Toronto Local Appeal Body

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

Date:

2026-05-20

25 244022 S45 12 TLAB

Kalles (Re), 2026 ONTLAB 415

Issuance Date:

May 20, 2026

Revised Date:

May 25, 2026

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

Appellant:

Applicant:

Property Address:

9 HIGHBOURNE RD

COA File No.:

25 216697 STE 12 MV (AO65/25TEY)

TLAB Case File No.:

25 244022 S45 12 TLAB

Hearing Date(s):

April 7, 2026, April 28, 2026, and April 29, 2026

Deadline Date for Closing Submissions/Undertakings:

May 11, 2026

Decision Delivered By:

TLAB Panel Member R. Kanter

People Type	First Initial. Last Name	Representative
Applicant	LORNE ROSE ARCHITECT INC
Appellant	M. KALLES	M. MAZIERSKI
Party	S. PARRY
Party	D. REES
Party	J. BURTON
Party	J. NUBERG for KILBARRY-ORIOLE KOAP LTD
Participant	RAY THONGPHENG

1On October 21, 2025, the Committee of Adjustment (the “C of A”) refused an application for seven (7) minor variances to permit the construction of a new two-storey detached ancillary building containing one garden suite behind the main house at 9 Highbourne Road (the “C of A Decision”). The main house contains three (3) dwelling units. The existing garage at 9 Highbourne Road (the “Site”) will be demolished.

2On October 22, 2025, Martin Mazierski, counsel for the Appellant, appealed the C of A Decision to the Toronto Local Appeal Body (the “TLAB”).

3Subsequently, John Burton, Donna Rees, Julian Nuberg and Simon Parry requested Party Status before the TLAB. Ray Thongpheng requested Participant status.

4On December 10, 2025, Toronto Building issued a revised Zoning Notice, listing five (5) variances for the proposed ancillary building containing one garden suite:

#1 – Rear Yard Setback (east):

Required 1.5m; Proposed .3m

#2 – Side Yard Setback (north):

Required 1.5m; Proposed 1.2m

#3 – Side Yard Setback (south)

Required 1.5m; Proposed 1.2m

#4 – Separation Distance, garden suite from main residential building:

Required 7.5m; Proposed 7.08m

#5 – Maximum Height (if garden suite is less than 7.5m from main residential building)

Required 4m; Proposed 6.3m

5The Zoning Notice eliminated variances for angular planes refused by the C of A Decision, to comply with Ontario Regulation 462/24 and Zoning By-law Amendment 849-2025, which eliminated prohibitions concerning the penetration of angular planes.

6On December 29, 2025, the Appellant submitted plans to the TLAB with revisions to those before the C of A. The revisions included:

the introduction of a slope/angular plane at the rear of the garden suite (the “GS”) with two skylights on the sloped portion of the roof; and
the removal of two bathroom windows previously proposed for the rear of the second story.

7On February 9, 2026, the Appellant filed an Expert Witness Statement (the “Appellants EWS”) prepared by David Igelman.

8On or about February 9, 2026, John Burton, Donna Rees, Julian Nuberg and Ray Thongpheng each filed a Witness Statement (“WS”). On February 19, 2026, Simon Parry filed a WS.

9On February 23, 2026, the Appellant filed a Responding EWS to the WSs of John Burton and Donna Rees. The Appellant’s Response contained further revised plans showing changes to rear yard landscaping and translucent glass on the rear first story window of the GS (the “Proposal”). The Appellant’s Response also contained a Shadow Study prepared by Lorne Rose, in response to the WS filed by Mr. Burton.

10On February 23, 2026, Mr. Burton filed a Response to the Appellant’s EWS.

11On February 28, 2026, Ms. Rees filed a Response to the Appellant’s EWS.

12On March 9, 2026, Mr. Burton filed a Reply to the Appellant’s Responding EWS.

13On April 2, 2026, Lorne Rose submitted an Updated Shadow Study.

14On April 6, 2026 Mr. Burton filed a Response to the Updated Shadow Study. On April 17, he filed a Rebuttal and Further Response to the Updated Shadow Study,

15A number of documents filed subsequent to February March 4, 2026, are technically “late”, according to a strict interpretation of the TLAB Rules of Practice and Procedure (the “Rules”) and TLAB’s Practice Direction 7. However no Party or Participant objected to their late submission. I allowed the late submissions, since they are relevant, not unduly prejudicial to either Party, and assist me to make an informed decision on this appeal, pursuant to Rule 2.12.

