51 Haynes Avenue St Catharines Ontario Inc. v. St. Catharines (City), 2025 CanLII 130884

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 08, 2025

CASE NO(S).: OLT-25-000359

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

Applicant and Appellant: 51 Haynes Avenue St. Catharines Ontario Inc. (Owner: Neil Shaul)

Subject: Minor Variance

Description: To increase maximum floor area of an accessory dwelling unit.

Reference Number: A-26/25, A-25/25

Property Address: 51A and 51B Haynes Avenue

Municipality/UT: St. Catharines/Niagara

OLT Case No.: OLT-25-000359

OLT Lead Case No.: OLT-25-000359

OLT Case Name: 51 Haynes Avenue St Catharines Ontario Inc. v. St. Catharines (City)

Heard: August 11, 2025, by Video Hearing

APPEARANCES:

Parties

Counsel/Representative*

51 Haynes Avenue St. Catharines Ontario Inc. (Owner: Neil Shaul)

Brian Duxbury

City of St. Catharines

Rob DiLallo

DECISION DELIVERED BY YASNA FAGHANI AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal is an appeal pursuant to s. 45(12) of the Planning Act, R.S.O. 1990, c.P.13 (“Act”) by 51 Haynes Avenue St. Catharines Ontario Inc., (“Applicant”) against the Decision by the City of St. Catharines (“City”) Committee of Adjustment (“CoA”) to refuse applications for minor variances (“Applications”).

2The subject property, municipally known as 51A and 51B Haynes Avenue, in the City (“Subject Property”), is a single detached dwelling which is to be demolished and redeveloped into a new semi-detached building. Of note, a consent application for the creation of the semi-detached building (two principle dwelling units that straddle a shared property line) was approved, subject to conditions, in March 2025. The purpose of the consent application was to facilitate the construction of the proposed semi-detached dwelling units with two accessory dwelling units (“ADUs”) on each lot. At that time, the proposed ADUs were to be 80 square meters (“m²”), which meets the required maximum floor area of an ADU under the City’s Zoning By-Law (“ZBL”).

3The proposal currently before the Tribunal seeks to increase the maximum permitted floor area of each ADU from 80.0 m² to 87.77 m², representing a 9.7% increase over the ZBL.

4The Applications were filed with the City and according to the Staff Planning Report dated April 18, 2025 (“Staff Report”), the City was not supportive of the Applications and the CoA refused the Application. The Applicant filed an appeal to this Tribunal.

5There were no issues raised regarding the Administrative Notice of this Hearing, dated August 1, 2025, and marked as Exhibit 1.

6The Tribunal did not receive any Party or Participant Status Requests in advance of the Hearing, and no one appeared at the Hearing requesting Party or Participant Status.

7For the reasons that follow, the Tribunal finds that the appeal is allowed and the minor variances authorized.

HEARING

8The Tribunal heard evidence from Mr. Evan M. Sugden, on behalf of the Applicant, who was qualified as an expert in the field land use planning. His Witness Statement, dated July 31, 2025, was marked as Exhibit 2.

9The City’s Book of Documents was marked as Exhibit 3.

10The Tribunal heard evidence from Ms. Charlotte McEwan, on behalf of the City, who was qualified as an expert in the field of land use planning. Her Curriculum Vitae was marked as Exhibit 4 and Acknowledgement of Expert Duty form was marked as Exbibit 5. Of note, she is Senior Planner at the City and approved the Staff Report.

LEGISLATIVE TEST

11With respect to minor variances, s. 45 (1) of the Planning Act, the Tribunal must be satisfied that the requested variances:

a. maintain the general intent and purpose of the regional Official Plan (“OP”) and the City OP;

b. maintain the general intent and purpose of the ZBL;

c. are minor in nature; and

d. are desirable for the appropriate development or use of the land, building, or structure.

12Further, the Tribunal must be satisfied that the variance is also consistent with the Provincial Policy Statement, 2024 (“PPS 2024”), and have regard to matters of provincial interest, as well as for the Decision of the approval authority and the information that was before it.

ANALYSIS AND FINDINGS

Provincial Policy Statement, 2024 and [s.2](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

13There was no dispute that the proposed minor variance was consistent with PPS 2024 or that it had regard to matters of provincial interest. Both witnesses agreed the proposed variance was in line with intensification policies. Ms. McEwan agreed with Mr. Sugden’s analysis regarding the consistency of the proposal with the applicable policies of the PPS 2024 since the proposal will contribute to the residential unit supply, support the efficient use of land and infrastructure, and enhance housing diversity. Ms. McEwan noted that her main area of concern was the more local level where the applicable legislative documents “allow for a framework more restrictive in certain ways”.

