King Heights Ltd. v. King (Township), 2026 CanLII 46864

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 15, 2026

CASE NO(S).: OLT-25-000678

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

Applicant and Appellant: King Heights Ltd.

Subject: Minor Variance

Description: To permit changes to an approved development including additional storeys and commercial floor space

Reference Number: A-25-25

Property Address: 12765, 12781 and 12789 Keele Street and 17 Elizabeth Grove

Municipality/UT: King/York

OLT Case No.: OLT-25-000678

OLT Lead Case No.: OLT-25-000678

OLT Case Name: King Heights Ltd. v. King (Township)

Heard: December 8-10, 2025 by video hearing

APPEARANCES:

Parties	Counsel
King Heights Ltd. ("Applicant")	Paul DeMelo
Township of King ("Township")	Tom Halinski

DECISION DELIVERED BY K.R. ANDREWS AND ORDER OF THE TRIBUNAL

Link to Order

Introduction

1The Applicant is seeking variances to Zoning By-law 2017-66 as amended by By-law 2022-037) (“Zoning By-law”) to facilitate a six-storey mixed-use building containing 155 residential apartment units and 1,177.08 square metres (“m2”) of commercial floor area. The proposed changes would increase the height of the building by 0.63 metres (“m”), allow an additional storey to the building, increase the permitted number of units by 26 and increase the amount of commercial space by 552 m2.

2To achieve this, the Applicant is proposing the following seven (7) variances:

1. to permit a maximum of 6 storeys, whereas a maximum of 5 storeys is permitted;
2. to permit a maximum height of 19.93 m on the west elevation and 20.23 m on the south elevation, whereas a maximum height of 19.6 m is permitted;
3. to permit a maximum Floor Space Index (“FSI”) of 3.01, whereas a maximum FSI of 2.57 is permitted;
4. to permit a Maximum Units Per Hectare (“UPH”) of 320, whereas a maximum UPH of 265 is permitted;
5. to increase the Maximum Floor Area devoted to Commercial Uses on the first storey to 1075.41 m2 and permit a Maximum Floor Area devoted to Commercial Uses on the second storey of 101.67 m2, whereas the Zoning By-law currently prescribes a minimum Floor Area devoted to Commercial Uses of 480 m2 and a maximum of 625 m2 on the first storey;
6. to permit canopies to encroach into the front yard to a maximum of 1.0 m, whereas canopies are currently permitted to encroach no more than 0.6 m;
7. to permit no requirement for a loading space, whereas a minimum of 1 loading space is required; and
8. to permit a height overrun of 5.8 m for the elevator enclosure, whereas no more than 4.0 m is permitted.

3Notably, the Subject Lands were granted planning approvals by the Tribunal in 2022 and 2023 for an Official Plan Amendment, Zoning By-law Amendment, and Site Plan approval after minutes of settlement between the Applicant and the Township were entered into (see: 2472498 Ontario Inc. v York (Region), 2022 CanLII 69411 (ON LT); and 2472498 Ontario Inc. v York (Region), 2023 CanLII 58560 (ON LT)). That settlement allowed the Applicant’s proposal (as it was then) to develop a five-storey, 129-unit condominium apartment building with some commercial space on the ground floor.

Status Requests

4As this is the first event of this case, the Tribunal considered Participant and Party status requests at the outset of the Hearing.

5Two requests for Participant status were received from Frank Cancellara and from Helen and Al Fulchini, area residents who have an obvious interest in the matter. The Tribunal approved both requests and received each of their Participant Statements.

6A Party Status request was also received from Dennis and Bonnie Mooney. They provided a written statement which outlined their concerns. When asked why they were seeking Party rather than Participant status, they listed the following reasons:

• to have access to the case documents;
• they might want to cross examine a witness; and
• they were a Party in relation to the aforementioned 2022-23 case before the Tribunal.

7The Mooneys also confirmed that they will not call evidence, that they fully support the City’s position, and that they will remain silent if they choose to not cross-examine.

8Considering this, the Tribunal denied their request for Party status and granted them Participant status instead. The reasons are that they do not plan to be fully engaged in the proceedings as a Party, their concerns appear to be adequately laid out in their written statement (which now becomes their Participant Statement), and their position is not remarkably (if at all) different than the City’s – so their additional involvement as a Party is not likely to assist the Tribunal.

9The Tribunal confirms that it has read and considered each of the Participants’ statements as part of reaching the decision below.

Evidence and Analysis

10For the Applicant, the Tribunal heard expert planning evidence from John Romanov, and architecture and urban design evidence from Jim Kotsopoulos. For the Township, the Tribunal heard expert planning evidence from Gaspare Ritacca, and urban design evidence from Anne McIlroy.

The Current Zoning Approval versus the Present Variance Request

11As stated, the Tribunal approved a series of site-specific planning instruments in 2022-23 to facilitate a five-storey, 129-unit condominium apartment building with some commercial space on the subject property. The evidence indicates that this building is currently under construction. Below (page 5) at Figure 1 is a depiction of the building as enabled by said approved planning instruments.

Figure 1: Approved Development, west and south elevations

12The current proposal seeks variances to the amended Zoning By-law to permit a six-storey mixed-use building containing 155 residential apartment units and greater commercial floor area. Below at Figure 2 is a rendering of said building as enabled by the presently proposed variances.