16The Appellant and four opposing Parties took part in a hearing on April 7, 28 & 29, 2026. The City did not appear at the hearing.

THE LEGISLATIVE AND POLICY FRAMEWORK

17Provincial 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.

18Provincial 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.

19Variance – 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 AND AUTHORITIES

20The following Table lists the Documents entered as evidence and filed as Exhibits during this hearing:

Table 1 - Exhibits

Ex.	Date	Submitted By	Document
1	Feb. 9, 2026	D. Igelman	Expert Witness Statement (EWS)
2	Feb. 9, 2026	D. Igelman	Document Book
3	Feb. 23, 2026	D. Igelman	Responding EWS plus Revised Site Plan/Landscaping Plan/ Elevations and Shadow Study
4	Feb. 9, 2026	J. Burton	Witness Statement
5	Feb. 23, 2026	J. Burton	Response to EWS
6	Mar. 9, 2026	J. Burton	Reply to Responding EWS
7	Feb. 9, 2026	D. Rees	Witness Statement
8	Feb. 28, 2026	D. Rees	Response to EWS
9	Feb. 28, 2026	D. Rees	Reply to Responding EWS
10	Feb. 9, 2026	J. Nuberg	Witness Statement
11	Feb. 6, 2026	R. Thongpheng	Witness Statement
12	Feb. 16, 2026	S. Parry	Witness Statement
13	April 2, 2026	L. Rose	Updated Shadow Study
14	April 6, 2026	J. Burton	Response to Updated Shadow Study
15	April 17, 2026	J. Burton	Rebuttal & further Response to Shadow Study

21On May 4, 2026, Counsel for the Appellant submitted Proposed Conditions should the Proposal be approved, and two cases in support of the Proposal. On May 9 & 10, the Parties submitted a Response to the Proposed Conditions and a case not in support of the Proposal.

Evidence of the Appellant

22Counsel asked David Igelman to describe his education and experience. Mr. Igelman has a BA in Urban and Regional Planning and has practiced as a land use planner since 2019. He has previously been qualified as an expert witness at the TLAB and Ontario Land Tribunal. I qualified Mr. Igelman as an expert witness, able to give opinion evidence in the field of land use planning.

23Mr. Igelman described the Site. The lot has a frontage of 11.43m and an average depth of 37m. It is occupied by a two-storey house containing three dwelling units, plus a detached garage located in the rear yard.

24The existing garage has north side yard setbacks ranging from .20 to .29m and south side yard setbacks from .67 to .70m. The rear yard set-back varies from .51 to .76m.

25Lots north, south and west of the Site are occupied primarily by single-detached buildings one-to-two stories in height. 11 Highbourne located immediately to the north of the Site has a detached garage within its rear yard with a rear yard setback of 0m. 7 Highbourne, located to the south, has a garage with a rear yard setback of .18 to .30m.

26Lots to the east of the Site contain apartment buildings fronting on Oriole Parkway. The building at 110 Oriole Parkway is immediately east of the Site; the building at 100 Oriole Parkway is southeast, and the building at 120 Oriole Parkway is northeast of the Site.

27A copy of a Survey showing the Site and adjacent lots, submitted on February 23, 2026, is attached as Schedule 1, page 1.

28Oriole Parkway is identified as a Major Street on Map 3 of the Official Plan (the “OP”). According to the Major Streets ZBL 608-2024, low-rise residential intensification is permitted on Oriole Parkway. Buildings up to six stories are permitted but must be set back 7.5m from the rear lot line.

29Both the single detached buildings north and south of the Site on Highbourne Road, and the apartment buildings southeast, east and northeast of the Site on Oriole Parkway are designated Neighbourhoods in the OP.

30According to Mr. Igelman:

“ the intent of the Official Plan, in regard to more intensive forms of development that is adjacent to Neighbourhoods, is such that it is the adjacent, more intensive forms of development that is to be designed to avoid or mitigate impacts to adjacent, more intensive forms of development . . . As such, it is clear that the OP and Zoning by-law (“ZBL”) do not contemplate impacts of a less intensive development within an interior neighbourhood on an adjacent, more intensive form of development located along a Major Street.” (Ex. 1, par. 25).

