2869494 Ontario Inc. (Singh) v. Markham (City), 2025 CanLII 77134

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 31, 2025

CASE NO(S).: OLT-25-000331

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

Applicant and Appellant: 2869494 Ontario Inc.

Subject: Minor Variance

Description: Minor variance to build a garden home further from the lot line abutting a street

Reference Number: A/088/24

Property Address: 59 Lee Avenue

Municipality/UT: Markham/York

OLT Case No.: OLT-25-000331

OLT Lead Case No.: OLT-25-000331

OLT Case Name: 2869494 Ontario Inc. (Singh) v. Markham (City)

Heard: July 18, 2025, by video hearing

APPEARANCES:

Parties	Representative
2869494 Ontario Inc.	Miaoyi Xue

DECISION DELIVERED BY Kurtis Smith AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the first and only Tribunal Hearing event pertaining to a Minor Variance Application (“MVA”) for the lands municipally known as 59 Lee Avenue (“Subject Lands”) in the City of Markham (“City”).

2The purpose of the MVA is to permit the proposed garden home in the rear yard 21 metres (“m”) further from the street than permitted. The MVA request is as follows:

Section 4.9.10 (g):

a garden home to be located no further than 51 m from a lot line abutting a street, whereas the By-law permits a garden home to be located no further than 30 m from a lot line abutting a street.

3The request for the MVA is required due to the location of the primary dwelling on the Subject Lands. The existing primary dwelling has an approximately 21 m front yard setback, the rear wall of the primary dwelling extends to 38 m, and the existing rear deck is 42 m from the front lot line.

4City planning staff recommended approval of the MVA, stating that it meets the four tests of a minor variance as set out in s. 45(1) of the Planning Act (“Act”). The Committee of Adjustment (“COA”) denied the MVA, stating that it did not meet any of the four tests. Following the COA, 2869494 Ontario Inc. (“Applicant”), owner of the Subject Lands, filed an appeal of the decision.

5The City advised the Tribunal on July 3, 2025 (Exhibit 4) that they would not be participating in the Hearing, and that in the event the appeal was allowed, they requested four conditions to be imposed. Lastly, the City informed the Tribunal that the Applicant has consented to those conditions.

6For the reasons provided in this decision, the Tribunal grants the approval of the appeal with conditions as provided in the Order below.

PARTICIPANT STATUS REQUESTS

7Prior to the commencement of the hearing the Tribunal receive two Participant Status Requests: (1) Siva Kumarasamy, who is a resident at the municipal address known as 42 Noble Street, a property that backs onto the rear side yard of the Subject Lands; and (2) Punit Sibal, who is a resident at the property municipally known as 38 Nobel St, a property that backs onto the front side yard of the Subject Lands and adjacent to Lee Avenue to the north and the Kumarasamy residence to the south.

8The Tribunal granted Participant Status to Siva Kumarasamy and Punit Sibal.

9Punit Sibal’s statement (Exhibit 2) states their opposition to the MVA, communicating their main concern relates to parking. The Siva Kumarasamy statement (Exhibit 3) outlines their objection relating to the MVA stating that, if approved, the garden home’s distance from any fire hydrant creates an emergency risk, as well as concerns that the proposed location of the garden home creates overlook and privacy issues.

EVIDENCE

10The Applicant’s Representative, Ms. Xue did not call on any witnesses or summon City staff. As a result, Ms. Xue relied upon the submission of the municipal record (Exhibit 1), namely the staff reports dated March 24, 2025, and January 28, 2025 (Exhibit 1, pages 129- 134) and the Applicant’s Notice of Appeal (Exhibit 1, page 26-30). In addition, Ms. Xue relies on the agreed-upon conditions provided by the City as stated:

i. That the variances apply only to the proposed development for as long as it remains; and

ii. That the variances apply only to the proposed development, in substantial conformity with the plans attached as Appendix “C” to the Staff Memorandum dated March 24, 2025, and that the Secretary-Treasurer receive written confirmation from the Supervisor of the Committee of Adjustment or their designate, that this condition has been fulfilled to their satisfaction.

iii. That the Owner shall install a sprinkler system to the entirety of the proposed development to the satisfaction of the City of Markham Fire and Emergency Services Department; and

iv. That the Owner agrees to register the proposed development, garden home, with the City of Markham Fire and Emergency Services Department.

ANALYSIS AND FINDINGS

11An appeal pursuant to s. 45 of the Act is a hearing de novo. In this case, the Applicant bears the onus of demonstrating that the four tests as set out in s. 45(1) have been met. The variance tests are as follows:

a) maintains the general intent and purpose of the Official Plan (“OP”);

b) maintains the general intent and purpose of the Zoning By-law (“ZBL”);

c) is minor in nature; and

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

12The Tribunal finds that, based on the uncontested evidence, the four tests at s. 45(1) of the Act have been met and the appeal should be allowed for the following reasons.

13The OP designates that the Subject Lands “Residential low rise”. Section 8.2.3 of the OP permits infill development, referring to small-scale development within the existing residential areas intended to respect and reflect the existing pattern and character of adjacent developments, which the proposed development would do.

14Garden Homes are a permitted accessory structure to a detached dwelling, subject to 9 criteria as set out in 4.9.10 of the ZBL. The proposed Garden Home will meet all the criteria, including size and height, with the exception for the maximum setback of 30 m from the street.

15The Tribunal is satisfied that the proposed setback of the garden home meets the general intent and purpose of the OP and ZBL. The increased setback from the street to the proposed Garden Home is directly related to the current lotting pattern, being the large front yard setback.

16As it relates to the final two tests of the MVA, being minor in nature and desirable, the Tribunal finds that increased distance from the street to the proposed Garden Home is minor in nature and is desirable due to the position of the existing primary dwelling.

17Garden Homes are a permitted use on the Subject Lands, and the MVA is required for a Garden Home on the Subject Lands as the primary dwelling is situated in the midsection of the parcel.

18Additionally, the Tribunals finds that the four conditions prepared by City staff and contested to by the Applicant are reasonable and further support the proposed Garden Home.

ORDER

19THE TRIBUNAL ORDERS that the appeal is allowed and the variance to By-law 2024-19 as amended, in the City of Markham, is authorised subject to the following conditions:

i. That the variances apply only to the proposed development for as long as it remains; and

iii. That the Owner shall install a sprinkler system to the entirety of the proposed development to the satisfaction of the City of Markham Fire and Emergency Services Department; and

iv. That the Owner agrees to register the proposed development, garden home, with the City of Markham Fire and Emergency Services Department.

“Kurtis Smith”

Kurtis Smith

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.