Rong (Re), 2026 ONTLAB 384

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2026-01-20

25 200186 S45 21 TLAB

Rong (Re), 2026 ONTLAB 384

DECISION AND ORDER

Issuance Date:

January 20, 2026

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):

M. Y. RONG

Applicant(s):

PERMIT MAN

Property Address:

11 LARKHALL AVE

COA File No.:

25 119544 ESC 21 MV (A0040/25TSC)

TLAB Case File No.:

25 200186 S45 21 TLAB

Hearing Date(s):

DECEMBER 17, 2025

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By:

A. BROWN

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Appellant

M. RONG

M. NEMANIC

Applicant

PERMIT MAN

INTRODUCTION AND CONTEXT

1This is an appeal of a decision of the Committee of Adjustment issued July 15, 2025, to refuse a request for three variances in respect of 11 Larkhall Avenue, the subject property. Based on General Zoning By-law 569-2013, the property is zoned (RD X237). It is within the Bendale South Community in the central part of Scarborough.

2The hearing of this Appeal was conducted by way of the WebEx Virtual Platform on December 17, 2025.

3I advised those present that I had visited the subject property and surrounding area, in accordance with the direction of City Council, and that I had reviewed the pre-filed materials in preparation for the hearing.

4Variances

The proposed variances are as follows:

i Soft Landscaping

By-law 150.7.50 Yards and By-law 150.50.10 Landscaping

Required soft landscaping – 85.96m²

Proposed soft landscaping – 35.88m²

ii Setback – East Side

By-law 150.7.60.20

Required side yard setback east side – 1.3m

Proposed side yard setback east side – 0.0m

iii Separation between a Residential Building and an Ancillary Building

By-law 150.7.60.30

Required – 4m

Proposed – 3.13m

5The Appellant had done a partial conversion of the existing garage to a garden suite in 2018, using the existing single-storey garage plus a small kitchen addition. There are no proposed changes to the existing exterior dimensions of the ancillary building. The Appellant seeks variances to permit “an ancillary building containing a garden suite”.

THE LEGISLATIVE AND POLICY FRAMEWORK

6Provincial 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 s.2(a) – (s) in the Planning Act.

7Provincial Policy – S. 3

A Decision of the Toronto Local Appeal Body (TLAB) must be consistent with the 2024 Provincial Planning Statement for the subject area.

8Variance – 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

9Exhibits:

Exhibit #1 - Expert Witness Statement – Kathy Kakish

Exhibit #2 - Disclosure – Site Plan, Plans, Drawings, Photographs

Exhibit #3 - Zoning Examiner’s Notice dated February 25, 2025

Exhibit #4 - Photographs of trees

Three variance (OMB and TLAB) decisions were also filed by the Appellant’s Legal Counsel during his closing submissions.

10Kathy Kakish testified for the Appellant. Her expert witness statement had been filed with the Tribunal and it was marked as Exhibit #1. In light of her experience and qualifications in the field of land use planning, I qualified Ms. Kakish to provide expert opinion evidence in this Appeal. Ms. Kakish visited the neighbourhood and she also obtained data about side yard setbacks and separation distances.

11The Appellant’s evidence also includes the Zoning Examiner’s Notice, site plan, photographs, drawings and elevations.

12The subject property contains a one and a half storey dwelling with a swimming pool on one side and a detached partially converted garage on the other. Ms. Kakish described the lot configuration as a “half-diamond shaped corner lot”. The lot tapers toward Anticosti Drive.

13The Neighbourhood of Bendale South consists predominantly of single detached residential dwellings. It extends from Midland Avenue to McCowan Park, and south of Lawrence Avenue to Knob Hill Park.

14Matters of Provincial Interest

15Ms. Kakish referred the Tribunal to s.2 of the Planning Act which enumerates matters of provincial interest. In her opinion, the proposal has appropriate regard for those matters, especially in respect of the adequate provision of a full range of housing, including affordable housing (s.2(j)) and two other criteria s.2(p) and s.2(r)(i)(ii). She described the proposed garden suite as modest infill development that respects the character of the immediate and broader context.