31Mr. Igelman reviewed recent amendments to the OP permitting GSs.

32OPA 554, adopted in February 2022, authorized Site and Area Specific Policy 670 (“SASP 670”). SASP 670 permits garden suites within all areas designated as Neighbourhoods and sets out policies for their development.

33SASP 670 a) defines a “Garden Suite” as “subordinate to a primary dwelling”.

34SASP 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, etc.

35In Mr. Igelman’s opinion, the Proposal will:

ensure direct and safe access to the GS through the existing driveway along the north side of the principal dwelling and a pedestrian walkway along the south side;

-limit privacy and overlook issues on adjacent properties due to the aggregate rear yard setback, translucent glass on the first-floor rear window, removal of the second-floor rear windows and replacement with skylights located on a slope at the rear of the roof); and

maintain the majority of the rear yard as open space, and maintain contiguous soft landscaping that is supportive of tree planting (Ex. 1, par. 128, 132 & 39)

36A copy of the Revised Plans, containing Site Statistics, Floor Plans and Elevations, is attached as Schedule 1, pages 2-15,

37Mr. Igelman wrote that the polices of SASP prevail where there is a conflict with other OP policies, as per OP Policy 5.6.7. In his view, OP Neighbourhood Development Policies are not determinative, since garden suites were not permitted at this Site or in other areas designated as Neighbourhoods (Ex. 1, par. 68)

38However, Mr. Igelman stated that he would also address OP Policy 4.1.5 to the extent possible: “[it] is also appropriate in this case to assess the Proposal against other ancillary structures and the overall built form and physical characteristics within the Study Area” (Ex. 1, par. 68).

39Mr. Igelman delineated a Study Area bounded Oxton Avenue to the north, properties on both sides of Highbourne Road, and Kilbarry to the south. He excluded the apartments backing on to the Site.

40Mr. Igelman wrote that the Revised Proposal meets the general intent and purpose of Policy 3.1.3 of the OP, since it represents an appropriate form of infill development which fits in, respects and improves the character of the surrounding area. It protects privacy within adjacent buildings by providing an aggregate rear yard setback, between the rear main walls of the garden suite and the apartment building directly to the rear of 2.96m. This distance will essentially equal the required minimum setback of 3m that would be required between two garden suites without windows on the second story of their rear walls (Ex. 1 par. 89).

41Mr. Igelman stated that the proposed garden suite would provide rear and side setbacks similar to, if not greater than, the prevailing setbacks of existing ancillary structures (garages) within the rear yards of properties within the Study Area.

42Mr. Igelman also reviewed the zoning by-law (“ZBL”) provisions concerning garden suites.

43ZBL 101-2022 set out detailed requirements for ancillary buildings which contain GSs, including landscaping, setbacks, separation from other residential buildings on the lot, height and floor area, and contain definitions for Ancillary Buildings and Garden Suites.

44ZBL 849-2025 revises ZBL requirements for GSs by requiring an additional 1.5m setback where openings such as windows are located above 4m on the rear main wall, resulting in a rear yard setback of 3m for a two-story garden suite. It also allows a GS located 7.5m or more from a residential building on the same lot to increase its height from 6 to 6.3m.

45Mr. Igelman stated that the Revised Proposal meets the general intent and purpose of the ZBL.

46The proposed side yard setbacks for the GS represent an increase from the side yard setbacks from the existing garage on the Site – from .2m to 1.2m for the north side yard, and from .51m to 1.2m for the south side yard. There will not be windows on the side wall of the garden suites above the first floor, and there are detached garages within the rear yards of both immediately adjacent properties to the north and south, limiting the potential for any privacy or overlook impacts.

47The proposed rear yard setback of .03 m represents a slight reduction from the setback from the existing garage. However, the proposed setback will functionally maintain the existing condition. They will provide adequate separation distance for soft landscaping, maintenance and repairs, drainage and grading where there is outdoor amenity space (as provided by the rear yard setback of the existing apartments) or where another garden suite could be constructed.

48The proposed garden suite has been designed to mitigate any potential privacy overlook or massing impacts, due to the elimination of windows on the second storey rear wall; translucent glass on the single window at ground level, and the slope on the rear portion of the roof containing two skylights.

