Paisley & Whitelaw Inc. v. Guelph (City), 2025 CanLII 79636

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 06, 2025

CASE NO(S).: OLT-24-001002

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

Appellant: Paisley & Whitelaw Inc.

Subject: Minor Variance

Description: MV to reduce the minimal parking requirements.

Reference Number: A-60/24

Property Address: 201 Elmira Road

Municipality/UT: Guelph/Guelph

OLT Case No: OLT-24-001002

OLT Lead Case No: OLT-24-001002

OLT Case Name: Paisley & Whitelaw Inc. v. Guelph (City)

Heard: January 13-15, 2025 by Video Hearing

APPEARANCES:

Parties	Counsel
Paisley & Whitelaw Inc.	Jennifer Meader
City of Guelph	Jacob Damstra Jason Reynar Allison Thornton Ian White

DECISION DELIVERED BY BITA M. RAJAEE AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1Paisley & Whitelaw Inc. (“Applicant”) is the owner of a property known municipally as 201 Elmira Road (“Subject Property”) in the City of Guelph (“City”). It applied to the City’s Committee of Adjustment (“COA”) for the approval of minor variances (“Application”) to permit a reduction of permanent and temporary parking spots for a development that is almost fully constructed. The COA deferred making a decision on the Application. On August 15, 2024, the COA indicated “[t]his application is deferred to allow the applicant time to discuss the application with staff.”

2Pursuant to section 45(12) of the Planning Act (“Act”), the Applicant appealed the lack of a decision (“Non-Decision”) by the COA to the Tribunal. This Merit Hearing took place to consider this appeal.

STATUS REQUESTS

3The Tribunal was tasked with adjudicating a Participant Status request from Sonia Rivas. Ms. Rivas is an owner of a unit in this development and has had interim occupancy since January 16, 2024. She indicated that:

a. Having this matter approved would advance the closing date, as the developer would be able to move forward with the completion of the project;

b. She would like the Tribunal to address the issue of the current residents not having parking on the site and provide an approach to resolve this matter;

c. She would like the Applicant to provide a solution in the interim while the permanent parking structure is being constructed; and

d. She would like the Applicant to explain why the residents have been granted occupancy while no parking or a solution is available.

4The Parties did not object this request. The Tribunal determined that Ms. Rivas had an interest in the matter and will assist the Tribunal in understanding the impact of the variances on the residents. The Tribunal granted Participant Status to Ms. Rivas.

PROPOSED MINOR VARIANCES

5The current Zoning By-law in force in the City is Zoning By-law No. (1995)-14864 (“ZBL 1995”). However, ZBL 1995 has been updated, and the City’s new ZBL is Zoning By-law No. (2023)-20790 (“ZBL 2023”). ZBL 2023 is currently under appeal and is before the Tribunal in OLT-23-000462. The minor variances that are the subject of this subject appeal are also under appeal in the related case. In other words, while in the subject appeal the Tribunal is asked to assess whether the variances to the ZBL are minor, in the related appeal, the Tribunal is being asked to assess whether a Zoning By-law Amendment (“ZBA”) is required to amend the new Comprehensive ZBL 2023. The Tribunal notes that these are not contradictory or the same appeals because, if the Tribunal finds that the variances are not minor, the recourse available to the Applicant would be to proceed with a ZBA.

6As a result of these two ZBLs in play, the Applicant, in the subject appeal, seeks minor variances to both ZBL 1995 and ZBL 2023.

7The Applicant seeks two minor variances to the City’s parking requirements, specifically from section 4.13.4.3 of ZBL 1995 and from Row 2, Table 5.3 contained in section 5.5 of ZBL 2023. The variances sought are as follows:

a. Permanent Variance – A reduction in the minimum parking rate to 1.1 spaces per unit (1 space per dwelling + 0.1 for visitors) instead of the existing requirement of 1.5 spaces/unit for the first 20 units and 1.25 spaces/unit thereafter under the current and new zoning by-law.

b. Temporary Variance – While the permanent parking structure is being built, the Applicant wants to provide temporary parking. A number of different minimum parking rates were presented at the Hearing. At the COA on August 8, 2024, 321 spaces were proposed. There are a total of 381 units. This leads to a minimum parking rate of 0.84 spaces/unit. However, the Applicant argued that only 327 units are actually occupied (or could be occupied based on the sales). Additionally, a temporary parking site plan, approved on June 17, 2024, provided for 335 temporary parking spaces on site. Moreover, since the time that this matter was before the COA, the Applicant has been able to add another 42 spaces. Thus, rather than 321 spaces, there are actually 377 temporary parking spaces. This means that if we use the total number of units (381), the Applicant is seeking a parking rate of 0.99 spaces/unit. If we use the occupied units (327), then the Applicant is seeking a parking rate of 1.15 spaces/unit. As discussed further below, at the start of the Hearing, the Applicant agreed to proceed with the original Application that had been before the COA. Moreover, as the City’s Counsel pointed out, the methodology of calculating the rate of parking in the ZBL is based on designed or built units, and not on sold units. Thus, at this Hearing, the Tribunal considered a Temporary Variance rate of 0.84 spaces/unit.

DECISION OF THE TRIBUNAL

8The Tribunal allows the appeal, in part, and authorizes both the Permanent and the Temporary Variances, along with the Conditions discussed below and attached as Schedule 1 to this Decision.

PRELIMINARY ISSUE: NON-DECISION BY THE COA

9Section 45(12) of the Planning Act states:

(12) The applicant, the Minister or a specified person or public body that has an interest in the matter may, within 20 days of the making of the decision, appeal to the Tribunal against the decision of the committee…

[Emphasis added by the Tribunal]

10As mentioned above, this Appeal arose from the COA’s Non-Decision. Thus, the Tribunal asked the Parties to make submissions on the Tribunal’s jurisdiction regarding making a decision on an Application that was neither denied nor approved by the COA.

11At the Hearing, the Applicant’s Counsel submitted that the Tribunal has jurisdiction to hear this appeal, because:

a. The Tribunal has repeatedly held that an indefinite deferral by the COA amounts to a decision, as it has the effect of a refusal under section 45(8.1) of the Act, and is therefore capable of appeal to the Tribunal. For example:

i. In Evergreen Environmental Inc. v. Oshawa (City), 2020 CanLII 104961 (ON LPAT) (“Evergreen”), it was found that the COA’s tabling of an application indefinitely, in the absence of an approval or refusal, was a decision for which an appeal may be lodged with the Tribunal. If the decision has the effect of a refusal, it can be appealed.

ii. In the case of Deley v. Sarnia (City), 2023 CanLII 46245 (ON LT), an indefinite deferral by the City of Sarnia’s COA was found to be a refusal of the application, and thereby enabled the filing of appeal.

iii. In the case of Northfield Lands II LLC v. Waterloo (City), 2024 CanLII 23437 (ON LT), it was found that the Tribunal has the statutory jurisdiction to hear appeals from all decisions of a COA, including decisions that adjourn or defer applications. These are still "decisions" over which the Tribunal has appellate jurisdiction. The entire rationale of the Act could be frustrated if a COA could thwart a development project by simply deferring it indefinitely. An applicant would be denied any ability to appeal, which would be contrary to procedural fairness and justice.

