Akelius Canada Ltd (Re), 2025 ONTLAB 343

Toronto Local Appeal Body 40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2025-07-25

25 136939 S45 20 TLAB

Akelius Canada Ltd (Re), 2025 ONTLAB 343

DECISION AND ORDER

Issuance Date: July 25, 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): AKELIUS CANADA LTD

Applicant(s): JASON FUNG ARCHITECT INC

Property Address: 1420 KINGSTON RD

COA File No.: 24 238871 ESC 20 MV (A0285/24SC)

TLAB Case File No.: 25 136939 S45 20 TLAB

Hearing Date(s): July 17, 2025

Decision Delivered By: Panel Member G. Swinkin

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Applicant

JASON FUNG ARCHITECT INC

Appellant

AKELIUS CANADA LTD

M. MAZIERSKI

Party

K. GRUNWALD

Party

B. MACDONALD

Party

S. HALLIDAY

Party

J. JUAN

Party

A. RODGERS

INTRODUCTION AND CONTEXT

1. The matter before the Toronto Local Appeal Body (the “Tribunal”) on this appeal concerned a refusal by the Scarborough panel of the Toronto Committee of Adjustment to approve the application by Akelius Canada Ltd. (the “Owner”) seeking three heads of variance relief associated with a proposal to convert current locker room space within the existing apartment building at 1420 Kingston Road (the “Property”) to two new dwelling units on the ground floor (a bachelor unit and a one bedroom unit).

2. The Owner appealed the refusal and appeared before the Tribunal represented by counsel. Evidence was called by the Owner’s counsel through David Igelman, a consulting land use planner. Mr. Igelman was qualified to offer expert evidence on land use planning matters based upon his education, experience and certification as a Registered Professional Planner.

3. There were five other registered Parties, four of whom attended and spoke. The four Parties who were present are all tenants in the apartment building, two of whom live on the ground floor and two of whom live on the third floor. Those Parties are Jennifer Juan, Kim Grunwald, Brent Macdonald and Scott Halliday. These Parties filed witness statements in advance of the hearing and all spoke in opposition to the proposal.

4. At the outset of the proceeding, the Tribunal dealt with a preliminary motion initiated by Ms. Juan. Motion material was filed in advance of the hearing and counsel for the Owner filed responding material. The Motion challenged the Tribunal’s jurisdiction to proceed with this appeal.

5. The position articulated in the Motion was that: “the central issue in the appeal concerns tenants’ access to the storage lockers. This is a residential tenancy matter governed by the Residential Tenancies Act, 2006. The Tribunal has no mandate to determine disputes over lease entitlements, access to rented premises or tenant rights - all of which are adjudicated by the Landlord and Tenant Board.”

6. Counsel for the Owner rightly responded that the matter before this Tribunal was confined to the issues arising under Section 45(1) of the Planning Act, which is squarely within the jurisdiction of the Tribunal.

7. As the panel explained to Ms. Juan, the disposition of this Tribunal would only address the four tests under Section 45(1) of the Planning Act and would not, in and of itself, address any rights as between landlord and tenant. The Tribunal thus ruled that there was no conflict between the jurisdiction of this Tribunal and that of the Landlord and Tenant Board and therefore no impediment to this Tribunal proceeding to determine the appeal before it. As such, the Motion was dismissed.

THE LEGISLATIVE AND POLICY FRAMEWORK

8. Provincial Interest - Section 2, Planning Act

A decision of the Tribunal shall have regard to, among other matters, matters of Provincial interest, enumerated as clauses (a) – (s) in Section 2 of the Planning Act.

9. Provincial Policy – Section 3, Planning Act

A decision of the Tribunal must be consistent with the 2024 Provincial Planning Statement..

10. Variance – Section 45(1), Planning Act

In considering an application for variance from the Zoning By-law, the Tribunal must be satisfied that the application meets all of the four tests under s. 45(1) of the Planning Act. The tests are whether the variance:

• Maintains the general intent and purpose of the Official Plan;

• Maintains the general intent and purpose of the Zoning By-law;

• is desirable for the appropriate development or use of the land; and

• Is minor.

SUMMARY OF EVIDENCE

11. As noted above, the Tribunal heard planning evidence through Mr. Igelman.

12. Mr. Igelman took the Tribunal through a description of the existing apartment building on the Property and the physical characteristics of the neighbourhood.

13. The building presently accommodates 37 apartment dwelling units over four floors. There is a small laundry room on the ground floor with two washers and two dryers, however, the tenants say that generally only one of each of those pieces of equipment works.