49The reduction in the separation distance and the height variance are related. The height variance arises due to the minimal reduction in the separation distance between the garden suite and the existing residential building from 7.5 to 7.08m. The minor decrease is practically negligible and is not anticipated to result in any undue adverse impacts greater than those resulting from a two-story building located .42m further from the residential building (Ex. 1, par. 192).

50Mr. Igelman referred to a Forestry Study conducted by Kuntz Forestry. According to the Study, one mature tree was removed from the rear southeast corner of the lot prior to the hearing, since it was in poor condition. The Appellant will plant one tree to the rear of the proposed GS.

51Mr. Igelman stated that the Proposal is desirable, since it facilitates the construction of a functional family size residential unit, represents a more efficient use of underutilized rear space and respects the existing and planned built form.

52He opined that the Proposal is minor, since it does not create any unacceptable adverse impacts of a planning nature.

53Mr. Igelman was cross-examined by Mr. Burton. Mr. Igelman stated that he was not aware that the skylights on the roof would be operable. Mr. Igelman was also cross-examined by Ms. Rees. He agreed that if there were a 2 storey GS with windows at the rear proposed on Highbourne, and a 2 storey GS with windows at the rear proposed on Oriole Parkway, the aggregate separation distance would be greater than 3m.

54In response to a question from me, Mr. Igelman did not provide any authority for his opinion that the OP did not contemplate the impact of a GS on existing apartments.

55Mr. Mazierski then reviewed the education and experience of Mr. Lorne Ross. Following counsel’s review, I qualified Mr. Ross as an expert in the field of architecture.

56Mr. Ross explained that he prepared and filed an initial shadow study on February 23, 2026, in response to concerns raised by Mr. Burton’s WS. He then prepared and filed an updated study on April 2, 2026, to correct an error in the delineation of north pointed out by Mr. Burton (the “Updated Shadow Study” - Ex. 13).

57Mr. Ross explained that he compared the shadow impact of the Proposal on 110 Oriole Parkway with a GS which could be built as of right. The most important comparison dates were March 21 and September 21, the equinox dates when shadows were of average extent. The most important comparison times were the early afternoon hours, when the sun would be behind the Proposal.

58According to Mr. Ross, there were additional small shadows resulting from the Proposal for approximately three hours in the spring, fall, and summer.

59Mr. Ross was cross-examined by Mr. Burton, Ms. Rees and Mr. Parry. Mr. Ross stated that the skylights would not be operable, and that the basement of the garden suite would be built of concrete or concrete block.

Evidence of Opposing Parties

60Mr. John Burton lives on the second floor of the apartment building immediately east of the Site. One of his windows would look out on the rear wall of the proposed GS, which would be closer and taller than existing garage.

61According to Mr. Burton, the scale of the variances is extreme. The construction of a two-storey garden suite so close to the rear lot line will create a canyon effect, resulting in loss of sunlight and loss of view of the sky from first and second floor windows of the apartment. Windows to the rear of his apartment, and to the rear of another apartments, in particular that rented by Mr. Thongpheng, would have their only source of natural light blocked. (Ex. 4 par. 1-3)

62Mr. Burton disagrees that the required rear-yard setback is only 1.5m. The replacement of windows at the rear of the second storey of the GS with glass openings at a 45-degree chamfered edge does not exempt the building from the 3m setback required for a GS with windows. (Ex. 4 par. 4).

63Mr. Burton pointed out an error in the calculation of soft landscaping in the site statistics contained in the plans submitted by the Appellant to the TLAB in December 2025. (Ex. 4 par. 5)

64In Mr. Burton’s view, a GS built as of right would be infeasible to build, and therefore is not a valid comparison to the Proposal (Ex. 4 par. 7)

65Mr. Burton objects to the evidence of Mr. Igelman concerning the lack of protection for the apartment constructed in 1937 and proposes a one storey GS as an appropriate alternative (Ex. 5).

66On March 9, 2026, Mr. Burton pointed out technical inaccuracies in Mr. Rose’s Shadow Study filed on February 23, 2026 (Ex. 6).

67Mr. Burton criticized Mr. Rose’s Updated Shadow Study as unrealistic, since it is unlikely that a 2 storey GS with no windows in side walls or rear walls would actually be built. He maintained that the only acceptable solution is a one storey GS. (Ex. 14 & 15)

68In his oral evidence, Mr. Burton emphasized the negative impacts of the Proposal when measured against the Vertical Sky Component resulting in a 35% loss of light. Mr. Burton spoke on behalf of Mr. Thongpheng as well as himself.