b. In this case, the COA deferred the application sine die, which means “without a date for resumption.” No distinction can be drawn between an adjournment “sine die” and an adjournment “indefinitely”. Not hearing this appeal would require the Applicant to return to the COA, which might then further defer the Application indefinitely, leaving the Applicant without recourse. Alternatively, the COA might refuse the Application, which the Applicant would then need to appeal to the Tribunal. Of note, considering the temporary nature of the Temporary Variance, if the matter is deferred for too long, the Tribunal would in effect lose its ability to hear this matter, since the Variance would no longer be necessary by virtue of the COA’s refusal to address it.

c. If the appeal had not been launched within 20 days of the COA decision, the Applicant would have been required to wait until the City agreed to put the application back on the COA agenda before the Applicant would be able to appeal again. After the 20-day appeal period passed, the Applicant would lose all ability to force the Application back before the COA, as there is nothing in the Act that requires the City to return a deferred matter back to the agenda at the will of an Applicant. Pursuant to section 45(4) of the Act, the City’s only obligation is to hold an initial hearing within 30 days of receipt of the Application. After that initial hearing, they have no obligation under the Act to hold a further hearing. Therefore, had the COA’s decision not been appealed, it would have been final and binding.

d. The City remains fully opposed to these Applications. Thus, even if the matter is remitted back to the COA, it will return back to the Tribunal as it will very likely be denied at the COA.

e. If this matter is not dealt with by the Tribunal, the Applicant and the residents of the development (such as Ms. Rivas, the Participant) will be significantly prejudiced as a result of the further unnecessary delays caused by the deferral and the lack of statutory obligation for the COA to readdress the matter. The City’s position remains to oppose the application, and thus, the City will not be prejudiced by proceeding with the appeal at the Tribunal.

12The City’s position was that the matter should be remitted back to the COA, as the Tribunal did not have jurisdiction to proceed for the following reasons:

a. The issue, highlighted in the caselaw presented by the Applicant (such as Evergreen), is whether the COA, in deferring the decision, is:

i. giving an appropriate time-limited administrative direction that facilitates its consideration of an application on its merits; or

ii. the deferral is tantamount to a refusal as the ability to advance the Application is taken out of the Applicant’s hands.

A deferral for a specific purpose with a defined time period is, as the jurisprudence holds, not a decision that is appealable. Such a decision remains within the statutory jurisdiction of the COA to control its own process. If the deferral provided a time-limited opportunity for an applicant to deliver necessary information and clarification to allow a decision to be made, this should not be the basis on which that decision is appealed to the Tribunal.

In this case, the COA’s decision was deferred to give the Applicant time to discuss the Application with staff. Moreover, the Applicant was given 12 months to do this. Thus, the deferral was not tantamount to an indefinite deferral, but a time-limited one with very clear directions, namely for the Applicant to come back with answers to questions. The Applicant was given certain action items and the time to complete them. Additionally, the deferral was to allow the Applicant the opportunity to confer with City staff on whether the minor variance process was the proper planning mechanism for this matter. The Applicant could have returned at any time within the twelve months to address these issues.

b. The Application is still premature as the Applicant has attempted to revise the Application numerous times (discussed in the next section of this Decision).

c. According to section 45(14) of the Act, the COA’s decision is considered “final and binding” if not appealed within 20 days. However, in this case, that could not happen because deferring the application to give the Applicant time to discuss the application cannot be considered “final and binding.” The deferral is simply an administrative step.

13After hearing the arguments put forward by the Parties, the Tribunal was persuaded by the Applicant’s Counsel that the COA’s deferral in this case be treated as a decision of the COA, capable of being appealed, especially since the deferral is indicated to be “sine die.” The COA’s decision indicates that “the application will be considered to be withdrawn if not dealt with within 12 months of deferral.” The Tribunal does not agree with the City that this is read as a time-sensitive deferral. The onus is on the Applicant here to take steps, but the power is with the City to determine whether to act on those steps. The Tribunal was persuaded by the Applicant that there is no statutory obligation on the City or the COA to return the matter to its agenda. This puts the Applicant in a precarious position when the deferral is “sine die.” If the City decides not to put the Application back on its agenda, the Applicant will be significantly prejudiced, and left without any recourse if it did not appeal.

14Moreover, the direction to “allow the applicant time to discuss the application with staff” is not a clear action item. Presumably, the Applicant had already discussed this matter with staff after submission of the Application and prior to the COA meeting. The Parties submitted that it has continued to do so since then. However, the City remains opposed to the Application. The directions in the COA’s decision are not clear and there is no indication as to when they will be deemed to have been satisfied. The City could, at any point, state that the Applicant has still not sufficiently discussed the Application with staff.

15Lastly, in light of the events that had taken place, it became apparent to the Tribunal that the Application would very likely return to the Tribunal. Moreover, the Applicant would be more significantly prejudiced than the City if the Tribunal did not retain jurisdiction of this appeal. The deferral in this case was tantamount to an indefinite deferral, as it was noted to be “sine die” with no clear end in sight that was in the Applicant’s power to achieve. The COA’s decision put any sort of next steps squarely within the power of the City, which would potentially lead to the Applicant being left without any recourse or ability to appeal.

16Thus, the Tribunal determined that in this case, it can exercise its statutory authority to hear and determine the application in accordance with the Tribunal’s power to “make any decision that the committee could have made.” In short, despite the COA’s decision to defer the subject Application, the Tribunal is statutorily empowered, on appeal, to render a decision on the merits. The Tribunal, persuaded by the Applicant’s submissions, agreed that it had the jurisdiction to hear this appeal, and ruled that it would proceed to hear the appeal on its merits.

PRELIMINARY ISSUE: REVISED APPLICATION

17The original Temporary Variance, as set out in the Applicant’s Notice of Appeal dated August 28, 2024, requested a temporary parking rate of 0.84 spaces/unit, based on 381 units constructed in Buildings A, B, and C, which amounts to a total of 321 parking spaces to be provided on a temporary basis. In the days leading up to the Hearing, the Applicant submitted a number of updates to the Temporary Variance it was seeking, as discussed at paragraph [7b] of this Decision. Specifically:

a. On January 6, 2025, the Applicant amended its Temporary Variance application to add 42 additional parking spaces, meaning that the Applicant will be providing a total of 363 spaces on a temporary basis (a rate of 0.95 spaces/unit based on the 381 units constructed). Moreover, some of the Conditions to the Variances were amended, and it was proposed that the Applicant be prevented from seeking occupancy on 54 of the 381 units, which would lead to a parking rate of 1.15 spaces/unit.

b. On January 12, 2025, the Applicant submitted a document titled “Variances & Conditions Requested by the [Applicant],” wherein the Temporary Variance was indicated to provide a temporary minimum required parking supply of 377 spaces for 381 units (a rate of 0.99 spaces/unit), as the approved temporary parking site plan indicated 335 parking spots (335 + 42 = 377).

