Mikhail (Re), 2025 ONTLAB 307

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9

Date: 2025-02-19

24 224088 S45 08 TLAB

Mikhail (Re), 2025 ONTLAB 307

FINAL DECISION AND ORDER

Issuance Date: February 19, 2025

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): H. Mikhael

Applicant(s): Quadspring Inc.

Property Address: 1133 Avenue Rd.

COA File No.: 23 189001 NNY 08 MV (A0454/23NY)

TLAB Case File No.: 24 224088 S45 08 TLAB

Hearing Date(s): February 06, 2025

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By: TLAB Chair D. Lombardi

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Owner/Applicant

Quadspring Inc.

Appellant

H. Mikhail

A. Platt K. Vergis-Mayo

Participant

J. Drexler

INTRODUCTION AND CONTEXT

1This Hearing arises from an Appeal of the decision of the North York Panel of the City of Toronto (City) Committee of Adjustment (COA) refusing an application submitted by Quadspring Inc.(Owner) for the property municipally known as 1133 Avenue Road (subject property).

2The application requested approval for a total of three (3) variances to permit a play area in a side yard abutting a street and a front yard, along with the construction of a play area for children in the rear yard, associated with the operation of a day nursery centre (Lullaboo Nursery and Childcare Centre) in the existing building on the subject property (Application).

3To facilitate the proposal, the Applicant also requested a reduction in the required parking, in conjunction with proposed interior alterations.

4The subject property is located at the northeast corner of Avenue Road and Castlefield Avenue and is occupied by an existing two-storey building with a gross floor area (GFA) of approximately 522 m², operating as a day nursery.

5The subject property has a total lot area of 495 m², with approximately 13.50 metres (44.29 ft.) of frontage along Avenue Road and 36.01 metres (118.14 ft.) of frontage along Castlefield Avenue.

6It is designated by the in-force City Official Plan with a land use designation of ‘Neighbourhoods’ and is located along a Major Street (Avenue Road). The property is also located within the limits of Official Plan Amendment (OPA) 405 but is not subject to any policies thereto.

7The subject property is zoned ‘Residential’ “R (f7.5; u2; d).6) (x951)” under Zoning By-law 569-213, which permits a variety of residential and service uses, including day nurseries.

8The Appellant, Halim Mikhael, the President/CEO of Quadspring Inc., appealed the COA’s decision to the Toronto Local Appeal Body (TLAB) which set a Hearing date for February 6, 2025, to hear the appeal.

9The only Party at the ‘virtual’ TLAB Hearing on February 6, 2025, was Mr. Mikhael. He attended along with his authorized legal representative, Aaron Platt (Loopstra Nixon LLP) and second chair, Katryna Vergis-Mayo, and expert witnesses, David McKay (MHBC Planning Limited) and Martin Chan (C.F. Crozier & Associates Inc.).

10Ms. Juliana Drexler had elected Participant status in the Appeal, having filed a Notice of Intention (Election) to be a Party or Participant (Form 4) with the TLAB on November 12, 2024.

11However, Ms. Drexler did not attend the February 6^th Hearing. She also did not submit a Participant’s Statement by the requisite due date for filing such document, pursuant to Rule 16.2 of the TLAB’s Rules of Practice and Procedure.

12The Appellant is requesting that the TLAB authorize the following variances:

1. Chapter 200.5.10.11(1)(C), By-law 569-2013

The lawful number of existing parking spaces may not be reduced.

The proposal is removing all 5 of the existing number of parking spaces.

2. Chapter 150.45.50.1(1)(A), By-law 569-2013

A children's play area for a day nursery, in the Residential Zone category, may not be in a front yard or a side yard abutting a street.

The proposed is in a front and side yard abutting a street.

3. Chapter 150.45.50.1(1)(B), By-law 569-2013

A children's play area for a day nursery, in the Residential Apartment Zone category, may be no closer to a lot line abutting a street than 6m.

The proposed is 0m from the side and front lot line.

THE LEGISLATIVE AND POLICY FRAMEWORK

13Provincial 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.

14Provincial 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 (Growth Plan) for the subject area.

15Variance – 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.

SUMMARY OF EVIDENCE

16A summary of evidence is presented here to provide some context for the following sections of this Decision and Order.

17The only evidence the TLAB heard was provided by Messrs. McKay and Chan on behalf of the Appellant, both of whom the TLAB qualified to provide professional opinion evidence, Mr. McKay in the area of land use planning, and Mr. Chan in the area of transportation engineering and parking.

