Ashcroft Homes v. Ottawa (City), 2025 CanLII 77114

Ontario Land Tribunal

ISSUE DATE: July 31, 2025

CASE NO(S).: OLT-25-000255

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: Ashcroft Homes

Subject: Request to amend the Zoning By-law – Refusal

Description: To permit the construction of five (5) additional dwelling units by reducing the minimum total amenity area for an existing mixed-use, high-rise building

Reference Number: D02-02-24-0031

Property Address: 256 Rideau Street and 211 Besserer Street

Municipality: City of Ottawa

OLT Case No.: OLT-25-000255

OLT Lead Case No.: OLT-25-000255

OLT Case Name: Ashcroft Homes v. Ottawa (City)

Heard: July 8-9, 2025 by Video Hearing

APPEARANCES:

Parties

Ashcroft Homes Inc.

Counsel

M. Polowin C. McConkey

Parties

City of Ottawa

Counsel

T. Marc

DECISION DELIVERED BY F. LAVOIE AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is an appeal by Ashcroft Homes Inc. (“Appellant”) pursuant to s. 34(11) of the Planning Act, RSO 1990, c P.13, as amended, (“Act”) in respect of the City of Ottawa’s (“City”) refusal of their Zoning By-law Amendment (“ZBA”) application to permit the construction of five additional dwelling units by reducing the minimum total amenity area for an existing mixed-use, high-rise building at the properties municipally known as 256 Rideau Street and 211 Besserer Street (“Subject Property”).

2The Subject Property was subject of a previous Tribunal’s decision for a Minor Variance appeal, Ashcroft Homes v Ottawa (City), 2023 CanLII 85341 (ON LT), (“MV Decision”), issued on September 12, 2023. The MV Decision allowed the appeal and authorized the minor variance reducing the minimum required total amenity area from 3,396 square metres (“m²”) to 2277.6 m².

ISSUES

3The core issue for this appeal is whether the required minimum amenity area should be reduced from 2277.6 m² to 2000 m² to accommodate the construction of five additional dwelling units in the existing building, for a new total of 579 units.

4A further issue is what effect, if any, does the previous MV Decision have on this appeal.

THE LEGAL TEST

5To succeed, an applicant for a ZBA must satisfy the Tribunal that the proposal has regard for matters of provincial interest, conforms to the City’s official and secondary plans, is consistent with the Provincial Planning Statement 2024 (“PPS”) and represents good planning, such that it is in the public interest.

NOTICE OF THE HEARING AND PARTICIPANT REQUEST

6The Tribunal received an Affidavit of Service and determined that the required Notice of this hearing had been provided.

7The Tribunal also received a Participant Status request from Alvin Lai, who was not able to attend the Merit Hearing. Because Mr. Lai was not in attendance at the Merit Hearing, and his statement was general in nature and specifically contemplated providing further details at a later date, the Tribunal rejected the status request. Mr. Lai is not granted Participant status in this appeal.

THE EVIDENCE

8The Tribunal heard from each Party’s land use planner and each was qualified by the Tribunal to provide expert opinion evidence in their field.

9The Appellant’s planner, Tim Beed, described the proposal, the chronology of the application, and context of the area. The Subject Property is in walking distance to the CF Rideau Centre, Byward Market, and the University of Ottawa. It is developed as two 29-storey mixed use buildings connected by an 8-storey podium totalling 574 units, which started construction in 2018.

10Initially, 566 units were proposed and intended to be rooming units, which only required a minimum of 3 m²/unit in total amenity area pursuant to section 137 of Zoning By-law 2008-250 (“ZBL”). During construction, the Appellant added kitchens to the units, such that the units became “dwelling units” instead of “rooming units”. As dwelling units require a higher minimum of 6 m²/unit in total amenity area, this change raised the total amenity area required under the ZBL to 3396 m². The Appellant sought a variance to 2277.6 m², was denied by the committee of adjustment, and successful on appeal at the Tribunal by a panel differently constituted.

