Doug Thompson et al. v. Edwardsburgh-Cardinal Township, 2017 CanLII 39841

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

ISSUE DATE: June 21, 2017

FILE NO.: WR 146943

Assessed Person: Edwardsburgh-Cardinal Township

Appellants: Doug Thompson, Jim Maybe, Linda Maybe, Rob Dukelow, Angela Dukelow, Dave Evans, Sandra Evans, Gary Moffitt, Helene Shennett, Dave Snetsinger, Patsy Snetsinger, Barry Brown, Bob Beattie, Marg Beattie, William Upper, Steve Polite, Anne Marie Polite, Richard Berube, Johanne Berube, James Plumb, Dyall McAuley, Frank McAuley, John Dyall, Jill Dyall, Mike Adamyk, Jane Adamyk, John Franchi, and Yvonne Crich

Respondent: Edwardsburgh-Cardinal Township

Property Locations: 2707 2711 County Road 2, 3100 Windmill Rd., 3101 Windmill Rd., 3103 Windmill Rd., 3105 Windmill Rd., 3107 Windmill Rd., 3109 Windmill Rd., 3201 Windmill Rd., 3203 Windmill Rd., 3205 Windmill Rd., 3209 Windmill Rd., 3211 Windmill Rd., 3213 Windmill Rd., 3301 Windmill Rd., 3303 Windmill Rd., and 3305 Windmill Rd., 3307 Windmill Rd.

Municipality: Edwardsburgh-Cardinal Township

Roll Numbers: 0701-701-020-07302-0000, 0701-701-020-07305-0000, 0701-701-020-07307-0000, 0701-701-020-07308-0000, 0701-701-020-07309-0000, 0701-701-020-07310-0000, 0701-701-020-07311-0000, 0701-701-020-07312-0000, 0701-701-020-07313-0000, 0701-701-020-07314-0000, 0701-701-020-07316-0000, 0701-701-020-07317-0000, 0701-701-020-07318-0000, 0701-701-020-07319-0000, 0701-701-020-07320-0000, 0701-701-020-07321-0000, and 0701-701-020-07322-0000

Appeal Numbers: 3000690, 3000694, 3000695, 3000696, 3000676, 3000677, 3000678, 3000680, 3000681, 3000682, 3000686, 3000684, 3000693, 3000685, 3000687, 3000688, and 3000689

Taxation Year: 2013

Hearing Event No.: 678385

Legislative Authority: Section 357.(7) of the Municipal Act, 2001, S.O. 2001, c. 25, as amended

Heard: May 18, 2017 in Spencerville, Ontario

APPEARANCES:

Parties	Representative
Doug Thompson, Jim Maybe, Linda Maybe, Rob Dukelow, Angela Dukelow, Dave Evans, Sandra Evans, Gary Moffitt, Helene Shennett, Dave Snetsinger, Patsy Snetsinger, Barry Brown, Bob Beattie, Marg Beattie, William Upper, Steve Polite, Anne Marie Polite, Richard Berube, Johanne Berube, James Plumb, Dyall McAuley, Frank McAuley, John Dyall, Jill Dyall, Mike Adamyk, Jane Adayk, John Franchi, and Yvonne Crich	Glenn Lucas
Edwardsburgh-Cardinal Township	Melanie Stubbs

DECISION OF THE BOARD DELIVERED BY SCOTT McANSH

1The roll numbers before me were assigned to cottages on municipally owned land that is held under lease by the appellants. In late 2014 those roll numbers were cancelled and replaced with the one roll number, 0701-020-07300-0000, which applied to the single large legal parcel of land on which all the cottages sit. The appellants still pay taxes on their cottages under the single roll number, on an allocation of value the Municipal Property Assessment Corporation (“MPAC”) assigns to their interest in the land.

2The amount of taxes levied against the appellants decreased significantly once the individual roll numbers were deleted. They seek a refund of what they see as the overcharging of taxes for the 2013 taxation year. They argued that Edwardsburgh-Cardinal Township (the “Township”) charged taxes on roll numbers that were not legally permitted for that taxation year, an error that they say resulted in an overpayment of taxes.

