Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 03, 2025
CASE NO(S).: OLT-23-000836
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Kaneff Properties Limited
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit the development of a 29-storey apartment building
Reference Number: OZ 20/007 W4
Property Address: 3575 Kaneff Crescent
Municipality/UT: Mississauga/Peel
OLT Case No.: OLT-23-000836
OLT Lead Case No.: OLT-23-000836
OLT Case Name: Kaneff Properties Limited v. Mississauga (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Kaneff Properties Limited
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the development of a 29-storey apartment building
Reference Number: OZ 20/007 W4
Property Address: 3575 Kaneff Crescent
Municipality/UT: Mississauga/Peel
OLT Case No.: OLT-23-000837
OLT Lead Case No.: OLT-23-000836
OLT Case Name: Kaneff Properties Limited v. Mississauga (City)
PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Kaneff Properties Limited
Subject: Site Plan
Description: To permit the development of a 29-storey apartment building
Reference Number: SP 22-75 W4
Property Address: 3575 Kaneff Crescent
Municipality/UT: Mississauga/Peel
OLT Case No.: OLT-23-000838
OLT Lead Case No.: OLT-23-000836
OLT Case Name: Kaneff Properties Limited v. Mississauga (City)
Heard: October 7-11, 16, 2024 via Video Hearing
APPEARANCES:
Parties
Counsel
Kaneff Properties Limited
Mark Flowers Lauren Yan Lin Cao
City of Mississauga
Peter Pickfield Alex Ciccone
DECISION DELIVERED BY F. LAVOIE AND INTERIM ORDER OF THE TRIBUNAL
INTRODUCTION
1This is a Decision of the Merit Hearing of appeals by Kaneff Properties Limited (the “Appellant”) pursuant to ss. 22(7), 34(11) and 41(12) of the Planning Act, RSO 1990, c P.13 (the “Planning Act”) due to the failure of the City of Mississauga (“City”) to make decisions concerning the Appellant’s applications for an Official Plan Amendment (“OPA”), a Zoning By-law Amendment (“ZBL”) and Site Plan (“SPA”) for the property municipally known as 3575 Kaneff Crescent (“Subject Property”).
2Collectively, the applications seek to allow the proposed redevelopment at the Subject Property, currently a parking lot, to a 40 storeys apartment building. The existing RA5-4 zoning currently permits up to 25 storeys. The City concedes a proposal exceeding the current 25 storeys restriction would be appropriate but asks the Tribunal to only approve a 32 storeys apartment building. Beyond the contested proposed building height, the Parties are also at odds with the size of the proposed floor plate, the amount of proposed amenity space, and the lack of affordable housing in the proposal.
BACKGROUND AND CONTEXT
3The Subject Property is approximately 0.27 hectares in size and bounded by Kaneff Crescent to the north, Mississauga Valley Boulevard to the east, Elm Drive East to the south, and Obelisk Way to the west. It is in the Downtown Fairview Character Area and is designated Residential High Density. The Downtown Fairview Character Area permits a maximum of 25 storeys and a Floor Space Index (“FSI”) of 1.5 – 2.0. The proposed OPA is a site-specific amendment to permit a building height of 40 storeys, and a maximum FSI of 12.0. A site-specific ZBA is required to change the zoning from RA5 – 4 to RA5 – Special Exception Zone to permit the proposed development with various site-specific development standards.
4Immediately around the Subject Property are apartment buildings that range from 19 storeys to 22 storeys. Hurontario Street is about 220 metres (“m”) west of the Subject Property. The existing and planned context along Hurontario Street close to the Subject Property includes several tall buildings ranging from 29 storeys to 56 storeys. Further afield, to the northwest of the Subject Property, is the regional Square One shopping centre surrounded by office buildings and retail stores.
5The proposal has undergone several revisions since the original application was submitted in June 2020. The original application proposed a 29-storey apartment building with 282 residential units. In May 2022, the second submission revised the proposal to a 33-storey apartment building with 322 residential units. In October 2022, the third submission revised the proposal to a 32-storey apartment building with 317 residential units. The fourth and final submission on July 26, 2023, proposed a 40-storey residential apartment with a four-storey podium and 463 residential units. The Appellant then appealed to this Tribunal on August 10, 2023.