69Mr. Mazierski cross-examined Mr. Burton. Mr. Burton agreed that he was asking the TLAB to consider matters such as the advantages of a one storey GS, in addition to the requested variances for a two storey GS.

70Ms. Donna Rees lives in an apartment northeast of the Site. She stated that the Proposal would have a negative impact on the “buffer zone” between the houses on the east side of Highbourne including the Site, and the apartment buildings to the east fronting on Oriole Parkway (Ex. 7).

71Ms. Rees expressed concern about the replacement of earth behind and beneath the existing garage with concrete, which would eliminate the soil necessary to maintain mature trees in the buffer and exacerbate drainage conditions (Ex. 7 par. 4 (a) and (b).

72In her written response to Mr. Igelman’s EWS, Ms. Rees challenged his opinion that garden suites are to be evaluated solely on their impact to other single-family homes rather than apartments (Ex. 8-part A).

73In her Reply to the Responding EWS, she challenged the viability of a walkway reduced to a width of .61m to accommodate emergency medical equipment, such as a gurney or walker (Ex. 9 par. 8-12) or a stroller (Ex. 9 par. 13).

74In her oral evidence, Ms. Rees stated that sky views were protected in the OP. She questioned whether the walkway shown on the revised plans was correctly included in soft landscaping. Since the area of the GS (176m²) would exceed the average size of each of the 3 units in the residential building (145m²), the GS would not be subordinate to the main house.

75Mr. Mazierski cross-examined Ms. Rees. She agreed that issues such as drainage and the characterization of the walkway would be considered as part of the building permit process.

76Mr. Nuberg lives in the same apartment building as Ms. Rees. His written and oral evidence stated that he was a Board Director of the Kilbarry-Oriole KOAP Limited (the “Co-op”) which represented all of the residents of the building. The Co-Op opposed the Proposal. If allowed, it would pave the way for a row of high-mass structures that would systematically dismantle the open space behind our building, threatening the light, air and character that define the block (Ex. 10 par. 2).

77Mr. Parry owns a house north of the Site. He opposes the Proposal, since it would result in a 3-storey house with negative impacts on sight lines, privacy and parking for the neighbourhood (Ex. 12).

78Mr. Thongpheng lives in an apartment on the second floor, directly across from the proposed development. A two-storey development less than 10 feet away will block both his living/dining area windows. He opposes the current design because it will have a negative impact on his natural light and views (Ex. 11).

ISSUES AND ANALYSIS

A. Should TLAB consider the Impact of the proposed GS on apartment buildings east of the Site?

79Mr. Igelman took the position that GS Development need not avoid or mitigate impacts on more intensive forms of development such as apartments located at 100 -120 Oriole Parkway throughout his Witness Statement (Ex. 1 par. 25, 88-91, 132, 157, 159, 163, 178, 180-182, 200, and 209).

80He states that:

“the intent of the Official Plan, in regard to more intensive forms of development that is adjacent to Neighborhoods, is such that it is the adjacent, more intensive forms of development that is to be designed to avoid or mitigate impacts to the interior of the Neighbourhood and not vice-versa” (Par. 91);

“Any privacy or overlook impacts on the units within the apartment buildings to the east are more of a product of the placement and layout of those buildings than the effect of the low-rise residential development on Highbourne Road” (Par. 163);

“The minor deficiencies in separation distance and setbacks have been designed in recognition of site-specific constraints, existing development patterns and the areas tight-knit urban fabric.” (Par. 200)

81Mr. Igelman bases his opinion on Policy 4.1.5 of the OP, the Report on Expanding Housing Options in Neighbourhoods – Garden Suites Monitoring Program - Final Report, June 27, 2025 (the “EHON GS 2025”) and the potential increase in rear yard setback contemplated by the Major Streets By-law 608-2024.

82Ms. Rees and Mr. Burton disagree with Mr. Igelman.

83According to Ms. Rees:

“The City-wide Zoning By-law applies universally to every property line. There are no exemptions stating that a mandatory 1.5m (5 foot) setback can be ignored just because the neighbour is an apartment building . . .

