Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
25 173919 S45 11 TLAB
Zeng (Re), 2025 ONTLAB 363
DECISION AND ORDER
Issuance Date: October 10, 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): A. ZENG
Applicant(s): H. XIN
Property Address: 35 Borden St.
COA File No.: 25 138157 STE 11 MV (A0223/25TEY)
TLAB Case File No.: 25 173919 S45 11 TLAB
Hearing Date: Monday, September 29, 2025
Deadline Date for Closing Submissions/Undertakings: Monday, September 29, 2025
Decision Delivered By: TLAB Panel Member R. Kanter
REGISTERED PARTIES AND PARTICIPANTS:
People Type First Initial. Last Name Representative
APPLICANT
H. XIN
APPELLANT
PARTICIPANT
A. ZENG
I. FOWLIE
H. XIN
E. PARADIS
INTRODUCTION AND CONTEXT
1On May 27, 2025, the Committee of Adjustment (the "C of A") refused an application for minor variances to construct a rear two-storey addition and a complete third story addition with a rear balcony at 35 Borden Street (the "Site").
2On June 9, 2025, the Appellant submitted a Notice of Appeal to the Toronto Local Appeal Body (the "TLAB"). The Notice of Appeal repeated the minor variances requested at the C of A, and included the following statement:
"It is the Owner's strong opinion that the requested variances are minor and meet the four planning test criteria set out in S.45 of the Planning Act and are consistent with the precedents of similar approvals by the Committee over the past several years and should be allowed".
3On June 24, 2025, the TLAB sent a Notice of Hearing to the Appellant and the Participant. The Notice of Hearing contained the usual information, including the following:
an interested person could make their views known by filing a Notice of Intention to be a Participant, and
requiring a Witness Statement or Expert Witness Statement to be filed no later than August 25, 2025.
4The Notice of Hearing also contained the following information:
"If you do not attend the public hearing or express your views in writing (emphasis added) the Toronto Local Appeal Body may proceed, and make a decision in your absence, and may authorize changes to the proposal, matter, or grant the relief requested."
5On July 24, 2025, Ms. I. Fowlie submitted a request to be a Participant in the appeal before the TLAB.
6On August 24, 2025, the Participant filed a Witness Statement containing an outline of her intended evidence. The outline included the following:
the Participant lived at 37 Borden, a semi-detached house attached to the Site
the Participant has lived at 37 Borden for 40 years, and is now 95 years old
the Participant has renovated the ground floor of 37 Borden, including a one- story solarium at the rear
the Appellant misrepresented the intended use of the building: the plans before the C of A show a 10-unit multi-tenant house rather than a house with two dwelling units
the multi-tenant house will not meet the requirements of the fire code, and other requirements of the City's Multi-Tenant House By-law, Toronto Municipal Code Chapter 575.
the proposed rear extension will overlook the solarium constructed by the Participant and have an unacceptable impact on the Participant's privacy.
7The Appellant did not file an Expert Witness Statement or any other material in addition to that before the C of A.
8On September 29, 2025, I held an oral hearing as scheduled in the Notice of Hearing.
THE LEGISLATIVE AND POLICY FRAMEWORK
9Provincial 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.
10Provincial 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.
11Variance – 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
12I questioned Mr. Xin, representative for the Appellant, concerning the Appellant's appeal.
13Mr. Xin said he was a professional engineer. He was not aware that an Appellant who files an appeal before the TLAB generally files an Expert Witness Statement, most often prepared by a land use planner. He was aware that some Appellants retain a lawyer, but the owner told him that a lawyer was too expensive, particularly since the variances were clearly minor.
14Mr. Xin said that he represented the Appellant at the C of A. He stated that it was difficult to deal with the Participant, who also appeared before the C of A.
15I asked Mr. Xin if he was aware that the Site was for sale. Mr. Xin was aware that it was for sale but said that it might not be sold in the current market. He agreed that if it sold, the new owner might not want to proceed with the variances requested at the C of A.
