Foundation Capital Holdings Limited v. Sarnia (City), 2026 CanLII 38556

Ontario Land Tribunal

Tribunal ontarien de l’aménagement

du territoire

ISSUE DATE:

April 20, 2026

CASE NO(S).:

OLT-26-000041

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

Applicant/Appellant:

Foundation Capital Holdings Limited

Subject:

Minor Variance

Description:

To permit interior alterations to an existing apartment building to increase the total apartment dwelling units to twenty-four (24)

Reference Number:

A01/2026

Property Address:

126 East St. S

Municipality/UT:

City of Sarnia/Lambton County

OLT Case No.:

OLT-26-000041

OLT Lead Case No.:

OLT-26-000041

OLT Case Name:

Foundation Capital Holdings Limited v. Sarnia (City)

Heard:

March 16, 2026, by Video Hearing

APPEARANCES:

Parties

Counsel

Foundation Capital Holdings Limited (“Applicant/Appellant”)

Michael Nemanic

City of Sania (“City”)

Bruce Engell Randi Kalar(in absentia)

DECISION DELIVERED BY l.p. you ON MARCH 16, 2026 AND Interim ORDER OF THE TRIBUNAL

INTRODUCTION

1The appeal arises under s. 45(12) of the Planning Act, R. S. O. 1990, c. P. 13, as amended (“Act”) by the Applicant/Appellant with respect to the City’s Committee of Adjustment’s (“COA”) refusal of the application for minor variances (“Application”) to permit interior alternations to an existing apartment building to increase dwelling units on the lands municipally known as 126 East Street South (“Subject Lands”).

2The Parties informed the Tribunal that they had reached a settlement to approve revised plans subject to conditions agreed upon by the Parties.

CONTEXT

3The Subject Lands are one rectangular corner parcel of lands located on the east side of East Street South and on the south side of Kathleen Avenue. The Subject Lands have a total area of 1,297.97 square metres (“m²”) with 31 metres (“m”) of lot frontage along Kathleen Avenue (at the narrowest point) and a depth of 41.7 m along East Street South.

4The Subject Lands are currently occupied by a two-storey (with basement) residential apartment building. A pedestrian access is available from the east and west sides of the building.

5The existing apartment building was designed in a “garden style” and is low-rise with characters that allow units open onto expansive, landscaped grounds. The existing apartment building is a purpose-built rental building, consisting of 11 one-bedroom units ranging from 530 to 650 square feet in size.

6There is an existing gravel parking area with a total of 11 existing parking spaces with access from East Street South, and visitor parking is not marked. Currently, there is no loading space nor accessible parking space on the Subject Lands.

7The Subject Lands are fully serviced by the City’s services and have access to identified bus routes and parks. There are mature trees located on the Subject Lands.

8The Subject Lands are predominantly surrounded by low-density, single-detached dwellings to the west and south, with similar medium and higher-density apartment dwelling residential uses located to the east. A commercial plaza is located directly to the north of the Subject Lands across Kathleen Street.

9The County of Lambton Official Plan (“County OP”) designates the Subject Lands as “Mixed-Use Corridor 1” on Schedule 2 - Land Use Plan.

10The Subject Lands are identified as being located within a Strategic Growth Area within the City as per Schedule 1 - City Structure Plan of the City Official Plan (“OP”), which designates the Subject Lands as “Mixed-Use Corridor 1” within Schedule 2 - Land Use Plan. The designation of “Mixed-Use Corridor 1” permits the uses including residential apartments, public service facilities, office, restaurants, and retail and service commercial uses.

11The City’s Zoning By-law No. 85 of 2002, as amended (“ZBL”) zones the Subject Lands “Urban Residential 4” (“UR4”), which permits apartment dwellings containing no more than 12 apartment dwelling units, converted dwellings, duplex dwellings, group homes, and retirement homes, as well as single and semi-detached dwellings.

12The original application proposed the following variances:

1. S. 10.1: An apartment dwelling containing a maximum of 24 dwelling units, whereas a maximum of 12 dwelling units may be permitted;

2. S. 10.2.2(1): A total lot area of 1,270 m² for 24 proposed apartment dwelling units, whereas a minimum lot area of 650 m² is to be provided for the first three (3) apartment dwelling units and a minimum lot area of 100 m² is to be provided for each additional apartment dwelling unit (minimum of 2,750 m² required); and,

3. S. 3.37(2)(a): A minimum of 12 parking spaces for 24 apartment dwelling units (0.5 parking spaces per unit), whereas a minimum of 1.5 parking spaces per unit are required to be provided for each apartment dwelling unit.

13Following the recommendation of the City’s staff, the COA refused the original application.