[EHON GS 2025] used “garden suite to garden suite” as an example of why privacy matters; it did not create a loophole to strip privacy rights from neighbours who don’t have a garden suite” . . .

the [Major Streets By-law] “demonstrates that the planning intent is to maintain a substantial spatial buffer at this boundary. The Expert cannot admit that the city wants a large buffer while simultaneously proposing to destroy it by building a 6.3m tall wall just .3m (1 foot) from the line” (Ex. 8 par. 5-15).

84According to Mr. Burton:

“The Expert’s argument that an apartment building requires less protection than a hypothetical house is planning logic in reverse. The residents of 110 Oriole Parkway occupy primary dwellings with their only habitable windows facing the subject site. The intent of the 3.0 metre setback for buildings over 4.0 metres in height is to ensure residential dignity and prevent oppressive enclosure. Primary residences of all descriptions deserve, and are entitled to, the same protection under the By-law.” (Ex. 5, page 12, par. 9.2)

85I note that Policy 4.1.5 of the OP states that:

“In determining whether a proposed development in a Neighbourhood is materially consistent with the physical character of nearby properties, only the physical character of properties within the geographic neighbourhood in which the proposed development is located will be considered. Any impacts (such as overview, shadowing, traffic generation) of adjacent, more intensive development in another land use designation (emphasis added) . . . may also be considered when assessing the appropriateness of the proposed development.

86As stated previously, both the low-rise residential houses on Highbourne and the apartment buildings on Oriole Parkway are located in the same land use designation – Neighbourhood. Consequently, I do not find that Policy 4.1.5 authorizes me to ignore or minimize the impact of the GS on an existing apartment building within the same Neighbourhood designation.

87I further note that the site is subject to SASP 670. SASP 670 permits Garden Suites in areas designated as Neighbourhoods, subject to policies including Development of Garden Suites:

ii) will limit privacy and overlook issues on adjacent properties

There is no restriction or limitation on the geographic neighbourhoods in which the adjacent properties may be located.

88I find that the TLAB should consider the impact of the Proposal on adjacent properties, including the apartment buildings to the east of the Site.

B. Should TLAB consider the planned rather than actual function of lands occupied by 100 and 110 Oriole Parkway?

89Mr. Igelman described the “aggregate rear yard setback” between the rear wall of the Proposal and the rear wall of 110 Oriole Parkway, the apartment to the east, as 2.96m. He pointed out that that distance was the same as that contemplated by the Garden Suite amendment By-law 849-2025, which requires a total aggregate rear yard setback between two GSs without windows to be 3m (Ex. 1 par. 54).

90He refers to the EHON GS Report, which recommends an increase in the rear yard setback for a two-storey garden suite with windows:

“This rationale demonstrates that the rear yard setback provisions are primarily intended to address privacy and overlook impacts between garden suites and adjacent rear yards of low-rise residential properties where there may be outdoor amenity space or where another garden suite could be constructed.” (Ex. 1 par. 88)

“This 2.9m aggregate setback . . .shows where the rear wall of a potential garden suite constructed at 110 Oriole Parkway would be if the required 3m aggregate setback was to be provided and if the 110 Oriole Parkway Garden suite had no windows located above 4m on the rear main wall” (Ex. 1 par. 157).

91The TLAB may take the planned or intended function of the adjacent lands into account. However, I do not agree that providing the rationale for a greater rear yard setback between GSAs with windows negates the need to consider the need for rear yard setbacks between a GS without windows on an apartment with windows. Furthermore, I do not consider the redevelopment of the existing four-storey apartment at 110 Oriole Parkway with a garden suite as reasonably foreseeable.

92Mr. Igelman also refers to the potential redevelopment of 110 Oriole Parkway, since it is located on a Major Street, to an apartment of six stories in height, with an increased rear yard setback of 7.5m. I view this as more likely than downzoning an existing apartment to permit a garden suite, but still speculative.

93I will consider the potential redevelopment of 110 Oriole Road as a potential factor in my Decision. However, I will give greater weight to the four-storey apartment that currently actually exists at 110 Oriole.

C. Should TLAB consider alternatives to the Proposal?

94Mr. Mazierski submitted that I must compare the impact of the Proposal with the impact of a GS permitted as of right by applicable ZBL’s 101-2022 and 849-2025. Primarily

95Mr. Burton asked me to consider the merits of a one storey GS, as preferable to the Proposal and more realistic than a two-storey GS without windows. Mr. Burton also asked me to consider an alternative to the Updated Shadow Study presented by Mr. Rose. In cross-examination, Mr. Burton conceded he was asking the TLAB to consider matters beyond the variances sought by the Appellant.