18In support of these amendments, the Applicant submitted that:

a. Pursuant to section 45(18.1.1) of the Act, notice of this amendment is not required as this is a minor amendment, and is being made to bring the Application more into compliance with the applicable zoning regulations. The test for whether an amendment to an application is “minor,” for the purposes of section 45(18.1.1) of the Act, is whether the variance as revised at the Hearing is less than initially applied for, and more in keeping with the zoning by-law. The Applicant relied on a number of cases for this, such as: Tirone v. Vaughan (City) Committee of Adjustment, [2003] O.M.B.D. No. 371; Re Provezano, 2008 CarswellOnt 4513; Re Martsenyuk, 2014 CarswellOnt 10347. In this case, the amendments to the Application make the variances “more minor” than the original Application, and therefore it is a reduction not requiring notice.

b. The amendments, specifically to the Conditions, were made to address the concerns of the City.

c. No member of the public, including occupants of the development on the Subject Property, made written or oral submissions to the COA on the original application, for which notice was properly given.

d. The City’s land use planning witness has fully addressed the amended Application in his Reply Evidence Outline for this Hearing. Accordingly, there is no prejudice to any Party which could result by granting the amendment without further notice.

19The City’s position was that these amendments to the Application meant that the appeal was premature and should be remitted back to the COA to provide the opportunity for fair public notice of material changes to this Application. Public notice of this Application was provided in July 2024. Since then, the Applicant has amended its Application, and proposed accompanying conditions in a number of ways. The result of this is that those changes were not disclosed on the face of the Application which has been appealed, and no member of the public (including but not limited to those residing on the Subject Property and most directly impacted) have notice of the substance of this Application. To proceed would be tantamount to usurping both the jurisdiction of the COA, which never had the opportunity to consider those requests, and the opportunity for affected members of the public to avail themselves of the right to delegate. Moreover, expanding the temporary parking appears to impede on amenity space, which would significantly impact the occupants. This addition of 42 spaces, seemingly encroaching on amenity space, requires notice to the people it could affect. Thus, while usually amendments that are more aligned with the zoning by-law are found to be minor, in this case, because of the prejudice resulting from the amendments, it cannot be said that they are minor, and notice must be provided to the public.

20The City presented the alternative that the Tribunal adjourn the Hearing for at least 30 days to provide notice of the amended application, pursuant to section 45(18.1) of the Act, to avoid prejudicing potential third parties that are not Participants or Parties to this appeal. The City submitted that the amendments proposed by the Applicant are not minor and would materially affect the daily life of hundreds of City residents.

21The Applicant, in reply, stated that the City’s concerns seem to apply mainly to the Conditions and not to the Variances. The Applicant reiterated that the amendments are minor and that the Conditions could be discussed at the Hearing. Moreover, the Applicant stated that, between adjourning the Hearing and proceeding with the original Application, it preferred to proceed with the original Application.

22The Tribunal found that, in light of the deferral of a decision by the COA, a revision to the Application, even one which was more in line with the zoning by-law, would prudently require notice to proceed. In other words, since the COA had not made a firm decision on this, and the Application had been revised since what was before the COA, a changed application would be better to be sent back to the COA for consideration. However, since the Applicant wished to proceed on the original Application, rather than return to the COA with the revised Application or adjourn the Hearing for 30 days, the Tribunal ordered that the matter would proceed on the original Application, and a temporary parking rate of 0.84 spaces/unit.

23Of note, the City did acknowledge that the approved temporary parking site plan (dated June 17, 2024) shows 335 spaces, which puts the parking rate at 0.88 spaces/unit (335 spaces for 381 dwellings). Thus, while the rate the Tribunal has considered is 0.84 spaces/unit, the reality is the temporary parking rate will be at minimum 0.88 spaces/unit, in accordance with the approved site plan.

LEGISLATIVE FRAMEWORK

24The Tribunal’s authority to grant variances is given under section 45(1) of the Act, which sets out the four tests that must be satisfied by an Applicant when making an application for the authorization of variances. The tests require that the variances:

a. maintain the general intent and purpose of the Official Plan;

b. maintain the general intent and purpose of the Zoning By-law;

c. be desirable for the appropriate development or use of the land, building, or structure; and

d. be minor in nature.

25The proposed variances must also be consistent with the Provincial Planning Statement, 2024 (“PPS”). When making its decision, the Tribunal must have regard for the matters of provincial interest set out in section 2 of the Act. It must also have regard to the decision of the COA and the information considered by it, as required under section 2.1(1) of the Act, though it is not bound by that decision.

WITNESSES AND ISSUES

26The following witnesses testified at the Hearing:

Applicant

Trevor Hawkins Qualified by the Tribunal, without objection, to provide expert opinion evidence in the field of Land Use Planning

Brandon Bradt Qualified by the Tribunal, without objection, to provide expert opinion evidence in the field of Transportation Engineering and Transportation Planning

Gordon Schembri Fact witness, president of the Applicant Company

City

Eric Rempel Qualified by the Tribunal, without objection, to provide expert opinion evidence in the field of Land Use Planning

Cory McKeown Fact witness, Supervisor of By-law and Security Services with the City

27The issues addressed by the Tribunal were whether the Variances met the legislative tests outlined above, with the primary question being whether the variances were desirable for the appropriate use of the land.

ANALYSIS AND FINDINGS

The Planning Act and the Provincial Planning Statement, 2024

28Section 2 of the Act requires that, when making its decision, the Tribunal shall have regard to matters of provincial interest as listed in the section. The City’s planner testified that the test for minor variance is listed only in section 45 of the Act. However, this is incorrect as section 2 of the Act applies to all planning decisions, including minor variances.

29Section 3(5) of the Act requires that the Tribunal’s decisions, with respect to planning matters, “shall be consistent” with any policy statements in effect on the date of the decision, in this case the PPS. Again, contrary to the testimony of the City’s planner, section 3(5) applies to all planning decisions, including minor variances.

30The only evidence before the Tribunal regarding section 2 of the Act and the PPS was received from Mr. Hawkins, who testified that the Permanent and Temporary Variances have regard to matters of provincial interest indicated in section 2 of the Act and are consistent with the PPS. The Tribunal agrees and finds that, based on the evidence and documents provided, the Variances have regard for section 2 of the Act and are consistent with the PPS.

Intent and Purpose of the City’s Official Plan (“OP”)

31Mr. Hawkins, the Applicant’s planner, stated that both the Permanent and Temporary Variances maintain the general intent and purpose of the OP. The Subject Property is designated “Medium Density Residential,” and is located within a Strategic Growth Area and a Designated Greenfield Area, and within the Paisley/Imperial Community Mixed-Use Node. As per OP Policies 3.6.3 and 3.7, development within these areas is to be planned and designed to ensure the viability of transit and be well-served by transit. Thus, a lower parking rate would coincide with this plan and provide for a transit-supportive development. The Tribunal is persuaded by this.

32Mr. Hawkins explained that Policy 5.11.6 of the OP speaks to reduced parking requirements within Strategic Growth Areas. It states:

6. Reduced parking requirements may be considered as part of a Parking Study, particularly within Downtown, Community Mixed-use Nodes and Intensification Corridors, or for affordable housing, or where high levels of transit exist or are planned.

33This section of the OP, Mr. Hawkins opined, allows for site-specific parking studies to justify a lower rate than the zoning By-law requires. In this case, as Mr. Bradt, the Applicant’s Transportation Engineer and Transportation Planner, testified, such a study was prepared in support of the variances, namely (“Site-Specific Studies”):

a. The Guelph Parking Standards Review, Phase 2 Discussion Paper, prepared by IBI Group for the City of Guelph, dated September 11, 2019; and

b. The Guelph Parking Standards Review by the BA Group, dated January 2023.

