Toronto (City) v. Harper Dell & Associates Inc., 2025 ONTLAB 373

Toronto Local Appeal Body

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

Date: 2025-11-12

25 137523 S45 21 TLAB

Toronto (City) vs Harper Dell & Associates Inc (Re), 2025 ONTLAB 373

DECISION AND ORDER

Issuance Date: November 12, 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): CITY OF TORONTO

Applicant(s): HARPER DELL & ASSOCIATES INC

Property Address: 1160 BIRCHMOUNT RD UNIT 4

COA File No.: 24 212483 ESC 21 MV (A0220/24SC)

TLAB Case File No.: 25 137523 S45 21 TLAB

Hearing Date(s): NOVEMBER 10, 2025

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By: T. KEZWER

REGISTERED PARTIES AND PARTICIPANTS:

People Type	First Initial. Last Name	Representative
Applicant	HARPER DELL & ASSOCIATES INC
Appellant	CITY OF TORONTO	A. SANDHU

INTRODUCTION AND CONTEXT

1This was a settlement hearing before the Toronto Local Appeal Body (the “Tribunal”) for the property municipally known as 1160 Birchmount Road, Unit 4 (the “Subject Property”). The Subject Property is located in an industrial condominium building consisting of 14 units, on the west side of Birchmount Road, generally south of Lawrence Avenue East and north of the Gatineau Hydro Corridor Trail, within Ward 21 – Scarborough Centre. The Subject Property is located on the southwest portion of the industrial condominium building, near the intersection of Crouse Road and Underwriters Road.

2The City of Toronto (the “City”) appeals an approval by the Scarborough Committee of Adjustment for the Subject Property to be put to recreational use and for there to be no accessible parking spaces. The Applicant proposes to use the Subject Property as a recreational facility with four basketball courts and four pickleball courts.

3In terms of Official Plan designation, approximately half of the industrial condominium building is designated General Employment Areas (closest to Birchmount Road) and the rear half is designated Core Employment Areas, as identified on Map 20 in the Toronto Official Plan. The western (rear) portion of the building where the Subject Property is located is designated Core Employment Areas.

4In terms of zoning, the building is split zoned Employment Heavy Industrial (EH) 1.0 (x11) and Employment Industrial Zone (E) 1.0 under Zoning By-law 569-2013. The Subject Property is located in the EH zone.

5There are currently existing retail, service, manufacturing and warehousing, office, and institutional uses within the industrial condominium building at 1160 Birchmount Road. The lands to the east of Birchmount Road consist of a mix of Residential zoned areas in the Wexford Community. The area north of the Site is also split zoned Employment Heavy Industrial (EH) 1.0 (x11) and Employment Industrial Zone (E) 1.0.

6A Traffic Impact Study was prepared as part of the settlement reached between the City and the Applicant. The Traffic Impact Study is in Exhibit 3, and it was prepared by GHD Ltd. and is dated October 2, 2025. The Traffic Impact Study contains a Proposed Parking Plan dated September 25, 2025, which shows a separate surface parking area, that is proposed to contain 68 parking spaces, which includes 4 accessible parking spaces. Since there are 4 accessible parking spaces, the application only requires a variance for the proposed temporary recreation use.

7In addition, I would like to note that when the proposal was originally before the Committee of Adjustment, the requested recreational use variance was for both a Recreational use and Eating Establishment. The Applicant modified the variances that were being sought during the Committee of Adjustment hearing, so that the application was only for a Recreational use.

8I find that the modification of the requested variances so that the Applicant is no longer seeking a minor variance for the accessible parking space is minor and that subsection 45(18.1.1) applies so that no new public notice is required. The four accessible parking spaces are an improvement beyond the Zoning By-law’s requirement for 1 accessible parking space.

9Prior to the settlement hearing, I visited the Subject Property and the surrounding neighbourhood in which it is situated.