16Provincial Planning Statement (2024)

17Ms. Kakish explained that the Provincial Planning Statement (2024) establishes Provincial planning policy and sets a goal of increasing the supply and mix of housing options, including garden suites. In her opinion, the Proposal would allow for the gentle intensification of Bendale South and is consistent with the PPS (2024).

18General Intent and Purpose of the Official Plan

19Ms. Kakish referred the Tribunal to policies in Chapters 2, 3, and 4 of the City of Toronto Official Plan. Neighbourhoods are considered to be physically stable. However, the Official Plan, Chapter Two, recognizes that Neighbourhoods are not meant to remain “static”. They may evolve over time through appropriate development.

20Official Plan Chapter 3 address the “Built Form” of future development. Development is required to fit in within the existing and planned context. The subject property is a corner lot. From a zoning perspective, it is considered to front onto Anticosti Drive, but the house, ancillary building and driveway actually face Larkhall Avenue. The west side yard setback (at the “front”) is consistent with the established front yard setbacks of houses on Larkhall Avenue.

21Official Plan Policy 4.1.5 requires that development must respect and reinforce the existing physical character of the Neighbourhood, including patterns of rear and side yard setbacks and landscaped open space. O.P. Policy 4.1.9 requires infill development on properties that vary from existing physical character to be compatible with the surrounding context.

22Ms. Kakish also referred the Tribunal to Site and Area Specific Policy 670 (SASP 670) within the Official Plan. This Policy specifically allows for the development of Garden Suites, and sets out various requirements such as access by fire trucks, limiting privacy and overlook issues, maintaining the integrity of the rear yard open space, and other provisions. According to Ms. Kakish, the existing garage is “materially consistent with the prevailing side yard setbacks and principal building separation distances for existing garages and carports”. No trees are affected by the development. All stormwater is currently managed on the site. There is access for a fire truck, as required.

23Ms. Kakish explained that the subject lot is an atypical half-diamond shape providing limited “rear yard amenity”. There is a swimming pool in the front yard. There are no privacy or overlook issues from the ancillary building. The floor space of the garden suite is less than that of the main dwelling. The overall design of the lot “has been thoughtfully organized to create a cohesive and private setting that offers a resort-like atmosphere within the site”. She stated that the majority of the rear yard will continue to function as open space. The existing deficiency of soft landscaping is, according to Ms. Kakish, “not due to the proposed garden suite, but rather existing hardscaping consisting of permeable pavers, the driveway, and the deck.” In her opinion, the proposal reflects and reinforces the prevailing characteristics in the immediate and broader context, contributes to the planned context and meets the requirements of SASP 670.

24In Ms. Kakish’s opinion, the proposal is consistent with the general intent and purpose of the Official Plan.

25General Intent and Purpose of the Zoning By-law

26Ms. Kakish explained the relevant zoning provisions. The site is zoned RD (x237). By-law 101-2022 amended Zoning By-law 569-2013 to allow for the conversion and construction of secondary suites in rear yards. There are specific requirements for garden suites, including separation distance from the main dwelling, 50% soft landscaping in the rear yard, and minimum side yard setbacks.

27The Zoning Examiner’s Notice states that a minimum side yard setback of 1.3m applies. The portion of the ancillary building that does not satisfy this minimum requirement is measured at 0.0m, although Ms. Kakish’s own measurement indicated that it might be marginally greater.

28Ms. Kakish explained that the lot study obtained by the Appellant included 159 lots on Belyea Crescent, Brimley Road, Gage Avenue, Fraserton Crescent, Barrymore Road, Anticosti Drive, and one address on Kilbride Road. These are shown on a Map in the Expert Witness Statement. Of the 159 properties, 113 lots have a garage or carport. Thirty-one (31) of the garages or carports (27.4%) have a side yard setback between 0.0 and 0.3m, including 20 lots with a side yard setback of 0.0m.

