Toronto (City) v. Ambient Designs Ltd, 2024 ONTLAB 212

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2024-04-08

23 204180 S45 03 TLAB

Toronto (City) v. Ambient Designs Ltd, 2024 ONTLAB 212

Issuance Date:

April 8, 2024

PROCEEDING COMMENCED UNDER Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")

Appellant(s):

Applicant(s):

Property Address:

19 BRANCH AVE

COA File No.:

23 175993 WET 03 MV (A0288/23EYK)

TLAB Case File No.:

23 204180 S45 03 TLAB

Hearing Date(s):

January 17, 2024

Decision Delivered By:

TLAB Panel Member S. Makuch

People Type

First Initial. Last Name

Representative

Owner/Party

E. Porritt

S. Porritt

Appellant

City of Toronto

A. Sandhu

Applicant

Ambient Designs Ltd.

Participant

A. Cohrs

INTRODUCTION AND CONTEXT

1The City of Toronto appealed the Committee of Adjustment’s granting of a number of minor variances to permit the construction of a triplex. The construction would require the destruction of a detached rental dwelling. The ground for the appeal was that, “the City does not have confirmation that appropriate tenant assistance is provided in accordance with Policy 3.2.1.12 of the City of Toronto’s Official Plan”. The application did not include a Rental Housing Declaration of Use and Screening Form. The owner had failed to enter into the necessary Tenant Assistance and Relocation Agreement because of a concern that the tenant would receive compensation for the loss of the tenancy and not vacate the premises.

THE LEGISLATIVE AND POLICY FRAMEWORK

2Provincial Interest - S. 2

A decision of the Toronto Local Appeal Body (TLAB) shall have regard to, among other matters, matters of provincial interest, enumerated as (a) – (s) in the Planning Act.

3Provincial Policy – S. 3

A decision of the Toronto Local Appeal Body (‘TLAB’) must be consistent with the 2020 Provincial Policy Statement (‘PPS’) and conform to the Growth Plan for the Greater Golden Horseshoe for the subject area (‘Growth Plan’)

4Variance – S. 45(1)

In considering the applications for variances from the Zoning By-laws, the TLAB Panel must be satisfied that the applications meet all of the four tests under s. 45(1) of the Act. The tests are whether the variances:

maintain the general intent and purpose of the Official Plan;
maintain the general intent and purpose of the Zoning By-laws;
are desirable for the appropriate development or use of the land; and
are minor.

It should be noted as well that the Committee under s. 45(9) of the Planning act and thus TLAB may impose any conditions it considers advisable upon the granting of variances.

SUMMARY OF EVIDENCE

5The evidence was given by a number of persons, including: the tenant, the owner’ representative, the City planner and the owner’s architect. The uncontradicted evidence of the owner’s architect, who was qualified to give evidence, as he had done extensive work in the area, was that the variances were related to performance standards only and resulted in a dwelling that fit in the neighbourhood. In his opinion, as well, the variances met provincial requirements. He also stated that since the triplex was a permitted use, the minor variances did not relate to the loss of a rental unit. Moreover, three rental units were being created for an increase in the rental housing stock.

6The city planner gave evidence with respect to s.3.2.1.12 of the Official Plan which states as follows:

“New development that would have the effect of removing all or part of a private building or related group of buildings and would result in the loss of one or more rental units or dwelling rooms will not be approved unless an acceptable tenant relocation and assistance plan is provided to lessen hardship for existing tenants.”

7In the City planner’s opinion, the variance application required tenant relocation and assistance plan and agreement.

8The owner’s representative gave evidence that the owner tried to negotiate a Tenant Assistance Agreement with the City but was unable to do so and was concerned about paying the tenant who would then not leave the premises.

9The tenant was opposed to the variances and did not wish to leave the premises under any circumstances given the length of time he and his wife had lived in the premises and given moving would result in much higher rent and given his wife was physically challenged and thus it would be difficult to find alternate premises.

ISSUES AND ANALYSIS

10There were three issue to address given the evidence:

(a) did the variances and the development meet the four tests of the Planning Act and the relevant provincial requirements,

(b) could the variances be denied for a failure to provide tenant assistance,

(c) if the variance were granted could tenant assistance be imposed as a condition of the approval and if so, what should its terms be.

11I find, based on the uncontradicted expert evidence of the architect who has had extensive experience in the neighbourhood that the variances meet the four tests, the development will fit in the neighbourhood, and have no adverse impact. I also agree with him that s. 3.2.1.12 does not apply as this development will not “result in the loss of one or more rental units” as stipulated in that section. Indeed, two additional rental units will be created, and it would appear this limitation is in the section so as not to discourage construction which adds units to the rental market.