16Mr. Xin was not aware that the Participant had filed a Witness Statement.1
17Mr. Xin submitted that I should proceed to hear the same evidence concerning the proposed variances that he put before the C of A. In the alternative, I should adjourn the hearing to allow him to discuss with the Owner the possibility of putting additional evidence before the TLAB.
18The Participant was represented by Ms. Emily Paradis, a relative.
19Ms. Paradis said that the Participant followed the procedures required by the TLAB in the time required by the TLAB. She filed a Notice of Intention to be a Participant (Form 4) and a Witness Statement (Form 12) on the dates required.
20Ms. Paradis relied on the submissions contained in the documents the Participant filed.
21Ms. Paradis submitted that I should dismiss the Appeal, since the Appellant had not filed the required documentation. She also pointed out that the participant was now 95 years old and should not face continuing uncertainty with respect to variances which would be detrimental to her.
ISSUES AND ANALYSIS
22The issue before me is how to proceed in this case: by hearing the Appeal; adjourning the Appeal; or dismissing the Appeal.
23The TLAB is required to conduct a fresh hearing of this application for minor variances. It must conduct a hearing de novo in legal terms – not a review of the C of A decision without new evidence. The Appellant must submit all relevant documents and witness statements, typically including an expert witness statement from a land use planner, typically comparing the proposed variances to other variances approved or occurring in the same geographic neighbourhood. The Appellant cannot succeed by simply arguing that the C of A made the wrong decision.
24The TLAB's Rules of Practice and Procedure (the Rules), Forms and Notice of Hearing set out, in detail, the steps that an Appellant should take to provide such evidence.
25In legal terms, the Appellant has the onus, or burden of proof, to demonstrate that the original C of A decision refusing the variances was incorrect, and the same variances should now be approved. Since the Appellant has not provided such evidence in support of the variances, it has not demonstrated that I should overturn the C of A decision.
26There is no evidence before me that the Owner is a land use planner or has any other expertise in the appeal before the TLAB. I could only accept opinion evidence from the Owner if they were an expert in land use, and appeared before the TLAB to express their opinion, and be subject to cross-examination on their opinion. Since that is not the situation in the case before me, I must disregard the Owner's "strong opinion" that the variances are minor and should be approved.
27I have considered the Appellant's submission that I should adjourn the hearing and provide the Appellant with an opportunity to consult with the Owner about bringing new evidence to a continuation of the Appeal.
28In considering whether or not to grant an adjournment, I considered the criteria set out in Rule 23, which governs Adjournments.
29The Participant, while not a Party, clearly did not grant consent. (Rule 23.2)
30I will now proceed to consider the criteria for granting an adjournment set in Rule 23.3:
31The reason for the adjournment was the lack of any preparation whatsoever by the Appellant (Rule 23.3 a);
32An adjournment would cause or contribute to potential harm or prejudice to the Participant, who is elderly and followed the proper procedure for a Participant (Rule 23 f) and g); and
33An adjournment may be rendered superfluous or unnecessary of the Site is sold, which the Appellant is attempting to do (Rule 23 h).
34After considering the criteria for granting an adjournment set out in the Rules, I have decided not to grant an adjournment, the alternative relief requested by the Appellant.
CONCLUSION
35I will dismiss the Appeal and uphold the Decision of the C of A dated May 27, 2025.
DECISION AND ORDER
36I order the Appeal dismissed, and the Decision of the C of A dated May 27, 2025, to be upheld.
R. Kanter
Panel Member
Footnotes
- I asked TLAB staff about the Participant Witness Statement ("PWS") following the oral hearing on September 29, 2025. I was advised that the Participant filed a Witness Statement on July 24, 2025, but failed to copy the Appellant, as required by Rule 16.2. TLAB staff then posted the PWS on the TLAB website and asked the Participant to copy the Appellant with the PWS.