14In the settlement proposal, the Parties agreed on the following variances to facilitate the interior alternations to the existing apartment building on the Subject Lands, subject to the conditions:

Variances (attached as Appendix A):

1. S. 10.1: A maximum of 12 dwelling units is permitted, whereas 20 dwelling units are proposed;

2. S. 10.2.2(1): A minimum lot area of 650 m² for the first three (3) dwelling units and a minimum lot area of 100 m² for each additional dwelling unit is permitted (2,350 m²), whereas a minimum lot area of 1,297.97 m² is proposed;

3. S. 10.2.2(8): A minimum landscaped open space of 40% is permitted, whereas a minimum landscaped open space of 38% is proposed;

4. S. 3.37(2)(a): A minimum parking ratio of 1.5 parking spaces per unit is permitted, whereas a parking ratio of 0.7 parking spaces per unit is proposed;

5. That notwithstanding S. 3.37(4) of By-law No. 85 of 2002, to the contrary, parking spaces 11-14 and its associated aisle required may have the following minimum dimensions:

Parking Space Angle

Parking Space Width (m)

Parking Space Length (m)

Aisle Width (m)

Parallel

2.75

6.7

3.7

6. S. 3.22(2): A minimum number of one loading space is required for a apartment dwelling, whereas no loading spaces are proposed.

Conditions:

1. That the Application is approved in principle and the proposed development shall be constructed substantially in accordance with the architectural plans and drawings dated March 11, 2026, filed as Exhibit 1, entitled “East Street City Markup”, consisting of 20 dwelling units and 14 surface parking spaces (the “Site Plan”);

2. The Tribunal’s final Order on the Application will be withheld until such time as the Tribunal has been advised by the City and the Applicant/Appellant that:

a. The final form and content of the Application is satisfactory to the City and the Applicant/Appellant, as it relates to the modified landscape variance and the parking space dimensions variance to the City ZBL; and,

b. The Applicant/Appellant has made satisfactory arrangements with the City and has entered into the appropriate agreement for the design and construction of the required improvements to the site and municipal infrastructure, as identified in the Site Plan:

i. The construction of surface parking spaces Nos. 11-14;

ii. The construction of the new driveway and curb cut along Kathleen Avenue;

iii. The modifications to the identified soft landscaping areas; and,

iv. The partial reconstruction of the driveway and curb cut along East Street South.

3. The City and the Applicant/Appellant will advise the Tribunal within 14 days of the issuance of this Interim Order on the status of the Application and implementation of the Interim Order.

STATUS REQUEST

15The Tribunal did not receive any request for Party Status or Participant Status prior to or during the Hearing.

EXHIBITS

16Following materials were marked as exhibits during the Hearing:

• East Street City Markup marked as “Exhibit 1”;

• Applicant/Appellant Plans with updated Project Statistics marked as “Exhibit 2”;

• List of Variances marked as “Exhibit 3”;

• Expert Witness Statement of Tracey Pillon-Abbs marked as “Exhibit 4”; and,

• Document Book (Planning) marked as “Exhibit 5”.

NOTICE OF HEARING

17There is no issue with Notice of this Hearing.

18In the opinion of the Tribunal, the changes to the original applications are considered minor, therefore, the Tribunal determines that no further notice is required with respect to subsection 45(18.1.1) of the Act despite the absence of the requests from the Parties.

EVIDENCE, ANALYSIS AND FINDINGS

19The Tribunal qualified Ms. Tracey Pillon-Abbs, a registered Professional Planner and full member of the Ontario Professional Planners Institute and the Canadian Institute of Planners, to assist the Tribunal with opinion evidence in the area of Land Use Planning.

20Ms. Pillon-Abbs provided an overview of the history of the Application. She also stated that the scope of the Application involved renovations to the basement and two storeys of the existing apartment building as shown on the Floor Plans and no significant exterior renovations to the building itself were proposed.

21Ms. Pillon-Abbs further indicated that the Application was intended to market the newly renovated units as affordable housing while enhancing life and fire safety, in addition to the improvement of on-site amenities such as increasing parking spaces and tree planting.

22In Ms. Pillon-Abbs’ opinion, s. 34(9) of the Act protects legal non-conforming land uses and allows buildings or uses that existed lawfully before a new zoning by-law, which is the current City ZBL, to continue despite the changes. Ms. Pillon-Abbs referred to Chapter 1 (Introduction) of the Provincial Planning Statement, 2024 (“PPS 2024”), which sets out legislative authority policy and decisions affecting a planning matter to be consistent with the PPS 2024.

Test#1: Does the Application maintain the general intent and purpose of the City OP?

23Ms. Pillon-Abbs opined that the issues of the Application were of local nature and did not engage the County OP.

