Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: November 08, 2016

FILE NO.: WR 143193

Assessed Person(s): Tamara Lohr

Complainant: Tamara Lohr

Respondent(s): The City of Toronto ("City")

Property Location(s): 647 Sheppard Avenue West

Municipality(ies): City of Toronto

Roll Number(s): 1908-051-760-01500-0000

Appeal Number(s): 3164755, 3164756, 3164757

Taxation Year(s): 2011, 2012, 2013

Hearing Event No. 636591

Legislative Authority: Section 331 of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A

Heard: September 26, 2016, in Toronto, Ontario

APPEARANCES:

Parties	Counsel⁺/Representative
Tamara Lohr	Ami Lohr
City of Toronto	Georgia Tanner⁺

DECISION OF THE BOARD DELIVERED BY BERNARD COWAN

ISSUE

1The complainant, Tamara Lohr, seeks compassionate, equitable assistance from the Assessment Review Board (the "Board") to override the City of Toronto's (the "City") refusal to take any action in processing her application for a vacant unit rebate of property taxes. These are claimed for the 2011, 2012 and 2013 taxation years. The City's position in this regard is that the applications were all filed after the statutory deadlines, and accordingly neither it nor the Board had or has any discretion to modify or extend the statutory filing deadlines beyond the last day in February of the year following a vacancy.

2Ami Lohr, Ms. Lohr's spouse testified that the vacancy rebate program did not come to the complainant's attention until March, 2014. The Lohr's proceeded expeditiously thereafter to file their application(s) for rebates. After rejection, they had conversations with City staff, leading to tenaciously pursuing assistance for relief from their municipal and provincial government officials, all to no avail. Ultimately, they were advised by the City staff to seek a remedy from the Board.

3Complaints pursuant to s. 331.(15) of the City of Toronto Act ("COTA") were filed with the Board in April 2016, because the City had failed to mail a notice of its determination of the amount of rebate. Mr. Lohr believes that "the Board should have the power" to address these applications, and that this circumstance merits re-examination. He accordingly implores me to provide lenient assistance by proceeding to address the vacancy rebate claims on their merits.

4Representing the City, Georgia Tanner submits case law to support her contention that I lack the jurisdiction to address vacancy rebate applications filed after the statutory deadlines. She maintains that to grant exceptions to this and other like late-filed applications would circumvent the finality of the tax roll.

BACKGROUND

5The commercial/residential property at 647 Sheppard Avenue West ("subject") was vacant throughout 2012, and some or all of 2011 and 2013. During the vacant period, the Lohrs vacated the property, moved their business elsewhere, and conditionally sold the property in a transaction that failed to materialize. They consequently re-occupied the premises in 2013.

6In March of 2014, it came to Ms. Lohr's attention that there was an opportunity for owners of commercial properties to claim a property tax rebate under certain circumstances where vacancies have been encountered. This, in fact, relates to s. 331 of the COTA, whose purpose is "...to provide tax rebates to owners of property that has vacant portions if that property is in any of the commercial classes..."

7Considering that the subject's circumstances to qualify for rebates were met, Ms. Lohr immediately commenced the application process. On March 25, 2014 the City's Application for Vacant Unit Rebate for 2011, 2012 and 2013 was completed on a single form and filed on or before April 1, 2014.

8On June 18, 2014 the City responded by rejecting each application separately, on the basis that "... the deadline for the vacancy rebate program is the last day of February of the year following the taxation year in respect of which the application is made." Indicating that it lacked discretion regarding either the vacancy program's application deadline or opportunity for extension, the City advised that it would take no further action with respect to the application.

9Believing that aside from the timing of their vacancy rebate application, consequential refunds were available, the Lohr's commenced dialogues with the City's staff. This led to them being referred to their councillor, from him to their MPP, and then back to their councillor and the City staff. While all were sympathetic to the Lohrs' plight, none indicated a capability to assist and in April 2016, the City suggested complaints be filed by the Lohrs with the Board, which they immediately proceeded to do.

10All three years' complaints were filed with the Board by a single document, with a single fee paid. The Board requested and the complainant paid two additional filing fees, and established the three appeals now before me.