10Three exhibits were entered into the record. The exhibits are as follows:

Exhibit 1: Appellant’s Expert Witness Statement of Jacob S. Naidoo

Exhibit 2: City of Toronto – Document Disclosure Book 1 of 2 (197 pages)

Exhibit 3: City of Toronto – Document Disclosure Book 2 of 2 (233 pages)

11The variance before the Tribunal is as follows:

1. Chapter 60.30.20.10.(1), By-law 569-2013

In the EH zone, the following uses are permitted:

Ambulance Depot Animal Shelter Bindery Building Supply Yards Carpenter's Shop Chemical Materials Storage Cold Storage Contractors Establishment Custom Workshop Dry Cleaning or Laundry Plant Fire Hall Fuel Storage Industrial Sales and Service Use Laboratory All Manufacturing Uses except:

1. Ammunition, Firearms or Fireworks Factory;
2. Crude Petroleum Oil or Coal Refinery;
3. Explosives Factory;
4. Tannery Police Station Public Utility Public Works Yard Recovery Facility Service Shop Shipping Terminal Vehicle Depot Vehicle Repair Shop Warehouse Waste Transfer Station [ By-law: OMB PL130592 ]

Recreation is proposed as a permitted use.

THE LEGISLATIVE AND POLICY FRAMEWORK

Provincial Interest - S. 2

12A decision of the Tribunal shall have regard to, among other matters, matters of provincial interest, enumerated as (a) – (s) in the Planning Act.

Provincial Policy – S. 3

13A Decision of the Tribunal must be consistent with the 2024 Provincial Planning Statement for the subject area.

Variance – S. 45(1)

14In considering the applications for variances from the Zoning By-laws, the Tribunal 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

15The Tribunal heard from one witness, Jacob S. Naidoo. Mr. Naidoo was qualified to provide expert opinion evidence in the area of land use planning. Mr. Naidoo has an undergraduate degree in Urban Development, and has worked with the City of Toronto for several years, including as an Assistant Planner with the Development Review Division, Scarborough Community Planning. This was Mr. Naidoo’s first time being qualified as an expert witness before the Tribunal and after considering his experience and Expert Witness Report (Exhibit 1), I determined that he met the requirements to be an expert witness for this matter.

16Mr. Naidoo provided his opinion that the application with the proposed condition represents good planning, maintains the general intent and purpose of Official Plan and Zoning By-law, that the variance is minor, and that the variance is desirable for the appropriate development of the land. Mr. Naidoo’s opinion is that the settlement should be approved subject to the recommended condition.

ISSUES AND ANALYSIS

Provincial Interest

17I find that the proposal meets matters of provincial interest outlined in section 2 of the Planning Act, including: (h) the orderly development of safe and healthy communities; (h.1) the accessibility for persons with disabilities to all facilities, services and matters to which this Act applies; and (i) the adequate provision and distribution of educational, health, social, cultural and recreational facilities.

2024 Provincial Planning Statement

18Mr. Naidoo noted that the 2024 Provincial Panning Statement (the “PPS”) is a policy statement issued under the authority of Section 3 of the Planning Act and applies to the exercise of any authority that affects a planning matter made on or after October 20, 2024. The document is a high level planning framework that outlines development criteria for planning matters. I have considered the PPS and I find the proposal to be consistent with the policies contained in the document.

Minor Variance Test

Do the Variances Maintain the General Intent and Purpose of the Official Plan

19I will now review the four tests outlined in subsection 45(1) of the Planning Act. The first phase of the test is whether the proposal maintains the general intent and purpose of the Official Plan. Mr. Naidoo provided his opinion is that the general intent and purpose of the Official Plan is to provide a policy framework for land use planning in the City. Mr. Naidoo noted that the policies in Chapter 4.6 of the Official Plan aim to provide protection of Employment Areas through its Core Employment Area and General Employment Area policies to secure economic viability. The building within which the Subject Property is located is designated both as a Core Employment Area and a General Employment Area, with the Subject Property being designated as a Core Employment Area.

20Mr. Naidoo provided his opinion that with the time restriction condition of three years, the proposed recreation use would be unlikely to disrupt the long-term viability and operations of the surrounding Core and General Employment Areas. Mr. Naidoo also opined that since the Subject Property is situated on the periphery of the larger Employment Area, the proposed recreation use also acts a buffer to other permitted uses surrounding the Employment Area.

21Mr. Naidoo reviewed the Transportation Impact Study, and stated that it confirms that the proposed recreation use is not expected to have undermining impacts on the traffic within the Employment Area. This supports the intent of Official Plan Policy 4.6.8(e), which provides that development will “mitigate the potential negative impacts from traffic generated by development within Employment Areas and adjacent areas”. Mr. Naidoo also provided his opinion that the Site’s separated surface containing 68 vehicle parking spaces, 4 accessible spaces and 7 bicycle parking spaces will help prevent parking overflow in the surrounding area.