Figure 2: New Proposed Development, west and south elevations

The s. 45(1) test for approval of Variances

13The Tribunal must consider each of the four elements set out in s. 45(1) of the Planning Act (“Act”) to determine whether the requested variances should be authorized. To do so, the Tribunal asks whether the variances:

1. are minor in nature;
2. maintain the general intent and purpose of the official plan;
3. maintain the general intent and purpose of the zoning by-law; and
4. are desirable for the appropriate development or use of the land.

14Importantly, all four questions must be answered in the affirmative to allow the application.

Are the Requested Variances “Minor” in Nature?

15The Tribunal starts its analysis by asking whether the requested variances are “minor” in nature. The parties approached answering this question in two distinct ways: the applicant focused on the relatively small mathematical adjustments or technical changes to the Zoning By-law that they are seeking; while the Township examined the overall impact that the variances are likely to produce.

16The Applicant’s case emphasized that the proposed changes to its development plans do not remarkably (if at all) affect the building’s envelope, including footprint and elevation. It was pointed out that, while they are seeking a variance pertaining to height, the actual height of the proposed building in terms of elevation will not change because grading adjustments compensate for it. It was also explained that the additional storey is to be achieved through reductions in the individual floor heights, making the building denser but not much (if at all) larger mathematically.

17The Applicant further highlighted the fact that materiality and design features are not addressed through the Zoning By-law, so differences between what is seen in Figures 1 and 2 do not necessarily translate into what will be perceived when the building is actually constructed. Overall, the Applicant’s evidence downplayed the differences between the two illustrations, focussing primarily on the proposed changes variance-by-variance, individually in a mathematical and/or technical sense.

18The Township’s case took a different tack, drawing the Tribunal’s attention to the renderings at Figures 1 and 2, emphasizing the ultimate built-form that the requested variances are likely to produce as a collective. The Township’s urban design expert opined that the newly proposed building in Figure 2 has a presence of a large block apartment building that one might expect to see in an inner city, rather than what would be expected at the subject site. She went on to opine that it depicts a building where function clearly overrides form and is generally out of balance for the area. Further, she opined that, despite not being greater in elevation, the increase in the number of floors provides the perception of a physically larger building.

19She went on to describe Figure 1 (what is allowed by the unvaried Zoning By-law) as showing more breaks, horizontal differentiation, and generally looking lighter and less massive despite basically occupying the same envelope. These features, she explained, are enabled because the building is less dense than what is now being proposed. Overall, she opined that the building in Figure 1 exhibits the massing and density that one would picture in a village setting (such as the subject area), while the building in Figure 2 does not.

20After considering all of the evidence and submissions of the parties, the Tribunal prefers the Township’s position because it follows a gestalt approach. Such an approach involves taking a ‘holistic’ perspective, considering the requested relief (the variances) as a configured, organized whole, rather than examining the variances individually as isolated parts or merely in a mathematical or technical sense. The Tribunal prefers such an approach because it reflects an assessment of the public impressions, perceptions and overall impact of what the proposed variances will likely facilitate. The Tribunal finds that this is how s. 45(1) of the Act is meant to operate because it focusses on what the variances will likely produce in an actual, real physical sense.

21While the Tribunal accepts the Applicant’s evidence insofar as some of the variances requested are mathematically small, the Tribunal also finds that the results of these variances are more than just the sum of its parts. Put another way – the forest draws a different picture than an illustration of each individual tree.

22To get to the core of the analysis, the Tribunal considers the kinds of questions that were answered by the Township’s urban design expert; namely, “will it allow something strikingly different than what is currently permitted?”, “will it noticeably disturb the character of what is currently permitted?”, or “will it generally feel out of place compared to what is currently permitted?” On these points, the Tribunal finds that the requested variances are likely to cause stark differences in building design, markedly disturb the character of the development, and generally result in a building that will feel noticeably out of place compared to what is currently permitted.

23The Tribunal comes to these determinations while recognizing that building materials and certain design features shown in the illustrations are not regulated through zoning by-laws and may not be carried forward to construction. However, these drawings are what the Tribunal has been given with which to make its decision and are the best depictions available to assess the relative difference between what is being asked for and what is already permitted.

24In coming to these findings, the Tribunal declines to examine the other elements of the s. 45(1) test, noting that all four elements must be satisfied for the requested variances to be authorized. Having failed this test, the Tribunal further declines to comment on matters of provincial interest or consistency with the Provincial Planning Statement.

25Finally, the Tribunal confirms that its decision to dismiss the present appeal does not preclude the Applicant from potentially obtaining planning approvals to develop the proposed building through a Zoning By-law Amendment application (possibly also needing an Official Plan amendment) – it simply cannot do it through a Minor Variance application. Contrary to the evidence provided by the Applicant’s planning expert, there is a material difference between the Planning Act test found at s. 24(1) for a Zoning By-law Amendment, and the above considered test for a variance under s. 45(1). Most notably, the question of whether the requested changes are “minor” in nature is not part of the s. 24(1) test.

ORDER

26THE TRIBUNAL ORDERS THAT:

1. Frank Cancellara, Helen and Al Fulchini, and Dennis and Bonnie Mooney are granted Participant status; and
2. the appeal is dismissed and the variances to By-law 2017-66 (as amended by Zoning By-law 2022-037) are not authorized.

“K.R. Andrews”

K.R. ANDREWS

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.