THE HEARING
6The Hearing was held over six days, from October 7 to 11, 2024 and October 16, 2024. The Parties filed 12 exhibits before the Tribunal, including a joint book of documents, each Parties’ witness statement book, several compendiums of visual evidence, zoning by-law amendment (“ZBL”) No.0162-2024 which introduced “RA6” and “RA7” zones, and the recommendation report for the passing of the ZBL No.0162-2024.
7The Parties tendered a total of seven proposed expert witnesses, which the Tribunal qualified to provide expert opinion evidence in their respective fields. The Appellant called Raza Mehdi (Architecture and Urban Design), Scott Henderson (Landscape Architecture), Andrew Sliasas (Wind Engineering), and Paul Lowes (Land Use Planning) to testify. The City called Edward Nicolucci (Urban Design), Janet Squair (Landscape Architecture), and Andrea Dear (Land Use Planning) to testify. The Parties did not object to the proposed expert qualification of each others’ witnesses. Following a review of their qualifications and witness statements, the Tribunal found they were all properly qualified experts and their evidence relevant and necessary to render a Decision on these Appeals.
ISSUES
8The Parties’ Issues List originally had 22 issues. Before the Merit Hearing, the Parties were able to significantly scale back the number of issues and scope of some issues in this matter. As a result, the adequacy of the Shadow Study, parking, landscaped area, public realm interface along Kaneff Crescent and Obelisk Way, and building setbacks in the Streetscape Feasibility Study were removed from the issues list.
9The revised Issues List still included 15 issues, though by closing submissions the Parties had focused their arguments down to the following core three issues:
a. Whether the building height should 40 storeys or 32 storeys;
b. Whether the tower floorplate size should be 850 square metres (“m2”); and
c. Whether the amount and functionality of amenity space is appropriate.
APPLICABLE LAW
10In considering OPA and ZBA appeals, the Tribunal must apply the legislative set out below.
11Section 2 of the Planning Act requires regard to matters of provincial interest enumerated therein. Further, s. 2.1 of the Planning Act, requires the Tribunal to have regard to the information and material considered by the approval authority in making its decision, as well as the decision itself.
12In particular, the following matters of provincial interest are relevant for the purpose of the present Appeals:
(j) the adequate provision of a full range of housing, including affordable housing;
(p) the appropriate location of growth and development;
(r) the promotion of built form that,
(i) is well designed,
(ii) encourages a sense of place, and
(iii) provides for public spaces that are high quality, safe, accessible, attractive and vibrant.
13Section 3(5) of the Planning Act requires the Tribunal’s Decision to be consistent with the policy statements in effect on the date of the decision. The applicable policy statement for this Decision is the Provincial Planning Statement (2024) (“PPS”).
14A proposed lower tier OPA must, in addition to being consistent with the PPS, conform to the upper tier OP, in this case the Region of Peel’s OP (“Region OP”), and represent good land use planning.
15A proposed ZBA, in addition to being consistent with the PPS, must conform to the applicable Official Plans, in this case, the Region OP and the City’s OP, as well as meet the intent and purpose of the City’s ZBL, and represent good land use planning.
SUMMARY OF THE EVIDENCE
Appellant’s Evidence
16Mr. Sliasas is a mechanical engineer specializing in wind engineering retained by the Appellant to prepare a Wind Study, dated April 19, 2022, and two addenda. He also testified at the hearing, where he summarized his conclusions from the Wind Study. He opined that based on wind tunnel test results, meteorological data analysis, and experience with similar developments in Mississauga, conditions over all pedestrian-sensitive areas within and surrounding the development site would be acceptable for the intended pedestrian uses on an annual and seasonal basis. With regards to wind conditions on the podium, Mr. Sliasas recommended wind mitigation measures in the form of pergolas/trellises, vertical screening, and raised planters with evergreens on the west side. With these mitigation measures in place, he opined wind conditions over all terrace-level seating and other sedentary-use areas would be suitably calm during the warmer months.
17The Wind Study was prepared at the time of the proposal’s second submission, which then contemplated a 33-storey residential tower with a four-storey podium. Mr. Sliasa’s two addenda, reply witness statement and testimony at the hearing maintained that the proposal’s evolution to a 40-storey tower did not affect his original conclusion: that wind conditions would be acceptable for pedestrian uses, and with the aforementioned wind mitigation measures, acceptable on the podium.