Mr. McKay’s Evidence

18Mr. McKay was the first expert called by the Appellant. He provided the TLAB with an overview of the subject property and surrounding context and provided a description of the proposal and the application’s history.

19The subject property is occupied by an existing building operating as a day nursery with a current operating total of twenty-one (21) staff and one hundred and eleven (111) children. He noted that the building has an approved capacity for thirty (30) staff and one hundred and sixty (160) children.

20The day nursery facility on the subject property is one of several campuses across the Greater Toronto Area operated by Lullaboo Nursery and Childcare Centres, founded by the Owners in 2008.

21The site was previously occupied by an early learning or childhood education centre since 2015, which operated in a similar manner regarding the pick-up and drop-off activities currently observed.

22The surrounding neighbourhood to the north, east and south primarily consists of single and semi-detached residential dwellings, with Allenby Junior Public School to the west and across Avenue Road.

23From a transit context perspective, Mr. McKay noted that the subject property is strategically located in a higher-order public transit area and is well-serviced by existing transit including bus routes along Avenue Road, Lawrence Avenue West, and Eglinton Avenue West. The Eglinton Subway Station is located approximately 1 kilometre southeast of the subject property.

24Mr. McKay stated that the current day nursery operation incorporates an existing children’s outdoor play area within the southerly and westerly rights-of-way along Avenue Road and Castlefield Avenue, respectively. These play areas are permitted pursuant to an encroachment agreement executed with the City in July 2024.

25The application before the TLAB seeks authorization for three variances to permit children’s play areas in the side and front yards on the subject property as well as the construction of an outdoor play area in the rear yard, where five (5) parking spaces are currently located (Figure #1 below).

Figure #1 – Proposed Site Plan for 1133 Avenue Road¹

26He stated that none of the variances sought permit or contemplate any increase to the built form or, specifically, the building’s gross floor area.

27Mr. McKay explained that a gravel parking area is situated in the rear yard along Castlefield Avenue which allows access to three (3) parking spaces and two (2) interior garage parking spaces (see Photo #1 below). He further noted that the two interior garage spaces cannot be accessed when the other spaces are occupied.

Photo #1 – Looking North East Towards the Parking Spaces Along Castlefield Ave.²

28In clarifying the pick-up and drop-off (PUDO) parking for parents and staff at the day nursery, he confirmed that this is available along Castlefield Avenue where short-term, fifteen (15) minute or less parking is permitted for the general public immediately in front of the subject property.

29Furthermore, he noted that no on-street parking is allowed along Avenue Road in front of the day nursery although parking is permitted on the south side of Castlefield Avenue approximately east of 271 Castlefield Avenue.

30He did confirm that due to the proposed parking spaces to be removed, the current pick-up and drop-off area along the subject property’s Castlefield Avenue frontage will be increased from 12 metres (two vehicle spaces) to 20 metres (three vehicle spaces) based on the analysis undertaken Mr. Chan as part of a Parking Study outlined in his Expert witness Statement.

31Mr. McKay provided an overview of the architectural plans for the proposal and discussed the three variances being requested.

32To identify the variances, he confirmed that the Owner obtained a Zoning Examiner’s Notice (Zoning Notice) on January 12, 2023, which identified the variances required to permit the proposal, which are cited above.

33Although three variances were identified, Mr. McKay submitted that Variance #3, distinguished in the Zoning Notice as zoning deficiency 3(B), and related to the “Residential Apartment Zone,” does not apply to the Application as the subject property is not located within that zone.

34He confirmed to the TLAB that this had been corroborated with the City.

35Mr. McKay stated that regardless of this confirmation, out of an abundance of caution the Appellant has brought forward Variance #3 in the Applicant that is before the TLAB.

36He, then, provided the TLAB with evidence of his planning assessment of the variances relative to the statutory tests as set out in s. 45(1) of the Planning Act as well as the requirements of s. 3(5) of that Act.

37In reviewing the new Provincial Planning Policy (PPS) 2024, he opined that the proposal was consistent with the PPS. He noted that the subject property is located within a major transit station area (MTSA) as defined by the PPS.,

38Mr. McKay opined that the proposal aligns with policies in the PPS that promote the efficient use of transportation infrastructure (Policy 3.2.2) and support the achievement of complete and transit-supportive communities (Policies 2.1.6 (a) & 2.9.1).

39In assessing the four tests in the Planning Act, he highlighted Policy 4.1.1 in the Official Plan, noting that the Appellant’s day nursery aligns with the objectives and permissions in the Official Plan which states that these “low scale local institutions play an important role in the rhythm of daily life in Neighbourhoods.” ³

40Additionally, he referenced Sections 2.1 and 2.2 of the Official Plan, noting that policies in those Sections foster a healthy and successful City by supporting land uses with public transit infrastructure to promote efficient and accessible transit systems and reducing auto dependency.

