Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: December 10, 2015

FILE NO.: DM 2015M3

Moving Party(ies): Paul Andre Guimond

Respondent(s): Municipal Property Assessment Corporation (“MPAC”), Region 9

Respondent(s): City of Toronto

Property Location(s): 500 Richmond Street West

Municipality(ies): City of Toronto

Roll Number(s): 1904-062-580-02030-0000

Taxation Year(s): 2011 - 2014

Hearing Event No.: 590329 and 600131

Legislative Authority: Section 40.1 of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Heard: July 9, 2015 and September 10, 2015 in Toronto, Ontario

APPEARANCES:

Parties	Counsel
Paul Andre Guimond	Stephen Longo
MPAC	Marc McLaren-Caux
City of Toronto	Angus Mackay

DISPOSITION OF THE BOARD DELIVERED BY J. L. WALKER

INTRODUCTION

1Section 40.1 of the Assessment Act, R.S.O. 1990, c. A.31, as amended, (“Act”) addresses the correction of errors in the assessment roll if it appears that there are palpable errors. It confers upon the Assessment Review Board (“Board”) the discretion to correct the error, or, if alteration of assessed values or classification of land is involved, extend the time for bringing appeals, and direct the Municipal Property Assessment Corporation (“MPAC”) be the appellant.

2The moving party, Paul Andre Guimond, requested an Order of the Board under s. 40.1(b) of the Assessment Act, R.S.O. 1990, c. A.31, as amended, (“Act”) declaring that there is a palpable error in the assessment roll in respect of the property identified as Unit 3, Level B, MTCP #1290, 500 Richmond Street West, City of Toronto (“City’), and an Order extending the time for bringing appeals and directing that MPAC be the appellant (Exhibit 1, Motion Record at Tab 1).

3This request was subsequently amended at the continuation of the motion hearing to a joint submission for an Order seeking relief under s. 40.1(a), namely that the Board correct the assessment roll for the 2011 - 2014 taxation years, as no alteration of assessed values or classification of land is involved.

4Specifically, the parties request that the Board amend the roll by changing the roll number from 1904-062-580-02030-0000 to 1904-062-580-01919-0000 for the subject property for taxation years 2011 – 2014; and that the Board correct the legal description to reflect the assessed person as Paul Andre Guimond for taxation years 2011 – 2014.

5The Board must first determine whether it appears there are palpable errors on the assessment roll, and if there are errors in the roll, balance the need for fairness and finality in determining whether to use its discretion to either correct them or to extend the time for bringing appeals, directing MPAC to be the appellant. The exercise of discretion involves a consideration of all the circumstances surrounding the request, including prejudice to the parties or any person.

DISPOSITION OF MOTION

6The motion and requested relief is granted. The Board finds that a palpable error exists in the assessment roll pursuant to s. 40.1 of the Act, and that it is appropriate in this case for the Board to use its discretion to correct the assessment roll under s. 40.1(a), as no alteration of assessed values or classification of land is involved.

7The Board orders that the assessment roll be corrected as follows:

a. The subject property is removed from roll 1904 062 580 02030 0000 and placed on roll 1904 062 580 01919 0000; and,

b. The legal description is amended to reflect the assessed person as Paul Andre Guimond for taxation years 2011 – 2014.

REASONS FOR DISPOSITION OF MOTION

Background and Affidavit Evidence

8If it appears that there are palpable errors in the assessment roll, and if no alteration of assessed values or classification of land is involved, the Board may correct the roll pursuant to s. 40.1(a) of the Act.

9The subject property is a parking unit located in a residential condominium building, 500 Richmond Street West (“subject building”). It is one of a group of parking units in the subject building. The “parent” roll number for all of the parking units, including the subject property, is 1904 062 580 02030 0000. In 2009, parking units 7, 9 and 3 (the latter being the subject property) remained on the parent roll, with Cityscape Richmond Corporation (“Cityscape”) described as the assessed person.

10Mr. Guimond purchased the parking unit from Scott Thomas Ingram on July 30, 2010. Mr. Ingram had purchased the parking unit from Cityscape, the developer of the condominium, on November 1, 2007. The Board was advised that Cityscape was dissolved on April 16, 2010 by way of a certificate of dissolution.

11Mr. Guimond’s solicitor did not obtain a tax certificate or make any inquiries as to the property tax status of the subject property prior to closing the transaction. In July 2012 Mr. Guimond received a property tax account statement issued by the City of Toronto, advising that there were outstanding property tax arrears of approximately $16,440 in respect of the subject property for the years 2001 – 2004, when the subject property was owned by Cityscape. The total amount of arrears, including penalties was approximately $30,743.

12An agreed statement of facts submitted by the parties demonstrates that notwithstanding this sale, Cityscape remained on the roll as the assessed person for taxation years 2008 – 2010 for the subject property (Exhibit 2, Agreed Statement of Facts at paragraph 4). The “parent” roll number remained unchanged even though the condominium had been registered. Paul Guimond, who is described as the assessed person on the parent roll for 2011 – 2014, inherited the historic tax burden.

13Stephen Longo, counsel for the moving party submits that the assessment of the subject property and taxation levied upon it seemingly included the assessment of other properties, the other parking units and storage lockers in the condominium building, and that this failure to apportion has resulted in a palpable error.

14James Naumovich, counsel who acted for the moving party in the purchase of the subject property corresponded with the City who advised that separate assessment and tax accounts had been created for the parking units and 31 other units. However, the roll number and address information in the City’s letter did not appear to relate to either the subject property or 500 Richmond Street West (Exhibit 1, Motion Record, Affidavit of James Naumovich at Tab 2).