18Raza Mehdi gave opinion evidence in the areas of architecture and urban design. He was involved as the lead architect on the proposal from its first iteration. His testimony included a review of the latest proposal’s plans, the shadow study, and opinion relating to issues of urban form and design.
19Mr. Mehdi testified the proposed 40-storey building does not have adverse shadow effects and the shadows cast by the latest proposal were not meaningfully different to those cast by the previous 32-storey proposal. Critically, Mr. Mehdi opined that it was good urban design to have variation in areas with multiple buildings, that transitions do not require buildings heights to ascend or descend successively, and, to the contrary, undulation in building heights could provide a transition.
20Mr. Medhi gave an overview of the floorplates and setbacks for the surrounding buildings built in the 1970s and 1980s. The floorplates of these buildings range from approximately 1500 m2 to 1730 m2, with one outlier, 3575 Kaneff Crescent, with only 1125 m2. The setbacks between the proposal and the surrounding buildings range from 57.40 m to 106.90 m. In context, these proposed setbacks are several times bigger than the 15.0 m minimum above grade separation between buildings required by the ZBL (for dwellings with a height greater than 26.0m).
21Regarding amenity space, he opined that the communal balcony should count as part of the amenity space, and that this space had sufficient ingress/egress. When cross-examined about whether the communal balcony could be relied on as “programmable area”, he stated it would depend on what would be provided as programmable, and would be subject to further refinement based on the uses.
22Scott Henderson is a Landscape Architect with Adesso Design Inc., retained by the Appellant in June 2023 to prepare landscape plans and Site Plan Applications. Mr. Henderson reviewed and explained his landscape plan last revised September 20, 2024. The proposal includes perimeter tree planting consisting of nine trees on Obelisk Way, five trees on Kaneff Crescent, four trees on Mississauga Valley Boulevard, and eight trees on Elm Drive. He also described the landscaping for the rooftop amenity area addressing the recommendations of the wind study. This landscaping included raised planting areas on the podium perimeter overlooking Kaneff Crescent, and six movable planters.
23In Mr. Henderson’s opinion, the proposed development would improve the landscape character of the area and help animate the pedestrian realm surrounding the site. He recommends the approval of the landscape plans as part of the approval of the ZBA.
24Paul Lowes is a land use planner with four decades of experience retained by the Appellant in February 2023. Mr. Lowes’ involvement spurred the fourth submission which increased the proposal’s height from 32-storeys to 40-storeys. He gave extensive land use planning evidence in support of the proposal. In his opinion, the OPA and ZBA have appropriate regard for matters of Provincial Interest, are consistent with the PPS 2024, conform to the ROP, and that the ZBA conforms to the OP subject to the proposed site-specific OPA. He stated the proposal revitalizes an underutilized parking lot with a compact, transit-oriented built form that will support the LRT investment along Hurontario Street and contribute to a complete community.
25Mr. Lowes opined the proposal was compatible with the existing development by providing tower separations generally greater than 25 m to all adjacent properties, in a location which is appropriate for high density residential development.
26Regarding the amenity space, Mr. Lowes’ opinion was that the ZBL’s minimum amenity area of 5.6 m2/unit was not necessary, considering 4 m2/unit exceeds 10% of the site area. The ZBL requires a minimum amenity area which is the greater of 10% of the site area or 5.6 m2/unit. He cited numerous other existing or approved developments with reduced amenity areas ranging from 1.8 m2/unit to 4.0 m2/unit in support of a reduced amenity area of 4 m2/unit for the proposal.
City’s Evidence
27Edward Nicolucci is an urban designer employed in the Development and Design Division of the Planning and Building Department for the City. He testified as to the development of the “Tower in the Park” neighborhood (the area bounded by Burnhamthorpe Rd E to the north, Cooksville Creek to the east, Central Parkway E to the south, and Hurontario Street to the West) which was constructed mostly between 1975 and 1985. He described the “city structure” for the larger area has taller towers clustered along the Hurontario Street Corridor, which transitions down going either south along Hurontario Street or east and west from same.