14. Also on the ground floor are three ranks of storage lockers. Tenants apparently make arrangements with the landlord to secure use of a specified storage locker space.

15. The architectural drawings filed show that the intention is that this storage locker space would be reconfigured and built out to create one new bachelor apartment and one new one bedroom apartment, Some of the existing storage room space would be retained but the number of lockers reduced and the lockers themselves downsized.

16. The landlord apparently notified the building tenants about their intentions and offered to either compensate those who would willingly relinquish any existing storage locker entitlement that they may have or to alter their present arrangement in favour of a replacement locker. None of the tenants present at the hearing was happy about the proposal.

17. There is said to be 20 vehicle parking spaces on the Property. They are numbered by spray paint on the pavement and are assigned to tenants who have made arrangements with the landlord as there is a fee for the privilege of access to a space.

18. The Tribunal reports the quantity based upon the testimony of Mr. Igelman but, as the site plan formed part of the Owner’s filing, the Tribunal noted that space number 3 appeared to extend beyond the property boundary and thus may not qualify as a zoning compliant parking space. Mr. Igelman had taken no measurements of the parking spaces and was not able to provide actual dimensions on the Property. There is thus some question as to whether the current technical supply is 19 or 20.

19. There are no visitor parking spaces on the Property and no designated areas for parcel delivery vehicles to park or stand.

20. Although not obliged to by the applicable zoning by-law, the Owner is apparently proposing to introduce five bicycle parking spaces near the front of the building.

21. As he apparently had no direct knowledge of its date of construction, by way of a review of aerial photographs over time, Mr. Igelman deduced that the building would have been constructed some time between 1954 and 1965.

22. The Property fronts on Kingston Road, which is an arterial road and which is designated as an Avenue under the Official Plan (“OP”).. TTC buses run on Kingston Road and connect with Warden and Victoria Park subway stations.

23. In terms of land use, the Property is designated as Mixed Use under the OP. This designation allows for a mix of residential and commercial uses. Both characters of use are now found on Kingston Road.

ZONING

24. The Property is currently zoned under the former Scarborough Birchcliffe Zoning By-law No. 8786. It is not subject to the City-wide Comprehensive Zoning By-law 569-2013.

25. The former Birchcliffe Zoning By-law No. 8786 was approved by the Ontario Municipal Board on January 23 and 24, 1961. Subsequently, Zoning By-law No. 222-2010 was enacted on February 23, 2010, which amended Zoning By-law No. 8786 by adding in the CR zone (which applies to the Property), the Performance Standard 301 (amenity space requirements), and Exception 38, as well as other provisions. This Zoning By-law amendment came into effect approximately 45-56 years after the apartment building was constructed and appears to have rendered the building legal non-conforming as far as minimum parking supply, indoor amenity space and the location of residential dwelling units on the ground floor.

26. Provision 301 declares that no person shall erect or use a building containing 20 or more dwelling units unless amenity space is provided in accordance with the following: amenity space or contiguous amenity space, at least one of which contains a kitchen and washroom (minimum 2 sq.m. of amenity space for each dwelling unit), amenity space located outdoors (Minimum of 2 sq.m. of amenity space for each dwelling unit of which at least 40 sq.m. is to be provided in a location adjoining or directly accessible from the indoor amenity space).

27. Schedule C of the Zoning By-law sets out properties that are subject to certain exception zones. The Property is identified as being within Exception 38.

28. Exception 38 sets out the following limitation: dwelling units, retirement homes, nursing homes, and private home day care shall only be permitted on or above the second storey of buildings (excluding the parking structure level).

29. Table 1.1 of the Zoning By-law stipulates the minimum required parking rates. For dwellings units, one parking space per unit is required. The proposal would thus require an additional parking space.

30. As noted above, the Property reputedly has 20 parking spaces at present, with one of those spaces potentially not conforming to by-law minimum dimensional standards.

31. A further matter regarding the parking space count arose from a review of the history of approvals on the Property. In 2017, the Owner made application to the Committee of Adjustment to convert an office space on the ground floor to a dwelling unit. Essentially the same relief as presently requested was requested at that time as well. On that application, the Committee was advised that the Property had 22 parking spaces and the decision of approval was predicated on that presumption. Mr. Igelman advises that the plans filed with the Committee at that time were in error as there were actually only 20 spaces.

