M.M. v. City of Toronto, 2017 CanLII 32652

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

May 25, 2017

FILE NO.:

145742

Assessed Person(s):

M.M.

Appellant(s):

M.M.

Respondent(s):

City of Toronto

Property Location(s):

Withheld

Municipality(ies):

City of Toronto

Roll Number(s):

Withheld

Appeal Number(s):

3165258

Taxation Year(s):

2015

Hearing Event No.

668266

Legislative Authority:

Section 323.(1)(e) of the City of Toronto Act, 2006, S. O. 2006, c. 11. Sched. A

Heard:

March 6, 2017, in Toronto, Ontario

APPEARANCES:

Parties

Counsel⁺/Representative

M.M.

Self-represented

City of Toronto

J. Boyczuk⁺ and L. Verastegui

MEMORANDUM OF ORAL DECISION DELIVERED BY MARGARITA OKHOVATI ON MARCH 6, 2017

INTRODUCTION

1This matter previously came before the Assessment Review Board (the “Board”) on December 15, 2016 and was adjourned because M.M. (the “Applicant”) did not provide the Board with all the required supporting documents.

2The hearing was rescheduled and resumed on March 6, 2017 in Toronto.

ISSUE

3The issue before the Board is to determine whether the property taxes of the Applicant for the taxation year 2015 should be cancelled, reduced or refunded as a result of the Applicant’s inability to pay due to sickness or extreme poverty under the City of Toronto Act, 2006 S. O. 2006, c. 11. Sched. A (“Act”) s. 323. (1)(e).

DECISION

4The Board finds that based on the evidence before it, the Applicant, was able to demonstrate to the satisfaction of the Board that there existed an inability to meet her property tax obligations in 2015. Therefore, the Board cancels her property taxes in the amount of $6,785.12 for the 2015 taxation year.

REASONS FOR DECISION

Legislation

6Section 323.(1)(e) of the Act provides:

“Upon application to the city treasurer made in accordance with this section, the City 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,

(e) the applicant is unable to pay taxes because of sickness or extreme poverty;”

[7] The Act outlines a two-part test. In order for the Applicant to qualify for relief under this section of the Act, the Board must first determine whether sickness or extreme poverty exists. If neither sickness nor extreme poverty exits, then the application fails. If either is present, the Applicant must demonstrate an inability to pay all or part of the taxes.

APPLICANT’S EVIDENCE

8The Applicant has lived in the subject property which is a semi-detached house with her husband, daughter and the Autistic son until she was divorced in 2006. Based on the Separation Agreement (Exhibit 3), the husband agreed to transfer his title, rights and interest in the matrimonial home to the Applicant provided that the Applicant would be solely liable for all costs and expenses for the purpose of any renovations or on-going costs to maintain the property. In addition, it was agreed that each wife and husband would be financially independent of each other and there would be no financial spousal support.

9The Applicant testified that the main reason of their divorce was their disagreement as to how to treat and deal with their Autistic son S.G., who suffers from moderate to severe Autism and needs constant care on daily basis.

Sickness

10The Applicant testified that her son attended a special school although not regularly until the age of 18 however, he refused to go after that age. He is 25 years old now. According with the Behaviour Therapy Consultation Report (Exhibit 6), S.G. refused to attend school because he did not like transitions, large groups of people and noisy environments. The report states that S.G. has two workers. One worker provides support for 1.5 hours every day to allow his mother some respite. The first worker teaches him how to take care of himself with respect to eating and personal care and the second worker provides support a few days per week. The report states further that S.G. is very fond of his workers and becomes agitated if they change for some reason.

11In her submissions, Jennifer Boyczuk, Counsel for the City stated that the Applicant has to take care of her Autistic son on daily basis therefore, the City supports the sickness part of the test.

12The Board agrees with Counsel’s submissions and finds that although the Applicant herself is not sick but completely stressed out, having a disabled son who needs care and support on daily basis, she meets the first part of the test which is sickness based on her oral testimony and extensive documentary evidence.

Extreme Poverty

13The term “extreme poverty” is not defined clearly under the Act. It is obvious that it cannot mean that the Applicant has to be so poor that he/she cannot own a property, because s. 323.(1)(e) of the Act is aimed at persons who do own real property. In determining whether the Applicant is in a situation of extreme poverty, the Board has to consider the evidence presented by the Applicant regarding her financial situation, which is not limited to her income and expenses in the relevant period giving the words “extreme poverty” their normal meaning.