28Mr. Nicolucci allocated a considerable amount of his testimony going over 60 different 3-d renderings to convey what a 25, 32, or 40 storey proposal would look like in the surrounding context. One such rendering, page 83/132 of exhibit 8, “Visual Evidence of the City of Mississauga”, suffices to illustrate:
Figure 1
29Presenting his 3-d rendering evidence, Mr. Nicolucci repeatedly stated that the 40-storey proposal was twice as tall as buildings in the immediate context, constituted an overdevelopment, and would dominate/overwhelm/destabilize the tower in the park neighborhood. He testified as to the City OP policies regarding transition and compatibility (9.1.5, 9.2.1.10, 9.5.1, 9.5.1.1, and 9.5.2.1) which generally require appropriate height transitions between sites and surrounding areas as well as compatibility with surrounding context and existing/planned character of the area.
30With respect to the floorplate size, Mr. Nicolucci stated the 850 m2 floorplate size did not meet the City standard of 750 m2 from the Downtown Fairview, Cooksville and Hospital Built Form Standards.
31Janet Squair is a landscape architect employed by the City since 2006, in the same department as Mr. Nicolucci. Her evidence primarily dealt with the issue of amenity space for the proposal.
32Ms. Squair’s opined that amenity space, particularly outdoor space, is a critical consideration in all new developments. She highlighted its vital functions including recreation and relaxation, promoting physical activity, improving aesthetics, and providing educational opportunities. Ms. Squair explained that when evaluating whether a proposed development provides amenity areas is “suitable for the intended users”, City staff consider the following factors:
a. The total amount of amenity space provided;
b. The ratio of indoor to outdoor amenity space;
c. The requirement that the outdoor amenity area be located and designed for physical comfort; and
d. The proposed programming and the capacity for programming of proposed amenity spaces provided.
33Ms. Squair opined the proposal is deficient in three respects: the total amount of amenity space, the total amount of outdoor amenity space, and the suitability of the amenity space provided. Firstly, the total shortfall of 1.6 m2/unit, being the difference between the 4.0 m2/unit and the required 5.6 m2/unit under the by-law, is significant because of detrimental effects on the residents from a lack of exercise opportunities, limiting social engagement, and reduced overall satisfaction. Secondly, the outdoor amenity space is insufficient because the fourth revision, by increasing the floorplate size to 850 m2 from 750 m2, resulted in a loss of 50.3 m2 to the fifth floor outdoor amenity space. Thirdly, the outdoor balcony space’s limited width of 1.7 m and access/egress constraints give the space a limited value as programmable amenity space. In addition, Ms. Squair noted that because the outdoor balcony space represents 192.3 m2 of the 463.4 m2 the total outdoor amenity space (approximately 41%), further information should be provided about programing feasibility for the outdoor podium amenity space. Ms. Squair gave examples such as whether dog runs, children’s play areas, or green features like community garden beds could be provided in that space.
34Andrea Dear is a registered professional planner and a senior planner with the City. In her opinion, “the tallest buildings are intended to be located at the intersection of Hurontario Street and Elm Drive (see Site 1 on Map 12-3 [City OP, page 452/626 of Volume 1 of exhibit 1)”. This pinpoint refers to a site-specific exception, “Special Site 1”, allowing apartment buildings of 35, 40 and 50 storeys at a lot immediately west of Hurontario Street and south of Elm Drive.
35Ms. Dear opined that a 40 storey tower would not support an appropriate transition from the corridor to surrounding neighbourhoods because it is taller than any other buildings in the area. Her evidence was that a height of no more than 32 storeys is required to achieve an appropriate transition eastward from the intersection of Hurontario Street and Elm Drive to lower density areas. She also added that the City is undergoing an Official Plan Review with a new vision for the Fairview Urban Growth Centre, which would include a guiding principle that the greatest heights will be located at Hurontario Street and Elm Drive, transitioning to lower heights going south and east.
36In summarizing her opinion, Ms. Dear warns that approval of the 40-storey proposal would change the neighbourhood character, the City Structure from the City OP eroded, and a new standard set which future Applicants would use to justify increased height and density. Overall, her opinion was that the proposal does not have appropriate regard for matters of Provincial Interest, is not consistent with the PPS 2024, does not conform to the City OP and is not good planning in the public interest. However, a modified proposal with a 32-storey height, a floorplate of 750 m2 and greater outside amenity space would be consistent with the PPS 2024, conform to the ROP and City OP, and represent good planning in the public interest.