96Ms. Rees also asked me to consider the merits of a one storey GS, which she would support. She also raised concerns about drainage issues, which would be exacerbated by the additional concrete required if the Proposal was allowed. In cross-examination, she agreed that drainage would be further considered through the building permit process.

97I agree with Mr. Mazierski that I must assess the specific Proposal, not alternatives to it, against the four statutory tests. However, I also agree with the Parties and Participant that I should primarily consider the Proposal with respect to its impact on adjacent properties as they are, rather than as they might potentially be developed.

98I expect that virtually any minor variance could have some impact. I will assess the Proposal to determine if it is acceptable on balance, or if it has or has a significant adverse impact.

D. The Rear Yard Setback Variance

99The most significant variance sought by the Appellant is a reduction in the rear yard setback from 1.5m (required) to .3m.

100The Appellant stated that the existing one-storey garage with a peaked roof was located closer to the rear lot line, ranging from .51m to .76m, rather than the required setback of 1.5m.

101The Appellant also stated that the design of the GS would mitigate any potential privacy, overlook and/or massing impacts. More specifically, the proposed GS does not include any windows at the second storey on the side or rear main wall; has only one window on the rear wall at the ground floor which is proposed to be translucent; the roof is now sloped, and contains a skylight also proposed to be translucent.

102Mr. Mazierski noted that the City did not oppose the Proposal, either prior to the design improvements described above.

103Mr. Mazierski conceded there will be some impact from the reduced setback – but submits it will not constitute an unacceptable adverse impact. He submits that the reduction in sunlight will be marginal, and the impact on views will not differ significantly from the existing garage.

104Mr. Mazierski marked up the south elevation contained in the revised plans to show that the increase in the length would not result in an undue adverse impact. The area to the left of the red line is permitted as of right, and the area to the right of the red line shows the additional development permitted if the variance is approved.

A copy of the south elevation showing the effect of the rear yard setback variance is attached as Schedule 2.

105The Residents submitted that the impact of reduced rear yard setback behind a two-storey GS differs from the impact of a setback from a one-storey garage. It would result in a significant reduction of sunlight and views on the rear windows of 110 Oriole and constitute a precedent which would threaten the corridor between the row of apartments on Oriole and the houses on the east side of Highbourne.

106The proposed reduction in the rear yard setback ranges from .74m to .99m. However, the reduction would not result in replacing a clear view with an obstruction. Residents of 110 Oriole with windows in the west wall have seen the rear wall of a garage for many years, since there was unrefuted evidence that it was constructed at least as early as 1954. A photo showing the existing garage at the rear of 9 Highbourne and the windows at the rear of 110 Oriole Parkway is attached as Schedule 3.

107It has been determined in a number of cases that residents do not have a right to an unobstructed view, particularly in a dense urban neighbourhood. See In re Green Dot, 2017 CarswellOnt 20910 par. 79, submitted by the Appellant.

108There is no evidence that the garage was located closer to the rear lot line than permitted by the Zoning By-law which came into effect in 1952. Consequently, there is no planning argument that the GS constitutes the replacement of a legal non-conforming use and should therefore come closer to the current By-law requirement of 1.5m rather than deviate from it.

109I find that the GS has been designed to minimize privacy and overlook impacts, the stated goals of SSPA 826 and the EHON GS 2025 Report.

110The Parties raised questions concerning the maintenance of the rear wall of the GS. Presumably, maintenance of the rear wall of a newly constructed GS would be dealt with in a similar manner to maintenance of the rear wall of the garage constructed over seventy years ago.

111In summary, I find that the reduction in the rear yard setback meets the four tests and does not have an unacceptable adverse impact on the residents.

E. The Height & Separation Distance Variance

112According to the Appellant, the height variance results solely from the reduction in the separation distance between the residential building and the GS. Since the GS is proposed to be located 7.08m rather than 7.5m from the residential building, the maximum permitted height limit of the GS is 4m (By-law 849-2025 clause 6, which amends general ZBL 569-2013 regulation 150.7.60.40 (1). The reduction in separation distance is slight - .42m.