32. On the matter of parking supply, Mr. Igelman drew to the attention of the Tribunal that City Council took a radical step back in 2021. In December, 2021, City Council adopted Zoning Amendment By-law 89-2022 (enacted February 3, 2022), which eliminated the minimum resident parking requirements for a dwelling unit. If the Property were zoned under City Comprehensive Zoning By-law 569-2013, the only requirement would be to maintain the existing number of parking spaces, as per the amending Zoning By-law 89-2022 (Parking Space Requirements for a Lawfully Existing Building).

33. The fact though is that the Property is not zoned under Zoning By-law 569-2013. It was deliberately left out of Zoning By-law 569-2013, along with many other properties, and Mr. Igelman could not identify any specific Council direction that any particular initiative was contemplated other than that Kingston Road is an Avenue under the OP and a recent policy change has occurred whereby redesignations and rezoning on Avenues will no longer require an Avenue Study.

34. Therefore, the parking mandate for the Property will remain as it is under the Birchcliffe Zoning By-law 8786.

OTHER PLANNING EVIDENCE

35. Mr. Igelman canvassed the declared Provincial interests in Section 2 of the Planning Act as well as the policies in the Provincial Planning Statement and concluded that there was no inconsistency arising with respect to these provisions.

36. Mr. Igelman also canvassed what he treated to be the relevant policy provisions of the OP.

37. Mr. Igelman established a study area following the guidelines in Policy 4.1.5 although he did acknowledge to the Tribunal that as the Property was not in the Neighbourhoods designation, he was only using the guidelines and criteria in that Policy as what he deemed to be a useful tool.

38. As the Property is designated Mixed Use, Mr, Igelman took the Tribunal to the policies in Section 4.5 of the OP.

39. With specific reference to the matter of parking supply, he pointed the Tribunal to the Property’s proximity to transit services, and in response to no additional parking spaces being provided, he suggested that this is in line with the direction of policy 4.5.2(a), which is to reduce automobile dependency.

40. He was candid to point out Policy 4.5.2.k.,which states, “provide indoor and outdoor recreation space for building residents in every significant multi-unit residential development”.

41. As there is no indoor amenity space presently provided in this building and none is being proposed, he attempts to justify this and argue policy intent conformity on the basis that the existing outdoor amenity space will be maintained through the proposal. Specifically, including the proposed two new residential dwelling units, the proposal will result in outdoor amenity space of 6.57 sq.m. per unit, which exceeds the minimum requirement of 2 sq.m. of outdoor amenity space per unit.

42. Mr. Igelman did acknowledge to the Tribunal that the character and purpose of indoor and outdoor amenity space was different and they are thus not interchangeable.

43. It was also apparent from the photographic evidence that what is currently being labeled as outdoor amenity space is not especially welcoming. In fact, on initial filings with the City, these yards were not understood by the zoning examiners as being outdoor amenity space until this was apparently resolved through some further labelling of the plans.

44. It was Mr. Igelman’s opinion that the existing apartment building currently meets the general intent of the Kingston Road Revitalization Study (an OP study undertaken for a prior OP amendment) and it was his view that the proposed interior alterations will continue to meet the general intent of the Kingston Road Revitilization Study as the Proposal will consist of additional residential dwelling units within an existing 4 storey apartment building that is in close proximity to transit. This statement simply appeared to the Tribunal as an assertion without much foundation as he earlier advised that animation of the street was a key goal of the Study and he effectively admitted that the proposed introduction of the two dwelling units would not contribute to animation of the street.

45. Mr. Igelman also addressed the provisions of the Zoning By-law for the purpose of ascertaining its general intent and purpose.

46. To this end, with respect to Exception 38 and the matter of dwelling units below the second floor, he conducted a review of other properties in the vicinity. The evidence indeed discloses that there are buildings on Kingston Road with ground floor units. A number of these buildings appear to pre-date the restrictive zoning amendment and would thus be characterized as legal non-conforming.

47. However, Mr. Igelman also included in his evidence 1478-1496 Kingston Road. This has been approved to be a 198 unit, 11 storey building with commercial units on the Kingston Road frontage. Judging by the photograph, this is a building still under construction (but apparently nearing completion). Included in the document book is a copy of the zoning amendment by-law for this property, By-law 1409-2019, enacted on October 3, 2019.