37The panel asked Ms. Dear whether there was a point between 32 storeys and 40 storeys where her opinion changed. Ms. Dear answered it was difficult to say without plans, that she did not have a “hard line” but maintained that 32 storeys was the right height in her opinion.
ANALYSIS AND FINDINGS
Is OPA 145 relevant?
38As a preliminary matter, the Tribunal will deal with the applicability, if any, of OPA 145. The Parties agree OPA 145 was approved by Mississauga Council on August 10, 2022 and subsequently appealed to the Ontario Land Tribunal, and is not in force and effect. However, the City submits OPA 145 remains relevant, though not determinative, to this matter. According to the City, it is relevant because it reflects and is consistent with existing City OP policies and existing conditions with respect to built form transition in the Downtown and, in particular, within the Downtown Fairview Character Area. Secondly, it also provides an indication of Council’s vision for built form transition within the Downtown Fairview Character Area.
39The Appellant submits the Tribunal should not be evaluated against the proposed policies in OPA 145, citing 1213763 Ontario Inc. v Toronto (City), 2019 CanLII 298 (ON LPAT) (1213763 Ontario Inc.) In that case, the Land Planning Appeal Tribunal (“LPAT”) ruled on motions applying the Clergy principle (a policy choice expounded in Clergy Properties Ltd. v. City of Mississauga (1996), 34 OMBR 277. See also Masters v. Claremont Development Corporation, 2021 ONSC 3311 at paras 8, 20, 27-33.) In 1213763 Ontario Inc., the OPA had been adopted by council, was under appeal, and the application pre-dated the passing of the OPA. At paragraphs 20-21, the LPAT held the appealed OPAs would not apply, and removed issues relating to these appealed OPAs:
20The Tribunal was referred to no prior Board decision where the Board has declined to apply the Clergy principle in favour of assessing an application against policies which are not yet in force. To do so would run afoul of procedural fairness and natural justice by creating uncertainty. Even if OPA 419 and SASP 551 were in force, the Tribunal heard no compelling basis for determining the applications against those policies. The Tribunal also notes that there are multiple appeals of OPA 419 and SASP 551, and while the Tribunal makes no comment on the merit of such appeals, it is aware that due to recent amendments to the Planning Act, any such appeal must be made on the basis that there is inconsistency with provincial policy or an issue with conformity or conflict with a provincial plan. The final form of OPA 419 and SASP 551 can only be known based on the ultimate disposition of those appeals.
21The Tribunal will therefore grant 1213’s requested relief in part. The Tribunal finds no basis for 1213’s appeals to be determined in accordance with OPA 419 and SASP 551. Therefore, any issue referring to those policies should be removed from the Issues List as 1213 has requested. If, however, OPA 419 and SASP 551 are in force at the time the Tribunal hears 1213’s appeals, the parties may, consistent with prior Board decisions, make submissions as to how OPA 419 and SASP 551 may be relevant, but not determinative.
(emphasis added)
40The Tribunal finds the reasoning above in 1213763 Ontario Inc. quite persuasive and applicable to the instant case. Although the City submits the appealed OPA 145 is “relevant but not determinative”, the LPAT in 1213763 Ontario Inc. clearly indicates submissions to that effect could be made if the appealed instruments were in force at the time the Tribunal heard the appeal on its merit. As OPA 145 was not in force when this Tribunal heard this appeal, the final form of OPA 145 remains unknown. Further, the Tribunal heard no basis for relying on OPA 145 – which was passed well after the application was submitted and is not in force or effect.
41Accordingly, the Tribunal finds OPA 145 is not relevant to this appeal and will not consider OPA 145 in determining this appeal.
Issue 1: The Storeys
42The Tribunal is no stranger to disputes regarding building height, with proposals for tall buildings regularly facing opposition requiring adjudication. What is unusual here, is that the Appellant and City agree with a proposal much taller than what is currently permitted. The disagreement lies in how much taller than 25 storeys should the Tribunal allow.
43The Appellant submits the Tribunal should approve their 40 storeys proposal. They argue that the existing surrounding buildings were built about 40 years ago, and new buildings are being constructed as tall as 50 storeys (on Hurontario). They point out that it is common in this area for adjacent building heights to vary by more or less 20 storeys.
