Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: April 22, 2015

FILE NO.: WR 130937

Assessed Person(s): Truscan Realty Limited and Toth Equity Limited

Appellant(s): Toth Equity Limited

Respondent(s): City of Ottawa

Property Location(s): 2446-2470 Bank Street

Municipality(ies): City of Ottawa

Roll Number(s): 0614-116-402-38000-0000

Appeal Number(s): 3065629, 3065630 and 2896417

Taxation Year(s): 2003, 2004 and 2005

Hearing Event No. 580742

Legislative Authority: Section 357.(8) of the Municipal Act, S.O. 2001, c. 25, as amended

ARB Case Name: WR 130937

Heard: March 2, 2015 in Ottawa, Ontario

APPEARANCES:

Parties	Counsel
Toth Equity Limited	Adam Stephens
City of Ottawa	Benoit Duchesne

DECISION OF THE BOARD DELIVERED BY SCOTT McANSH AND JOSEPH M. WYGER

INTRODUCTION

1Toth Equity Limited ("Toth") owns the Towngate Shopping Centre in the City of Ottawa, which is a 100,516 square foot shopping centre on Bank Street (the "Property"). On March 29, 2005 this Assessment Review Board ("Board") accepted minutes of settlement for appeals filed pursuant to s. 40 of the Assessment Act for the 2003, 2004 and 2005 taxation years. The resulting decisions of the Board reduced the overall current value of the Property, but increased the portion in the commercial property class and decreased the portion in the shopping centre property class.

2The City of Ottawa (the "City") notified Toth, in a letter dated August 24, 2005, that it had modified the tax roll in accordance with the Board's decisions and that Toth owed additional taxes as a result. Toth discovered an error in the calculation of those taxes dating back to 2001 and applied to the City on September 28, 2005 for a refund of overpayments that stemmed from that error. That is the application that this panel is asked to decide nearly 10 years later.

BACKGROUND

3Toth alleges that the City erred in its calculation of the taxes for the property for the 2001 taxation year. As set out below, during the years in question property taxes on commercial property in Ontario were based on the taxes levied on that property in the previous taxation year. As a result, an error in the calculation of the 2001 taxes will change the taxes levied each following year.

4Toth applied to the City for a hearing pursuant to s. 334 and 357 of the Municipal Act, 2001 (the "Act") on September 26, 2005 for the 2003, 2004 and 2005 taxation years. The City refused to hold a hearing before council on the matter and Toth both filed these appeals and sought judicial review of the City's decision not to hold a meeting.

5On May 14, 2010 the Divisional Court granted Toth's application in Toth Equity Ltd. v. Ottawa (City), 2010 ONSC 2605. The unanimous Court issued a mandamus order requiring the City to hold a meeting pursuant to s. 357.(5) of the Act. The City appealed that decision.

6On May 12, 2011 a unanimous Court of Appeal granted the City's appeal in Toth Equity Limited v. Ottawa (City), 2011 ONCA 372. Justice Gillese, writing for the Court, held that Toth was not entitled to judicial review because it had not exhausted its appeal remedy to this Board found in s. 357.(8) of the Act, and sent the matter back to the Board.

7The City took the position before the Board that the jurisdiction of the Board was limited both because the files had been closed administratively and, for the 2003 and 2004 appeals, pursuant to the limitation period set out in s. 357.(3) of the Act. On March 7, 2013, a differently constituted panel of this Board dismissed Toth's 2003 and 2004 appeals, holding that they were filed with the City outside of the statutory timelines. Toth sought judicial review of that decision.

8On April 22, 2014 the Divisional Court granted Toth's application in Toth Equity v. Ottawa (City), 2014 ONSC 941. The Court held that the appeals were filed within the statutory timeline based on when the taxes were "levied", not the tax year that they related to. The appeals were sent back to this Board for a decision on the merits. This is that decision.

ISSUES

9The only issue in these appeals is if Toth is entitled to a refund of the overcharge of taxes for the 2003, 2004 and 2005 taxation years. There is no material dispute on the facts of the matter. Rather, the City claims that Toth is not entitled in law to the refund due to the wording of the relevant provisions of the Act.