3For the reasons set out below, I find that the use of multiple roll numbers for the 2013 taxation year was a gross and manifest error. However, the error was not a transposition, typographical, or similar error. The refund the appellants seek is from a change in the assessor’s opinion of value, which arose after the roll numbers were corrected. An error in judgment in assessing property is not an error that can be corrected under the legislation. The appeals are denied.

Legislation

4Section 357.(1)(f) of the Municipal Act, 2001, S.O. 2001, c. 25, states, in part, that “the local municipality may cancel, reduce or refund all or part of taxes levied on land… if… a person was overcharged due to a gross or manifest error that is clerical or factual in nature, including the transposition of figures, a typographical error or similar error but not an error in judgment in assessing the property.” Section 357(7) permits an appeal to this Assessment Review Board from a decision of a municipal council.

5The alleged error here is the assessment of the leased municipal land. Section 3.(1) of the Assessment Act, R.S.O. 1990, c. A-31 states, in part, that “all real property in Ontario is liable to assessment taxation, subject to the following exemptions from taxation.” Clause 3.(1)(1) exempts “land owned by Canada or any Province” and clause 3.(1)(9) exempts “land owned by a municipality,” but the land “is not exempt if occupied by a tenant who would be taxable if the tenant owned the land.” Section 18.(1)(a) states, in part, that “the tenant of land owned by the Crown shall be assessed in respect of the land as though the tenant were the owner.”

Facts

6The appellants leased land on which they have built cottages. They own the cottages, but not the land on which those cottages sit. The roll numbers before me were created in approximately 1987 to assign value to the cottages that were then on federal Crown land. In approximately 2000 or 2001 the federal Crown transferred the land on which the cottages sit to the Township, and the same roll numbers continued to be assigned to each appellant. The parcel of land remained one large legal parcel on which all of the cottages sat.

7In early 2014 the appellants filed both a request for reconsideration with MPAC, and this request for a refund of taxes from the Township. MPAC agreed that there should only be one roll number, instead of 19, for the land on which the cottages sit. In December 2014 minutes of settlement were executed that reduced the 2014 assessment for each roll number to $0 and deleted that roll number. For the 2014 taxation year, MPAC provided the Township with an apportioned current value for each cottage, against which the Township applied its mill rate. The 2014 taxes levied on each cottage were approximately 60% of the 2013 taxation. That difference in taxation is the alleged overpayment of taxes in 2013.

8The Township denied the application for a refund on February 27, 2014, stating that the “issuing of separate roll numbers for these properties is not a gross or manifest error.” The appellants now bring that issue before me.

Gross or Manifest Error

9Section 357.(1)(f) of the Municipal Act, 2001 permits tax refunds when a person is overcharged, but only for certain classes of errors. The errors must first be “gross or manifest” or large, plain, or obvious. The error must also be “clerical or factual in nature” and cannot include “an error in judgment in assessing the property.” Only errors that meet all three criteria are eligible for a refund.

10The error alleged here is applying separate roll numbers to one parcel of land. The appellants argue that roll numbers should correspond to a parcel of land that can be separately conveyed. I agree.

11Section 3.(1) of the Assessment Act states that “all real property in Ontario is liable to assessment and taxation, subject to the following exemptions from taxation.” That is, the exemptions are from taxation, but all real property remains assessable. The issue is the scope of “real property,” as it is units of real property that are liable to assessment.

12There is a definition of “real property” in section 1(1) of the Assessment Act, but it is of little assistance. The definition does not set out how land is to be divided, but rather includes certain types of land, such as “land covered with water.” Land is registered in distinct units and it is logical that it be assessed by those same units. Registration in Ontario is governed by the Land Titles Act, R.S.O. 1990, c L.5. Part VIII of the Land Titles Act sets out a system of identifying and registering parcels of land. Land cannot be conveyed unless it is registered, or falls under one of the other situations set out in section 50.(3) of the Planning Act, R.S.O. 1990, c P.13. The statute book is to be read consistently, and the only coherent scheme of assessment is that each roll number corresponds to a registered parcel of land that can be conveyed. The appellants do not have an interest that can be conveyed without subdivision, as such they should not be assigned separate roll numbers.