11Ten months later, the Appellant submitted a ZBA application to further reduce the total amenity area to 1349.8 m². Throughout January and February 2025, the Appellant proposed modifying the application’s total amenity area to amounts ranging between 1349.8 m² and 2000 m². The Appellant proposed a reduction to 1810 m² in total amenity area on the eve of the City’s Planning and Housing Committee meeting, but City Staff maintained their opinion to recommend refusal. The Planning and Housing Committee recommended that City Council refuse the application, citing the Staff Report recommending refusal and finding that the proposal was inconsistent with the PPS and did not conform with the City Official Plan (“OP”) and the City’s guidelines.

12The latest proposal before the Tribunal is for 2000 m² of amenity space, which would be achieved through the conversion of existing amenity area, bicycle storage, and commercial areas. Mr. Beed explained that the reduction in bicycle storage area would not lead to a reduction in the number of bicycles that could be stored, through the implementation of a more efficient storage system. For the commercial space, Mr. Beed testified that it had never been leased. In his opinion, the requested ZBA for five more dwelling units by converting underutilized amenity areas is good planning in the public interest, promotes quality of life through new housing and economic growth. He said the Act and PPS do not refer to amenity areas. Mr. Beed explained the proposal conforms to the OP except for section 4.6.6.4, which requires amenity areas to be provided in residential developments in accordance with the ZBL and applicable design guidelines. The Central and East Downtown Core Secondary Plan, Urban Design Guidelines for High-Rise Development, and the Transit Oriented Guidelines do not speak to amenity areas either. In his opinion, the application should be approved as presented.

13The City’s Planner, Eric Forhan, was a co-author of the staff report recommending refusal of the ZBA application. His opinion was diametrically opposed to Mr. Beed’s opinion. Mr. Forhan opined that the proposal:

a. Did not have regard to matters of provincial interest set out in s. 2 of the Act, in particular (h), (i) and (r);

b. Was not consistent with the PPS, specifically policies 2.1.6, 2.2, and 2.3;

c. Does not conform with the OP, specifically policies 2.2.1, 2.2.4, 2.2.5, 3.2, and 4.6.6.4;

d. Does not conform to the Central and East Downtown Core Secondary Plan, specifically policies 3.1 and 3.1.3;

e. Does not have regard to the Urban Design Guidelines nor the Transit-Oriented Development Guidelines; and

f. Overall, the proposal is not good land use planning, as the reduction of amenity area, commercial space, and bike storage would have long term impacts on the existing residents.

ANALYSIS AND FINDINGS

Land Use Planning Evidence

14The problem with Mr. Forhan’s evidence is that most of the policies he refers to simply do not mention amenity areas. The PPS policies deal with complete communities and housing options. While policy 2.1.6 speaks to accommodating an appropriate range and mix of uses including recreation, it is unclear how the modest loss of 277.6 m² out of 2277.6 m² in amenity area renders the mix of uses inappropriate.

15On the OP, Mr. Forhan stated that policy 2.2.1 “Policy Intent 3)” distinguishes between public and private amenities which suggests, in his opinion, that the absence of private amenities would not be offset by the presence of public amenities. Reviewing the cited policy, the Tribunal could not locate any mention of private amenities.

16The only OP policy germane to this application is policy 4.6.6.4, which states that “amenity areas shall be provided in residential development in accordance with the Zoning By-law and applicable design guidelines…” followed by two requirements unrelated to total amenity area. Since the proposed ZBA would modify the ZBL, any approved amenity area amounts would be “in accordance with the Zoning By-law”, once modified.

17Are the amenity areas in accordance with the applicable design guidelines? Mr. Forhan said they are not, and referred to Guideline 2.36 of the Urban Design Guidelines for High-rise Buildings (“UDGHB”) and Guideline 3 of the Transit-Oriented Development Guidelines (“TODG”), set out below respectively:

2.36 Integrate roof-top mechanical or telecommunications equipment, signage, and amenity spaces into the design and massing of the upper floors.

and

Guideline 3: Create a multi-purpose destination for both transit users and local residents through providing a mix of different land uses that support a vibrant area community enable people to meet many of their daily needs locally, thereby reducing the need to travel. Elements include a variety of different housing types, employment, local services and amenities that are consistent with the policy framework of the Official Plan and the City’s Zoning By-law. The mix of different uses can all be within one building and/or within different buildings within close proximity of one another

18With regard to 2.36 of the UDGHB, the floorplans identify 158 m² of amenity area integrated in the design of the top floor. Accordingly, the Tribunal finds the ZBA has regard to the UDGHB.