29On the lots that have detached garages or carports, the study showed that 91 (80.5%) of the lots had a separation distance (house to ancillary building) between 0.0 and 0.30m. Ms. Kakish opined that the 3.13m separation distance between the dwelling at 11 Larkhall Avenue and its garage exceeds the prevailing separation distance in the neighbourhood. She found that only two properties have a greater separation than 3.13m. The covered porch on the side of the main dwelling creates the need for a variance to the By-law minimum of 4m.

30The area of rear yard soft landscaping is measured at 35.88m², falling short of he minimum requirement of 85.96m². The total rear yard area includes the garage, the driveway and hard landscaping. The proposed rear yard soft landscaping is 20.8%, reflecting the existing condition.

31Ms. Kakish’s expert opinion is that the proposed variances are consistent with the general intent and purpose of the Zoning By-law.

32Appropriate and Desirable for the Development of the Land

33Ms. Kakish testified that the proposed development is consistent and reinforces the established lotting and built form pattern of the neighbourhood. She stated that the proposed garden suite “supports the City’s objective of gentle intensification and housing choice within established neighbourhoods.”

34Are the Variances Minor in Nature?

35Ms. Kakish stated that the proposed variances are minor in nature from a qualitative and quantitative perspective. There would be no physical changes that affect the neighbours and there are no adverse impacts related to overlook, privacy, light or drainage.

36Mr. Nemanic, legal counsel for the Appellant, reviewed two decisions of the OMB and one decision by the TLAB. In his closing submissions, he asserted that SASP 670 takes primacy over OP 4.1.5 and OP 4.1.9. He emphasized that this proposal is for a conversion of an existing building. This is less disruptive than building a new garden suite. The garage is already in the rear yard, and landscaping cannot be added. The lot has atypical dimensions. The property also has a covered deck and permeable pavers. He submits that the proposed variances are minimal, and not out of place. Previous tribunal decisions (as provided) have taken a flexible approach in similar circumstances and have approved 0.0m setbacks. The City has not opposed the Appeal.

ISSUES AND ANALYSIS

37The Tribunal must determine whether the proposed variances are consistent with Provincial Planning Statement (2024), and whether they have regard for the provincial interests in s.2 of Planning Act. The onus is also on the Appellant to provide evidence to prove that the proposed variances meet all four statutory tests in section 45(1) of the Planning Act. That is, do the variances maintain the general intent and purpose of the Official Plan and the Zoning By-law? Are they desirable for the appropriate development or use of the land? Are they minor in nature?

38A 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 Committee of Adjustment must be considered anew.

39A variance is a privilege and not a right. A variance will not be approved if it fails to meet all four tests. Although the ancillary building and the landscaping are existing, owners are neither penalized nor given extra latitude, and the variances are considered as if the proposal had not already been built or installed.

40I agree with Ms. Kakish’s expert opinion that the Proposal is consistent with the 2024 Provincial Policy Statement. A general direction of the Provincial Policy is to encourage intensification at appropriate locations that can take advantage of existing services and infrastructure. The Proposal meets this objective. Moreover, I agree with her that the proposal is consistent with the Provincial Interest specified in s.2(j) of the Planning Act, namely, the provision of a full range of housing, including affordable housing.

41General Intent and Purpose of the Official Plan

42The subject property is designated by the Official Plan as “Neighbourhoods”. Ms. Kakish referred the Tribunal to Chapter 2.3 of the Official Plan, which states that Neighbourhoods are considered to be physically stable areas but not static:

Some physical change will occur over time as enhancements, additions and infill housing occurs on individual sites." (Ch. 2.3.1)

43Chapter 4 of the Official Plan states that:

While communities experience constant social and demographic change, the general physical character of Toronto’s residential Neighbourhoods endures. Physical changes to our established Neighbourhoods must be sensitive, gradual and “fit” the existing physical character. A key objective of this Plan is that new development respect and reinforce the general physical patterns in a Neighbourhood.