48. The first significant point about this by-law is that it operates under Zoning By-law 569-2013. The second point is that it does permit dwelling units on the ground floor but subject to restrictions, which are laid out in clause R as follows: (R) Despite Regulation 40.10.40.1(1), a dwelling unit may be located on the first storey of the building if: (i) the dwelling unit has direct access to a street which is not a major street on the Policy Area Overlay Map; or (ii) the dwelling unit is located to the rear of the non-residential uses on the first storey. The third point is that significant parking is mandated, as follows: (K) Despite Regulation 200.5.10.1(1) and Table 200.5.10.1, a minimum of 172 parking spaces must be provided, of which a minimum of: (i) 140 parking spaces must be provided for residents of dwelling units;(ii) 29 parking spaces must be provided for the shared use of visitors to dwelling units and non-residential uses; and (iii) 3 parking spaces must be provided as car-share parking spaces.

49. Closer to the Property (40m to the west, according to Mr. Igelman), Mr. Igelman identifies 1390-1400 Kingston Road. This is now built but went before the Committee of Adjustment in April 2017. The applicant there was seeking nine variances in order to permit the construction of a new seven storey condominium building with 41 dwelling units. As this property is governed by the Birchcliffe Zoning By-law and is captured within Exception 38, relief was sought with respect to the restriction of dwelling units on the ground floor. The application was approved.

50. There were various variances sought with respect to built form but there was no variance sought with respect to parking supply or amenity space provision.

51. Without fully detailing Mr. Igelman’s evidence here beyond what is noted above, he concludes his OP and zoning review by saying that this variance proposal will be in keeping with the general intent and purpose of the OP and zoning by-law.

52. Mr. Igelman addressed the desirability test of Section 45(1) by advising that as the proposal would be introducing two further residential dwelling units in a transit served area, this would be desirable.

53. He also declared that the requested variances are specifically desirable for the Property as the interior alterations will reflect the existing conditions of the Property, as there are already ground-floor residential dwelling units, there is no indoor amenity space, and the existing number of parking spaces will be maintained.

54. On the question of whether the requested variances are minor, he asserts that the variances are reflective of the existing and planned development in the surrounding area and represent a minor change from the requirements set out in the Zoning By-law. He backs this up by saying that In this case, the variances would not create a noticeable difference in what would be experienced if the building remained the same, other than the loss of storage/locker space. In his view, the proposal will be compatible with the existing properties in the area, and it is his opinion that the requested variances are minor in nature.

THE EVIDENCE OF THE TENANT PARTIES

55. As noted above, five persons filed elections to be Parties in this proceeding and each also filed a witness statement. These persons are all current tenants in this apartment building. In each case, the Party was opposed to the Owner proposal and opposed to the grant of the requested variance relief.

56. The Tribunal heard from the individuals identified in paragraph 3 above. Although each Tenant Party had their own story to tell, there was a general commonality in their testimony.

57. The Tribunal was advised that there was a lack of parking availability and as a result delivery vehicles often used open resident spaces and often resident spaces were taken by outsiders, causing conflicts to arise between the tenant and the intruder. Also, although a contractor was engaged during the winter months to clear snow from the parking area, the snow was not removed from the site. As a result, without an appropriate snow storage area on site, the snow was pushed up against the fences and imperfectly cleared from the spaces.

58. The Tribunal was advised about the insufficiency of the laundry facilities, as noted above. In addition to the equipment failures, the Tribunal was advised by Mr. Macdonald that portions of the laundry room space had previously been appropriated for some Bell switchgear and space which had accommodated a bathroom in the laundry room was taken for an adjacent unit conversion. Bringing in additional tenants would just exacerbate the laundry room insufficiency problem.

59. None of the Tenant Parties was pleased about the elimination of the majority of the storage lockers nor about accepting replacement lockers which were considerably reduced in size. Mr. Halliday advised that he kept certain articles in his locker now which would not fit in the dimensions of the replacement locker that they were offering him.

60. Particularly for those who now lived on the ground floor, the prospect of suffering through construction of the new units would be a significant nuisance while that construction was being undertaken.

61. The evidence made clear that the lack of indoor amenity space was a definite building deficit. And with respect to the outdoor amenity space, the evidence was that the area was now being locked and, according to a communication from the Owner, was intended to be confined to use by tenants with pets. The photos provided did not depict these areas as places for recreation or social activities.

ISSUES AND ANALYSIS

62. As is the obligation of the Committee on the original application, it is the duty of this Tribunal to test the by-law requested relief on this appeal against the “four tests” of Section 45(1) of the Planning Act as set forth in full in paragraph 10 above.

63. As there is a connection between them, the Tribunal will address the matter of whether the requested variances maintain the general intent and purpose of the OP and Zoning By-law together.