34These Site-Specific Studies were in line with the findings of the City-wide study, dated April 18, 2023, that had been completed with respect to ZBL 2023 and Companion Official Plan Amendment (“City-Wide Study”). The City-Wide Study included a Parking Standards Review and Zoning By-law Recommendation, which recommended a rate similar to the Permanent Variance the Applicant is seeking. This was ultimately not adopted by Council in ZBL 2023, but had nevertheless been recommended by the City’s planning staff. Mr. Bradt testified that the findings of the Site-Specific Studies mirrored the City-Wide Study. Of note, ZBL 2023 is currently under appeal, and specifically the parking rate is one section being appealed.

35With respect to the Permanent Variance (a 1.1 spaces/unit parking rate), Mr. Bradt’s Site-Specific Studies confirmed that 1.1 spaces/unit is justified, as:

a. It is higher than the utilization rates on comparable sites.

b. It is the same as the rate approved on adjacent lands, which have the same designation, proximity to amenities, and similar (but lesser) transit access.

c. City staff previously supported a city-wide parking rate of 1.1 spaces/unit during the ZBL 2023 review.

d. The City presented no transportation expert evidence to refute Mr. Bradt’s findings.

e. Mr. Hawkins and Mr. Bradt both testified that requiring more than 1.1 spaces/unit would lead to an oversupply of parking, which would not be good planning.

36With respect to the Permanent Variance, the City’s position was that the 1.1 spaces/unit rate met the general intent and purpose of the OP, subject to certain conditions, discussed in further detail below. The Tribunal agrees with the Applicant that a parking study was prepared to justify a lower rate than what the ZBL requires, and that this meets the requirement of the OP. Moreover, the parking study and the testimony presented support the lower parking rate, which also supports the requirement of the OP, namely that the parking study justifies the lower rate.

37With respect to the Temporary Variance (0.84 spaces/unit parking rate), Mr. Bradt testified that his study (required by the OP) observed actual peak parking demand at 0.6 spaces/occupied unit (140 spaces for 243 occupied units), meaning the Temporary Variance of 0.84 spaces/unit is more than sufficient, and parking demand is not expected to exceed supply before the permanent parking structure is completed. Moreover, the site incorporates Transportation Demand Management suggestions and benefits from providing alternative measures (such as bicycle parking, transit connections, and active transportation links).

38The City acknowledged that the Site-Specific Studies were provided in support of the Temporary Variance, as required by the OP, but the City’s planner, Mr. Rempel, testified that the Site-Specific Studies were not reliable due to the following reasons:

a. There were possible errors in calculating parking demand based on the number of occupied units (as opposed to built or designed units). Namely, Mr. Bradt, when conducting the study, lacked pertinent information about the actual site-specific parking demand, and conducted a peripheral study that is not reliable.

b. Access issues may have influenced parking utilization data. For example, some evidence was provided that management may have made towing threats, which may have dissuaded people from actually parking there.

39The Tribunal, however, was persuaded by Mr. Bradt’s testimony, who is a transportation engineer, over Mr. Rempel’s testimony, who is a planner. The Tribunal was not persuaded that there were issues with the parking study, which would prevent the Tribunal from being able to rely on it. In fact, the Site-Specific Studies arrived at the same conclusions as City Planning Staff in the City-Wide Study. Moreover, if Mr. Rempel is correct regarding access issues, then the provision of temporary parking, once the Variance is authorized, would likely resolve those issues. The Tribunal was not provided with sufficient or persuasive testimony from the City to contradict Mr. Bradt’s testimony. The Tribunal was also persuaded by both Mr. Bradt and Mr. Hawkins that the existing zoning requirements result in an oversupply of parking for the Subject Property, and that the requested Variances will support transit use and promote active transportation modes such as walking and cycling.

40Thus, the Tribunal finds that both the Permanent and the Temporary Variances meet the intent and purpose of the OP, as the requirements outlined in the OP have been satisfied by the Applicant. The Tribunal finds that the Permanent Variance meets the intent and purpose of the OP, as it supports transit and avoids excessive parking supply. The Temporary Variance is also justified based on observed demand and the findings of the Site-Specific Studies. Both Variances are supported by detailed, Site-Specific Studies and align with OP policies. These rates are justified by observed parking utilization, comparable site analyses, and expert testimony.

Intent and Purpose of the zoning By-law (“ZBL”)

41The Applicant’s position, as conveyed by Mr. Hawkins, was that the intent of the ZBL is to provide adequate parking while supporting broader planning goals such as promoting transit and active transportation. Maintaining the outdated 1995 rates would contradict current City and provincial policies (namely the PPS) that recognize improved transit and alternative mobility options. The Site-Specific Studies and the City-Wide Study support this finding and a lower rate of parking being provided (1.1 spaces/unit rate in the IBI Group and City-Wide Study, and 0.85 spaces/unit without visitor parking in the BA Group Study). This aligns with provincial and City policies. Both Mr. Hawkins and Mr. Bradt emphasized that any rate above 1.1 spaces/unit would lead to an oversupply of parking, a scenario that is not consistent with efficient and sustainable planning. Although City Council chose to retain the 1995 rates in ZBL 2023, staff and planning evidence indicates that the 1.1 spaces/unit rate of the Permanent Variance better reflects the intent of the ZBL by ensuring adequate yet not excessive parking. The same was true with respect to the Temporary Variance rate of 0.84 spaces/unit.

42The City’s position was to agree that the intent of the ZBL is to provide an adequate parking supply, but that the Variances would not achieve that end. The City argued that the intent of the ZBL is clearly reflected in its wording as adopted by Council and should not be reinterpreted based on external planning studies or past drafts. ZBL 1995 had required a parking rate of effectively 1.27 spaces/unit. Council then had the chance to revise this rate when enacting ZBL 2023, but instead chose to maintain it. The Permanent Variance proposed by the Applicant was already considered and rejected by City Council. Therefore, it cannot be said that the Variances maintain the intent of the ZBL, and it cannot be justified simply because the existing zoning may create an “oversupply.” According to the City, the Tribunal’s role in minor variance applications is not to reassess the entire by-law but to determine if the requested variances are minor and desirable for the site’s development. The ZBL’s intent is clearly expressed in its current form, and the Tribunal should not rely on planning studies or past drafts to override Council’s decision.

43Despite these assertions, the City was willing to agree to the Permanent Variance if the Applicant complied with certain Conditions, discussed below. The City, however, disagreed that the rate of the Temporary Variance (0.84 spaces/unit) would meet the intent of the ZBL, as it would lead to an undersupply of parking that would be problematic. The City expressed concerns that the parking utilization data in the Site-Specific Studies was not reliable, and alleged that the Applicant discouraged the use of temporary parking by threatening towing. Moreover, the Site-Specific Studies’ assumptions about occupancy and vehicle use may not reflect real-world conditions. Thus, it could not be said that the usage rate found in the Site-Specific Studies was accurate, and the Tribunal should not base its decision on flawed data.