44Ms. Kakish referred to Official Plan 4.1.5, which states in part:

4.1.5 Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular:

a. patterns of streets, blocks and lanes, parks and public building sites;

b. prevailing size and configuration of lots;

c. prevailing heights, massing, scale, density and dwelling type of nearby residential properties;

d. prevailing building type(s);

e. prevailing location, design and elevations relative to the grade of driveways and garages;

f. prevailing setbacks of buildings from the street or streets;

g. prevailing patterns of rear and side yard setbacks and landscaped open space;

h. continuation of special landscape or built-form features that contribute to the unique physical character of the geographic neighbourhood; and

i. conservation of heritage buildings, structures and landscapes.

45Ms. Kakish also referred the Tribunal to Site Area Specific Policy 670 (SASP 670) in the Official Plan, which is specifically aimed at encouraging the development of garden suites, including converting existing rear buildings, as a means of increasing housing options in the City. It provides specific policies to regulate these developments.

46The lot study obtained by the Appellant determined that 113 out of 159 properties in the immediate neighbourhood have a garage or carport. Thirty-one (31) of the garages or carports were between 0.0m and 0.30m from a side yard boundary; of these, 20 had a side yard setback of 0.0m. In total, 41 properties had a garage or carport with a side yard setback under 0.65m. According to the lot study, approximately 50% of the side yard setbacks for garages and carports are less than 1.3m. The 1.3m requirement pertains to the Appellant’s proposed garden suite on a corner lot. There is not a direct comparison with the garages and carports. The garages and carports are mostly not on corner lots, they are not garden suites and they are not in the rear yard. Nevertheless, the side yard setbacks of garages and carports in the Neighbourhood (along with the photographic evidence) do assist in defining the physical character of the Neighbourhood (predominantly of one-storey houses with a single garage or carport to one side) and in determining whether the proposal respects and reinforces that physical character and provides a good “fit”.

47Ninety-one (91) out of 113 properties had a separation distance between the house and the garage or carport of between 0.0m and 0.30m.

48The lot study did not include data about landscaped open space in rear yards. The Appellant’s submission is that the garage and driveway take up most of the available space in the rear yard. According to the Zoning Examiner’s Notice, the rear yard hard landscaping (other than the garage and driveway) comprises 23.62m², less than the soft landscaping of 35.88m². The By-law requires 50% (85.96m²) of rear yard soft landscaping.

49SASP 670

(b) Development of Garden Suites:

(i) will ensure direct and safe access by meeting fire and emergency service requirements;

(ii) will limit privacy and overlook issues on adjacent properties;

(iii) will maintain the majority of the rear yard as open space, and maximize contiguous soft landscaping that is supportive of tree planting;

(iv) the location, massing, and design of a Garden Suite should not result in the injury or removal of a healthy tree protected under Municipal Code Chapters 608, 658, and 813 on the subject property and adjacent properties;

(v) is encouraged to include accessible design features;

(vi) is encouraged to include sustainable building technologies such as green roof areas, bird-friendly glass, solar panels, fossil fuel-free heating systems, and low carbon building materials;

(vii) will ensure that the interior floor area of the Garden Suite is less than the gross floor area of the residential building on the lot;

(viii) will ensure that stormwater management is maintained on site; and

(ix) is encouraged to expand the urban tree canopy through the planting of a new tree on a lot with a Garden Suite.

(d) Where an application is made under Section 45 of the Planning Act, as amended, in relation to the construction of a Garden Suite, such application shall maintain the intent and purpose of policy b), and one or more of the following policies:

(i) the construction of a Garden Suite will meet accessible building standards;

(ii) the construction of a Garden Suite will meet the applicable performance measures of Tier 1 of the Toronto Green Standard and Tier 2 energy and emissions performance measures or higher of the Low-Rise Residential Toronto Green Standards;

(iii) accommodating the Garden Suite within an existing ancillary building; and

(iv) the location, massing and design of the Garden Suite will preserve existing trees protected under Municipal Code Chapters 608, 658, and 813, on the subject property and adjacent properties.

