Lillian Sawchuk v. Municipal Property Assessment Corporation ("MPAC") Region 23 and City of London, 2015 CanLII 40069

Assessment Review Board / Commission de révision de l’évaluation foncière

ISSUE DATE: July 7, 2015 FILE NO.: WR 132536

Assessed Person(s): Lillian Sawchuk Appellant(s): Lillian Sawchuk Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 23 Respondent(s): City of London

Property Location(s): 307 Commissioners West Municipality(ies): City of London Roll Number(s): 3936-070-162-08420-0000 Appeal Number(s): 3044527 Taxation Year(s): 2012 Hearing Event No.: 583632

Legislative Authority: Section 364.(15) of the Municipal Act, S. O. 2001, c. 25, as amended

Heard: May 4, 2015 in London, Ontario

APPEARANCES:

Parties	Counsel/Representative
Lillian Sawchuk	Eugene Sawchuk
City of London	James Edmunds

DECISION OF THE BOARD DELIVERED BY DAN WEAGANT

INTRODUCTION

1The subject property is a unit in a commercial building in the City of London. The complainant contends that an application for vacant unit rebate, under s. 364 of the Municipal Act (“Act”’) had been filed with the Municipality for the 2012 taxation year. The Municipality’s position is that the application was filed after the deadline for such applications as provided for in the Act.

2The Board must determine if the application for vacant unit rebate for the 2012 was made by the last day of February, 2013. If the Assessment Review Board (“Board”) determines that the application was made within the time limit prescribed by the Act, the Board must then determine the amount of the rebate owing to the applicant.

Submissions of the parties

3Eugene Sawchuk represented his spouse, Lillian Sawchuk. He testified that, on February 24, 2013, he accompanied Ms. Sawchuk to City Hall when she deposited the subject application at City Hall, in the after-hours mail drop box on the west side of the building. He remembers that February 24, 2013 was a Sunday and City Hall was closed. His recollection is that he and Ms. Sawchuk dropped the application off on their way to a local pub to watch soccer with some friends.

4As February 24 is before the last day of the month, it is Mr. Sawchuk’s position that the application was made within the timeline stipulated in the Act. He submitted that once the application was in the after-hours mail drop box, it became the City’s responsibility.

5Mr. Sawchuk testified that he and Ms. Sawchuk had made similar applications in the past and they were expecting a response from the City sometime after the 24th of February. When no correspondence was received by September, Ms. Sawchuk contacted the City by letter dated September 25, 2013 to inquire as to the status of the application and any further information the City might need to process it.

6Ultimately, the Sawchuks submitted a copy of their application form to the City, who received it on January 2, 2014. Mr. Sawchuk submits that the application was lost by the City through the process of emptying the after-hours drop box and delivering it to the appropriate person in the Assessment Section of City Hall in February 2013. Ms. Sawchuk went so far as to inquire at the City about video security recordings on the building’s exterior on February 24, but was told those recordings are not kept beyond 30 days.

7Mr. Sawchuk submitted Exhibit 1, including a statutory declaration, made under oath, essentially telling the story. Ms. Sawchuk also authored a letter to the Board with much the same information, adding that she was advised by Mr. Shimla of the City that the application could have been submitted by fax and she would have done that had she known. The Sawchuks have sought vacant unit rebates before and received a rebate of taxes for the 2011 taxation year.

8James Edmunds submitted that the City did not receive the application that the Sawchuks say they delivered on February 24, 2013. Mr. Edmunds explained that the first knowledge of such an application the City had was the communication initiated by Ms. Sawchuk in September 2013. According to Mr. Edmunds, the first application received by the City for the 2012 taxation year was received on January 2, 2014, resulting from communications with the Sawchuks, whereby they were made aware that the City did not have a copy of the application.

9Mr. Edmunds testified at some length regarding the process of moving mail from the after-hours drop box to the assessment section. According to Mr. Edmunds, this process is supervised by trained persons who are experienced and who understand the importance of the mail being processed promptly, and that much of the mail received in the after-hours drop box is time sensitive. Mr. Edmunds testified that extra caution is taken during the last part of February as many vacant unit rebate applications are received at that time. He was not aware of any applications for vacant unit rebate that had been misplaced by the City and indicated he is confident that the safeguards in place make the loss of after-hours mail highly unlikely.

Legislation

10In making its determination of this Complaint, the Board must consider s. 364 of the Act, which states:

11Section 364.(1) of the Act states:

364.(1) Vacant unit rebate. – Every local municipality shall have a program to provide tax rebates to owners of property that has vacant portions if that property is in any of the commercial classes or industrial classes, as defined in subsection 308(1).

12Section 364.(2) of the Act states:

(2) Requirements of program. – A tax rebate program under this section must meet the following requirements:

1. The program shall apply to eligible property as prescribed by the Minister of Finance for the purposes of this section.

2. If the property is in any of the commercial classes, the rebate shall be equal to 30 per cent of the taxes applicable to the eligible property, as determined under clause (12)(b).

3. If the property is in any of the industrial classes, the rebate shall be equal to 35 per cent of the taxes applicable to the eligible property, as determined under clause (12)(b).

4. An application may be made by or on behalf of the owner.

5. The application shall be made to the local municipality by the last day of February of the year following the taxation year in respect of which the application is made or such later date as the Minister of Finance may prescribe, either before or after the expiry of the time limit.

6. Unless otherwise prescribed by the Minister of Finance, an owner or a person on behalf of the owner shall submit one application for a taxation year, except that an interim application may be made for the first six months of the taxation year.

The Board’s Deliberations

13The Act provides for vacant unit rebates where applicants who follow a prescribed process can recover a portion of their municipal property tax for a given year when a commercial or industrial property is wholly or partially vacant for a period of at least 90 days.

14The dispute is the question of whether or not the application for vacant unit rebate was made “…to the local municipality by the last day of February of the year following the taxation year in respect of which the application is made…” The Board is faced with making a determination, based on the applicant’s sworn testimony and Affidavit indicating that the application required by the Act was submitted to the City on February 24, 2013 and the sworn testimony of the City that it was not received. For the Board to accept one party’s version of the facts excludes the acceptance of the other party’s submissions. The Board finds Mr. Edmunds testimony with respect to the City’s handling of after-hours mail to be most compelling. Given the evidence of the process at the City, the Board finds that it is reasonable to expect that if the application were in the after-hours drop box, it would have been removed on February 25th and processed accordingly. Alternatively, the Board has an affidavit from Ms. Sawchuk, dated May 1, 2015 and June 2, 2015.

15On balance, the Board prefers the evidence of Mr. Edmunds which indicates a time tested approach to mail delivery within City Hall over that of Ms. Sawchuk which is an affidavit, signed some 27 months after the claimed delivery date. The Board finds that it is more likely that the applicant is mistaken with respect to the delivery date and that on a balance of probabilities, the application was not made by the last day of February 2013. The Board notes that there were also four additional days in February 2013 during which the applicant could have confirmed receipt of the application by the City. However, no such steps were taken, suggesting further that the February 24 delivery was either for some other purpose, or the applicant was mistaken due to the passage of time.

16The Board finds that the application for vacant unit rebate was not made by the last day of February 2013, for the 2012 taxation year. Accordingly, the Board has no jurisdiction to make a determination of vacant unit rebate payable. The application is dismissed.