15Marc McLaren-Caux, Counsel for MPAC, states that while MPAC corrected the error for taxation year 2015 by way of a post-roll amended notice (PRAN) issued pursuant to s. 32 of the Act, it lacks the statutory authority to deal with taxation years 2011 – 2014. The correction made in June 2015 under s. 32 of the Act deleted the subject property’s roll number 1904 062 580 02030 0000 and transferred the value and description of the subject property’s residential unit roll number, 1904 062 580 01918 0000.

16In this motion, the parties ask the Board correct the error for the 2011 – 2014 taxation years by changing the roll number of the subject parking unit from 1904 062 580 02030 0000 to 1904 062 580 01919 0000.

17Angus MacKay, Counsel for the City confirmed that the outstanding tax bill has been written off as there are no remedies available at the present time under the municipal legislation. The City determined that the best course of action was to write down the debt due to the difficulty of locating all of the prior owners and the associated costs. The incorrect ownership and description of the parcel are the only remaining consequence of the failure to apportion.

Parties’ Submissions and Board’s Analysis

18This motion was brought on consent, which, as the parties point out, is an exceptional circumstance in the case of an alleged palpable error. They agree to the facts that gave rise to the error which remains on the roll for the 2011 – 2014 taxation years and to the specific relief sought.

19While consent is an important factor, any exercise of the Board’s discretion requires that the Board examine all of the circumstances surrounding the request, including prejudice to any party. In this case, the Board had particular regard to the impact on the previous owners of correcting the error which flowed from the failure to apportion.

20While the facts and circumstances surrounding each palpable error are unique, the Board agrees with that the authorities proffered by the parties assist the Board in determining whether an alleged error falls within the ambit of s. 40.1.

21Following 584952 Ontario Ltd. v. Municipal Property Assessment Corp. Region No. 9, 58 O.M.B.R. 353, [2007] O.A.R.B.D. No 792 (“584952”) it is uncontested that the Board has the power and the authority to look behind the roll at the circumstances surrounding an alleged error.

22The parties agree with the Board’s jurisprudence which has stated that a palpable error is one that is plain and obvious on the assessment roll. They submit that the error in the present case was not caused by an error in judgment, the sort of error that can only be addressed through an appeal to the Board: Kinglip Holdings Inc. v. Municipal Property Assessment Corp. Region No. 9, 83 O.M.B.R. 1 [2015] O.A.R.B.D. No. 42 at paragraph 15.

23In previous cases it has been argued that an action (or in this case, lack of action) giving rise to the error on the roll is itself an error in judgment: see generally Burnac Corp. v. Municipal Property Assessment Corp., Region No. 9, [2013] O.A.R.B.D. No. 169, 77 O.M.B.R. No. 169. While it may be arguable that the failure to apportion is an error in judgment, in the present case this defense has not been raised: there is now no prejudice to any previous owner but the factual error remains in the assessment roll. With the arrears written down, any argument(s) concerning the chain of errors, which may otherwise have been in question, become a nullity.

24In 584952, which the parties submit parallels the facts in this case, the Board found that a failure to reflect the correct ownership and description of a parcel after a transfer of part of that property, prior to roll return is a palpable error. The Act provides that, with the exception of Crown lands, that “land shall be assessed against the owner” (s. 17); and that the assessment roll “shall contain…The name and surnames in full, if they can be ascertained, of all persons who are liable to assessment….” (s. 14(1)). The Act contemplates that an owner and the relevant parcel must be described as accurately as possible.

25The parties point out that there was no delay on the part of Mr. Guimond, who only learned about the tax arrears in June 2012. His real estate lawyer failed to obtain a tax certificate or make any inquiries as to the property tax status of the subject property prior to the closing of the transaction. In any event, his current lawyer acted promptly once alerted to the potential errors, bringing this motion before the Board.

26The City advises that by 2012, having no remedies available to it under the municipal legislation, it decided to write off the arrears. Accordingly, there is no prejudice to the parties or any other person if the Board ordered the requested relief for the 2011 – 2014 taxation years.

27The parties consent to the relief sought under s. 40.1(a), namely that the Board amend the roll by correcting the name of the legal owner to Paul Andre Guimond and changing the roll number from 1904 062 580 02030 0000 to 1904 062 580 01919 0000 for the subject property for taxation years 2011 – 2014. The parties submit that the latter should have been done starting in 2008 when Mr. Ingram was the legal owner, but limit their request to the years that affect the current legal owner.

28The Board agrees that the facts of this case, the lack of prejudice to the parties to this motion or any previous owner, and the legislative requirements in s. 14 and s. 17 of the Act support the relief sought. The residual problem that remains from the failure to apportion is that the assessment roll does not reflect the correct ownership and description of the subject property. The Board views these facts and circumstances as exceptional, and clearly within the ambit of s. 40.1(a).

29The Board emphasizes that a palpable error is to be used in the narrowest of circumstances, and is not intended to supplant the appeals process under s. 40 of the Act.

30The Board grants the motion and finds that there is a palpable error in the assessment roll that does not involve alteration of assessed values or classification of land.

31The Board orders that the assessment roll be corrected as follows:

a. The subject property is removed from roll 1904 062 580 02030 0000 and placed on roll 1904 062 580 01919 0000; and,

b. The legal description is amended to reflect the assessed person as Paul Andre Guimond for taxation years 2011 – 2014.