50SASP 670 specifically amended the Official Plan with the objective of allowing the development of garden suites, including the accommodation of a garden suite within an existing building. The evidence shows that the Appellant’s proposal is consistent with many of the applicable policies found within SASP 670(b) and (d). The proposal is to accommodate the garden suite within an existing ancillary building. There is adequate access by fire and emergency vehicles. There are no privacy or overlook issues created by the conversion of the garage. No stormwater run-off issues have been identified, and the City’s Urban Forestry Department has not identified concerns about the protection of trees on the property or the City boulevard. The interior floor area of the proposed garden suite is By-law compliant.

51The policy on development of garden suites states that they “will maintain the majority of the rear yard as open space, and maximize contiguous soft landscaping that is supportive of tree planting”. On the subject property the availability of open space for rear yard soft landscaping is reduced by the garage, the driveway, and the use of hard landscaping such as permeable pavers. The Official Plan policy aimed at maximizing soft landscaping is a consideration that must be weighed along with the policies in the Official Plan that specifically encourage infill housing and gentle intensification through the conversion of existing ancillary buildings. The Official Plan is to be read as a cohesive whole. The proposal clearly aligns with the intent of the Official Plan to increase housing options through gentle intensification.

52I agree with the uncontroverted evidence of Ms. Kakish that the proposed variances respect and reinforce the physical character of the South Bendale Neighbourhood. Moreover, the proposal is in keeping with the prevailing scale, massing, height, and grades of other properties in the immediate context. The rear yard setback, front yard setback, lot area, lot frontage, and gross floor area are all By-law compliant.

53I agree with Ms. Kakish that, from the street, the proposed garden suite will be barely perceptible. It will be contained within the existing structure and it will fit within the existing and planned context in Bendale South.

54I find that the proposed variances meet the general intent and purpose of the Official Plan.

55General Intent and Purpose of the Zoning By-law

56The Zoning By-law is intended to implement the policies of the Official Plan. However, “the Zoning By-law is largely drafted as a generic control that is not necessarily sensitive to the characteristics of the individual lots which make up the neighbourhood as a whole and how those properties and structures evolve.” (See Cortellucci (Re) 2024 ONTLAB 253, at para 93)

57The Appellant’s corner lot has irregular dimensions. It narrows toward the front. As indicated on the site plan filed with the Tribunal, the rear lot line is angular to the east side yard, which made it necessary (according to the Appellant) to place the garage at an angle at the time it was constructed.

58The rear exterior wall of the house comes as close as 1.75m. to the east side lot line.

59The proposed east yard setback for the ancillary building is 0.0m. The By-law specifies a minimum of 1.3m. One purpose of regulating the size of a side yard setback is to ensure access to the rear space of the property. The setback also allows for stormwater runoff and drainage. On the subject property, there is access to the rear yard by way of the west side of the property (which fronts onto Larkhall Avenue.) No stormwater or drainage concerns have been identified in this Appeal.

60The separation distance between the house and the ancillary building is 3.3m, a distance greater than many other properties in the Neighbourhood. The By-law requires at least 4.0m, meaning that the proposal falls short by 0.7m.

61As explained in paragraph 48 (above), the Appellant’s site plan shows that the rear yard area is taken up with a double garage along with the driveway and permeable pavers, leaving 35.88m² of soft landscaping. The site plan indicates that the driveway is 61.77m² and the hard landscaping is 23.62m². The total area of the rear yard is 171.92m². The required soft landscaping is 85.96m².

62Ms. Kakish stated several times in her Expert Statement that the Owner of the property is willing to look at ways to increase the rear yard soft landscaping. No specific proposals were put forth. I note, however, that the photographs of the subject property show evidence of various planters that have been used to add visual “greenery” to the site.