14Based on the testimony of the witness, the Tribunal accepts that the proposed minor variance is consistent with the PPS 2024 and has regard for maters of provincial interest.

General Intent of Official Plans

15Mr. Sugden testified that the Niagara Regional Official Plan (“NROP”) is now considered a local official plan for the City and must be considered as part of the minor variance test. The Subject Property is located within one of the Region’s Urban Areas and is designated as “Delineated Built-Up Area”. Future development is directed to urban settlement areas, including built-up areas where municipal services and transportation options exist. According to Mr. Sugden, s. 2.3, and various subsections of the NROP, a diverse housing supply is encouraged and ADUs address several key policies that support housing diversity, affordability and intensification across the Niagara Region. Of note, Mr. Sugden testified that the definition of “additional residential units” does not speak to ADU size maximums, nor does the NROP restrict the ability to increase the size of such units.

16Furthermore, Mr. Sugden testified that the Subject Property is located in the City of St. Catharines Official Plan’s (“City OP”) “Urban Area” and is designated as “Neighbourhood Residential” and “Low Density Residential”. According to Mr. Sugden, the intent of lands within “Urban Area” is to accommodate growth efficiently through intensification and mixed-use development to support complete communities by using existing infrastructure and land more effectively. Permitted uses within the “Neighbourhood Residential” designation include semi-detached dwellings.

17In addition, an “Accessory Apartment” is defined in the City OP as:

a secondary apartment unit within a primary residential dwelling unit or within a detached structure accessory to a primary residential dwelling unit on the same property

18Under s.7.10 of the City OP, an “Accessory Apartment”:

is permitted in single-detached, semi-detached and townhouse dwelling units, or in a detached structure accessory to a single-detached, semi-detached or townhouse dwelling unit in accordance with applicable

zoning by-law requirements and other applicable laws and requirements, including the Building Code, Fire Code and property standards.

19Mr. Sugden notes that the definition of “Accessory Apartments” does not impose a maximum size limit nor restricts the ability to increase the size of such units. Mr. Sugden further added that according to policy 17.10.4 of the City OP, “Accessory Apartments” are to be excluded from the calculation of residential density because there is a recognition that the units are smaller, subordinate in nature, and have minimal impact on infrastructure and neighbourhood character.

20Overall, Mr. Sugden opined that the proposal aligned with the intent and purpose of the City OP by promoting housing diversity, making efficient use of land, and supporting the development of communities through ADUs in a compatible form. According to Mr. Sugden, the proposal is for a minor size increase beyond the zoning standard and is appropriate given that the City OP does not impose a maximum size limit on the ADUs or restrict their enlargement.

21On cross examination, Mr. Sugden agreed with Counsel for the City that it is more appropriate for a ZBL to be more prescriptive than an OP. He elaborated, however, there is a right to ask for an amendment or variance to the applicable ZBL. With that said, in this case, as will be discussed below, Mr. Sugden opined that the proposal meets the general purpose and intent of the ZBL due to the subordinate nature of the ADU compared to the primary dwelling unit.

22Ms. McEwan did not provide an opinion with respect to the NROP. She opined that the general intent and purpose of the City OP is not met. She noted that the exclusion of ADUs from density calculations is significant because the intent is to recognize that there is a specific type of unit that that can be integrated into the established residential neighbourhood with minimal or no impact to the existing infrastructure, built form, and character due to its smaller, accessory size and function. She elaborated that what the ADUs look like is specified in the ZBL (namely its size at 80 m²) so that “any size and type” of unit is not allowed to be considered an ADU and, as a result, “enjoy many exemptions from development related charges and fees”.

23Counsel for the City submitted that the Applications for minor variance are simply proposing a different unit type than the City OP’s intended for an ADU. As such, according to counsel, where the variance is effectively proposing a different type of unit (by failing to comply with the floor area requirement of the ADU unit type), it is not possible for the variance to maintain the general intent and purpose of the OP.

Finding

24The Tribunal finds that the intent of purpose of the City OP is met as these ADUs will provide diversity in housing in areas that are encouraged to develop. Intensification is encouraged especially in areas that can use existing infrastructure. As there was no evidence from the City regarding the NROP, the Tribunal accepts Mr. Sugden’s evidenced that the intent of the NROP is met.

25The Tribunal accepts Ms. McEwan and Mr. Sugan’s evidence that the exclusion of ADUs from density calculations is a signal that ADUs are intended to be smaller, with minimal impacts to existing infrastructure. In fact, in this case there was no evidence that these specific ADUs would have any significant impacts on the existing infrastructure. There was also no evidence that that the ADUs would not be able to be supported by the existing infrastructure.