41As such, he opined that the requested variances meet the general intent and purpose of the Official Plan.

42Mr. McKay acknowledged that Section 150.45.50.1.(1).(A) of Zoning By-law 569-2013 does not permit the placement of a children’s play area for a day nursery within either the front yard or side yard abutting a street. He noted that this provision is intended to provide for a measure of safety vis-à-vis adjacent vehicular movements.

43However, he clarified that the majority of the play area along the Castlefield Avenue frontage has been vetted and directly permitted by the City through the in-force encroachment agreement and thereby recognized by the City Engineering and Construction Services Division.

44Furthermore, the relief requested will provide a small, additional portion of the subject property for yard space along Avenue Road and Castlefield Avenue shown in green in Figure #2 below, and the space between the face of the existing building and the lot line in the encroachment agreement area in orange to be accessed for the play area.

Figure #2 – Proposed Variances on the Subject Property⁴

45He confirmed that the extended play area will remain fenced and that a series of armourstone blocks have been provided along the Avenue Road and Castlefield Avenue frontages for safety purposes.

46In addressing Variance #1, Mr. McKay opined that the intent and purpose of parking standard regulations is to ensure that a sufficient number of parking spaces are provided for the proposed use and to minimize on-site parking reliance.

47He further opined that the intent of these regulations is to provide the appropriate amount of required parking for the site to operate, while encouraging other transportation modes.

48Mr. McKay asserted that the requested parking variance relates to the existing on-site parking and is not a request to reduce the required parking but to reduce those spaces which existed as of 2022. Given that the parking on-site on the subject property is for employee use and several alternative parking options within proximity can be utilized for employee vehicular parking, he opined that the intent and purpose of the Zoning By-law relative to parking requirements are being met.

49With respect to whether the variances were desirable for the appropriate use of the land and minor in nature, Mr. McKay submitted that the requested variances will provide additional outdoor play area space that supports and enhances a valuable service to the surrounding community, will not remove any on-street parking, and will improve the pick-up/drop-off situation in front of the subject property.

50He also asserted that the small component of play area in the front and side yards, already permitted on the City’s rights-of-way, will simply allow the on-site space to be consolidated with the off-site component and allow full access thereto.

51The parking reduction variance eliminates the very small number of existing employee spaces only and, in doing so, will have no negative impacts on pick-up/drop-off arrangements as the removal of these spaces will expand the area on Castlefield Avenue along which additional PUDOs can be accommodated.

52As a result, Mr. McKay opined that requested variances are both desirable and minor given that they will not create any adverse impacts on adjacent properties or the surrounding community.

Mr. Chan’s Evidence

53I also heard evidence from Mr. Chan, who was retained by the Owner of the subject property in February of 2024 to provide transportation engineering services in support of the Application.

54Mr. Chan submitted an Expert Witness Statement to the TLAB on December 30, 2024, which included a parking study and a review of the general concerns in this regard raised by residents opposed to the application at the COA.

55He provided an abbreviated analysis of his Expert Witness Statement, summarizing his parking study as follows:

• Removal of the on-site employee parking spaces will not have a material impact on the existing day nursery’s PUDOs.

• At least 90% of the day nursery’s employees do not park on-site and use alternative modes of transportation to get to the subject property.

• The subject property is located in a well-connected, transit-oriented and pedestrian-friendly network, which offers numerous transit options and, should parking still be required, there are over 1,000 public parking lot spaces available within a 15-minute radius of the property.

• The removal of the on-site parking spaces will reduce the potential for conflicts between vehicles reversing from these spaces, pedestrians, and other vehicles along Castlefield Avenue within proximity to the subject property.

ISSUES AND ANALYSIS

56A hearing before the TLAB is a hearing ‘de novo’ under s. 45(18) of the Planning Act (Act), meaning that the entire application that was before the COA is to be considered anew.

57The burden is on the Appellant to prove its case and to satisfy the Tribunal that the application before it meets the four statutory tests mandated by s. 45(1) of the Act. Therefore, for the variances to be approved, the TLAB must be satisfied that all four tests are met.

58The TLAB is an institution that is an arbiter of the foundations of good planning and provides an objective evaluation of development applications based upon the evidence of experts and professionals in their respective areas of knowledge and expertise.

59Both Messrs. McKay and Chan provided the TLAB with uncontroverted and uncontested opinion testimony and evidence at the February 6^th Hearing in their respective areas of expertise.