Legislation

10The City now accepts that Toth made timely applications for the 2003, 2004 and 2005 taxation years pursuant to s. 334 of the Act, which states:

Application for cancellation, etc.

334(1) An application to the treasurer of a local municipality for the cancellation, reduction or refund of taxes levied in the year in respect of which the application is made may be made by a person who was overcharged by reason of a gross or manifest error that is a clerical error, the transposition of figures, a typographical error or similar type of error in the calculation of taxes under this Part. 2001, c. 25, s. 334 (1); 2002, c. 17, Sched. A, s. 56.

Procedures

(2) Section 357 applies to an application made under subsection (1). 2001, c. 25, s. 334 (2).

11Section 357 of the Act, reads, in part:

Cancellation, reduction, refund of taxes

357(1) Upon application to the treasurer of a local municipality made in accordance with this section, the local municipality may cancel, reduce or refund all or part of taxes levied on land in the year in respect of which the application is made if...

(f) a person was overcharged due to a gross or manifest error that is clerical or factual in nature, including the transposition of figures, a typographical error or similar error but not an error in judgment in assessing the property; or....

Meeting

(5) On or before September 30 of the year following the year in respect of which the application is made, council shall,

(a) hold a meeting at which the applicants may make representations to council;

(b) notify the applicants of the meeting by mail sent at least 14 days before the meeting; and

(c) make its decision. 2001, c. 25, s. 357 (5).

Where no decision

(8) If council fails to make its decision by September 30 of the year following the year in respect of which the application is made, an applicant may appeal to the Assessment Review Board by October 21 of the year by filing a notice of appeal with the registrar of the board and the appeal shall be a new hearing. 2001, c. 25, s. 357 (8).

Decision

(10) The Assessment Review Board shall hear the appeal and may make any decision that council could have made. 2001, c. 25, s. 357 (10).

12The interaction of these two sections is one of the City's primary arguments.

DECISION

13The only witness to present evidence to the Board was Lynn Ashton, who was qualified by the Board to provide opinion evidence on tax calculation. Ms. Ashton has a great deal of experience in municipal tax issues in Ontario and provided the Board with a summary of the relevant provisions of the tax regime.

14Ontario has a system of caps and clawbacks on the tax consequences of changes to the assessed value and apportionment of a property. These were introduced in 1998 when the assessment system moved to current value assessments. Caps are limits on how much taxes can increase from year to year and serve the policy goal of limiting the impact of the change in assessment on taxpayers. Clawbacks are limits on how much taxes can be reduced from year to year and serve the policy goal of funding the caps on other property.

15These caps were initially based on a "frozen assessment listing" of the 1997 tax information for a property. In December 2000 the province passed Bill 140, which changed the capping program for the 2001 taxation year. From 2001 onward, capping was based not on the frozen assessment listing, but on the previous year's taxes.

16Bill 140 also required the calculation of notional taxes for the previous year if the circumstances of the property had changed, that is if the value or apportionment of value between classes of the property had changed. The notional taxes were calculated as if the new circumstances had applied in the previous year and those notional taxes were used to determine the caps and clawbacks for the next taxation year. Tax levels are used in the calculation of notional taxes. Tax levels are the ratio of the actual taxes levied, with caps and clawbacks, to the taxes based on the current value of the property.

17For the taxation years under consideration the property had the following returned assessments:

• 2000: $8,483,000 Commercial Property Class: $5,240,820 (62%) Shopping Centre Property Class: $3,242,180 (38%)
• 2001: $11,568,000 Commercial Property Class: $4,285,690 (37%) Shopping Centre Property Class: $7,282,310 (63%)
• 2002: $11,568,000 Commercial Property Class: $4,285,690 (37%) Shopping Centre Property Class: $7,282,310 (63%)
• 2003: $12,112,000 Commercial Property Class: $4,487,000 (37%) Shopping Centre Property Class: $7,625,000 (63%)
• 2004: $12,578,000 Commercial Property Class: $4,660,000 (37%) Shopping Centre Property Class: $7,918,000 (63%)
• 2005: $12,578,000 Commercial Property Class: $4,660,000 (37%) Shopping Centre Property Class: $7,918,000 (63%)