44The Appellant submits that the City OP has numerous general policy statements regarding transition, without specifying heights or locations. They cite 9.1.5, 9.2.10, 9.5.1, 9.5.1.2, 9.5.1.5, and 12.1.1.4 of the City OP as these general statements. Indeed, the Tribunal notes the City OP generally requires an “appropriate” height and transition.
45Both urban design witnesses, Mr. Medhi and Mr. Nicolucci (in cross-examination), agreed that height transitions need not be linear, and could have undulating heights.
46The Appellant submits the City’s claims the 40-storey development will not be compatible with its existing context is unsubstantiated. They submit the visual evidence provided to the Tribunal shows there is no meaningful difference between a 32 and 40 storey building from a built form and viewscape perspective. Similarly, the Appellant submits there is no meaningful difference between the shadow effects of a 32 storey and a 40-storey building.
47The City submits that the Tribunal should allow the appeal in part, but only for a 32-storey building. It submits the Tribunal should find that the proposed 40-storey building would not have regard for s. 2(r) of the Planning Act, not conform to section 2.2.2.3 (b) of the Growth Plan, not be consistent with s. 2.4.1.3 b) of the PPS, and not conform with the City’s OP with respect to built form transition and compatibility. In the City’s view, the proposal fails in transitioning in four ways: between the downtown and surrounding neighbourhood and areas, between the character areas within the downtown, within the downtown Fairview character area itself, and between the Subject Lands and immediately surrounding context.
48Considering all the evidence, the Tribunal prefers the evidence of Mr. Lowes over that of Ms. Dear and Mr. Nicolucci with regards to the proposal’s height, transition, and compatibility. As the Appellant pointed out in closing submissions – and rightly so – Mr. Nicolucci’s evidence whereby he repeatedly stated the proposal was an overdevelopment which dominated the neighborhood were entirely unsubstantiated allegations. Figure 1 of this Decision clearly shows that even a 40-storey proposal fits appropriately within the surrounding context. While the 40-storey proposal is indeed considerably taller than the immediate context of 20 to 25-storeys towers, the Tribunal finds that the smaller, modern 850m2 floorplate and large setbacks allow a unique site-specific opportunity where a 40-storey tower is compatible with the existing character of the area.
49There are significant, and fatal, issues with the City’s position that 40-storeys cannot provide the appropriate transitions. As previously mentioned, Ms. Dear’s opinion was that the tallest buildings are intended to be located at the intersection of Hurontario Street and Elm Drive, relying on the City OP’s Special Site 1 which allows 35, 40 and 50-storey buildings in the south-west corner of that intersection. It is true that the exception for Special Site 1 allows the tallest heights permitted of the four special sites listed in the City OP. However, the City OP is silent as to a provision stating that this intersection is where the tallest buildings are intended to be located. The Tribunal disagrees the in-force City OP requires or intends the tallest buildings be located at Hurontario Street and Elm Drive.
50Unlike the in-force City OP, OPA 145 does explicitly state a vision that “the greatest height will be located at Hurontario Street and Elm Drive West, with a transition to lower building heights and densities for new developments … east towards Mississauga Valley Boulevard”. However, for the reasons provided earlier, the Tribunal finds OPA 145 does not apply and is not relevant to these appeals.
51Lastly, Ms. Dear’s evidence that the 40-storey proposal alters the character and erodes City standards for future Applicants is essentially speculative and a slippery slope fallacy. Each application will be assessed on their own merits, with the policies in force at the time of those applications.
52The Tribunal finds the 40-storey proposal conforms to the ROP and City OP (specifically 9.2.1.10, 9.5.1, 9.5.1.2, 9.5.1.5, and 12.1.1.4) and represent good land use planning.
Issue 2: The Floorplate
53The Appellant submits the proposed 850 m2 floorplate is appropriate for a tower this size, and significantly less than the floorplates of existing adjacent buildings. They disagree s.2.1.3 of the City’s Downtown Fairview, Cooksville and Hospital Built Form Standards (“Built Form Standards”), established in June 2022, should apply. The Appellant submits the larger floorplate and amenity space are separate issues and it is physically possible to increase outdoor amenity area and keep the larger 850 m2 floorplate.
54The City candidly submitted in closing that their main concern with the floorplate was its detrimental effect on the amenity space. The Tribunal addresses the issue of amenity space further below.
