City of Toronto v. 6ixdesign Architects Inc, 2025 ONTLAB 346

Toronto Local Appeal Body

40 Orchard View Blvd, suite 253

Toronto, Ontario M4R 1B9

Date:

2025-08-06

24 244400 S45 16 TLAB

2025 ONTLAB 346, Toronto (City) vs 6ixdesign Architects Inc

Issuance Date:

August 6, 2025

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

Appellant(s):

Applicant(s):

6IXDESIGN ARCHITECTS INC

Property Address:

10 TERNHILL CRES

COA File No.:

24 210593 NNY 16 MV (A0480/24NY)

TLAB Case File No.:

24 244400 S45 16 TLAB

Hearing Date(s):

AUGUST 1, 2025

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By:

TLAB Panel Member Y. HERSCHER

People Type

First Initial. Last Name.

Representative

Applicant

6IXDESIGN ARCHITECTS INC

Appellant

Party

Participant

BACKGROUND

1This is an appeal by the City of Toronto of the granting of five variances by the Committee of Adjustment to construct a two-storey detached dwelling on 10 Ternhill Crescent (North York).

2The application for the five variances was submitted to the Committee of Adjustment in September 2024. The variances proposed a lot coverage of 30.95% whereas Zoning By-law 569-2013 permits a maximum lot coverage of 25%. The application proposed two roof garden platforms with an area of 17.40 square metres whereas the zoning by-law permits one platform, with a maximum platform of 4.0 square metres. The application proposed a rear yard setback of 7.48 metres whereas the zoning by-law permits a minimum of 7.64 metres. Finally, the application proposed an east yard setback of 1.5 m whereas the zoning by-law requires a minimum side yard setback of 1.8m.

3On November 7, 2024, the Committee of Adjustment held a hearing on this matter and issued its decision approving the application for the five variances, subject to a tree protection condition.

4Specifically, the variances requested by the applicant/owner and approved by the Committee of Adjustment were as follows:

Chapter 10.20.30.40.(1), By-law No. 569-2013

The maximum permitted lot coverage is 25% of the lot area. The proposed lot coverage is 30.95% of the lot area.

Chapter 10.20.40.50.(1)(A), By-law No. 569-2013

The permitted maximum number of platforms at or above the second storey located on the rear wall of a detached house is one. The proposed number of platforms located on the rear wall is two.

Chapter 10.20.40.50.(1)(B), By-law No. 569-2013

The maximum permitted area of each platform at or above the second storey is 4.00m². The proposed area of each platform / roof garden is 13.45m².

Chapter 10.20.40.70.(2), By-law No. 569-2013

The minimum required rear yard setback is 7.64m. The proposed rear yard setback is 7.48m.

Chapter 900.3.10.(5), By-law No. 569-2013

The minimum required side yard setback is 1.80m. The proposed east side yard setback is 1.5m.

5On November 27, 2024, the City of Toronto filed an appeal of the Committee of Adjustment’s decision approving the application. A hearing on the application was scheduled before the Toronto Local Appeal Body (TLAB) for August 1, 2025.

6Correspondence with the TLAB was filed by the applicant’s lawyer, Mr. Mazierski, on June 2, 2025. Mr. Mazierski notified the TLAB on that he would not be making a case before the TLAB in support of the previously approved Committee of Adjustment application. He also noted that the applicant would not be filing any witness statements or expert statements and would not be putting forward any evidence in support of the proposal.

7Mr. Mazierski further stated that that, on the basis that the applicant would be abandoning the previous Committee of Adjustment approval and would not be arguing the merits of the variances before the TLAB, his client was not going to pursue the previously approved proposal with the expectation that the TLAB would allow the City’s appeal but without prejudice to a future application.

8On July 30, 2025, the lawyer for the City of Toronto, Ms. Lo-Wong, wrote to the TLAB and advised that the City was consenting to the applicant’s request that the City’s appeal of the Committee of Adjustment decision approving the application be allowed. She further stated that the City would not object to the appeal being allowed without prejudice to future applications.

9The hearing scheduled for August 1, 2025, was converted into a pre-hearing conference under Rule 21 of the TLAB’s Rules of Practice and Procedure.

THE LEGISLATIVE AND POLICY FRAMEWORK

10Provincial 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.

11Provincial 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.

12Variance – Subsection 45(1) of the Planning Act

In considering an application for variance from the zoning by-law, the TLAB must be satisfied that an application meets the four tests under subsection 45(1) of the Planning Act. The tests are whether the variance,

is minor,
is desirable for the appropriate development or use of the land,
maintains the general intent and purpose of the official plan, and
maintains the general intent and purpose of the zoning by-law

SUMMARY OF EVIDENCE

13There was no evidence presented at the hearing by any of the parties. The applicant did not provide any witness statements or other written submissions of evidence. At the pre-hearing conference, the lawyer for the applicant and the lawyer for the City made submissions and both reiterated the positions of their clients, respectively, as outlined in their correspondence referred to above.

ISSUES AND ANALYSIS

14An appeal against the decision of the Committee of Adjustment is a hearing de novo meaning that the entire application must be considered anew. The burden is on the applicant to prove its case, even when the Committee has previously authorized the requested variances.

15A Committee of Adjustment decision and materials filed at the Committee hearing are generally not sufficient to demonstrate that the statutory tests required by the Planning Act have been met and, therefore, the TLAB must hear the evidence in the appeal. Generally, an applicant will provide viva voce evidence through an expert witness, qualified and affirmed by the presiding member, who would provide opinion evidence that the proposal before TLAB satisfies the relevant statutory tests.

16In the matter at hand, the applicant has not satisfied the burden upon which the TLAB could authorize the requested variances. It is the applicant’s responsibility to put before this tribunal the evidence necessary to enable the TLAB to make findings required by the Planning Act that the four statutory tests are met.

17Given that the applicant has not presented evidence in support of the variances sought and no longer wishes to pursue the application, the TLAB has no basis on which to determine that the variances requested satisfy the four statutory tests outlined in the Planning Act.

18The only remaining issue before the TLAB at the pre-hearing conference was the effect that the dismissal would have on any future application made for the property. Since no evidence was heard at this hearing on the merits of the application and given that all parties were in agreement, the TLAB finds that res judicata does not apply to a future application and that any future application would be the subject of a hearing de novo.

CONCLUSION

19Given that the applicant did not present any evidence in support of the variances sought on the basis that the application has been abandoned, the TLAB has no basis on which to determine that the variances requested satisfy the four statutory tests set out in the Planning Act.

DECISION AND ORDER

20This appeal is allowed and the variances are not authorized. The decision of the Committee of Adjustment of November 7, 2024 is set aside.

Y. Herscher

Panel Member