63The general intent and purpose of the Zoning By-law, which implements the City’s Official Plan, is to permit and regulate the construction of garden suites and the conversion of existing ancillary buildings to provide more housing options on existing lots in the City. As mentioned, the dimensions of the corner lot mean that the garage is in the rear yard, whereas garages in the Neighbourhood are typically to the side of the houses. Variances are permitted by the Planning Act in order to address characteristics of individual lots. They provide flexibility in unique situations.

64No party has opposed the Appeal. There is no evidence that the proposed garden suite is an over-build or massing on the site.

65I agree with the uncontroverted evidence of Ms. Kakish that the proposed variances are consistent with the intent and purpose of the Zoning By-law.

66Appropriate for the Development of the Land

67I agree with the expert evidence of Ms. Kakish that the proposed variances are appropriate for the development of the land, given that the Proposal is consistent with the Official Plan, represents a good fit within the existing and planning context, will create additional housing, and represents a gentle intensification of the Bendale South Neighbourhood.

68Are the Variances Minor?

69The Tribunal considered the test for “minor” in Stroganov (Re), 2024 ONTLAB 257. That Appeal dealt with proposed variances for soft landscaping that were determined by the Tribunal to be numerically significant. The proposal dealt with an existing building on a lot having a preponderance of hard landscaping.

70Per Member Herscher at paragraphs 56-58:

The remaining test of ‘minor’ is, to my mind, the most critical with respect to this application, since the changes proposed to the soft landscaping requirements are numerically significant – from 50% to 0% in the rear yard and from 75% to 30% in the front yard.

To what extent a variance can be considered “minor” was addressed by the Divisional Court in McNamara Corporation Ltd. et al. v. Colekin Investments Ltd (1977 1977 CanLII 1050 (ON HCJ), CarswellOnt 332, [1977] 1 A.C.W.S. 668, [1977] O.J. No. 2222, 15 O.R. (2d) 718, 2 M.P.L.R. 61, 76 D.L.R. (3d) 609) in which the Court stated that the question whether a variance is minor must in each case be determined by the committee of adjustment or, upon appeal, the tribunal in the light of the particular facts and circumstances of the case. It is up to the committee of adjustment or the tribunal to determine the extent to which a by-law provision may be relaxed and a variance still considered to be "minor".

With the multitude of by-laws covered by section 45 of the Planning Act, the Court found that there must be many instances where full exemption can properly be considered a minor variance. It is within the jurisdiction of the committee of adjustment and tribunal to make that determination.

71In the instant Appeal, no one appeared at the Hearing to oppose the variances. No concerns about overlooks, shading, noise, stormwater drainage, rear yard access or other potentially relevant considerations were identified in the evidence.

72Each Appeal before the Tribunal is considered on its own merits, based on the evidence. The features of the subject property and the placement of the ancillary building on the corner lot have been described in this decision. The proposed variance pertaining to the separation distance between the main dwelling and garden suite would have no adverse impact of a planning nature. The variance to the east side yard setback is numerically significant. However, there is insufficient evidence that the variance would have an adverse impact of a planning nature. The variance to permit 20% soft landscaping instead of 50% is numerically significant but there is insufficient evidence that it would have an adverse impact of a planning nature.

CONCLUSION

73I find that the Proposed Variances have regard for the matters of Provincial Interest in s.2 of the Planning Act, are consistent with the 2024 Provincial Planning Statement, and satisfy the four tests in section 45(1) of the Planning Act.

DECISION AND ORDER

74I order that the appeal of the Committee of Adjustment Decision be allowed, and the Appealed Variances be authorized.

75I further order that the authorization be subject to the following condition,

That the Garden Suite be constructed substantially in accordance with the Site Plan, Plans and Elevations prepared by Permit Man Building Design Services dated April 2024, as attached.

For clarity, this Condition does not prevent the Owner from increasing the percentage of soft landscaping in the rear yard.

A. Brown

Panel Member

Attachments: