Municipal Property Assessment Corporation v. Robin Leigh Tait, 2018 CanLII 107725

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

ISSUE DATE: November 06, 2018

FILE NO.: DM 2018M034

Moving Party(ies): Municipal Property Assessment Corporation (“MPAC”)

Respondent(s): Robin Leigh Tait

Respondent(s): City of Toronto

Property Location(s): 10 Dean Park Road, Unit 517

Municipality(ies): City of Toronto

Roll Numbers: 1901-122-370-05067-0000 and 1901-122-370-05552-0000

Taxation Years: 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, and 2017

Hearing Event No.: 705173

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

Heard: In writing

APPEARANCES:

Parties

Counsel

MPAC

Calvin Ho

Robin Leigh Tait

No one appeared

City of Toronto

No one appeared

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1MPAC asks this Assessment Review Board (this “Board”) to extend the time for filling appeals past the appeal filling deadlines set in the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”). It says that there are palpable errors in the assessment roll that justify extending the time to bring appeals. The alleged error is that a parking spot in a residential condominium building in the City of Toronto was assessed and taxed twice. It brings this motion with the consent of all parties.

2For the reasons set out below, I find that there are palpable errors in the assessment roll. I extend the time for bringing appeals for the 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, and 2017 taxation years and direct MPAC to be the appellant.

Legal Framework

3Section 40.1(b) of the Act states: “If it appears that there are palpable errors in the assessment roll… if alteration of assessed values or classification of land is involved, the Board may extend the time for bringing appeals and direct the assessment corporation to be the appellant.” MPAC argues that I should exercise the discretion conferred upon me in that section and extend the time for filing these appeals.

4The first step in a section 40.1 application is to determine if there is a palpable error in the assessment roll. This Board has held that “the enquiry into palpable error requires a consideration first of whether it is a true inadvertent and unintentional error, and second whether that error is palpable,” Municipal Property Assessment Corporation v Chew, 2015 CanLII 78969 (ON ARB), (“Chew”), at paragraph 19.

5A palpable error is one “that mischaracterises the fundamental nature or legal character of the property,” Hopper v Municipal Property Assessment Corporation, 2016 CanLII 24421 (ON ARB) (“Hopper”), at paragraph 15. This Board held in Municipal Property Assessment Corporation v 153598 Canada Inc., 2017 CanLII 31049 (ON ARB) (“153598 Canada Inc”), at paragraph 11, that “the double assessment of land” is a “mischaracterization of the legal character of the property.”

6It is not enough that there appear to be palpable errors in the assessment roll. The relief in section 40.1 is discretionary and should only be exercised in the clearest of circumstances, see Hopper at paragraph 13. The cases in which it would be appropriate to exercise the Board’s discretion have been described as those where denying relief would be “unreasonable, unfair and highly prejudicial,” see Municipal Property Assessment Corporation v Guelph Eramosa Township, 2018 CanLII 263 (ON ARB) (“Guelph”) at paragraph 16.

Palpable Errors

7Ms. Tait purchased condominium unit 517 at 10 Dean Park Road in 2006. She also began occupying the associated parking spot, assuming that she had purchased it as well. MPAC reviewed the sale and found that the conveyance did not include the legal description of the parking spot. MPAC found that the condominium apartment had been conveyed without the parking spot since 1986. It therefore created a separate roll number for the parking space and sent the assessment notices to the owner listed on title. That person had sold the apartment in 1986, but had not conveyed the parking space to the next owner. MPAC did not, however, remove the value of the parking space from Ms. Tait’s annual assessment. Ms. Tait was not notified that she did not own the parking space, and was assessed as if she did own the parking space. She also continued to use the parking space.

8Ms. Tait first became aware of the error in 2017, when the City of Toronto took steps to sell the parking space due to the unpaid taxes. The taxes on the parking space had not been paid since 2006, when MPAC created the parking space roll number. The City of Toronto contacted the condominium corporation to arrange a tax sale of the parking space. The condominium corporation informed Ms. Tait, who promptly paid the tax arrears on the parking space in order to avoid the tax sale. It was at that time that Ms. Tait became aware of the error in the 2006 conveyance, and the creation of a separate roll number for the parking space.

9Ms. Tait has paid the taxes on the parking space twice: once in the annual assessment of her apartment, and again in the tax arrears on the parking space. That is unfair. Double assessment of land is also a palpable error in the assessment roll, see 153598 Canada Inc at paragraph 11.

10Palpable errors must also be inadvertent errors, see Chew. MPAC’s creation of the parking space roll number was a good faith reaction to the error in the legal conveyance. There is certainly no evidence that the error in the 1986 conveyance, which led to the other problems, was an intentional error. It appears to have been an oversight. I therefore find that there are palpable errors in the assessment roll for the 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, and 2017 taxation years.

Discretion

11An extension of time to file appeals should only be granted where it would be “unreasonable, unfair, and highly prejudicial” to leave the assessment roll as it stands, Guelph at paragraph 16. That requires a balancing of the prejudice to the parties, Chew at paragraph 26.

12Robin Tait paid the taxes on the parking space twice, and that situation will stand if I do not extend the time for filing appeals. It would be unreasonable, unfair, and highly prejudicial to Ms. Tait to leave the assessment roll closed. She is blameless, because she was never aware that there was any issue with her ownership of the parking space. She took reasonable steps to cure the defect as soon as she did become aware. Both MPAC and the City of Toronto have explicitly waived any claim to prejudice if this motion is granted. The balance of prejudice therefore strongly favours extending the time to file appeals. I exercise my discretion to extend the time for filing appeals for the 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, and 2017 taxation years.

Settlement

13MPAC filed minutes of settlement for the appeals that do not yet exist. It argues that I should order the Registrar to implement those settlements once the appeals are filed. Clause 40.1(a) permits me to correct the assessment roll “if no alteration of assessed values or classification is involved.” Clause 40.1(b) requires that I extend the time for filing appeals, and order MPAC to be the appellant, if those issues are involved. MPAC argues that I should pre-judge the appeals, before they are filed, in order to save the requirement for a hearing.

14I find that to be an unnecessary order here. The parties have minutes of settlement prepared, and can submit those to the Board once the appeals are filed. That will remove any need for a hearing, or any other procedural steps. That is a minimal step that MPAC is required to make. In light of that, it would be an error for me to effectively do what is prohibited by in clause 40.1(b). The clause is clear that I cannot correct the roll on a motion such as this when assessed values are involved. A pre-judgement of the appeal effectively makes that determination. I decline to do so.

Conclusion

15I find that there are palpable errors in the assessment roll for the property located at 10 Dean Park Road, Unit 517 in the City of Toronto for the 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, and 2017 taxation years. I therefore extend the time for filing appeals for those taxation years and order MPAC to be the appellant.