D. I. v. City of Toronto, 2016 CanLII 5580

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: February 5, 2016

FILE NO.: WR 134036

Assessed Person(s): D. I.

Applicant(s): D. I.

Respondent(s): City of Toronto

Property Location(s): Address Withheld

Municipality(ies): City of Toronto

Roll Number(s): Roll Number Withheld

Appeal Number(s): 3036176

Taxation Year(s): 2013

Hearing Event No. 587831

Legislative Authority: Section 323.(1)(e) of the City of Toronto Act, 2006

Heard: July 24, 2015 in Toronto, Ontario

APPEARANCES:

Parties

Counsel⁺/Representative

Estate Trustee for D. I.

S. I.

City of Toronto

C. Henderson⁺ and J. Renaud

MEMORANDUM OF ORAL DECISION DELIVERED BY MARILYN SHARMA ON JULY 24, 2015

1This matter previously came before the Assessment Review Board (“Board”) on October 8, 2014, and was adjourned because the Applicant did not have appropriate evidence (such as loan information and other financial documents) to support his claim.

2The hearing was rescheduled and resumed on July 24, 2015 in Toronto.

ISSUE

3The issue before the Board is to determine whether the applicant S. I. is eligible for relief of property taxes under s. 323.(1)(e) of the City of Toronto Act (“Act”).

PRELIMINARY

4At the start of the hearing on July 24, 2015 Mr. C. Henderson, replacement counsel for the City, raised an issue regarding the status of S. I. (the applicant) in this matter. His concern was that S. I. is not the owner of the property for which relief is being sought but is in fact the Trustee of the Estate of the owner D. I. (deceased). Mr. Henderson stated that in his view S. I. in his capacity as the Trustee of the estate is not eligible to make an application to receive relief for himself under s. 323.(1)(e) of the Act since he is the Trustee of the estate. In addition, Counsel for the City argued that S. I. should not be able to use his personal financial situation to satisfy the tests for relief under this section of the Act.

City of Toronto Evidence and Issues

5The Book of Documents/Evidence provided by the City contained a copy of the application submitted by S. I. seeking a reduction, cancellation or refund of property taxes due to sickness or extreme poverty for the taxation year 2013 in respect to the subject property.

6The City of Toronto’s evidence provided to the Board and dated September 16, 2014 shows that the owner of the subject property is D. I. (deceased) and that S. I. is the Trustee of the Estate of D. I.

7The Board accepts that S. I. is the person named as the Trustee of the Estate of D. I. by virtue of having received into evidence a copy of the Certificate of Appointment of Estate Trustee without Will issued by the Ontario Superior Court of Justice.

8Counsel for the City of Toronto informed the Board that, in his opinion, S. I. cannot stand in the place of D. I. nor can he substitute his personal finances for evaluation in place of D. I. He believes that the test to establish sickness or extreme poverty applies to the owner of the property and that S. I. is not the owner of the property.

9Counsel for the City raised the question as to whether an Estate could seek relief under the Act given that an Estate could not be sick or poor.

10Counsel for the City further informed the Board that the assessed value of the subject property for the taxation year 2013 was $515,000 and that with an outstanding mortgage of $28,000 there is almost $0.5 million equity which, in the City’s view, is far sufficient to meet the tax obligation of the Estate in the amount of $3,825.78 for the taxation year 2013.

Applicant’s Evidence and Issues

11S. I., the Trustee of the Estate of D. I. advances three arguments in this matter. The first is that he believes that he is eligible to make an application for relief of taxes; the second is that he believes that an Estate could be in poverty; thirdly, he is incurring expenses for the subject property out of his personal finances which contributes to him being in a state of poverty and therefore his personal financial situation should be considered.

Board’s Analysis

12The Board considered Counsel for the City’s argument that S. I. is not eligible to make an application under s. 323.(1) of the Act.

13The Board notes that s. 323.(2) of the Act states that an application for relief of taxes can be made by the following:

(a) The owner or another person who has an interest in the land as shown in the land registry office and sheriff’s office.

(b) Is a tenant, occupant or other person in possession of the land.

(c) Or is the spouse of the owner or other person described in clause (a) or (b).

14S .I. states that he is the occupant of the subject property and is eligible to make an application for relief. On the basis of the provisions set out in s. 323.(2)(b) of the Act, the Board finds that S. I. can make an application. However, what remains to be determined is for the purpose of seeking tax relief for the property of D. I. (deceased) whether S. I. can submit his personal finances for scrutiny and evaluation in place of the deceased to establish extreme poverty.

15The Board considered S. I.’s argument that his personal finances should be taken into account to determine the extent of relief since he has been paying the property taxes for the subject property out of his limited personal income. The Board notes that the property is currently the subject of legal settlement (Probate Proceedings). The Board believes that S. I. is confusing his role as Trustee of the Estate with that of his personal interest in the property. It is the Board’s view that as the Trustee, S. I. has a responsibility to ensure that the property tax obligation of the subject property is met; however, this is not a personal obligation.

16The Board therefore finds that the personal finances of S. I. cannot be subjected to scrutiny in determining whether relief can be granted under this section of the Act since:

• The applicant, S. I. as Trustee of the estate, has a responsibility in managing and administering the financial affairs and all obligations of the Estate.

• The property tax debt is that of the Estate and even if S. I. is paying the property taxes out of his personal finances, this is a debt which is recoverable from the proceeds of the estate when the estate settlement is finalized and completed.

• Further, the Board agrees with Counsel for the City that there is ample equity in the property to meet the tax obligation to the City.

17The Board also considered S. I. argument that an Estate could be in poverty. The Board is not in a position to make a pronouncement on this particular issue since it does not have before it an application filed on behalf of the Estate of D. I. or evidence on behalf of the Estate. Instead, the Board was presented with an application and evidence for relief submitted by S. I. as the owner of the subject property.

CONCLUSION

18The Board is satisfied that a person who is “in possession of the subject property” or an occupant is eligible to make an application for relief in accordance with s. 323.(2) of the Act.

19The Board however is not persuaded in this case that S. I. can stand in the place of the owner (deceased) nor can he substitute and subject his personal situation and/or financial condition in place of the owner to be evaluated in seeking relief of the property taxes due to sickness or extreme poverty.

20The Board in this instance dismisses the claim by S. I. that his personal finances should be evaluated to determine whether taxes should be reduced or cancelled due to extreme poverty. The Board notes that S. I. is not the owner of the subject property but has been appointed as the Trustee of the Estate of D. I. of which the subject property is an integral part.

21The Board finds that S. I. as Trustee of the Estate of D. I. is responsible for among other things, ensuring that the Estate of D. I. meets its tax obligations.

22The Board is not convinced that S. I. bears a personal responsibility for the property taxes of the subject property. The Board finds that the tax obligation of the subject property is the responsibility of the Estate and should be met from the proceeds and assets of the Estate of D. I. (deceased).

23Accordingly, the Board dismisses the application made by S. I.