55The Tribunal agrees with the Appellant that the Built Form Standards, which were established two years after the Appellant’s proposal, do not apply to the Appellant’s proposal. The Tribunal accepts the evidence of Mr. Mehdi and Mr. Sliasas that the slightly larger floorplate size from 750 m2 to 850 m2 has no material difference from a view, shadow, or wind impact perspective. In addition, the immediate context has buildings with floorplates generally twice the area as the proposal. The Tribunal therefore finds the proposed 850 m2 floorplate is appropriate.
Issue 3: The Amenity Space
56Though the City OP has multiple policies which touch on amenity space, the most germane for this proposal is policy 9.3.5.6 set out below:
9.3.5.6: Residential Development of significant size, except freehold developments, will be required to provide common outdoor on-site amenity space that are suitable for intended users.
57The Tribunal finds the cited instances of other site-specific proposals which allowed reduced amenity rates are not relevant in determining whether the ZBL amendment in this case meets the legislative test.
58In cross-examining the City’s witnesses, the Appellant referred to a new by-law (By-law Number 162-2024), passed September 19, 2024, which introduced two new Apartment Zone Categories: “RA6” and “RA7”. These new zones would require a minimum amenity space of only 4.5 m2/unit. However, By-law No.162-2024 is under appeal (OLT Case File No. OLT-24-001055) and therefore not in force. For the same reasons as for OPA 145, the Tribunal finds By-law No.162-2024 is not relevant to this appeal.
59Reviewing the ZBL in its context, the Tribunal finds the intent and purpose of the City’s ZBL with respect to amenity space is two-fold. Firstly, it seeks to ensure a baseline of 10% of a given site’s area is kept as amenity space, of particular application for smaller apartments with fewer units. Secondly, it establishes a ratio whereby amenity space grows proportionally with the number of units in a proposal. This ensures that taller apartments, such as the one proposed here, maintain a suitable quantity of amenity space for its residents regardless of the number of units. The Tribunal finds the ZBL in force and relevant to this appeal does not contemplate a third category where very tall apartments can apply a reduced amenity space per unit ratio.
60The Tribunal therefore finds the proposed ZBA’s reduced amenity space ratio of 4 m2/unit to not meet the intent and purpose of the City’s ZBL. The Tribunal accordingly substitutes 4 m2/(dwelling unit) with 5.6 m2/(dwelling unit) for the minimum total amenity area found at regulation 4.15.1.XX.12 of the proposed ZBA.
61The Tribunal does not accept the evidence of Ms. Squair with respect to the insufficiency of the outdoor podium amenity space. The increase of the floorplate size to 850 m2 to 750 m2 did result in a loss of outdoor podium amenity space as compared to a previous proposal. However, the ZBL does not have a minimum outdoor space requirements not provided at grade, and only requires a minimum of 55 m2 to be provided at grade, with the ZBA seeking an exemption from the latter. The Tribunal finds the minimum outdoor amenity area of 1.0 m2/unit proposed by the Appellant at provision 4.15.1.XX.11 of the ZBA to be acceptable. With the current number of units, this would ensure a total outdoor amenity area of 463 m2 - over eight times the minimum area which would be required at grade by the ZBL were no exemptions sought.
The Narrow Balcony
62The Tribunal accepts the evidence of Ms. Squair and agrees with the City that the balcony space is narrow, constrained, and ultimately unsuitable for communal outdoor amenity space. Further, it is telling that even the Appellant’s own previous proposals for the Subject Property excluded the balcony space in calculating amenity space. Indeed, only in the fourth and final proposal was the balcony counted as amenity space, to reach a still deficient 4.0 m2/unit.
63The Tribunal directs the Appellant to exclude the balcony space overlooking Mississauga Valley Boulevard and Elm Drive East in its calculation of amenity space of the current proposal. Having not heard evidence from the Parties as to suggested re-designs which could make the balcony space suitable as amenity space, the Tribunal encourages the Parties to canvass any such opportunities for which they may be mutually agreeable to.
Affordable Housing
64The City submits the proposal does not have regard to s. 2(j) of the Planning Act, which is the “adequate provision of a full range of housing, including affordable housing”. While the City has introduced inclusionary zoning to require new residential developments to include affordable housing, this application predated the inclusionary zoning and is therefore exempt from it. Ms. Dear testified that in instances where inclusionary zoning is not available, the City typically requests that Applicants provide a minimum of 10% units as affordable.