13The roll numbers here are a remnant of when the land was Crown land, and MPAC’s practice as it relates to Crown land. The Assessment Act grants the Crown the explicit power to assess tenants in section 18.(1) of the Assessment Act. That explicit power is to assess tenants “as though the tenant were the owner.” This could be interpreted as the creation of a parcel of land for assessment purposes. But that power does not extend to municipally owned land. The clerical error MPAC made was to not alter the roll when it ceased to be Crown land and the special powers in section 18.(1) no longer applied.

14I find that the error of not reverting to a single roll number for the single parcel of land is a gross or manifest error. It is plain when the land register is examined, making it manifest. It is also a gross error, in that it violates a principle of assessment and taxation, and had a financial impact on the appellants. The Township, quite fairly, did not dispute that if there is a legal requirement to assess the parcel under one roll number that would constitute a gross and manifest error. I find that the assessment of one parcel of land under 19 roll numbers is a gross and manifest error.

Clerical or Factual in Nature

15It is not enough, however, that the error be gross or manifest. Eligible errors must also be “clerical or factual, including the transposition of figures, a typographical error or similar error.” I do not find that the error of having multiple roll numbers is the type of error contemplated by the legislature.

16The error here is not factual. Nothing factually changed when a single roll number was applied to the parcel. Roll numbers are legal identifying instruments used in assigning assessed values, and municipal taxes, to land. The error here is clerical. It results from a failure to modify the assessment roll after the land ceased to be federal land. The separate roll numbers may have been permissible under section 18.(1), when it was federal land, but was not permissible when the land was transferred to the Township. The failure to make that change is a clerical error.

17But only a certain class of clerical errors may be corrected. The examples of errors given in the legislation are an indication of the type of errors that can be corrected. Typographical and transposition errors are mechanical errors, or data entry type errors. The error of assigning roll numbers to these cottages is not a data entry type error, but is rather a legal or policy error. The interpretation of the Assessment Act and the application of roll numbers to Crown land are legal or policy questions. Those are not the type of clerical errors set out in section 357(1)(f).

Judgment in Assessing the Property

18One type of error is explicitly excluded from section 357(1)(f): “an error in judgment in assessing the property.” The error here is primarily in the judgment of the assessor. The change in the assessed values assigned to these appellants in 2014 came after the roll numbers were removed, but I have no evidence of how the change in roll numbers directly resulted in the new, lower, assessments. The evidence indicates that the change was in the judgment of the assessor.

19Roll numbers are legal instruments used in assigning value to particular parcels of land. Roll numbers, themselves, have no role to play in determining the value of land. Other factors, such as site area, have a clear impact on value. Roll numbers do not. It is far from clear, then, why the value assigned to each cottage changed so significantly when the roll number changed.

20It is possible that the original value assigned to each roll number reflected the assessor’s assumption that the owner had a fee simple interest in the land. When that assumption was proven wrong, the assessor’s judgment of value changed. It is also possible that other information came to light while the roll numbers where changed, and that information changed the assessor’s opinion. Either way, the correction of the legal or policy error in the roll numbers appears to have resulted in a change in judgment in assessing the properties.

21The appellants seek a refund for taxes resulting from the change in the assessment in 2014. The refund is not based on the use of the roll numbers. The refund is sought from the assessed values that came out of the change in roll numbers. Those assessed values are based on the assessor’s judgment and errors in judgment cannot be corrected pursuant to section 357(1)(f).

CONCLUSION

22There was a gross and manifest clerical error in the 2013 assessment roll provided to the Township in assigning roll numbers to tenanted interests in a larger parcel. However, the error was not a transposition, typographical, or similar error so is not a type that can be the basis for a tax refund. Further, the change in assessed values was a change in judgment in assessing the properties and errors in judgment cannot be the basis for a tax refund. As such, the error of incorrect roll numbers is not an error that can be the basis for a refund of taxes pursuant to section 357(1)(f). The appeals are denied.