44The Tribunal finds that the general intent of both ZBL 1995 and ZBL 2023 is to ensure that there is sufficient parking for residents and visitors while preventing an oversupply that could encourage car dependency. While the City’s Council did maintain the rates outlined in ZBL 1995, the Tribunal understands the intent of the ZBL based on the planning studies and policy goals that it was presented with, including those in provincial policies as well as expert recommendations regarding the City’s ZBL. In other words, when assessing intent of the ZBL, rather than looking at the strict wording of it, the Tribunal considers the overall intent of the ZBL, which in this case is that an adequate parking supply is provided. Moreover, the Tribunal was persuaded by the Applicant’s submissions that if Council’s decision is the sole measure of a ZBL’s intent, this would effectively mean that no variance could ever be authorized, which contradicts the purpose of minor variances.

45With respect to the Permanent Variance, the Tribunal finds that it meets the intent of the ZBL by aligning with updated planning studies, current transit realities, and sustainable development principles. Moreover, this rate aligns with modern transportation and land-use planning. The Tribunal was persuaded by Mr. Hawkins and Mr. Bradt that a rate higher than 1.1 spaces/unit would create an oversupply of parking for the Subject Property, which would be poor planning. As the ZBL’s goal is to ensure adequate – not excessive – parking supply, the Permanent Variance achieves that goal.

46Similarly, with respect to the Temporary Variance, the Tribunal finds that it meets the intent of the ZBL. Currently, while the permanent parking structure is being built, there appears to be an issue with where the current occupants of these buildings can park. However, if the Temporary Variance is authorized, that issue is resolved. Moreover, while the Temporary Variance is less than 1 space/unit (a rate of 0.84 spaces/unit), the Tribunal was persuaded by Mr. Bradt that the parking needs of these buildings were met by the rate proposed. Additionally, the Applicant will be adding another 42 temporary parking spaces (as mentioned at paragraph [17a] of this Decision), which is a Condition to these variances, as discussed below. Thus, the Temporary Variance would provide an adequate supply of parking, and therefore, meet the intent of the ZBL.

47The City expressed concern that if the Temporary Variance is authorized, then the Occupancy Permit will be granted, and once Building C is occupied there will no longer be an adequate supply of temporary parking. However, the Tribunal was not persuaded by this. Based on the evidence provided, specifically that of Mr. Bradt and the Site-Specific Studies, there appears to be an adequate supply. Moreover, granting the Temporary Variance would allow for adequate parking during the time that the permanent structure is being built. This does not seem to be the case now but would be the case if the Temporary Variance is authorized. The Tribunal was also convinced by the Applicant’s witnesses that this approach was consistent with the PPS, and that such a temporary reduction to below 1.1 spaces/unit was reasonable for the timeline it was required. The parking supply resulting from the Temporary Variance would be sufficient for interim parking needs and would allow for a practical solution while accommodating ongoing construction of the permanent parking structure.

48Lastly, while the Temporary Variance rate before the Tribunal is 0.84 spaces/unit, in reality, with the approved site plan and the addition of 42 parking spots (as per the Condition to the Variance), the actual rate of the Temporary Variance will be 0.99 spaces/unit. Thus, though the Temporary Variance rate meets the intent and purpose of the ZBLs, the real rate is even higher, and alleviates any concern that there will not be adequate parking available.

Desirable

49The City begrudgingly agreed that the 1.1 spaces/unit Permanent Variance rate could be desirable, if the Applicant complied with the Conditions discussed below. However, the City maintained that granting the Temporary Variance would not benefit the development or the community, but rather create additional challenges. The City’s Counsel submitted that given the significant deviation from zoning requirements, the manipulation of parking data, and the adverse effects on residents, the Temporary Variance fails the desirability test and should be denied. In detail, the City argued:

a. The Variances would lead to a lack of adequate parking supply, which would not be desirable. With respect to the Temporary Variance specifically, the reduction to 0.84 parking spaces/unit would result in a significant shortfall (173 spaces, and less than half the required parking under the current zoning) and effectively eliminate visitor parking for at least a year.

b. The City challenged the Site-Specific Studies, noting that the survey dates (December 13, 14, and 20) were compromised as no parking permits were issued to residents during the survey dates, which were during the holiday season and resulted in holiday-related disruptions. Moreover, residents were actively discouraged from using temporary parking, as management allegedly threatened to tow vehicles. Mr. Bradt acknowledged in cross-examination that any issues with access, such as threats to tow, would undermine the reliability of his findings. Thus, the utilization data he relied on was unreliable, cannot be used to determine desirability, and does not provide a legitimate basis for approving the Variances.

c. The Variances, especially the Temporary Variance, would lead to a negative impact on residents and the City’s resources, and cannot be said to be desirable. Mr. McKeown, the City’s Supervisor of By-law Services, testified that residents have consistently raised parking concerns through complaints to the City. Allowing the Temporary Variance would only worsen the situation by continuing to limit their access to parking. The shortfall would likely increase enforcement issues, requiring additional City resources to address ongoing complaints and disputes. For example, the City argued, the Applicant deliberately withheld parking from residents while continuing to charge occupancy rents. If any Temporary Variance is authorized, the City insisted on clear Conditions ensuring unobstructed access to temporary parking to prevent further issues.

50The Tribunal, however, agreed with the position posited by the Applicant. The Tribunal was persuaded by Mr. Hawkins and Mr. Bradt’s testimony that, for the Applicant’s project, anything greater than a 1.1 spaces/unit parking rate would be an oversupply of parking, which would not be good planning. The Subject Property is within a Strategic Growth Area, meant to be transit-supportive, and a 1.1 spaces/unit parking rate aligns with efficient land use and transit goals. The Tribunal also agrees with the Applicant that a reduced parking rate would allow for a smaller parking structure, freeing up space for landscaping and other site improvements. Moreover, the Site-Specific Study confirmed that the 1.1 spaces/unit rate was appropriate for the Subject Property based on observed parking utilization and city-wide planning reports. Lastly, the Subject Property supports alternative transportation, including bike parking and transit connectivity, reducing dependency on on-site parking. Thus, the Tribunal finds that the Permanent Variance (1.1 spaces/unit) is desirable.

51With respect to the Temporary Variance (0.84 spaces/unit), the Tribunal is again persuaded by the Applicant and finds that it is desirable, for similar reasons indicated above. The City’s main concerns with this Variance seem to arise from problems present in the current situation on the Subject Property. There appear to be issues with parking, and City by-law enforcement staff have had to get involved. The City’s concern seems to be that granting the Variance would not be desirable as it would require more involvement from the City (namely, its enforcement officers). The Tribunal fails to see this connection. Rather, it appears that if the Variance is authorized, the situation would receive some clarity and a number of issues would be resolved.

52The City is concerned that the Site-Specific Studies (which found a peak parking demand of 0.6 spaces/unit, well below the 0.84 spaces/unit rate requested) is problematic and does not reflect accurate usage. However, the City did not provide evidence to demonstrate actual usage if different from the findings of the Studies. In other words, while the City posited that actual usage is more than the Studies found, it did not provide evidence on what it actually was. The City did provide evidence regarding complaints it had received about parking, but the Tribunal is not persuaded that those complaints, if any, have any relation to these Variances. If anything, it appears that if the Temporary Variance is authorized, any issues could be resolved as a dedicated area for Temporary parking, with dedicated spots, would be very clearly provided. The City raised the concern that the Temporary Variance rate would leave the development with no visitor parking until the permanent parking structure is built. However, based on the transit-supportive nature of the development and the very temporary nature of the Temporary Variance, the Tribunal finds that the lack of visitor parking alone does not make the Variance undesirable. In other words, for this Temporary Variance, the factors that make it desirable outweigh the lack of visitor parking for this short time, in light of the fact that numerous alternative forms of transportation allow access to this development.