Applicant’s Evidence

14The Applicant testified that several years ago she worked as a Herbalist. However, because of the sickness of her son, who needs 24-hour care, she was unable to seek employment. Tricia De Roche, Outreach Intake Worker from Springboard, in her letter states, “S.G.’s mother is the primary care giver and provides everything for him. The support workers and services must come to the home. S.G. cannot be left alone and his mother cannot even leave home to attend appointments for her own health.” (Exhibit 6).

15The Applicant testified that in order to generate an additional income to be able to support her family as a single mother, she had to take a mortgage, renovate the basement of the house and rent it out to two tenants. (Exhibit 4).

16The Applicant submitted a copy of the Form 1 – Financial Information which shows the Applicant’s monthly income and expenses (Exhibit 1).

Total Monthly Expenses $3,482.00

Total Monthly Income $2,770.16

Loss of Income $ - 712/month

Assets

Assessed value of the house in 2015 $801,000

Funds in the Chequing Account $ - 1,110.71

Total Assets $799,889.29

Liabilities

Mortgage $463,778.28 ($835.00/month)

Credit/Debit Cards -$ -1,966.39

Loan(s) $ -2,000.00

Total Liabilities $467,745.00

NET TOTAL $333,255.00

City’s Position

17Ms. Boyczuk, on behalf of the City of Toronto submits the following:

• The Applicant is spending her money reasonably.
• The Applicant’s groceries for $1,200.00/month is a bit high and her donations to the meditation center is unnecessary.
• Her expenses are limited.
• There is equity available to the Applicant for the amount of $333,255.

Board’s Analysis

18The Board has reviewed all of the evidence pertaining to the financial circumstances of the Applicant to determine whether she is experiencing extreme poverty. The Board is satisfied that the Applicant’s circumstances rise to the level of extreme poverty for the following reasons:

• The Applicant made an effort to renovate the lower level of her house and rent it to two tenants in order to generate extra income to support her family considering the level of her engagement with her Autistic son.
• The Applicant owns no other assets except her primary residence. She is not in possession of bonds, stocks or R.R.S.P. In December 2015, the balance of her accounts with the Royal Bank of Canada was $-1,110.71 and her Master Card $-1,966.39.
• The Applicant does not own a car therefore, there are no related expenses such as gas, car insurance, car loan or repairs.
• Counsel for the City stated that $1,200 per month for food is a little high. In that respect, the Applicant testified that her son needs to follow a special diet therefore, she has to buy extra food.
• Furthermore, the Board and the City noted from the Applicant’s Financial Statement (Exhibit 1) that there were other areas of expenses that were not recorded in the monthly expenses of the Applicant (such as meals from outside, clothing, entertainment and vacation) which are reasonable that the Applicant would incur in the normal course of everyday life.
• Counsel for the City referred to the previous decisions of the Board regarding the equity. The following is the Board’s opinion in this respect:

a) A prior decision of the Board is based on the evidence that was before the Board at the time. This Board’s view is also that the threshold of the extreme poverty must be demonstrably and significantly a much higher threshold than that which is generally accepted for persons living in a state of poverty in the society. The Board must base its decision on the evidence presented at this hearing.

b) The study and the assessment conducted by the Behaviour Therapy Consultation Center states that S.G. requires support around the prevention of self-injury. He does not like change of environment or social workers. When he gets agitated he bites his hands and wrists which forms calluses. (Exhibit 6).

19In the Board’s opinion, it will be undue hardship to suggest to already burdened Applicant to sell the subject property and utilize the equity in the home and deal with all the results and psychological ramifications of it.

20Furthermore, the Applicant stated that her daughter is employed now and with her financial assistance, she will make an effort to fulfill her responsibility as a tax payer in the future.

CONCLUSION

22Based on the analysis and the totality of the evidence, the Board finds that the Applicant M.M. meets the criteria of sickness and extreme poverty in the relevant period.

23The Board accordingly grants a cancellation of the property taxes for the 2015 taxation year in the amount of $6,785.12 on the property located at (address withheld).