Markham property owner built a backyard ice rink. The City says it has to go

Nearly four years ago, in the midst of COVID-19 lockdowns and closures, Martin Ross, a father of two, decided to build an ice rink in his large Markham backyard, located on Main Street in Unionville. The result has sparked a yearslong battle with his neighbours and in the courts.

“Both of my kids play hockey and due to closures, they weren’t getting any time on the ice, so I decided to build the rink for them to keep up with their training,” Ross said.

He wasn’t alone. During that time, families across the GTA did the same by constructing makeshift ice rinks. The DIY projects usually involved some wood planks as borders and tarps to protect the ground. Ross though, went bigger.

“It’s not makeshift. It’s got a chiller system so it can stay cold a little bit longer. I made sure I put up proper boards, proper netting,” he told Speakers Corner. “I put a lot of work into it, a lot of time and a lot of savings.”

To construct the rink, Ross poured a concrete pad and removed trees from the property as well. He did so without first seeking City approval. Complicating things, Ross’s home is in Unionville’s historic centre and residents who live here are held to certain standards set to preserve the historic vibe.

“That’s one of the things I like about living here,” Ross said. “My house was built in 1859 and I’m very house proud.”

Living in a historic preservation area means homeowners like Ross are bound by a heritage easement, a legal agreement which gives the City of Markham a legal interest in any changes to ensure preservation of the property.

He admittedly did not file for a permit before beginning construction.

“Because I did look at the heritage permits before building, and I felt it met all the criteria,” Ross told Speakers Corner. “If you look at their heritage permit, it relates to structures visible to the public realm, which this is not. You can’t consider 200 feet away from the property to be heritage.”

Neighbours began to complain about the large-scale project. Some allege, Ross, who operates a hockey training facility in a separate location, was using the backyard rink to train players during the lockdowns, a claim Ross denies.

“Some of the neighbourhood kids would use it and friends but I was not using this as an alternative training center.”

Based on complaints, City staff began to investigate.

“They came to my homes multiple times,” Ross said. 

According to the city, Ross’s mistake was not seeking approval before building the large rink. He was first fined for removing trees, without prior approval.

“They fined me for cutting down the trees, and I paid all of those fines.”

But City of Markham staff had more issues with the project saying his ice rink construction changed the topography of the land. 

“They said, I need a heritage permit. At this point I already started the work but I submitted a permit.”

Ross points out the Markham Heritage Committee, tasked with giving changes in this district the green light, recommended the rink be approved by city council.

“Although the loss of the mature vegetation from the rear yard without prior authorization or approval is of concern, Council approve the Heritage Permit application in support of the introduction of a rear yard concrete sports pad and cabana structure (subject to securing a Building Permit),” Heritage Planning manager Regan Hutcheson wrote in a 2021 report. “Given that this construction has transpired and enforcement of the tree removal issue is underway and given the location and lack of visibility of the work from the public realm.”

But City Council did not agree and denied the application.

“On what basis?” Ross asked. “There is nothing in the bylaw nor in the heritage agreement that states backyard ice rinks can’t be built. There are bylaws for pools, but not ice rinks.”

“Show me in the bylaw where this is forbidden, because there’s nothing“

While ice rinks are not specifically mentioned, City staff say the easement is clear — the process of changing the land to build one first needs city approval — a step they again point out Ross bypassed.

“The owner’s home is designated heritage under Ontario Heritage Act and the property, including both the building and land, is subject to a Heritage Easement Agreement registered on title,” City spokesperson Pody Liu told Speakers Corner.

“No alterations can be made to property without City consent, including tree removal, and changes to the general appearance and topography of the lands on the property.”

The City ordered Ross to stop work, something staff alleges he did not do.

“Owner ignored City requests (notices) to halt work numerous times.”

Liu went on to say Ross was attempting to install a canopy over the rink but was stopped due to Building Department and Fire Department intervention in January 2021.

“The City of Markham took legal action after numerous failed attempts to halt changes to the property.”

The case then ended up in the courts. Ross chose not to seek a lawyer for his first court case where he was unsuccessful but did seek counsel when he challenged the decision under the Charter of Rights of Freedoms. That case was dismissed by the Court of Appeal.

On Dec. 6, 2022, the Ontario Superior Court Judge, who sided with the city, ruled Ross failed to follow the proper steps when building the rink.

“Mr. Ross has breached the obligations set out in section 2.8 of the Easement Agreement not to: (i) allow any changes in the general appearance or topography of the lands; (ii) allow any activities, actions, or uses detrimental to water conservation, erosion control, and soil conservation; and (iii) allow the removal, destruction, or cutting of trees, shrubs, or vegetation without the prior written approval of the City.”

Ross argues other than cutting down trees, the work did not change the topography.

“It was an empty field, this was hardscaping, nothing I did changed water conservation or other things like erosion control.”

Speakers Corner spoke with a neighbour, who asked not to be identified, about the project.

“Look, I am not against the rink but when you live in a historic district, we all have to follow the rules,” the neighbor said. “I don’t understand how you can build a huge rink like that and not think you need a permit first, maybe if he just followed the proper steps, this wouldn’t be an issue.”

That was a big part of the judge’s ruling, stating multiple times that Ross failed to get the proper approvals before completing the work. The judge went on to give Markham city staff the right to remove the rink, and a temporary structure Ross built as a sitting/storage area in his backyard.

“Section 2.9 provides in part that:  [T]he Town may enter upon the Property and may carry out the Owner’s obligations and the Owner shall reimburse the Town for all expenses incurred thereby. Such expenses incurred by the Town shall, until paid to it by the Owner, be a debt owed by the Town and recoverable by the Town by action in a court of law.” The judge wrote in the ruling.

The City began sending Ross notices last May to prepare for that.

“This letter serves as notice that the construction work is anticipated to begin the week of October 28, 2024,” it reads.  “This notice is being provided to give you as much notice as reasonably possible prior to the construction work start date.”

 But Ross is continuing his fight. He has re-applied for a permit, hoping the City will reconsider.

“We paid our permit fees, so we’ll stand down until we hear this due process,” he said. “I just want Markham to tell me why an ice rink cannot be built in my own backyard, show me in the bylaw where this is forbidden, because there’s nothing.”

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