60Mr. McKay’s evidence in this matter was thorough and focused on the tests in the Act as to acceptable compliance, the capability of ‘existence in harmony’ or, even more simply, reasonableness. Mr. Chan’s evidence was specific and focused on the impacts of the removal of the existing parking spaces on existing site traffic conditions.

61All of these elements are germane to the above review of the evidence, spoken and pre-filed.

PROVINCIAL POLICY

62In addition to the four statutory tests, the proposal must also be consistent with the new 2024 Provincial Planning Statement (PPS). In this regard, I accept Mr. McKay’s evidence that the proposal is consistent with the PPS (2024) given that it enhances transit-oriented development and emphasizes accessibility, safety, and community well-being.

OFFICIAL PLAN

63The proposal before the TLAB requests three variances that, if authorized, would permit a children’s outdoor play area in a front and side yard abutting a street as well as the construction of a play area in the rear yard of the subject property. This would result in the day nursery operation having zero parking spaces.

64The majority of the play area along the Castlefield Avenue frontage is permitted and already in existence. The relief sought by the Appellant is for a small additional portion along the south face of the existing building on the Avenue Road frontage and a “thin sliver of yard space on the Castlefield Avenue frontage”⁵.

65Mr. McKay confirmed that the minimal existing number of parking spaces on the subject property, which will be eliminated as a result of the proposal, is currently being used exclusively by day nursery staff but will no longer be available for such purposes.

66The day nursery employees have been advised accordingly and there are appropriately located public parking lots for their use in proximity to the subject property.

67I agree with Mr. McKay that the proposed reduction in on-site parking aligns with the broader objectives and intentions of the City Official Plan which supports a mixed-use and transit-oriented approach to reducing car dependency.

68Therefore, in this regard, I find that the requested variances maintain the general intent and purpose of the Official Plan.

ZONING BY-LAW

69As noted above, the Appellant requests approval by the TLAB of three variances in total, on appeal. Each was identified in the Zoning Examiner’s Notice dated January 12, 2023.

70Variance #3 in that Notice reads as follows:

1. Chapter 150.45.50.1(1)(B), By-law 569-2013

A children’s play area for a day nursery, in the Residential Apartment Zone category, may be no closer to a lot line abutting a street than 6m. The proposed is 0m from the side and front lot line.

71Mr. McKay, in his evidence, noted that this variance does not apply to the proposal before the TLAB as the subject property is not located within the “Residential Apartment Zone” as referenced in the language of the variance above. He verified that this has been confirmed with the City zoning reviewer who handled the zoning application law certificate (ZAP) review for this application.

72Nevertheless, Variance #3 was part of the application that was refused by the COA on September 26^th and continues to form part of the Appeal before the TLAB. Although the TLAB considers this variance to be, in essence, a ‘technical’ variance, it must still be addressed by the TLAB in this decision.

73I agree with Mr. McKay that the referenced section of Zoning By-law 569-2013 relates to apartment zones which include properties that are much greater in area than the subject property. As a result, children’s outdoor play areas in those zones are typically expected to be set back farther from a side or front lot line.

74With respect to the subject proposal, I agree with Mr. McKay that the small outdoor children’s play areas along the Castlefield Avenue and Avenue Road frontages are within the landscaped City ‘right-of-way’, appropriately fenced with wrought iron fencing, and utilize a series of armourstone blocks at the corner to address potential vehicular safety issues.

75Variances #1 and #2 requested by the Applicant relate to the removal of the existing parking spaces and the location of the children’s play areas abutting the street.

76Regarding Variance #1, I agree with Mr. McKay that this variance relates to the existing parking on the subject property and that this provision was intended to recognize the existing situation and necessitate a process for revisiting the parking requirements at the time of any change to those historic uses of the property.

77I agree that the need to revisit parking requirements is an ongoing process within the City with the clear intent of City Council and the Province to encourage multimodal transportation methods and, particularly, public transit. I concur with Mr. McKay that in the case at hand, an appropriate study was conducted by Crozier & Associates and accepted by City Transportation staff.

78I also agree with Mr. McKay’s opinion, supported by Mr. Chan, that eliminating the existing employee parking spaces along Castlefield Avenue removes the potential for vehicle-to-pedestrian and vehicle-to-vehicle conflicts and will expand the PUDO area along Castlefield in front of the building to accommodate such activities.

79Furthermore, if the proposal before the TLAB was to redevelop the subject lands in their entirety, parking would not be required by Zoning By-law 569-2013 for the day nursery operation.

