

82There is no question that the City has already principally dealt with heritage issues through this process, and there is currently nothing before the Tribunal involving provisions of the Ontario Heritage Act. However, the Planning Act still speaks to heritage considerations within the context of sections 2 and 3(5) of the Act, and the Tribunal must therefore be satisfied regarding heritage considerations under the Act as part of this decision.

83Under s. 2, the Tribunal is obliged to “[have regard to] the conservation of features of significant architectural, cultural, historical, archaeological or scientific interest”. Furthermore, under s. 3(5), a decision of the Tribunal must be consistent with the PPS, including policies concerning cultural heritage, which at policy 4.6.1 states that “[p]rotected heritage property, which may contain built heritage resources or cultural heritage landscapes, shall be conserved”.

84On these points, the Appellant’s witnesses testified that the present development proposal is adequately sensitive to heritage considerations, given that the plan for the new dwellings involves replicating the key features of the existing dwellings. Their evidence also made it clear that the existing dwellings are unsalvageable, which means that restoration is not an option.

85Beyond heritage considerations, the Appellant’s witnesses further opined that all other aspects of sections 2 and 3(5) of the Act are also satisfied.

86This evidence, which the Tribunal accepts, combined with the fact that the Appellant has received all the necessary heritage-related permits from the City, leads the Tribunal to conclude that the application to enlarge the existing legally non-conforming semi-detached dwellings satisfies each aspect of both sections 2 and 3(5) of the Act, including in relation to heritage considerations.

SUMMARY AND CONCLUSION

87The Tribunal finds that the subject semi-detached dwellings are a legally non-conforming use of the Subject Lands as contemplated by both sections 34(9)(a) and 45(2)(a)(i) of the Act, and such a use has continued to the date of the present application despite the buildings’ state of disrepair. Consequently, the relief being sought under s. 45(2)(a)(i) of the Act is available to the Appellant. Furthermore, upon applying the steps of the Fraser Test, the Tribunal finds that the proposed plan to enlarge the subject semi-detached dwellings is desirable for the appropriate development of the Subject Lands, and it will not result in undue adverse impacts on the surrounding Rockcliffe Park properties or neighbourhood. In coming to this conclusion, the Tribunal has had regard to the matters of provincial interests articulated at s. 2 of the Act and finds that the application is consistent with the PPS, including as it relates to heritage considerations, in accordance with s. 3(5) of the Act.

ORDER

88THE TRIBUNAL ORDERS that the appeals are allowed and the requested permissions are granted under subsection 45(2)(a)(i) of the Planning Act, to enlarge or extend the legally non-conforming semi-detached dwellings in accordance with the plans prepared by Hobin Architecture, dated December 2023, as set out in Attachment 1.

“K.R. Andrews”

K.R. ANDREWS MEMBER

Ontario Land Tribunal Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal

ATTACHMENT 1

Footnotes

1. 1See: Roca Investment Holdings Inc. v Ottawa (City), 2024 CanLII 106132 (ON LT).
2. 2See: Fraser v Rideau Lakes (Township), 2020 CanLII 91882 (ON LPAT) at para. 16.
3. 3Central Jewish Institute v. City of Toronto, 1948 CanLII 3 (SCC), [1948] SCR 101.
4. 4Saint-Romuald (City) v. Olivier, 2001 SCC 57, [2001] 2 SCR 898.
5. 5See: Saint-Romuald (City) v. Olivier, 2001 SCC 57, [2001] 2 SCR 898 at paras. 38-39.
6. 6See: Re TDL Group Corp., 63 OMBR 199 (2009) (OMB) at p.10-11; Affirmed by the Ontario Superior Court of Justice (Divisional Court) in Ottawa (City) v. TDL Group Corporation, 2009 CanLII 63366 (ON SCDC).
7. 7See: Re TDL Group Corp., 63 OMBR 199 (2009) (OMB) at p.10.
8. 8See: Ottawa (City) v. TDL Group Corporation, 2009 CanLII 63366 (ON SCDC) at paras. 33-34.
9. 9See: Brougham v South Frontenac (Township), 2018 CanLII 5641 (ON LPAT) at para. 83.
10. 10See: Brougham v South Frontenac (Township), 2018 CanLII 5641 (ON LPAT) at paras. 70-75.
11. 11See: Brougham v South Frontenac (Township), 2018 CanLII 5641 (ON LPAT) at para. 82.
12. 12Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 SCR 27 at para 21.
13. 13Fraser v Rideau Lakes (Township), 2020 CanLII 91882 (ON LPAT) at para. 16 and 65.