22Mr. Naidoo also referred to Chapter 2.2.4 of the Official Plan which discusses the importance and value of Employment Areas, which includes the City’s goal to conserve Employment Areas, to expand existing businesses and welcome new businesses. Mr. Naidoo provided his opinion that given the importance and value of Employment Areas, a temporary use permission for the proposal before the Tribunal is appropriate to maintain the general intent and purpose of the Official Plan. I agree with Mr. Naidoo’s opinions outlined above and find that the proposal maintains the general intent and purpose of the Official Plan.

Do the Variances Maintain the General Intent and Purpose of the Zoning By-law

23The second phase of the minor variance test is whether the proposal maintains the general intent and purpose of the Zoning By-law. The building in which the property is located is split zoned Employment Heavy Industrial (EH) 1.0 (x11) and Employment Industrial Zone (E) 1.0 under the Zoning By-law. The Subject Property is located in the EH zone.

24Mr. Naidoo provided his opinion that a comparison of the zoning regulations reveals that the EH zone differs from the E zone by permitting more intensive uses, whereas the E Zone permits uses that are less intensive and likely to have less negative impacts on their surroundings. In the E Zone, a recreation use is permitted on condition whereby, the use must be on a lot that fronts a major street. Mr. Naidoo provided his opinion that in the less restrictive E Zone, the proposed recreation use is permitted as Birchmount Road is a Major Street, identified on Map 3 of the City’s Official Plan.

25Mr. Naidoo provided his opinion that the general intent of the more restrictive EH zone, is to create space for intensive manufacturing and industry uses. The industrial condominium building is split zoned and if the unit was located further to the east, the proposed use would be permitted. Mr. Naidoo provided his opinion that the proposed 3-year temporary use of the Subject Property as a recreational property would maintain the general intent and purpose of the Zoning By-law with regards to regulating the uses of land within the employment zoning. I agree and find that the proposal maintains the general intent and purpose of the Zoning By-law.

Are the Variances Minor

26This phase of the minor variance test is focused on whether the proposal is minor in nature. The test of minor typically involves both a quantitative and qualitative assessment. Mr. Naidoo provided his opinion that the proposal calls for a use variance, which cannot be assessed in degrees of numerical magnitude, and therefore, the minor test involves a qualitative assessment of “minor”.

27Mr. Naidoo’s opinion is that the 3-year time limit minimizes potential adverse impacts on businesses and properties in the surrounding areas. In addition, the proposed basketball and pickleball courts would not bring people into the Employment Area during regular hours of business. The Traffic Impact Study concluded that the proposed temporary use can be accommodated without significant impacts on traffic operations. The existing access point through the driveway to the Subject Property’s separated surface parking will continue to operate without capacity issues during all peak hours. In addition, the expected generated traffic will continue to allow the intersections to continue to operate at an acceptable level without delays and significant impacts to traffic operations. Mr. Naidoo’s opinion, which I accept, is that the proposal is minor in nature.

Are the Variances Desirable for the Appropriate Development of the Land

28The fourth phase of the subsection 45(1) test is whether the proposal is desirable for the appropriate development or use of the land. Mr. Naidoo opined that this test is a question of public interest, and that the proposed recreation use in what was once a vacant unit and now contains the recreation use, can play an important role on a temporary basis in supporting the function of the Employment Area and the community by providing increased access to recreation while supporting the local business environment. I agree and find that the proposal is desirable for the appropriate development or use of the land.

CONCLUSION

29In conclusion, I find that the requested variance meets the four statutory tests outlined in section 45(1) of the Planning Act. In addition, the requested variance meets matters of provincial interest outlined in section 2 of the Planning Act, and is consistent with the 2024 Provincial Planning Statement.

DECISION AND ORDER

30The appeal is allowed and the variance requested, as modified before this Tribunal, and stated in paragraph 11 above is approved, subject to the following condition:

a. The proposed recreation use shall be permitted for a period of three years, beginning on the date of the issuance of this decision.

T. Kezwer

Panel Member