18Following the 2005 decisions of this Board the 2003, 2004 and 2005 values and apportionment were changed as follows:

• 2003: $12,112,000 reduced to $11,579,000 Commercial Property Class: $4,487,000 (37%) Increased to $7,244,160 (63%) Shopping Centre Property Class: $7,625,000 (63%) Reduced to $4,334,840 (37%)
• 2004: $12,578,000 reduced to $11,690,000 Commercial Property Class: $4,660,000 (37%) Increased to $7,219,140 (62%) Shopping Centre Property Class: $7,918,000 (63%) Reduced to $4,470,860 (38%)
• 2005: $12,578,000 reduced to $11,690,000 Commercial Property Class: $4,660,000 (37%) Increased to $7,219,140 (62%) Shopping Centre Property Class: $7,918,000 (63%) Reduced to $4,470,860 (38%)

19In order to calculate the new taxes payable for the 2003 taxation year, the City had to calculate the notional taxes for the 2002 taxation year. The City did this calculation, which resulted in the $334,994.45 Toth was required to pay for the 2003, 2004 and 2005 taxation years.

20Ms. Ashton opined that the City erred in calculating the taxes for the 2003, 2004 and 2005 taxation years because it used the wrong numbers. This was due the City's failure to calculate the 2000 notional taxes for the 2001 taxation year as required by the Act, when the value and apportionment of the Property changed. The City neither denied nor conceded that its failure to calculate the 2000 notional taxes for the 2001 taxation year was an error.

21The result of this error is that the input for each year since 2001 has been wrong. The caps and clawbacks on taxes are based on the previous year's taxes. Thus, if the previous year's taxes are wrong, the calculation of the next year's taxes will also be wrong. Ms. Ashton provided detailed calculations showing that Toth was overcharged a total of $399,508 over the 2003, 2004 and 2005 taxation years by the following amounts:

• 2003: $678,533 paid $534,382 correct taxes $144,151 overpayment
• 2004: $667,274 paid $530,547 correct taxes $136,727 overpayment
• 2005: $638,891 paid $520,260 correct taxes $118,631 overpayment

22While the City did not admit the error, it did not call any competing evidence or challenge Ms. Ashton's calculations. We accept the uncontested evidence of Ms. Ashton that the City committed a calculation error by failing to calculate the notional taxes for the 2001 taxation year. As a result of that error, the City has used the incorrect inputs for the calculation of taxes in each year since 2001, including the 2003, 2004 and 2005 taxation years under appeal. The City placed some reliance on Ms. Ashton's statement that the "City's calculations were essentially correct" for those taxation years. However, we are mindful of the mantra "garbage in, garbage out" and certainly view the use of the incorrect inputs to a calculation to be a calculation error.

23The City does not contest the error, instead arguing that the error cannot be remedied for the following reasons:

(1) Section 357 of the Municipal Act, 2001: Toth cannot rely on the wording in s. 357.(1)(f) of the Act, because it's application was made pursuant to s. 334, which covers a smaller class of errors.

(2) Nature of the Error: The error is not "a clerical error" and therefore cannot be remedied pursuant to s. 334 of the Act.

(3) Application of the Old Act: The error is not covered by s. 334 because it was committed under the legislation in force in 2001, namely the Municipal Act, R.S.O. 1990, c. M.45 (the "Old Act"), and not Part IX of the Act.

(4) Reaching Through the Act: This application is an attempt to argue the 2001 taxes or assessment and that Toth ought not be permitted to do indirectly what it cannot do directly.

24For the reasons set out below we find no merit in any of these positions.

Section 357 of the Municipal Act, 2001

25The City takes the position that Toth did not apply for relief pursuant to s. 357.(1)(f) and thus cannot avail itself of the wider scope of remedial power set out in that section. The City relies on the application made to this Board on October 16, 2005. Deloitte, the tax agent for Toth at that time, indicated in a covering letter that the application was "under Sec 334 of the Municipal Act" and the attached application form checked the box marked "334* Tax Appeal." The form clarifies that the asterisk means "an application and appeal that are legislated by the same section number." However, s. 334 does not have any appeal provisions, rather it incorporates s. 357 through s. 334.(2). The only appeals to this Board available through s. 334 are found in s. 357.(7) and 357.(8). Section 357.(7) provides an appeal from a decision of a municipal council, while s. 357.(8) provides a remedy when a municipal council fails to hold a meeting to address an application in the specified time. This appeal was clearly pursuant to s. 357.(8), as council refused to hold a meeting. Thus, the application form is in error.

26However, the City points to the covering letter to that application as a clear indication that Toth's intent was to limit the appeal to s. 334 of the Act. We note, however, that s. 357.(8) creates an appeal from council's failure to make a decision without specifying which decision council was to make. Thus, the scope of the appeal to this Board is determined by the scope of the application made to the City. Toth's application to the City was a letter dated September 26, 2005, where Toth, through its agent Deloitte, applied to the City pursuant to s. 334, 357 and 358 of the Act. The City failed to make a decision pursuant to those sections. The City argues that Toth abandoned the s. 357 and 358 appeals when it appealed to this Board with only the s. 334 box checked on its application form. We do not accept that this Board can limit the scope of an appeal set out in the Act. The Act only specifies that an appeal is available when council fails to make a decision. Rule 17(b)(v) of the Assessment Review Board Rules of Practice and Procedure (the "Rules") requires that the section number of the Act be specified for appeals. As noted above, the application form was in error in setting out the appeal section as s. 334 when it could only have been pursuant to s. 357.(8). Section 25.1(3) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 requires that rules, such as the Board's, "be consistent with this Act and with the other Acts to which they relate." An appeal limited in scope by the Board would be inconsistent with s. 357.(8) of the Act and therefore of no force. Thus these appeals are pursuant to s. 357.(8) and include an appeal of the City's failure to make a decision pursuant to clause s. 357.(1)(f).

27It is also clear that Toth relied on clause s. 357.(1)(f) before and after its appeal to this Board. Both the Divisional Court in 2010 and the Court of appeal treated this matter as an application pursuant to the remedial provisions in clause s. 357.(1)(f) and neither court referenced s. 334 at all in its reasons. While the previous panel of this Board treated the appeals as limited to s. 334, the Divisional Court reviewing that decision was clear that clause s. 357.(1)(f) ought to be considered. Those decisions indicate that Toth did not intend to abandon the appeal related to clause s. 357.(1)(f) by filing the incorrect application form. On that record we are prepared to exercise our discretion to grant any relief we "consider appropriate, to ensure that the real questions in issue are determined in a just manner" set out in Rule 3 of the Rules. The real question here is if Toth is entitled to a refund of taxes. Even if the Board had the jurisdiction to limit the scope of the s. 357.(8) appeal, which we find it does not, we would accept the substance of Toth's application as including an appeal of council's refusal to make a decision pursuant to clause s. 357.(1)(f).

28Even if the appeals to this Board were made only pursuant to s. 334, which we do not accept, it would still permit the remedial relief available in clause s. 357.(1)(f). The rules for interpreting taxation legislation were outlined by Justice Gonthier in Québec (Communauté urbaine) v. Corp. Notre-Dame de Bon-Secours, 1994 CanLII 58 (SCC), [1994] 3 SCR 3 at 11:

The interpretation of tax legislation should follow the ordinary rules of interpretation;

A legislative provision should be given a strict or liberal interpretation depending on the purpose underlying it, and that purpose must be identified in light of the context of the statute, its objective and the legislative intent: this is the teleological approach;

The teleological approach will favour the taxpayer or the tax department depending solely on the legislative provision in question, and not on the existence of predetermined presumptions;

Substance should be given precedence over form to the extent that this is consistent with the wording and objective of the statute;

Only a reasonable doubt, not resolved by the ordinary rules of interpretation, will be settled by recourse to the residual presumption in favour of the taxpayer.

29Thus, determining the purpose of the sections, in light of the purpose of the legislative scheme is important for the interpretation exercise. The Divisional Court noted in Giannaris v. City of Toronto, 2012 ONSC 5183 at para. 11 that "The Assessment Act, [and] the Municipal Acts... form a comprehensive code for property assessment and taxation." The purposes of the Assessment Act are equity and finality. It was recently observed by the Divisional Court in Toronto (City) v. MPAC, 2013 ONSC 6137 at para. 30: "The principles of equity and finality are often in conflict and each must be weighed in the balance in arriving at the proper interpretation of the legislation." Here we must interpret the interaction between s. 334 and 357.(1)(f) in light of the competing purposes of equity and finality.

30The City does not dispute that s. 334.(2) incorporates s. 357, but takes the position that it only incorporates the procedural aspects of s. 357. In support of that conclusion the City relies on the statement of Justice Hackland in the 2014 Divisional Court decision on this matter at para. 7: "The procedure set forth in section 357 of the Act applies to applications brought pursuant to section 334." In our view this is not a conclusion that clause s. 357.(1)(f) does not apply to s. 334. Indeed, Justice Hackland follows that statement with a quotation of clause s. 357.(1)(f). The concurring reasons of Justice Wilson are even clearer, at para. 20, that "Section 357.(1)(f) of the Municipal Act gives the municipality the power to reduce or refund taxes." It is our view that the only logical way to read the interaction between s. 334 and 357 of the Act is that s. 334 sets out a limited application provision but incorporates the related, but broader, remedial provisions in clause s. 357.(1)(f). This is consistent with the legislative purpose of equity in taxation.

31As noted by Vice-Chair Mather in Mattamy (Castlemore) Ltd. v. Brampton (City), [2010] O.A.R.B.D. No. 602 at para. 48: "the Board stands in the same shoes as the Municipal Council." Section 334 does not grant the municipality, and therefore this Board, any powers. The section only states that "an application may be made". The City took the position that when combined with the procedural provisions of s. 357 the power of the City is implied. That is, an application for a refund combined with the requirement to hold a meeting and make a decision in s. 357.(5) implies a power to grant a refund. However, the legislature explicitly granted council the authority in s. 357.(1) to "cancel, reduce or refund" taxes. It is illogical to us that the incorporation of s. 357, which is not limited in any way, would not include the express authority to grant a remedy set out in s. 357.(1).

32We are mindful of the "assumption that legislatures do not use superfluous words; they express themselves as concisely as possible; and every word is there for a reason and has some work to do" R. Sullivan, Sullivan on the Construction of Statutes, 5th ed (Toronto, LexisNexis Canada, 2008) p. 232. The remedial scope of clause s. 357.(1)(f) is clearly broader than the application permitted in s. 334. It is not obvious what purpose is served in limiting the class of errors that an application can be based upon, while outlining a broader class that the municipality can remedy. The City takes the position that the legislature's intent was to limit the errors made under Part IX that can be corrected, favouring finality in the tax roll.

33Part IX of the Act is entitled "Limitation on Taxes for Certain Property Classes" and imposes the caps, and provides for clawbacks, on commercial and industrial property. It requires more complex calculations for those property classes. It seems unlikely that the legislature intended that properties subject to more complex tax calculations would not be able to remedy certain types of error. Rather, it may reflect the view that calculation errors are clerical in nature, but provides the municipal council with the power to remedy any error that is not an error in judgment to provide a full and proper remedy.

34The Supreme Court of Canada had opportunity to comment on provisions providing taxpayers with tax refund applications in Wilkes v. Interlake Tissue Mills Co., 1969 CanLII 9 (SCC), [1970] S.C.R. 441. The majority of the Court adopted the statement of Schroeder J.A. of the Court of Appeal: "That is a remedial section which empowers a court of revision to do essential justice to a taxpayer who has been overcharged by reason of any "gross or manifest error", or has suffered a loss." While the section at issue in Interlake was broader than those before us, the purpose of remedial tax provisions remains to "do essential justice." We find that s. 334.(2) incorporates the explicit remedial powers granted to municipal councils, and therefore this Board, set out in s. 357.(1). This interpretation advances the purpose of equity in taxation. Finality is also served through this interpretation as the limitation periods in s. 357 clearly apply to s. 334.

Nature of the Error

35The City argues that there is no remedy for the error because it does not fall within the limited class set out in s. 334.(1): "a clerical error, the transposition of figures, a typographical error or similar type of error in the calculation of taxes." The City did not suggest that the error was not a factual error, which would be covered in the remedial powers set out in s. 357.(1)(f). We find that the error is a factual error, and not an error in judgment. Thus, our finding above that clause s. 357.(1)(f) is engaged means that the error is a type that can be remedied. However, if we are wrong in that conclusion, we find that the error is also of a type captured in the limited class set out in s. 334.(1).

36The ejusdem generis, or limited class rule, was summarized by Justice La Forest in National Bank of Greece (Canada) v. Katsikonouris, 1990 CanLII 92 (SCC), [1990] 2 SCR 1029 at 203: "when one finds a clause that sets out a list of specific words followed by a general term, it will normally be appropriate to limit the general term to the genus of the narrow enumeration that precedes it." Here, the general term "similar type of error" follows the three specific types of errors: clerical, transposition and typographical. The position of the City is that the class is limited to mechanical calculation errors and not broader factual errors due both to the examples listed and the fact that the legislature omitted the term "or factual" found in s. 357.(1)(f).

37Toth takes the position that the included class in s. 334 includes factual errors, relying on the Court of Appeal decision in Friedberg & Co. v. Toronto (City) (2004), 2004 CanLII 873 (ON CA), 71 O.R. (3d) 639 where the Court reviewed s. 443.(1) of the Old Act, which is similar to clause s. 357.(1)(f). The Court commented on the legislative scheme at para. 21: "a municipal council's power to correct errors is limited to clerical and factual errors because it is the Assessment Commissioner's role to make judgments relating to the making of the assessment the municipality does not control the assessment but only the taxes themselves, and its power is limited to considering specific requests for relief from taxes acknowledged to have been improperly levied." While the distinction between factual errors and errors in judgment is useful in interpreting the scope of s. 357.(1)(f), it is clear that s. 334 is more narrow. Friedberg is of limited assistance in determining the meaning of "similar type of error" in s. 334.

38The limited class is best described as mechanical errors in the calculation of taxes. That is, the class includes errors in the application of formulas and algorithms to facts. It does not include errors in the facts to which those formulas and algorithms are applied. The first error here was the failure to apply a formula or algorithm in the calculation of the 2001 taxes. The City argued that an omission is not an error that is captured in the limited class in s. 334. We cannot agree. It would be illogical if the limited class included the improper application of a formula or algorithm but not the error of failing to apply that formula or algorithm at all. It is certainly a clerical or mechanical error to fail to take a required step in a calculation. The errors in each tax year since 2001 have been the failure to use the correct inputs in calculating the taxes. The City argues that this is not a clerical error because there was no error in applying the formula or algorithm. We cannot agree. It is clearly a mechanical error to calculate taxes with the incorrect inputs. The facts on which the formulas are applied are the assessed value and any similar underlying information. The use of erroneous numbers from previous calculations is not just a factual error, it is also a mechanical or clerical error in the calculation of taxes.

39As noted above, we find that Toth applied pursuant to the broader provision in clause s. 357.(1)(f) and that s. 357 is incorporated by reference in s. 334. However, even we are wrong in both of those conclusions we find that the error is of a kind contemplated in the limited class in s. 334.

Application of the Old Act

40The first error complained of by Toth is a failure of the City to comply with s. 447.28 of the Old Act, which is nearly identical to s. 329.(2) in Part IX of the Act. The City argues that because the Act was not in force when the error was made the error was not in the "calculation of taxes under this Part" and must fail. We do not agree.

41While the first error was committed under the Old Act, the errors under appeal here are for the 2003, 2004 and 2005 taxation years. The errors in those years were the use of the incorrect inputs to calculate the taxes. While the inputs were incorrect due to the error made in 2001, the errors in the taxation years under appeal were made each year under Part IX of the Act. Thus, the errors are in the "calculation of taxes under" Part IX.

Reaching Through the Act

42The City points to a number of remedies that Toth may have had to correct the first error, made in 2001. It is the City's position that this application is an attempt to "reach through the Act" and now avail itself of relief that it is out of time to apply for. The City argues that Toth is bound by the previous owner's failure to prosecute tax appeals in 2000, 2001 and 2002 and that errors in those years cannot be corrected now.

43The Old Act created a frozen assessment listing with associated appeal and correction provisions. The uncontested evidence before us was that the error made had nothing to do with the frozen assessment listing. However, the City points to s. 447.26 and 447.26.1 of the Old Act, which created appeal rights related to the frozen assessment listing. The City noted that Yeoman & Associates had applied to the City on February 2, 2002 pursuant to s. 447.26.1(i) of the Old Act to adjust the frozen assessment listing for the Property. The City denied that claim on April 26, 2002. The City notes that Regulation 399/03 extended the ability to appeal the frozen assessment listing to January 1, 2005 and that there is currently no remedy for any errors in the 2001 taxation year.

44The City also notes that Assessment Act appeals were filed for the Property and later withdrawn for the 2000, 2001 and 2002 taxation years. The City's position is that the failure to prosecute those appeals means that there is no ability to now adjust any errors in those taxation years.

45Toth states that it is not seeking a correction to the taxes levied in 2000, 2001 or 2002. It understands that it is out of time to apply for that relief and that finality is an important purpose of the taxation provisions of the Act. Rather, Toth is applying for a refund of the overpayment on taxes levied in 2005 for the 2003, 2004 and 2005 taxation years. Correcting the errors in those years does require a recalculation of the 2001 and 2002 taxes in order to have the correct inputs for the 2003, 2004 and 2005 taxation years. However, this is not the same relief as it would have obtained if it had availed itself of statutory remedies at the relevant time. If appeals were successful pursuant to the Assessment Act or the Old Act, Toth would be entitled a refund for the 2001 and 2002 taxation years. They acknowledge that they are not eligible for that relief now.

46We agree that a distinction must be drawn between correcting historical errors that have present day consequences and seeking relief for the correction of historical errors. If there were no future impacts of the historical error, Toth would certainly be barred from attempting to use their application in 2005 for 2001 relief. However, it would be fundamentally unjust if historical errors that continue to impact tax calculations could not be corrected due to the passage of time. This would mean that parties like Toth would be forced to live with perpetual overcharges because the nature of the error was not immediately apparent. Toth is not attempting to have its 2000, 2001 or 2002 taxes corrected. It is seeking corrections in the taxation years it has appealed, which requires a recalculation of the 2000, 2001 and 2002 taxes for the sole purpose of determining the correct inputs for the 2003, 2004 and 2005 taxation years.

47We note that there are no limiting words in either s. 334 or clause s. 357.(1)(f) on when the error occurred. The relief is limited to "the year in respect of which the application is made" in both sections, but there are no similar limiting words relating to the error. There is a presumption that "legislatures do not use superfluous words; they express themselves as concisely as possible; and every word is there for a reason and has some work to do" R. Sullivan, Sullivan on the Construction of Statutes, 5th ed (Toronto, LexisNexis Canada, 2008) p. 232. The use of time limiting words in describing the relief but not the error is a clear indication that the legislature granted municipal councils, and therefore the Board, the ability to remedy errors regardless of when they occurred. The only limitation is that the correction must impact the taxes levied in the year in which the application is made. In order to further limit either section, words would need to be read in and we are not prepared to do so.

CONCLUSION

48For the reasons set out above the Board refunds Toth the amount it was overcharged due to clerical and factual errors in the calculation of taxes. For the 2003 taxation year the Board orders the City to refund $144,151. For the 2004 taxation year the Board orders the City to refund $136,727. For the 2005 taxation year the Board orders the City to refund $118,631. We trust that the City will also address any overpayments made in 2006 and future years.