12I do, however, find that I can impose the requirement that the owner enter into a Tenant Assistance and Relocation Agreement as I have the same powers as the Committee of Adjustment to impose conditions under s. 45 (9) of the Planning Act. That section states:

(9) Any authority or permission granted by the committee under subsections (1), (2) and (3) may be for such time and subject to such terms and conditions as the committee considers advisable and as are set out in the decision. R.S.O. 1990, c. P.13, s. 45 (9).

13Considering the current terms of such agreement as required by the City I believe it appropriate to require the owner to enter into such an agreement under the same terms as City would require as of today’s date with the following modifications:

Any payment to the tenant shall be held in trust by the City until the tenant has vacated the premises in accordance with the agreement, whereupon the payment shall be paid to the tenant forthwith.

The total payment required under the City’s standard terms for a Tenant Assistance and Relocation Agreement shall be increased by $5000.00 and thus should be approximately $25,138.30. The owner’s representative indicated that the owner was willing to pay this additional amount. The increase in the payment is appropriate in this situation given the combination of the particular circumstances of the tenant; in particular: the shortage of rental housing, the high cost of such housing and the particular needs of the tenant’s wife.

I find that TLAB has authority to impose such an increase given the broad discretion to impose conditions granted by s. 45 (9) of the Planning Act with the words “considers appropriate”.

CONCLUSION

14The appeal should be dismissed, and the variances should be granted on condition that the owner enter into a Tenant Assistance and Relocation Agreement in the amount of approximately $25,138.50 and a provision that the payment of this amount to the tenant is to be held in trust by the City until the tenant has vacated the premises in accordance with the agreement. Thus, the total amount payable to the tenant under the standard City terms of such an Agreement shall be increased by $5000.00.

15The Committee imposed conditions relating to tree protection to which there is no objection, and those conditions should be imposed again.

16I may be spoken to if there is any difficulty in agreeing to the terms of the agreement.

DECISION AND ORDER

17The appeal is dismissed, and the following variances are granted:

Section 900.6.10(2)B(iii), By-law No. 569-2013 The minimum required lot frontage is 18 m. The lot frontage is 10.64 m.
Section 900.6.10(2)A(iii), By-law No. 569-2013 The minimum required lot area is 555 m². The lot area is 389.38 m².
Section 900.6.10(2)F(iii), By-law No. 569-2013 The minimum required side yard setback is 3.0 m. The new triplex will be located 1.2 m from the east side lot line.
Section 900.6.10(2)F(iii), By-law No. 569-2013 The minimum required side yard setback is 3.0 m. The new triplex will be located 2.6 m from the west side lot line.
Section 10.5.40.60.(1)(A)(i), By-law No. 569-2013 A platform without main walls, attached to or less than 0.3 m from a building, with a floor no higher than the first floor of the building above established grade may encroach into the required front yard setback 2.5 m if it is no closer to a side lot line than the required side yard setback of 3.0 m. The proposed front porch encroaches 1.0 m into the required front yard setback and will be 2.6 m from west side lot line.
Section 10.5.40.50(2), By-law No. 569-2013 A platform without main walls, such as a deck, porch, balcony or similar structure, attached to or within 0.3 m of a building, must comply with the required minimum building setbacks of 3.0 m. The proposed rear decks will be located 1.5 m from east side lot line. 7.
Section 10.5.40.60.(7), By-law No. 569-2013 Roof eaves may project a maximum of 0.9 m provided that they are no closer than 0.30 m to a lot line. The proposed eaves project 2.5 m and will be located 0.5 m from the east side lot line.
Section 10.5.40.60.(7), By-law No. 569-2013 Roof eaves may project a maximum of 0.9 m provided that they are no closer than 0.30 m to a lot line. The proposed eaves project 1.1 m and will be located 1.9 m from west side lot line.

18The following conditions apply to the granting of the variances:

Submission of a complete application for a permit to injure or remove a City owned tree(s), as per City of Toronto Municipal Code Chapter 813, Trees Article II Trees on City Streets.
Submission of a complete application for a permit to injure or remove a privately owned tree(s), as per City of Toronto Municipal Code Chapter 813, Trees Article III Private Tree Protection.
The owner entering into a standard City Tenant Assistance and Relocation Agreement which is modified to provide for payment of funds by the owner in trust to the City until the tenant has vacated the premises in accordance with the agreement. The agreement shall provide that the owner shall pay $5000.00 more to the tenant than is currently required by the standard City agreement, to a value of approximately $25,138.30.

S. Makuch

Panel Member