80Variance #2 relates specifically to the location of the outdoor play space in the front and side yards abutting a street. As noted above, the provision in the Zoning By-law does not permit the placement of play areas from the day nursery in those areas with the intent to provide a measure of safety given adjacent vehicular movements.

81Mr. McKay confirmed that by constructing a larger play area at the rear of the subject property, which will expand the play area for the day nursery already in place, the Appellant is shifting a significant amount of play area from the front and side yards.

82Therefore, I am satisfied that the requested variances for the removal of the existing parking spaces and locating a small amount of outdoor play space in the front and side yards of the subject property maintain the general intent and purpose of the Zoning By-law.

MINOR AND DESIRABLE FOR THE DEVELOPMENT OF THE LAND

83The requested variances will facilitate the existing day nursery providing additional children’s outdoor play space which is an enhancement to the existing operation that supports and provides a valuable service to the surrounding community.

84The reduction in the required parking spaces, technically totalling five (5) although in reality only three (3) would actually be removed, will enable the registered owner of the day nursery to maintain and improve business operations on-site thereby reflecting business and operational needs and capacities.

85I agree with the Appellant that this aspect of the proposal would represent a ‘de minimus’ situation. City Transportation staff have raised no concerns with the play area locations as evidenced by the executed encroachment agreement. Additionally, only three (3) on-site parking spaces are actually being removed given that the two (2) garage spaces are unsuitable for typical modern vehicles and inaccessible due to the surface parking spaces (see Photo #1).

86The test of ‘minor’ focuses on the scale and nature of perceived impacts caused by the variances being requested. The courts have established that the test is not that there be no impact but, rather, that the imputed impact rises to the level of being an undue, adverse impact of a planning nature.

87The existing use of the subject property for a day nursery is permitted by the Official Plan and Zoning By-law and the variances requested will enable the Owner to develop the site in a manner that aligns with the operational needs of the facility.

88Although parking spaces are being removed, the number is negligible in that they represent parking spaces utilized by employees, who have been advised by the Owner that the current parking will no longer be available and are encouraged to access public transit or use other active modes of transportation.

89Moreover, the removal of those spaces will expand the area on Castlefield Avenue thereby increasing the use of this stretch of street frontage for additional access for pick-up and drop-off arrangements.

90Based on the findings above, I find that the proposal is desirable for the appropriate development of the land and that there are no impacts of a planning nature arising from the variances requested.

CONCLUSION

91Therefore, I find that the requested variances, individually and cumulatively, satisfy all four of the statutory tests as required in s. 45(1) of the Planning Act. I authorize the variances, subject to the condition included herein.

DECISION AND ORDER

92The Appeal is allowed; the variances listed in Appendix A below, are authorized. Subject to the condition(s) contained in Appendix B, therein.

D. Lombardi

Panel Chair

APPENDIX A

REQUESTED VARIANCES TO THE ZONING BY-LAW

1. Chapter 200.5.10.11(1)(C), By-law 569-2013

The lawful number of existing parking spaces may not be reduced.

The proposal is removing all 5 of the existing number of parking spaces.

2. Chapter 150.45.50.1(1)(A), By-law 569-2013

A children's play area for a day nursery, in the Residential Zone category, may not be in a front yard or a side yard abutting a street.

The proposed is in a front and side yard abutting a street.

3. Chapter 150.45.50.1(1)(B), By-law 569-2013

A children's play area for a day nursery, in the Residential Apartment Zone category, may be no closer to a lot line abutting a street than 6m.

The proposed is 0m from the side and front lot line.

APPENDIX B

CONDITION(S) OF APPROVAL

1. The proposal shall be constructed substantially in accordance with the Revised Site Plan Drawing (drawing A101), dated June 28, 2024, and East Elevation (Proposed) Drawing (drawing A302), dated April 2023, prepared by AMB Architects Inc., attached hereto as Appendix C. Any other variance or variances that may appear as required on these plans that are not listed in the written decision and order are NOT authorized.

APPENDIX C

Footnotes

1. 1Applicant’s Document Disclosure for 1133 Avenue Road, dated December 30, 2024, p. 269.
2. 2Photo #1 – Applicant’s Document Disclosure for 1133 Avenue Road, dated December 30, 2024, p. 257.
3. 3Mr. McKay’s Expert Witness Statement for 1133 Avenue Road, dated December 30, 2024, para. 8.1, p. 7.
4. 4Mr. McKay’s Expert Witness Statement for 1133 Avenue Road, dated December 30, 2024, p.9.
5. 5Mr. McKay’s Expert Witness Statement for 1133 Avenue Road, dated December 30, 2024, para. 9.3.2, p. 9.