26While the Tribunal accepts that the ZBL plays a significant role in providing details of what an ADU will look like, the Applicant has a right to request a change (or variance) from what is specified in the ZBL. When a request is made, the Tribunal has to determine if that request is appropriate given the specific facts of the Application before it. In this case, the request is for an increase of 7.77 m² which is a 9.7% increase from the ZBL and there was no evidence to suggest the numerical increase would result in any unreasonable adverse impacts.

27Furthermore, as will be discussed in detail further below, the Tribunal finds that the ADUs meet the intent and purpose of the ZBL through their “subordinate nature”. As will be explained below, the Tribunal is not persuaded that the ADUs in these Applications are “effectively proposing a different type of unit”.

General Intent and Purpose of the ZBL

28There was much disagreement about whether general intent and purpose of the ZBL was met. Section 2.2.1. a of the ZBL states that “the floor area of any accessory dwelling unit shall not exceed 80 square metres”. Ms. McEwan testified that the intent of the required floor area is to define and distinguish an ADU from a different type of unit, triplexes for example which are permitted in the R1 or R2 zone. She noted that that in the case where a triplex and semi-detached dwelling unit with two interior ADUs are permitted, the only way to distinguish between the unit types is the 80 m² floor area for an ADU. She also noted that there was a recent increase to the size of the floor requirement in the ZBL.

29The ZBL defines a “Dwelling Unit Accessory” as “a separate dwelling unit that is subordinate and secondary to a principal dwelling unit located on the same lot”. The ZBL also differentiates between an “interior accessory dwelling unit” and “exterior dwelling unit”.

30An interior accessory dwelling unit “means a separate dwelling unit that is contained within a principle dwelling” while a detached accessory dwelling unit “means a separate building on a lot containing a dwelling unit which is subordinate and secondary to the principal dwelling unit located on the same lot”. In the written closing Submissions, the Applicant noted that two definitions simply distinguish between the two forms of ADUs and the general definition of the “dwelling unit accessory” functions as an umbrella definition for all the accessory dwelling units on the same lot. The Applicant’s position is that the key requirement from the umbrella definition is for all ADUs to be “subordinate and secondary” to the principle dwelling unit. Mr. Sugden also noted that using a “hard metric” such as 80 m² is not the best metric to distinguish between built forms because it does not account for shape or size of a specific lot.

31In the written closing Submissions, the Applicant argued that Ms. McEwan failed to “grapple with the fundamental issue as to whether these proposed units are subordinate and secondary to the principle dwelling unit”. Her focus was primarily on the 80 m² and the fact that ADUs are required to have this maximum floor area. Counsel for the City submitted in that the concepts of “subordinate” and “secondary” are subjective and not defined in the ZBL. He noted that the City cannot refuse to issue a building permit based on subjective terms such as “subordinate” and “secondary” and the only zoning distinction that is enforceable as applicable law under the Building Code Act is the 80 m².

32It is the Applicant’s position that ADUs are clearly subordinate since the principal dwelling is 177.66 m² as compared to the 87.77 m² for the ADUs, and there are no demonstrated impacts as a result of the proposed increase.

Finding

33The Tribunal accepts the Applicant’s position that the intent of the ZBL is met. The Tribunal finds that the intent of the ZBL is to maintain a different unit type for the ADUs, however, size should not be the only determining factor as suggested by the City. The Tribunal accepts that the “subordinate nature” within the definition is a key consideration and the relationship of an ADU to the primary unit needs to be assessed. A plain reading of the word suggests that for a unit to be considered ADU, the relationship between it and the primary unit has to be something less than, even go as further as “much less than”, before one can determine if the unit is an ADU. In addition, in a minor variance application, the Applicant has the right to request a change to the size if other elements are met (for example, in this case the subordinate nature is clearly met and the fact that there is no evidence of adverse impacts).

34Furthermore, as the Applicant points out in the closing Submissions, if 80 m² has such relevance, no evidence was provided by the City to establish the reason this number was chosen and what the City considered in coming to this decision. This information could have assisted the Tribunal in better understanding the requirement for 80 m².

35Regarding Ms. McEwan’s testimony that there would be no way to distinguish between a triplex and a semi-detached with ADUs absent the floor size requirement, the Tribunal is not persuaded. The definition of a “Triplex” in the ZBL states:

Dwelling, Triplex: means a building that is divided vertically and horizontally, or horizontally, into three dwelling units in which each dwelling unit has an independent entrance to the exterior or through a common vestibule.

36Clearly, the relationship of the units to each other is not part of the Triplex definition. The Tribunal finds that this is an important starting point in the differentiation between a Triplex and a semi-detached with ADUs. With that said, the Applications before the Tribunal are for two semi-detached properties with two ADUs in each. The Applications are not for Triplexes. Therefore, the Tribunal needs to determine if the intent and purpose of the ZBL is met in the Application before it. As stated above, the Tribunal finds that the intent is met.