65The Appellant submits that while the City is unable to require the Applicant to provide any affordable housing on-site, the City could use funds generated by the proposed development through the Community Benefits Charge for affordable housing or, alternatively, the Parties could mutually agree to affordable housing as an in-kind contribution and a credit against the Community Benefits Charge.
66The Tribunal rejects the evidence of Ms. Dear that the City typically requests Applicants provide a minimum of 10% units as affordable. The inclusionary zoning only requires between 2.5% and 10%, depending on inclusionary zoning area and whether the unit is owned or rented. If the Tribunal accepted Ms. Dear’s evidence that the City previously typically requested 10% of new units to be affordable, the corollary would be that instead of improving affordability, the implementation of inclusionary zoning in fact significantly lowered the percentage of affordable units required in new developments.
67The Tribunal finds the proposal has regard for s. 2(j) of the Planning Act by providing an adequate provision of a full range of housing, though currently not including affordable housing. The Appellant indicated a willingness to include affordable housing conditional on a credit against the Community Benefits Charge. As the Parties requested the Site Plan Application appeal be deferred, the Tribunal encourages the Parties to reach an agreement which would include affordable housing as part of the proposal.
CONCLUSION
68The Tribunal finds that the OPA and ZBA to permit a proposed development of 40-storeys and 850 m2 floorplate, once adjusted to increase the amenity space from 4.0 m2/dwelling unit to 5.6 m2/dwelling unit and disregarding the narrow balcony in calculating the amenity space (“OPA and modified ZBA”), meets the legislative test for an OPA and ZBA as follows.
69The OPA and modified ZBA have appropriate regard for matters of provincial interest under s. 2 of the Planning Act. The Subject Property is the appropriate location of growth and development, provides a full range of housing (though not affordable housing), and promotes a built form that is well-designed, encourages a sense of place, and provides for public spaces that are of high quality, safe, accessible, attractive and vibrant. Both are also consistent with the PPS 2024.
70The OPA conforms with the Region OP. The modified ZBA conforms to the Region OP and the City OP (subject to the OPA) and meets the intent and purpose of the City’s ZBL. The OPA and modified ZBA represent good land use planning and are in the public interest.
71The Parties jointly submitted that the Tribunal not render a decision regarding the SPA Appeal, and provide them an opportunity to resolve the final set of SPA drawings and conditions of approval based on the Tribunal’s decision regarding the OPA and ZBA, and that the Tribunal remain available to adjudicate any matters pertaining to the SPA Appeal that the Parties may be unable to resolve. The Tribunal accepts this joint submission and accordingly will not render a decision on the SPA Appeal.
INTERIM ORDER
72THE TRIBUNAL ORDERS THAT the appeal is allowed in part, on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in paragraph [73] below, and the Official Plan Amendment and Zoning by-Law Amendment set out in Attachments 1 and 2 to this Interim Order, respectively, are hereby approved in principle. The Zoning By-Law Amendment has been amended to reflect the change to 4.15.1.XX.12 from 4.0 m2/dwelling unit to 5.6 m2/dwelling unit.
73The Tribunal will withhold the issuance of its Final Order contingent upon confirmation of the City Solicitor, of the following pre-requisite matters:
a. The Tribunal has received, and approved, the Zoning By-Law Amendment submitted in a final form, confirmed to be satisfactory to the City Solicitor;
b. The Tribunal has received, and approved, the Official Plan Amendment submitted in a final form, confirmed to be satisfactory to the City Solicitor; and
c. Confirmation that a Development Agreement, to the satisfaction of the City of Mississauga, has been executed that will include a provision for required land dedication for road widening and upgraded boulevard/streetscape works.
74The Parties shall provide a written status update by Thursday, January 1, 2026, regarding the pre-requisite matters and the site plan appeal, unless the Final Order has been requested in the meantime.
75This Member is seized.
76The Tribunal may be spoken to by notice to the Case Coordinator if any matters arise with respect to the implementation of this Decision and Interim Order.
“F. Lavoie”
F. LAVOIE
MEMBER
Ontario Land Tribunal
Website: 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
ATTACHMENT 2