11At the commencement of the Board's hearing, it was determined, on consent of the parties, that the Board's jurisdiction to grant any relief for the admittedly late filing of the rebate application was at issue. It was apparent that the parties were not prepared to comprehensively argue quantum of any rebate; and this was agreed to be addressed at a continuation of the hearing if I were to find that any relief could be addressed by me in this circumstance.

DECISION

12I find that I lack the requisite jurisdiction to consider the complaints. The applications for vacancy rebates for the 2011, 2012 and 2013 taxation years are accordingly dismissed. The deadlines for rebate applications are clear and unequivocal, and there is no provision in the COTA for equitable relief or discretion respecting late-filed applications for vacancy rebates.

REASONS FOR DECISION

13"Hope" was repeatedly held out to the Lohrs by way of referrals to possible avenues for relief being offered by their municipal councillor, by their MPP, and by City staff. This quest has landed before me to address with finality.

14Section 331 of COTA mandates that the City must have a tax rebate program for vacant portions of commercial and industrial properties. It's 25 subsections, together with the Regulation referenced therein, set out all determinative stipulations for this form of property tax relief.

15Section 331(2) commences by stating "A tax rebate program under this section must meet the following requirements:" (emphasis added). It continues in s. 331.(2) 5 by stipulating:

Requirements of program

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

5. The application shall be made to the City 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.

16Accordingly, the only leeway respecting extension of the deadline for making an application to the City is by prescription of the Minister of Finance. I am not aware of any such extension being implemented, none appears to exist in sections 38 to 45 of Ontario Regulation 121/07, being the only regulation referencing matters pertaining to vacancy rebates, nor has any party brought any prescription to my attention.

17The COTA continues in s. 331(15) to enable these complaints to be brought to the Board, and in s. 331(16) it establishes the Board's jurisdiction by stipulating:

Determination by the Board

331.(16) In a complaint under subsection (14) or (15), the Assessment Review Board shall determine the amount of any rebate owing to the applicant.

18I interpret this to restrict my jurisdiction to rebates owing. In this instance, no rebates can be owing if the applications to the City were not filed by the end of February following each of the three applicable taxation years. Had s. 331.(2)5. stated that "The application may be made..." instead of "The application shall be made...", I would have the necessary capability to exercise discretion and proceed with these complaints by considering and granting the appropriate quantum of rebates. However, consistent and ingrained statutory interpretation throughout the adjudicative and judicial communities draws a distinct difference between the obligatory term "shall" and the discretionary term "may".

19As argued by Ms. Tanner, interpretation of a like nature is supported by the Divisional Court in paragraphs 36 and 37 of 2196145 Ontario Inc. (c.o.b. Boston Pizza) v. Ontario (Registrar, Alcohol and Gaming Commission) [2016] O.J. No. 3150; ONSC 3552, wherein the Court indicated that "Replacing the word "or" with "and" is not an option. If the legislature had intended to use the word "and" it would have done so". The same prohibition denies my capability to substitute "may" for "shall" or for "must".

20Furthermore, I endorse the decision of a different Board panel (Mariani v. Puslinch (Township) [2007] O.A.R.B.D. No. 437). This was a predecessor Municipal Act matter to COTA, whereby an application for property tax relief had a distinct application deadline of Febuary 28 in the year following that for which an application was made. The Mariani panel ruled that it lacked the requisite jurisdiction to consider that appeal. In that circumstance, the Board noted at paragraphs 18 (in part) and 21 respectively that "The Board does not have...jurisdiction to review tax adjustments for any ...injustice as it sees fit" and for those Act matters before it, "It must be emphasized that the Board does not have any inherent or equitable jurisdiction. It does not have the authority to act beyond the powers given to it in the statute."

CONCLUSION

21I am governed by the legislation as written, and as written it is inviolable. In this particular matter, I must enforce the application of the deadlines of the last days of February in 2012, 2013 and 2014. These were unknowingly but admittedly not met, and I must dismiss the appeals. Furthermore, I lack any discretion to extend or override this outcome to enable the vacancy rebate refunds otherwise available to be determined.