53The Tribunal is also persuaded that, while Mr. McKeown testified regarding complaints over a two-month period, he did not provide specifics as to who made the complaints and whether they were legally permitted to park on the premises. Despite testimony regarding numerous complaints to the City, at this Hearing only one person sought Participant status and she posited the position that the issue of parking on the Subject Property be clarified, which would be achieved if the Temporary Variance is authorized. Finally, the Tribunal reviewed the Site-Specific Studies and finds them credible and reliable. The Studies are persuasive in that the temporary parking lot is open/accessible/being used, and that demand will likely not exceed supply before the permanent parking structure is built. Thus, based on the information before it, the Tribunal finds that the Temporary Variance is desirable.

54Of note, the City claimed that the Applicant was preventing people from parking, and having less than 1 space/unit would be problematic, as more people require parking than that. The Applicant claimed that those who were not lawful tenants did not have the right to park in those spots. The Tribunal will not engage in any enforcement issues, as that is not within its purview or necessary for determining whether minor variances should be authorized. However, the Tribunal agrees that the Applicant does not need to provide parking to those who are not entitled to it. If, as the Site-Specific Studies found, the usage is a certain amount, the Tribunal finds it reasonable to rely on usage data that corresponds with legal occupancy.

55The City also raised concerns about Mr. Schembri’s assurances, through his testimony, that lawful residents will have access to parking and that the temporary lot has been accessible since October 2024. Namely, the City pointed to Agreements of Purchase and Sale contracts, which warned buyers that parking may not be available. The Tribunal will not engage in assessing those contracts or determining their validity. The Tribunal simply finds that the Temporary Variance would provide clarity on how much parking supply is provided while the permanent parking structure is being built. Thus, it is desirable.

56As a final note, the Applicant raised the issue that the Chief Building Official (“CBO”) refuses to issue an Occupancy Permit for Building C without the required parking. In fact, the CBO has allegedly threatened to revoke building permits for the fully constructed buildings if occupancy is requested without adequate parking. The Temporary Variance would allow the Applicant to obtain an Occupancy Permit for Building C, and would allow its unit purchasers to move in. The Tribunal will not venture into issues dealing with the Occupancy Permit. However, the Tribunal finds that authorizing the Temporary Variance is desirable as it would allow Building C to become usable while the permanent parking structure is being built. This is in line with provincial policy, which continuously aims to address housing shortages. It is also desirable for the owners of Building C, who have been unable to move into their units to date.

57In summation, the Tribunal finds that both the Permanent and Temporary Variance are desirable as they align with broader planning objectives and are reasonable, well-supported by expert analysis, and necessary for project completion.

Minor

58The City argued that the proposed Variances, particularly the Temporary Variance, fail to meet the minor branch of the test. The Temporary Variance is a significant deviation and far below the in-force zoning requirement. This proposed 173-space shortfall is too large to be considered minor or a negligible variance. The Temporary Variance would remove all visitor parking for at least a year, which directly conflicts with the intent of parking regulations, and is not minor as it is an entire removal of something the ZBL requires. Parking provisions exist to ensure sufficient supply for both residents and visitors. Eliminating visitor parking creates negative spillover effects on the community, which is not minor. Furthermore, reducing parking to less than half of the zoning requirement creates a severe functional impact on residents, adjacent properties, and City resources.

59While Mr. Bradt opined that the reduction is justified based on utilization rates, the City challenged the credibility of the Site-Specific Studies, as described above. Moreover, the City argued, approving the Temporary Variance would worsen parking conditions, particularly for residents of Building C. Based on these reasons, the Temporary Variance this is a major policy shift, one to be addressed through a ZBA. The City asserted that the Tribunal does not have the authority to grant such a significant deviation through a minor variance. As Mr. Rempel testified, the ZBA process would be the appropriate legal avenue to take here, due to the scale and impact of the proposed changes. The City provided the Divisional Court case of Toronto (City) v. Romlek Enterprises, 2008 CanLII 52618 (ON SCDC) (“Romlek Enterprises Case”), which puts forth the position that a variance cannot be used as a substitute for a zoning amendment when the change is substantial. Of note, the City’s main concern was with the Temporary Variance rather than the Permanent Variance.

60Based on an overall review of the evidence, however, the Tribunal agrees with the Applicant that both the Permanent and Temporary Variance are minor. With respect to the Permanent Variance, the Site-Specific Studies and City-Wide Study both indicate that the rate of 1.1 spaces/unit is appropriate and minor, and is higher than the utilization rate observed on comparable sites. Moreover, this rate is in line with other approved rates for adjacent properties with similar characteristics. The City has conditionally accepted the 1.1 spaces/unit Permanent Variance rate, subject to certain Conditions, which the Applicant is willing to meet. The Tribunal finds the Permanent Variance minor.

61With respect to the Temporary Variance, the Tribunal was also convinced that it is minor. While the City raised concerns with the Applicant’s traffic study, the City did not present independent evidence relating to transportation to challenge the findings relating to utilization rates. For example, while Mr. Rempel questioned the methodology of Mr. Bradt’s study, he lacks the specific qualifications required to refute the methodology or conclusions of the Site-Specific Studies, nor did he provide an alternative position on what the utilization rate was if not 0.6 spaces/unit. As such, the Tribunal was persuaded by Mr. Bradt’s evidence and findings. As Mr. Bradt explained, the utilization rate is 0.6 spaces/unit, which is 42% occupancy of the current parking lot. Thus, the Temporary Parking rate of 0.84 spaces/unit would be sufficient for the short period of time that temporary parking is required. Based on Mr. Bradt’s findings, the Temporary Parking rate will not lead to a parking shortage.

62The City argued that the Applicant has the ability to provide temporary parking at the rate of 1.1 spaces/unit (the Permanent Parking rate) as confirmed by Mr. Hawkins, and should not be excused from that obligation. However, the Application before the Tribunal was for a Temporary Parking rate of 0.84 spaces/unit, which the Tribunal finds meets the test. It is not necessary for the Tribunal to consider alternative potential rates, an infinite number of which could be possible. Of note and as an aside, in this case, the Applicant has already proposed to provide an additional 42 spaces, and thus, while the higher rate of 1.1 spaces/unit is not before the Tribunal, in reality more parking spaces will be provided than the 0.84 spaces/unit rate. In fact, with a combination of the approved site plan showing 335 spots and the 42 spaces noted in the Conditions, the Temporary parking rate will be 0.99 spaces/unit. While it is not necessary for the Tribunal to consider the additional spaces in arriving at its conclusion, the City may find it comforting that a higher number of spaces is in fact being provided.

