James Jianmin Wang v. City of Toronto, 2018 CanLII 110097

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: November 15, 2018

FILE NO.: WR: 156542

Assessed Person(s): Zhao Yan

Appellant(s): James Jianmin Wang

Respondent(s): City of Toronto

Property Location(s): 10 Knollview Crescent

Municipality(ies): City of Toronto

Roll Number(s): 1908-113-400-0400-0000

Appeal Number(s): 3286257

Taxation Year(s): 2016

Hearing Event No.: 705168

Legislative Authority: Section 323(7) of the City of Toronto Act 2006

Heard: October 19, 2018 by telephone conference call

APPEARANCES:

Parties Representative

James Jianmin Wang Self-represented

City of Toronto Angus MacKay

DECISION OF THE BOARD DELIVERED BY MARCELLE BOURASSA

INTRODUCTION

1The Subject Property’s original dwelling was demolished in 2015.

2On October 24, 2016, James Jianmin Wang made an application to the City of Toronto’s Revenue Services Appeals Unit under s. 323(1) of the City of Toronto Act, 2006 (“COTA”) for 2016, seeking a tax refund for a gross or manifest clerical error for the 2016 taxation year. The application went before the City’s Government Management Committee at its meeting held on February 20, 2018 who decided not to reduce, cancel or refund taxes.

3Mr. Wang appealed this decision to the Assessment Review Board (the “Board”) under s. 323(7) of the COTA.

4Mr. Wang asserts that he is entitled to a refund of property taxes in the amount of $847.56 for 135 days in 2016 plus interest for a total amount of $916.72.

5Angus MacKay, on behalf of the City, asserts that the appeal should be dismissed.

6MPAC is not a party to this appeal and does not take a position. However, an MPAC employee was called as a witness by the City.

7The Board has to determine whether Mr. Wang is entitled to a reduction, cancellation or refund of property taxes for the 2016 taxation year.

DECISION

8The Board dismisses the appeal for the 2016 taxation year.

REASONS FOR DECISION

9Sections 323(1)(d) and (g) of COTA state:

Cancellation, reduction, refund of taxes

323 (1) 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,

(d) during the year or during the preceding year after the return of the assessment roll, a building on the land,

(i) was razed by fire, demolition or otherwise, or

(ii) was damaged by fire, demolition or otherwise so as to render it substantially unusable for the purposes for which it was used immediately prior to the damage;

(g) 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;

10Section 323(3) of COTA states:

Timing

(3) An application under this section must be filed with the treasurer on or before the last day of February of the year following the year in respect of which the application is made.

11Section 323(7) of COTA states:

Appeal

(7) Within 35 days after council makes its decision, an applicant may appeal the decision of council to the Assessment Review Board by filing a notice of appeal with the registrar of the board.

12Section 323(10) of COTA states:

Decision

(10) The Assessment Review Board shall hear the appeal and may make any decision that council could have made.

13Section 323(17) of COTA states:

Decision final

(17) A decision of the Assessment Review Board is final.

Appellant’s Evidence and Submissions

14Mr. Wang states that the original dwelling was demolished in April 2015 and that a new dwelling was completed on May 15, 2016. After it was completed, he applied for a refund of property taxes as it was his understanding that the demolition of the dwelling had decreased the value of the Subject Property.

15He states that he sought the assistance of City staff who advised him that he had missed the February 28, 2016 deadline for the 2015 taxation year. However, he was within time for the 2016 taxation year. On October 24, 2016, he submitted an Application for Reduction, Cancellation or Refund of Property Taxes to the City’s Revenue Services Appeals Unit under s. 323 of the COTA for the 2016 taxation year. As the reason for the application, he checked off the box “Gross or Manifest Clerical Error” with an effective date of January 1, 2016. On page 2 of the application, he provided the following details of the Gross or Manifest Error.

“I have missed the deadline for reporting the demolition of my old house in 2015.”

16Mr. Wang received the Notice of Decision of the decision of the Government Management Committee at its meeting held on February 20, 2018, who made the decision not to reduce, cancel or refund taxes for the 2016 taxation year. No further reasons for the decision were provided.

17Mr. Wang appealed the decision to the Board under s. 323(7) of the COTA.

18Mr. Wang states that he is claiming a refund of property taxes in the amount of $847.56 for 135 days in 2016. The refund is based on the approximate value of the dwelling that remained demolished in 2016. He produced a “Personal Property Insurance” coverage summary for the period of June 13, 2014 to June 13, 2015 that shows an insured value of $334,000. He used his final property tax bill for 2016 to calculate the amount claimed ($2,297.83 X 135 days divided by 366 days). He is also claiming 4% in annual interest for two years. The total amount claimed is $916.72.

19Mr. Wang states that the dwelling was rented out prior to its demolition and that an appraiser came to inspect the house, take photographs and report back to the insurance company sometime before June 2014.

20Under cross-examination by Mr. MacKay, Mr. Wang states as follows:

• He agrees that the Application for Reduction, Cancellation or Refund of Property taxes to the City of Toronto’s Revenue Services Appeals Unit was made under s. 323.(1)(g) of the COTA for the 2016 taxation year.

• He has no evidence of “a gross or manifest error that is clerical or factual in nature”. He asserts that he followed the advice of City staff.

• His application in 2016 related to the demolition of the dwelling that occurred in 2015.

City’s Evidence and Submissions

21At the request of the Board, Mr. MacKay called Tyler Nastich of MPAC to provide information about the property assessment for the 2015 and 2016 taxation years.

22Mr. Nastich states:

• The Subject Property’s 2015 assessed value was $816,000 (including land and dwelling).

• The Subject Property was inspected by a property inspector in April 2015 to verify the status of the property as a demolition permit had been taken out. The dwelling had been demolished and a change was scheduled for the return of the assessment roll at year end. Mr. Nastich states that a 31% vacant land adjustment was applied. The Subject Property’s 2016 assessed value increased to $852,000 even though the original dwelling had been removed. According to Mr. Nastich, vacant land is more desirable in this area and has a higher market value. The City’s evidence included a copy of the Property Assessment Notice for the 2016 taxation year.

• The demolition of a dwelling does not always result in a refund of property taxes. As in this case, there is no refund where the value of the land increases.

• The new dwelling was approximately 70% complete in November 2015 and fully complete in April 2016. A Supplementary Property Assessment Notice was issued. The owner appealed the supplementary assessment and the parties reached a resolution.

23Mr. MacKay submits that a 2015 tax application for Reduction, Cancellation or Refund of Property Taxes under s. 323 relating to the demolition of the Subject Property needed to be filled by February 26, 2016. No such application was made.

24There is a 2016 tax application for Reduction, Cancellation or Refund of Property Taxes under s. 323 (1) (g) of the COTA. However, he submits that there is no evidence before the Board of a gross or manifest clerical error. Mr. Wang’s evidence relates to the demolition of a dwelling that occurred in 2015. The Board has no authority to extend the deadline for the 2016 taxation year or to treat the appeal for the 2016 taxation year in relation to the 2015 demolition.

25He also submits that MPAC’s returned assessment of the Subject Property in 2016 was for vacant land only with no structure /house because it had been demolished in 2015.

26Mr. MacKay referred to two Board decisions, Madison Property Management Inc. v. Toronto (City) [2013] (unreported) WR 118334, March 22, 2013 and A. M. v Toronto (City), 2016 CanLII 76504 (ON ARB), in support of his submission that the Board has no authority or jurisdiction to extend the statutory time limit.

27Mr. MacKay concludes that the appeal should be dismissed.

Analysis

28Sections 323(1)(g), (3), and (10) of the COTA permit a local municipality (or the Board on appeal) to cancel, reduce or refund all or part of taxes levied on land for a particular class of error that meets all criteria. The error must be “gross or manifest”. The error must also be “clerical or factual in nature, including the transposition of figures, a typographical error or similar error”. Lastly, the error cannot be “an error in judgement in assessing the land”. An application under s. 323(1) of the COTA must be filed with the treasurer within the prescribed time period in the year in respect of which the application is made.

29The parties agree that there is no evidence of a gross or manifest terror that is clerical or factual in nature before the Board.

30The parties also agree that that no 2015 application for a cancellation, reduction or refund of property taxes under s. 323(1)(d)(i) of COTA relating to the 2015 demolition of the Subject Property’s dwelling was filed with the City. Mr. Wang acknowledged that he had missed the February 26, 2016 deadline.

31The parties agree that Mr. Wang’s application in 2016 for a cancellation, reduction or refund of property taxes under s. 323(1)(g) related to the demolition of the Subject Property’s dwelling that occurred in 2015. As the reason for the application, he checked off the box “Gross or Manifest Clerical Error” with an effective date of January 1, 2016. On page 2 of the application, he provided the details of the Gross or Manifest Error: “I have missed the deadline for reporting the demolition of my old house in 2015.” He did not check off the boxes on the application indicating that the building on the land was razed by demolition. Nor did he provide a copy of the demolition permit and a signed letter from the contractor showing the start and the end dates of the demolition.

32Mr. Wang explained that after the dwelling was completed, he applied for a refund of property taxes as it was his understanding that the demolition of the dwelling had decreased the value of the Subject Property. However, Mr. Nastich’s evidence is that MPAC applied a 31% vacant land adjustment and the Subject Property’s 2016 assessed value actually increased to $852,000 even though the original dwelling had been removed.

33The Board has considered the applicability and relevance of the decision of the Board in the matter of Madison Property Management Inc. v. Toronto (City) that dealt with an application for relief that was filed beyond the deadline date prescribed by the municipality. The Board found that it had no jurisdiction to provide relief to the applicant under s. 323(1)(a) because the application was not filed by the deadline date prescribed by s. 323(3).

34The Board holds a similar view in this case. The Board finds that there is no evidence of a gross or manifest terror that is clerical or factual in nature before the Board to grant relief under s. 323(1)(g) of the COTA for 2016. Furthermore, the Board has no jurisdiction to provide relief under s. 323(1)(d)(i) by extending the deadline prescribed in legislation for the 2016 taxation year or by treating the appeal for the 2016 taxation year in relation to the 2015 demolition of the Subject Property’s dwelling.

35Even if the Board found that it had jurisdiction to provide relief under s. 323(1)(d)(i) by extending the deadline for the 2016 taxation year or treating the appeal for the 2016 taxation year in relation to the 2015 demolition of the Subject Property, the Board finds that there was no refund entitlement for demolition for the 2016 taxation year. MPAC did not miss the 2015 demolition. The evidence is that the Subject Property was inspected and assessed by MPAC for the 2016 taxation year as vacant land as the original dwelling had been demolished. In this particular instance, a 31% vacant land adjustment was applied that actually increased the 2016 assessed value of the Subject Property to $852,000.

36For all of these reasons, the Board finds that there is no refund entitlement for the 2016 taxation year.

CONCLUSION

37For all of these reasons, the Board dismisses the appeal for the 2016 taxation year.