113The impact of the slight reduction in separation distance would be felt primarily by the residential building owned by the Appellant, rather than by the Residents in the apartment buildings to the rear. Mr. Parry, the owner of 11 Highbourne, did not object to the reduction in space between the GS and the residential building.

114The Residents, including Mr. Parry, took a different view of the height variance. Mr. Burton went to considerable lengths to characterize the skylights at the rear of the roof as similar to windows more than 4m above grade, which would have a negative effect on the privacy of apartment residents, particularly him and Participant Ray Thongpheng, who have windows on the second floor immediately east of the proposed GS. Mr. Parry also objected to an increase in the permitted height from 4 to 6.3m, which he considered an increase of 60%.

115The Residents’ objections to the height variance are based on their interpretation of the phrase “openings such as windows in the rear main wall located above 4m above average grade” (Bylaw 849-2025 cl. 3 (2) (C)). In their view, the skylights in the GS constitute windows in the rear wall above 4m, so the GS should be limited to 4m, rather than 6.3m, in height.

116However, the interpretation of Zoning By-laws is the responsibility of Toronto Building. According to the revised Zoning Notice, the Height Variance results solely from the reduced separation distance between the GS and the residential building on the lot. The Zoning Notice does not consider the skylights as openings such as windows in the rear main wall located above 4m above grade.

117It is not my role to challenge the interpretation of Toronto Building that the height variance results from the .42 reduction in the separation distance between the GS and the residential building on the lot, not by considering the skylights as second storey windows, which would trigger a 2.3m reduction in height.

118Consequently, I find the increase in height, resulting from a reduction in separation distance which will have little or no impact on the Residents, to be minor.

The Side Yard Setback Variances

119The proposed north and south side yard variances are 1.2m; 1.5m are required by the ZBL (Section 150.7.60.20).

120According to the Appellant, the proposed side yard setbacks will provide adequate space for soft landscaping, building maintenance and repairs and grading. They will increase the setbacks provided by the existing garage by 1m on the north side, adjacent to 11 Highbourne owned by Mr. Parry, and by .53m on the south side. They will be similar to, if not greater than, the setbacks of existing garages on other lots on the east side of Highbourne.

121The Residents noted that the proposed GS would be wider than the residential building at the front of 9 Highbourne. However, they did not raise any specific concerns about the side yard setbacks.

122I find that the side yard setback variances are minor.

CONCLUSION

123I find that the amendments from the plans before the C of A to the Proposal before TLAB to be minor, and I do not require the amended plans to be recirculated, pursuant to Section 18.1.1 of the Planning Act.

124I conclude that the variances requested by the Appellant, individually and cumulatively, meet the tests set out by the Planning Act. Consequently I will allow the appeal, subject to the conditions set out below.

125I base my finding on the specific fact situation before me. I reviewed and distinguish Cortellucci, Re, 2024 ONTLAB 253, which allowed a garden suite to be located in exactly the same location as an existing garage. I also distinguish GF 2 Regal Road, TLAB Case File 21 220284 S45 09 TLAB. In that case, the Appellant proposed a floor area and height increase for an apartment building many times greater than that allowed by the OP or Zoning By-law. The impact of the proposal on sunlight and views was not, in my view, the determining factor in rejecting the proposal.

126I want to commend the Residents for their extensive efforts and evidence. While they did not prevent the appeal from succeeding, their participation required the Appellant to provide additional evidence concerning the shadow impact, and to modify the rear wall of the GS to reduce its massing and overlook. Their participation also informed three conditions, which I believe will further reduce the impact of the GS on the Residents and their neighbours.

DECISION AND ORDER

127I will allow the appeal and approve the five variances sought by the Appellant.

128The variances will be subject to the following conditions:

The garden suite shall be constructed and maintained substantially in accordance with the site plan, elevation drawings, and landscaping plan, prepared by Lorne Rose Architect, dated February 23, 2026.
The garden suite shall be constructed and maintained with a translucent glass window at the back of the rear (east) first storey wall.
The garden suite shall be constructed and maintained with translucent glass windows in the skylights at the rear (east) of the second storey, which shall be inoperable.
The Appellant shall plant one (1) tree on the Site, to the satisfaction of Urban Forestry, not later than six months after the construction of the garden suite is substantially complete.

R. Kanter

Panel Chair