63The Tribunal also finds that the practical result of the Temporary Variance also makes it minor. In other words, the Variance is time-limited, and is required only for a short time until the permanent parking structure is being built. For this short duration, this reduced rate is minor. Moreover, as Mr. Hawkins testified, every sold unit will still have at least one parking space available, and the occupants of the buildings will not be prejudiced by the reduced parking rate. The Tribunal was persuaded by Mr. Hawkins and Mr. Bradt that there would be no risk of exceeding demand if the Temporary Variance is approved. This opinion was regarding the Temporary Variance without adding any extra spaces, despite the fact that the Applicant is planning on adding 42 more spaces to the Temporary Parking than originally anticipated. With respect to the Romlek Enterprises Case, the Tribunal agrees with the Applicant that this case applies where the four-part test has not been met, but in this case, it has, and so it does not apply. Lastly, the Subject Property is transit supportive due to its proximity to transit, and numerous other options are available for access to the development.

64In short, the Tribunal finds the Permanent and Temporary Variance minor.

Good Planning

65As with any planning decision, the Tribunal’s fundamental question in planning matters is whether the request constitutes good planning. In this case, the Tribunal agrees with the Applicant and the Applicant’s witnesses that both the Temporary and Permanent Parking Variances align with good planning principles. The Variances, as discussed above, meet the required legislative tests, have regard for provincial interests listed under section 2 of the Act, and are consistent with the PPS. From a practical and public interest standpoint, the Tribunal finds that the Variances will facilitate property transfers, allowing residents to move into their units. If denied, residency of these already-built units would be further delayed unnecessarily. This finding was supported by testimony from the Participant Sonia Rivas, which shows that approving the Variances would expedite the official transfer of title and enable residents to occupy their units sooner, avoiding prolonged homelessness for new occupants. Approving the Variances is also good planning as no prejudice to approving these was demonstrated. In other words, there is no downside to approving the Variances, as parking supply will be maintained, and temporary measures will ensure access until the permanent structure is completed.

66Moreover, the Tribunal finds that the City did not provide sufficient evidence to demonstrate that these Variances were not good planning or that they would not lead to a more efficient development that aligns with provincial policy and requirements. The City disagreed that granting the Variances would prevent delays, stating that the Applicant has already significantly delayed occupancy by failing to build the permanent parking structure since 2018. However, the Tribunal does not find that relevant to the issues that are before it at this Hearing. Regardless of what may have taken place to date, at this point the Tribunal finds it most efficient, good planning, and in the public interest to authorize the Variances. Moreover, as the Applicant’s Counsel pointed out, nothing had been built in 2018, and no parking structure was needed nor was there even a Site Plan Application at that time.

67The City also provided evidence that the parking situation on the Subject Property was causing problems for surrounding businesses and landowners or for the current residents of the development. However, the Tribunal finds that by-law issues are not relevant to an assessment of the Variances. Moreover, authorizing the Variances would resolve, rather than aggravate, those issues.

68The City raised the concern that if the Temporary Variance is authorized, the Applicant would lose the incentive to build the permanent parking structure. However, the Temporary Variance is only applicable for one year, as indicated in the Conditions to this Variance. As such, the Tribunal is not concerned that the building of the permanent parking structure will be delayed because of the Temporary Variance.

Conclusion

69The Tribunal finds that both Variances meet the legal and planning criteria and should be approved. The permanent 1.1 spaces/unit rate is consistent with planning studies and nearby approvals, while the temporary 0.84 spaces/unit rate is justified by actual parking utilization data. With comprehensive, expert-backed evidence and proposed Conditions (including an agreement from Mr. Schembri to keep the temporary lot open and accessible), the demand for parking will not exceed supply. The Variances, being both legally compliant and beneficial for residents, embody good planning. Denying these Variances would unnecessarily delay occupancy and harm residents, while the approved Variances meet the intended statutory and planning objectives.

70The City’s position was that these Variances are not minor and that the Applicant should seek a ZBA instead. If the Tribunal finds that the Variances are not minor, indeed the Applicant’s next recourse is to seek a ZBA. However, in this case, the Tribunal has found that all parts of the Minor Variance test have been met. As a result, contrary to the City’s position, the Variances do not warrant a ZBA. Additionally, the Tribunal agrees with the Applicant that it would be impractical and unnecessary to proceed through the ZBA process simply for the Temporary Variance (since the City has agreed to the Permanent Variance) considering the very short duration for which this Variance is required and the minimal impact of it on those involved.

CONDITIONS

71The City has proposed a number of Conditions to be attached if the Variances are authorized. The Applicant is generally amenable to the City’s proposed Conditions and has submitted a similar set. However, the two Parties disagree on a number of nuances, as follows:

a. Time limitation: The Applicant stated that the Temporary Variance should expire 12 months after a building permit for the parking structure is issued, which is in the City’s control. This ensures that the Variance only applies until permanent parking is in place. The Applicant is fully committed to building the structure and has taken all necessary steps to do so.

The City argued, however, that the Temporary Variance must have a clear expiry date, only extendable by the Tribunal, to prevent indefinite delays in constructing the permanent parking structure. Any extension request must be justified by the Applicant and subject to notice to residents.

The Tribunal agrees with the City that a date should be set, and that it cannot be tied to the building permit, as the Tribunal cannot mandate what the CBO will do, but must control its own process. Thus, the Tribunal finds that the Temporary Variance will be in force for 12 months from the date that this Decision is issued.

b. Access for Lawfully Contracted Residents: The Applicant requested that the Conditions clarify that temporary parking is to be provided to “lawfully contracted” residents. The temporary lot must be exclusively for residents with legal occupancy contracts and their guests, thereby preventing unauthorized or illegal tenants from using the parking. Parking permits will be issued to lawful residents.

The City disagreed with the use of the words “lawfully contracted” in the Condition, stating that it creates ambiguity for residents.

The Tribunal agrees with the Applicant that the Temporary Parking need only be made available to those who have the right to park there. The wording of “lawfully contracted” is appropriate and clarifies this requirement. The Applicant has indicated that parking permits will be issued to those who are permitted to live in the units and park in the lot.

c. Occupancy Restrictions: The Applicant proposed that occupancy of 31 unoccupied units in Building A and 23 unsold units in Building C be deferred until either the Permanent Parking structure is completed or parking is provided at a rate of 1.1 spaces/unit. This Condition ensures that occupancy does not exceed the available parking supply.

The City stated that the Applicant’s attempt to tie Occupancy Permits to parking availability is highly unusual and beyond the Tribunal’s jurisdiction under section 45 of the Act. The CBO cannot be directed by the Tribunal on occupancy matters, as this is governed by the Building Code, not zoning. The City does not support any Condition preventing the Applicant from applying for occupancy. The City insisted that the Tribunal should not issue orders affecting the CBO’s jurisdiction over occupancy permits.

The Tribunal agrees with the City. The Tribunal cannot control the CBO’s decision-making and will not intrude on that process. Moreover, the Tribunal arrived at its decision in this appeal by considering the development as a whole, including all the designed and unoccupied units. Thus, it is not necessary to exclude any units from occupancy when authorizing these Variances. As a result, this Condition is not required and will not be imposed.

d. Transit Passes: The Applicant proposed that three transit passes/unit be provided for lawfully contracted residents, ensuring alternative transportation (if parking is unavailable) until permanent parking is ready. The Applicant did state that, given the current parking supply, it is unlikely that a temporary parking spot would not be available.