19Mr. Forhan opined that because the proposal has “less mix of uses”, it doesn’t have regard to Guideline 3 of the TODG. Not so. Guideline 3 clearly indicates that a mix of different uses does not need to be restricted to a single building, and in any event, the proposal has a mix of uses. No reasonable interpretation of Guideline 3 suggests a reduction in a mix of uses is disallowed. The Tribunal finds that the ZBA has regard to the TODG.

20Having considered each land use planner’s evidence and the joint book of documents filed with the Tribunal, the Tribunal finds that the Appellant has demonstrated that the proposal has regard for matters of provincial interest, is consistent with the PPS 2024, conforms to the City’s OP and the Central and East Downtown Secondary Plan, and has regard to the UDGHB and TODG.

The Effect of the MV Decision

21The MV Decision authorized a variance to reduce total amenity area to 2277.6 m². The first paragraph ends with “The total number of units proposed is 566.” In the following paragraph, the Tribunal member described the variance as:

2The minor variance requested is as follows:

1. Permit a total amenity area of 2,277.6 square metres (“m²”); whereas the ZBL requires an amenity area of 3,396 m², calculated as 6 m² per dwelling unit.

22The Appellant’s position is that the authorized total amenity area of 2,277.6 m² is an absolute value. The City counters the total amenity area is a relative value - tied to the number of units.

23In addition, the City submits that for the Appellant to seek a ZBA application, there must be a material change in circumstances. No authority was cited for that proposition. The City asks for the appeal to be dismissed given the background and history of the proposal, such that there is no justification for a further reduction in required amenity area. In the alternative, if the appeal is allowed, the City requests the order specify the amenity area is for 579 dwelling units such that any further increases in units would require additional amenity area in accordance with the requirements of the ZBL.

24After the Hearing and the receipt of the Parties’ closing submissions in writing, the Tribunal requested and received supplemental submissions from the Parties on whether res judicata/issue estoppel applied to this appeal because of the MV Decision. Despite differences in their supplemental submissions, the Parties agreed that issue estoppel did not apply here.

Findings

25Based on the Parties’ agreement in their supplemental submissions, the Tribunal finds res judicata/issue estoppel does not apply to prevent the Appellant from seeking another reduction in amenity area despite their recent MV appeal.

26Secondly, the Tribunal finds it is not necessary to determine whether the minimum total amenity area of 2277.6 m² authorized in the MV Decision is absolute or relative since the Tribunal’s Decision on the minimum total amenity area in this appeal will supersede the MV Decision.

27Thirdly, The Tribunal agrees with the City that the required minimum total amenity area for the Subject Property must be subject to the number of units. Every category in Section 137 of the ZBL is an amenity rate per unit. The only category with a fixed total amenity area is for “three-unit dwellings…”, which no longer applies if additional units are proposed.

28To obtain the amenity rate per unit, the Tribunal divides the 2000 m² minimum total amenity area requested by the Appellant by the proposed new total dwelling units of 579, yielding 3.454 m² per dwelling unit.

29The Tribunal therefore allows the appeal in part. The minimum total amenity area required will be the greater of 3.454 m² per dwelling unit up to 579 units plus 6 m² per unit in excess of 579 units, and 2000 m².

CONCLUSION

30In summary, the proposed ZBA has regard for matters of provincial interest, is consistent with the PPS, conforms to the City’s OP and the Central and East Downtown Secondary Plan, has regard to the UDGHB and TODG, and is good planning in the public interest.

ORDER

31THE TRIBUNAL ORDERS THAT the appeal is allowed in part and the Tribunal directs the City of Ottawa to amend the “Mixed-Use Downtown zone, Urban Exception 2345, Schedule 61 [MD(2345) S61] Zone” in By-law 2008-250 by adding a new site-specific zoning provision as follows:

the minimum total amenity area required is the greater of 3.454 m² per dwelling unit up to 579 units plus 6 m² per unit in excess of 579 units, and 2000 m².

32The Tribunal authorizes the municipal clerk of the City of Ottawa to assign a number to this by-law for record keeping purposes.

“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.