37Lastly, the Applicant and the City provided theoretical examples where relying on a size metric can be problematic, but for different reasons. The Applicant said if an 80 m² hard cap was used, a principle dwelling at 80 m² with each ADU being 79 m² would be acceptable, without any consideration for the “subordinate relationship”. The City provided a “more concerning” scenario where a principle residence of 177 m² with ADUs of 176 m² could be approved without a hard cap requirement. It was argued that in this theoretical scenario, the standard unit could collect all of the benefits and incentives under the guise of an ADU.

38in each of these theoretical examples, the role of the Tribunal would be to assess each Application based on all the facts and considerations which include the size of the relationship, the increase in the variance, and corresponding adverse impacts. As such, theoretical examples are not very helpful, as a more fulsome analysis would ensue based on the facts of each case.

Desirable for the Appropriate Development use Lands

39The Tribunal accepts Mr. Sugden’s testimony that the proposed variance is desirable for the appropriate development use of the land. As noted by Mr. Sugden, the increase in ADU floor area from 80.0 m² to 87.77 m² facilitates more functional, livable units that better meet the expectations of renters and homeowners in the City. The Tribunal accepts that the variance does not increase the number of units or introduce a new land use, but as suggested “enhances the usability of an already permitted housing form”. As noted above, the ADUs are “subordinate in nature” and are compatible with the low-rise residential character of the neighbourhood, which includes detached and semi-detached homes.

Variances are Minor

40Mr. Sugden opined that the proposed variance is minor in nature. The proposal is to increase the permitted floor area of each ADU from 80.0 m² to 87.77 m² — a 9.7% increase. This increase remains entirely internal to the principal dwelling and clearly subordinate in scale, function, and ownership. He noted that there were no objections from external agencies, and no public concerns related to the ADU size.

41The City’s position is that the variances are not minor. The Applicant submitted that that there are a total of four variances being requested, one for each ADU. There are two ADUs being proposed on two lots with a total of four total dwelling units and that there is no acknowledgement of the cumulative nature and impact of the requested variances. Ms. McEwan testified that these Applications are “particularly offensive because they propose two oversized ADUs on each lot for a total of four oversized ADUs at the Subject Property”.

42In addition, the City submitted that the Application made the wrong application and that it should have been for a Triplex; if the correct application was made, Ms. McEwan could determine all of the specific impacts related to the proposal. During the Hearing, Ms. McEwan took the Tribunal through the table of the R2 Zone standards to identify issues that are applicable to Triplexes but not to ADUs (parking for example). Counsel argued that when the proposal is examined in the “correct format”, (Triplex application) then the applicable details can be assessed and analyzed.

Finding

43The Tribunal finds that the variances are minor. There was no evidence before to the Tribunal that suggest unacceptable adverse impacts. While the Tribunal was taken to the R2 Zone which shows differences in performance standards, the Tribunal was not persuaded because it was not provided evidence that shows these “oversized ADUs”, as referred to the City, will actually cause unacceptable adverse impacts. As mentioned earlier, the City’s position is that these Applications should have been a Triplex and that when a Triplex application was brought, the City could have determined impacts. Frankly, the Tribunal does not accept this position. The Applications before it request a semi-detached with two ADUs. To support a finding that the variances are not minor in nature, The Tribunal needs to be persuaded that these Applications cause unacceptable adverse impacts. the Tribunal has not been presented with such evidence.

44Furthermore, there was discussion about the cumulative impacts. The Tribunal was not taken to any section of the ZBL which directs the consideration of cumulative impacts, nor was an analysis of cumulative impacts provided by the City, but for the suggestion of possibilities of impacts.

Conclusion

45The Tribunal finds that based on the filed materials and submissions of the Parties, the Applications represent good land use planning, satisfy all legislative tests as detailed above, and are approved. The Applications are consistent with policy directives of the PPS 2024 and the proposal has regard for matters of Provincial interest, as listed in s. 2 of the Act. Moreover, the minor variances requested individually and collectively meet the prescribed test as set out in s. 45 of the Act. As such, the Applications should be approved.

ORDER

46THE TRIBUNAL ORDERS THAT that the appeal by 51 Haynes Avenue St. Catharines Ontario Inc. pursuant to s. 45(12) of the Planning Act is allowed and the variances to Zoning By-law No. 2013-283, to increase the maximum floor area for interior Accessory Dwelling Units from 80.0 square metres to 87.77 square metres, is authorized.

“Yasna Faghani”

YASNA FAGHANI

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.