64. From the evidence, it is fairly plain to the Tribunal that there is a parking supply and parking management deficiency on the Property. Even if any potential new tenants of the two proposed units will be advised that there will not be any spaces available to be assigned to them, they will very likely have deliveries and visitors coming by car and there is nothing being proposed here to address or ameliorate that.

65. The Kingston Road examples in proximity to the Property brought to the attention of the Tribunal by Mr. Igelman to support the proposal (1478-1496 Kingston Road and 1390-1400 Kingston Road) were primarily identified as permission was given for ground floor residential dwelling units (but even on that count there were qualifications). These were relatively recent development approvals. In both cases, provision was made for parking which was considerably proportionately much more than would be the case here.

66. Although Mr. Igelman did earnestly attempt to interest the Tribunal in the action which was taken by City Council regarding the elimination of a resident parking requirement under Zoning By-law 569-2013, that is not the governing by-law on this Property and there is no evidence of any imminent move to take this Property out from under the Birchcliffe Zoning By-law and put it under Zoning By-law 569-2013.

67. On these grounds, it is the Tribunal’s view here that elimination of the parking requirement associated with the proposal would not be in keeping with the general intent and purpose of the Zoning By-law.

68. With reference to OP policy, the Tribunal comes back to the policy extract which was referenced earlier in the decision, Policy 4.5.2.k.,which states, “provide indoor and outdoor recreation space for building residents in every significant multi-unit residential development”.

69. The Tribunal would treat this as a significant multi-unit residential development. It is acknowledged by the Tribunal that this building was constructed before the current OP was adopted but the proposal here is going in the wrong direction of the OP which currently governs here. More units are being proposed in a building with no indoor amenity space and in the result, space which is presently being used for the benefit of the tenants is being taken away from them. This may not strictly speaking be indoor amenity space but it is clearly space which is available for the tenants’ benefit. In the Tribunal’s view, despite arguably providing the addition of two dwelling units to the housing stock of this area, a general goal of the OP, it is not possible to find that the variances will be in keeping with the intent and purpose of this other important goal of the OP.

70. This discussion then bridges to the test of desirability.

71. On the surface, this appears to be an ill-defined test but some definition has been provided by the Divisional Court in its oft-cited case of Vincent v. DeGasperis, 2005 CanLII 24263 (ON SCDC); 256 DLR (4th) 566; 12 MPLR (4th) 1.

72. With respect to that test, the court says, at paragraph 14: “The second test requires the committee to consider and reach an opinion on the desirability of the variance sought for the appropriate development or use of the land, building or structure. This includes a consideration of the many factors that can affect the broad public interest as it relates to the development or use.”

73. The court then goes on in paragraph 15 to say as follows: “Accordingly, in my view the Board was required to consider each variance sought and reach an opinion as to whether or not it, either alone or together with the other variances sought, was desirable for the appropriate use of the subject property. The issue was not whether the variance was desirable from the perspective of the DeGasperis’ plans for their home but, rather, whether it was desirable from a planning and public interest point of view.”

74. The Tribunal would note that the City of Toronto did not elect to participate in this appeal hearing and thus presumably did not identify any basis of a material planning or public interest point of view which was at play here.

75. As referenced above, the Owner’s planner and counsel speak of the proposal in terms of an addition of two dwelling units to the City’’s housing stock and advance this as desirable.

76. However, the Tribunal has to consider this against the engagement, provision of very detailed evidence and very strong submissions made by the Tenant Parties. Their evidence was very much rooted in operational and liveability factors prevalent in this building and how they may be further affected by the proposal primarily in a negative way.

77. It was abundantly plain to the Tribunal that the proposal was not perceived by them to be at all desirable. In this instance, those Parties represent the community which would be impacted by the proposal and it is entirely appropriate that their perceptions be taken into account by the Tribunal especially in weighing the proposal against this test.

78. Accordingly, the Tribunal concludes that the requested variances are not desirable.

CONCLUSION

79. It is trite law that the failure to satisfy all four tests under Section 45(1) of the Planning Act spells the demise of the application (cf., DeGasperis, para. 11).

80. The Tribunal, as articulated above, has determined that this application fails the tests of OP and Zoning general intent and purpose, and also the test of desirability. As such, there is no need to address the question of whether the application constituted a minor variance from the Zoning By-law.

81. The appeal will be dismissed.

DECISION AND ORDER

82. The Tribunal ORDERS THAT the appeal is dismissed.

G. Swinkin

Panel Member