The City agreed with this but indicated that, rather than passes being provided to “anyone lawfully contracted with the [Applicant] to reside in” the development, the passes be provided to “purchasers of” the units.

The Tribunal finds that the two, for the purposes of this appeal, are not significantly different. Those lawfully contracted with the Applicant to reside in each unit are currently the purchasers of each unit. Thus, this difference is not material for the purposes of authorizing the Temporary Variance. In this case, the Tribunal will give deference to the Applicant and identify those who are “lawfully contracted” as this was what was indicated to be appropriate with respect to the parking Condition discussed at paragraph [71b] of this Decision.

72Other Conditions were proposed without dispute between the Parties, as follows:

a. Additional Temporary Spaces: Although experts indicated that adding 42 temporary parking spaces is unnecessary, the Applicant proposed to provide them. The City did not take issue with this addition. The Tribunal agrees and will impose this condition.

b. Restoration of Landscaping: Once the permanent parking structure is occupied, the Applicant must restore all temporary parking areas to their original landscaped condition, as per the site plan. While the Applicant views the requirement to restore landscaped areas in the temporary lot as unnecessary given the site plan, they do not object to its inclusion.

c. Stating the Number of Spots: The City states that the Conditions must specify the number of minimum spots to be provided, rather than just the parking rates. If a permanent rate of 1.1 spaces/unit is approved, the Applicant must provide 420 permanent spaces (for 381 dwelling units). If a temporary rate of 0.99 spaces/unit is approved (0.84 spaces/unit, which is 321 spots + 14 spots on the site plan + 42 additional spots), the Applicant must immediately provide 377 spaces, and this must be indicated in the Conditions. The Applicant did not raise an issue with this. The Tribunal will indicate this in the Conditions.

d. Parking Sale Restrictions: The Applicant must provide an affidavit or statutory declaration confirming that it has not sold or contracted to sell more than one parking spot/unit across Buildings A, B, and C. The Applicant must provide an undertaking not to sell or grant options for more than one parking spot/unit going forward.

e. Withdrawal of Conflicting Appeals: Before the Tribunal’s decision takes effect, the Applicant must withdraw its appeals in OLT-23-000389 and OLT-23-000462 or amend them to remove any conflicting relief. This ensures Tribunal resources are not wasted on relitigating the same parking issues.

73Overall, the Tribunal finds that these Conditions are reasonable, ensure that parking supply meets demand during the interim period, and facilitate occupancy without harming residents.

ORDER

74THE TRIBUNAL ORDERS THAT the appeal by Paisley & Whitelaw Inc. (“Applicant”), pursuant to section 45(12) of the Planning Act, is allowed in part, and the following minor variances are authorized:

Permanent Variance

a. Variance from Section 4.13.4.3 of Zoning By-law No. (1995)-14864 to permit a minimum required parking rate of 1 space per dwelling unit, plus 0.1 spaces per dwelling unit for visitors, for a total overall parking rate of 1.1 spaces per unit, whereas 1.5 parking spaces for the first 20 dwelling units and 1.25 spaces per unit for every dwelling unit thereafter is required; and

b. Variance from Row 2, Table 5.3 contained in Section 5.5 of Zoning By-law No. (2023)-20790, to permit a minimum required parking rate of 1 space per dwelling unit, plus 0.1 spaces per dwelling unit for visitors, for a total overall parking rate of 1.1 spaces per unit, whereas 1.5 parking spaces for the first 20 dwelling units and 1.25 spaces per unit for every dwelling unit thereafter is required. This is contingent upon Zoning By-law No. (2023)-20790’s parking regulations coming into force and effect for the Subject Property.

Temporary Variance

c. Variance from Section 4.13.4.3 of Zoning By-law No. (1995)-14864 to permit a temporary minimum required parking supply 0.84 spaces per unit, until 12 months after the date that this Tribunal Decision is issued; and

d. Variance from Row 2, Table 5.3 contained in Section 5.5 of Zoning By-law No. (2023)-20790, to permit a temporary minimum required parking rate of 0.84 spaces per dwelling unit, until 12 months after the date that this Tribunal Decision is issued. This is contingent upon Zoning By-law No. (2023)-20790’s parking regulations coming into force and effect for the Subject Property.

75THE TRIBUNAL FURTHER ORDERS THAT the authorization of the minor variances listed in paragraph [74] of this Decision is subject to the following Conditions:

a. With respect to the Permanent Variance indicated at paragraph [74a] and [74b] of this Decision, a minimum of 420 spots are to be provided.

b. The Applicant shall provide an additional 42 temporary parking spaces, generally in the location shown on the Site Plan prepared by ABA Architects (SP-1), dated November 25, 2024. Thus, with respect to the Temporary Variance indicated at paragraph [74c] and [74d] of this Decision, a minimum of 377 spots are to be provided.

c. The Applicant shall provide to the City an affidavit or statutory declaration of a duly authorized principal of the Applicant attesting to the fact that the Applicant has not, directly or indirectly through its agents, affiliates, subsidiaries or representatives, sold or contracted to sell, more than one parking spot per unit in the aggregate in Buildings A, B and C, and certifying the number of parking spots that have been sold or are under contract for sale or subject to an option to purchase.

d. The Applicant shall provide an undertaking to the City, for itself and on behalf of its agents, affiliates, subsidiaries, and representatives, not to sell or contract to sell or grant any option to purchase parking spots on the Subject Property which would result in fewer than one visitor spot per 10 units in Buildings A, B, and C, in the aggregate.

e. Upon approval of the Temporary Variance, the Applicant shall immediately make available, and maintain on an ongoing basis (including but not limited to undertaking any necessary repairs and attending to timely removal of ice and snow), the use of the temporary parking lot, for those lawfully contracted with the Applicant to reside in Buildings A, B, and C, as well as their guests. Moreover, upon approval of the Temporary Variance, the Applicant shall forthwith communicate to the occupants of Buildings A and B that the temporary parking areas shown on the Approved Site Plan are open and available for their immediate use. Further, pending construction of the permanent parking structure, the Applicant, its officers, directors, agents, and employees shall forbear from interference (whether by physical obstruction, or through any verbal or written communications) with the use of the temporary surface parking areas by Building A and B residents.

f. The Temporary Variance authorization shall expire within twelve months from the date that this Decision is issued, unless otherwise extended by this Tribunal. Should such extension be sought, it must be on notice to the occupants of the development.

g. The Applicant shall make up to three transit passes per unit available to anyone lawfully contracted with the Applicant to reside in Buildings A, B, and C, for which a parking space is not available in the temporary parking lot, until such time as the parking structure has been constructed.

h. The Applicant shall, upon occupancy of the parking structure being granted, reinstate the landscaped condition and restore amenity spaces of the temporary parking areas shown in the currently approved site plan.

i. Before any decision takes effect, the Applicant shall withdraw its appeals in matters OLT-23-000389 and OLT-23-000462 or to amend them to remove or permanently withdraw any relief in conflict with the relief obtained from this Tribunal.

76The Tribunal Member remains seized of this matter, and the Tribunal may be spoken to with respect to the implementation of this Order.

“Bita M. Rajaee”

BITA M. RAJAEE

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.