24Ms. Pillon-Abbs stated that the relevant policies under s. 5.3 of the City OP were engaged while assessing the Application. She expressed her opinion that the policies under s. 5.3 encouraged intensification and accommodation of mixed-use within the area of the Strategic Growth Area, where the Subject Lands are located, and on the lands with the same designation as the Subject Lands. In addition, Ms. Pillon-Abbs stated that residential uses were permitted on the Subject Lands. She demonstrated that the compatibility required by the City OP had been achieved based on the nature of the Application, which did not propose significant exterior alterations.

25Particularly, Ms. Pillon-Abbs cited s. 8.6 b) of the City OP to support her opinion on the legal non-conform use to continue to be permitted. She indicated that this policy of the City OP also aligned with s. 34(9) of the Act.

26Ms. Pillon-Abbs demonstrated to the Tribunal that the overall intent and purpose of the relevant policies of the City OP was to provide opportunities for compact intensification and redevelopment to facilitate the evolution of main streets with access to existing transit infrastructure and other facilities in the neighbourhood.

27Ms. Pillon-Abbs further explored the requirements of on-site amenities, including parking spaces and loading areas. She confirmed that the existing parking and garbage facilities were adequate. Ms. Pillon-Abbs added that the parking spaces were located close to the apartment building and could be utilized as loading areas when needed.

28Ms. Pillon-Abbs reached the conclusion that the Application was compatible with the existing neighbourhood, reflected good use of existing infrastructure, and promoted the housing affordability within the neighbourhood. In summary, Ms. Pillon-Abbs opined that the Application maintained the general intent and purpose of the City OP.

Test#2: Does the Application maintain the general intent and purpose of the City ZBL?

29In view of Ms. Pillon-Abbs, residential uses were permitted in the UR4 Zone with respect to the City ZBL and the Application proposed the residential use would be continued on the Subject Lands. Further, she indicated that the continuous use and the interior renovations would not impact the conformity of the performance standards related to the use and height requirements in the City ZBL.

30Ms. Pillon-Abbs also reviewed the provisions of the City ZBL that spoke to non-complying buildings, structures and lots developed prior to the pass of the City ZBL. She confirmed that the lot area, loading spaces, and parking were currently legal non-conforming in their current state.

31Ms. Pillon-Abbs indicated that the purpose of the relevant provisions of the ZBL is to regulate the density and performance standards of the development on the Subject Lands.

32Ms. Pillon-Abbs’ assessment indicates the increase in unit number in the settlement proposal seemed significant from the mathematics perspective, but the Gross Floor Area (“GFA”) of the units were modest and maintained the existing GFA of the apartment building.

33Ms. Pillon-Abbs opined that the variances in the settlement proposal, including the non-complying use would not impose additional impact on sunlight, view, privacy, traffic volume, and the need for loading could be accommodated through the parking spaces close to the apartment building.

34Finally, Ms. Pillon-Abbs concluded that the Application in the settlement proposal would not change the character of the Subject Lands and the surrounding area in the neighbourhood. It is the opinion of Ms. Pillon-Abbs that the settlement proposal maintained the general intent and purpose of the City ZBL.

Test#3: Is the Application desirable for the appropriate use of the lands?

35In the opinion of Ms. Pillon-Abbs, the Application would provide additional affordable housing as defined in the Development Charges Act, 1997, S.O. 1997, c.27:

(2) A residential unit intended for use as a rented residential premises shall be considered to be an affordable residential unit if it meets the following criteria:

1. The rent is no greater than the lesser of,

i. the income-based affordable rent for the residential unit set out in the Affordable Residential Units bulletin, as identified the Minister of Municipal Affairs and Housing in accordance with the subsection (5), and

ii. the average market rent identified for the residential unit set out in the Affordable Residential Units bulletin.

2. The tenant is dealing at arm’s length with the landlord.

36Ms. Pillon-Abbs added that the density increase in the Application would provide a range of types of affordable housing and further enhance the City’s ability to meet the urgent needs of affordable housing in the City.

37According to the assessment of Ms. Pillon-Abbs, the Subject Lands with the existing apartment building appeared to be orderly, tidy, and flat, and not crowded despite the increase in density due to low lot coverage. Further, she indicated the relief to decrease the parking space ratio would not cause unacceptable impacts to the residents of the Subject Lands and neighbouring properties as the Subject Lands were accessible from public transit. Lastly, Ms. Pillon-Abbs repeated that the variance related to loading area was appropriate as the need for loading area could be addressed and, therefore, it was unnecessary to have a dedicated loading area.

38In summary, Ms. Pillon-Abbs opined that the Application in the settlement proposal was desirable for the appropriate use of the Subject Lands.

Test#4: Is the Application minor in nature?

39Ms. Pillon-Abbs repeated her conclusion that the GFA would not be increased due to the significant increase in the unit number from 11 to 20 within the existing apartment building.

40In addition, Ms. Pillon-Abbs indicated that the residents of the apartment building had access to the on-site parking spaces and the nearby public transit system; therefore, the variance related to the parking spaces would not adversely impact the future residents of the building and could be considered minor.

41Regarding variances related to the lot area and loading spaces, Ms. Pillon-Abbs’ conclusion remained the same as indicated in the earlier assessment that these variances were minor in nature and had no adverse impacts on the residents of the apartment building and the adjacent properties.

42It is the Tribunal’s opinion that applications for variances should be evaluated in their entirety while considering the applications. During the review of applications and evidence, the key element for the Tribunal to consider is if the impacts of the variances are acceptable and adverse. The impacts are not a mathematics question to determine whether a variance or variances are minor in nature. In this case, the Tribunal acknowledges a significant increase in the unit number, but the evidence provides sufficient grounds for the Tribunal to hold the decision that the impact of the Application in the settlement proposal is negligible and has been addressed through conditions agreed on by the Parties.

43The Tribunal recognizes that the final plan of the Application and conditions of approval reflect the Applicant/Appellant’s effort to minimize impacts to future residents of the building and adjacent properties. The Tribunal accepts the uncontested evidence of Ms. Pillon-Abbs and finds that the Application in the settlement proposal is appropriate and the proposed approval conditions are acceptable.

CONCLUSION

44In conclusion, the Tribunal finds that the Application is consistent with the PPS 2024 and meets the four tests as set out in s. 45(1) of the Act, as follows:

• The minor variances maintain the general intent and purpose of the City OP;

• The minor variances maintain the general intent and purpose of the City ZBL;

• The minor variances are considered desirable for the appropriate use of the lands; and

• The minor variances are considered minor in nature.

INTERIM ORDER

45THE TRIBUNAL ORDERS ON AN INTERIM BASIS THAT:

1. the appeal is allowed, in part, on an interim basis, contingent upon confirmation of satisfaction of the pre-requisite matters identified in paragraphs [3] and [4] below;

2. the Application is hereby approved in principle, and the proposed development shall be constructed substantially in accordance with the architectural plans and drawings dated March. 11, 2026, filed as Exhibit 1, entitled “East Street City Markup”, consisting of 20-dwelling units and 14-surface parking spaces;

3. the variances to Zoning By-law No. 85 of 2002, listed in Appendix A, are authorized subject to the conditions as set out in Attachment 1 to this Interim Order “Conditions”; and,

4. The Tribunal will withhold the issuance of its Final Order contingent upon confirmation of the City of Sarnia and Foundation Capital Holdings Limited (“Applicant/Appellant”), of the following pre-requisite matters:

1. the City and the Applicant/Appellant will advise the Tribunal within 14-days of the issuance of this Interim Order on the status of the Minor Variance and the implementation of the Interim Order; and,

2. the City and the Applicant/Appellant shall advise the Tribunal in writing that the Conditions have been fulfilled.

46This Member will remain seized for the purpose of reviewing and issuing the Final Order. If the Parties do not seek issuance of the Final Order on or before July 31, 2026, they shall provide a status report by that date.

“L.P. You”

L.P. YOU

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.

Appendix A

List of variances

1. S. 10.1: A maximum of 12 dwelling units is permitted, whereas 20 dwelling units are proposed;

2. S. 10.2.2(1): A minimum lot area of 650 square meters (“m²”) for the first three (3) dwelling units and a minimum lot area of 100 m² for each additional dwelling unit is permitted (2,350 m²), whereas a minimum lot area of 1,297.97 m² is proposed;

3. S. 10.2.2(8): A minimum landscaped open space of 40% is permitted, whereas a minimum landscaped open space of 38% is proposed;

4. S. 3.37(2)(a): A minimum parking ratio of 1.5 parking spaces per unit is permitted, whereas a parking ratio of 0.7 parking spaces per unit is proposed;

5. That notwithstanding S. 3.37(4) of By-law No. 85 of 2002 to the contrary, parking spaces 11-14 and its associated aisle required may have the following minimum dimensions:

Parking Space Angle

Parking Space Width (m)

Parking Space Length (m)

Aisle Width (m)

Parallel

2.75

6.7

3.7

6. S. 3.22(2): A minimum number of one loading space is required for an apartment dwelling, whereas no loading spaces are proposed.

ATTACHMENT 1

Conditions of Approval

a. The final form and content of the Minor Variance is satisfactory to the City and the Applicant/Appellant, as it relates to the modified landscape variance and the parking space dimensions variance to Zoning By-law No. 85 of 2002;

b. The Applicant/Appellant has made satisfactory arrangements with the City and has entered into the appropriate agreement for the design and construction of the required improvements to the Site and municipal infrastructure, as identified in the Site Plan:

i. The construction of surface parking spaces nos. 11-14;

ii. The construction of the new driveway and curb cut along Kathleen Ave;

iii. The modifications to the identified soft landscaping areas; and,

iv. The partial reconstruction of the driveway and curb cut along East St. S.