T. H. D. v. City of Toronto, 2018 CanLII 242

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

January 03, 2018

FILE NO.:

WR 148443

Assessed Person(s):

T. H. D.

Applicant(s):

T. H. D.

Respondent(s):

City of Toronto

Property Location(s):

Withheld

Municipality(ies):

City of Toronto

Roll Number(s):

Withheld

Appeal Number(s):

3175313

Taxation Year(s):

2016

Hearing Event No.:

684673

Legislative Authority:

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

Heard:

August 24, 2017 in Toronto, Ontario

APPEARANCES:

Parties

Counsel⁺/Representative

C. L.

A. C.

City of Toronto

Jennifer Boyczuk⁺ and Melanie Shankar

DECISION OF THE BOARD DELIVERED BY MARGARITA OKHOVATI

INTRODUCTION

1T. H. D. (the “Applicant”) lives with her daughter C.L., in a residential condominium with a total area of 1030 square feet (“sq. ft.”). It has 2-bedroom, 2-bathroom and a parking space. C.L. is employed in sales business.

2The Applicant filed this application to have her property taxes refunded on the basis of sickness and extreme poverty pursuant to s. 323. (1)(e) of the City of Toronto Act, 2006, S.O. 2006, c.11, Sched. A. (“Act”).

3The first sitting of this hearing was scheduled on June 1, 2017. The Applicant was not present. With the Applicant’s consent, her friend A.C. acted as her representative. That hearing was adjourned to August 24, 2017 for the City discovered that C. L. had been living with the Applicant and therefore, supporting documents with respect to her income and expenses were also required to assess the totality of their income and expenses.

4In this hearing, both A.C. and C.L. were present.

ISSUE

5The issue before the Assessment Review Board (“Board”) is to determine whether the Applicant’s property taxes for the 2016 taxation year should be refunded due to sickness or extreme poverty under the Act.

DECISION

6The Applicant should not be granted a full or partial refund of the property taxes paid in the 2016 taxation year. The Board determines that the Applicant would have been able to pay her property taxes notwithstanding its finding of sickness. The Board therefore, dismisses this application.

REASONS FOR DECISION

Legislation

7Section 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;

8In making a determination in this application, the Board must first determine whether sickness or extreme poverty exists, which is the first part of the two-part test. If neither sickness nor extreme poverty exists, the Applicant would not qualify for relief. If either exists, to fulfill the second part of the test, the Applicant must demonstrate an inability to pay all or part of her property taxes.

EVIDENCE AND ANALYSIS

Sickness

9A.C. and C.L. testified that the Applicant has been suffering from Fibromyalgia. They stated that the Applicant spends most of her time in bed for lack of energy and is incapable to work. The Board notes that the Applicant is the recipient of the Ontario Disability Support Program. Also, there is a written statement (Exhibit 1) on behalf of the Community Care and Wellness for Seniors which indicates that the Community Centre helps the Applicant to take care of herself three days a week for seven hours.

Extreme Poverty

10The term “extreme poverty” is not defined under the Act. In determining whether the Applicant is in a situation of extreme poverty and is unable to pay her taxes because of such 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.

Applicant’s Evidence and Position

11A.C. on behalf of the Applicant submitted a copy of the Form 1 – Financial Information (Exhibit 1), which shows the Applicant’s (Adult 1) and C.L.’s (Adult 2) monthly income and expenses as detailed hereunder:

Income

Adult 1

Ontario Works and ODSP $1,366.00

Payment from daughter $ 500.00

Tax Rebate $ 40.00

Income Total $ 1,906.00/month

Expenses

a. Mortgage $ 496.38

b. Property Taxes $ 134.73

c. Life Insurance $ 54.61

d. Condominium Fees $ 699.95

e. Telephone, Internet, TV $ 150.00

f. Cell Phone $ 10.00

g. Clothing/Hair Styling $ 50.00

h. Medication $ 150.00

i. Groceries $ 260.00

j. Household Supplies $ 150.00

k. Transit/TTC $ 175.00

l. Bank Charges $ 11.00

m. Community Services $ 33.00

Expenses Total $ 2,374.67/month

NET INCOME TOTAL $ - 468.67/month

Assets

Assessed value of the house in 2016 $ 235,000.00

Balance in the Savings Account $ 5,000.00

Assets Total $ 240,000.00

Liabilities

Mortgage $ 20,353.00

NET WORTH TOTAL $ 219,647.00

Income

Adult 2

Employment Income $ 2,565.55/month

Expenses

a. Groceries $ 260.00

b. Meals- Outside $ 200.00

c. Clothing/Hair Styling $ 200.00

d. Recreation/Entertainment $ 100.00

e. Vacation $ 167.00 ($ 2,000.00 in 2016)

f. Gas and Parking $ 200.00 (using father’s car)

g. Household supplies $ 200.00

h. Cell Phone $ 70.00

i. Telephone, Internet, TV $ 10.00

j. Bank Charges $ 250.00

k. Pay to Adult 1 $ 500.00

Expenses Total $ 2,157.00/month

NET INCOME TOTAL $ + 408.55/month

Assets

Balance in the checking account $ 6,128.85

Balance in the savings account $ 3,500.00

RRSP $ 1,026.20

Assets Total $ 10,655.05

City’s Evidence and Position

12Melanie Shankar, representative for the City submits that the Applicant paid her 2016 property taxes of $1,616.74 in full with no extra charges or interest.

13Jennifer Boyczuk, Counsel for the City, submits that the Applicant suffers from a condition which prevents her from working. She submits further that the City is sympathetic that the Applicant is sick but the City is unsympathetic to the Applicant and C.L. with respect to their expenses. She submits that despite the Applicant’s sickness, the Applicant has shown that she has the ability to pay her property taxes therefore, this application should be dismissed for the following reasons:

• The Board should not accept all the expenses listed by the Applicant and C.L. because they did not provide the Board with bank and credit card statements to show clearly what transactions occurred in those accounts.

• Based on the information in the Financial Form, they did not use their discretion in expenses incurred like Fibe cable TV, Netflix, two cell phones, a land line, monthly expenses for their hair and clothing and excessive spending on food and eating out.

• The destination value of the subject property is $235,000 and the balance of mortgage in December 2016 is $20,353. As a result, there is at least an equity of $214,647 in the property.

• In 2016, the average sale price of similar condominiums were $303,667 (Exhibit 3). Based on this value, the equity in the subject property is even higher. It is $283,315.

• There is substantial amount of money both in Applicant’s and C.L.’s saving and chequing accounts.

• The Applicant was able to pay her 2016 property taxes without penalty.

• The extreme poverty cases are for the Applicants who are unable to provide the daily necessities. This Applicant is able to meet her obligations as a tax payer considering her and C.L.’s assets and expenses.

A.C.’s Summation

14When A.C. was asked whether she had any comments or remarks in support of the Applicant’s application, the following was her statement:

I agree with the City’s observations that the Applicant and her daughter are living in luxury considering their expenses however, the Board has to sympathize with the Applicant because she worked hard and struggled with her health on daily basis.

Board’s Analysis

15The intent of the legislation is to provide relief for property owners who cannot pay their property taxes in full or in part due to sickness or extreme poverty in a given taxation year. Either of these two eligible criteria must exist in order for a property owner to fulfill the first part of the test.

16As noted in paragraph 13 above, the Applicant’s evidence about sickness was not disputed by the City. The Applicant’s claim of sickness was supported by and consistent with the fact that she is on the Ontario Disability Support Program and by a written statement from the Community Care and Wellness for Seniors. The Board finds this evidence to be reliable and persuasive and therefore finds that the Applicant satisfies the “sickness” portion of the test. The Applicant’s ability to pay will be discussed in conjunction with the discussion about poverty.

17The Act qualifies the level of poverty as “extreme” and in the Board’s view, this raises the level of requirement to qualify for relief under the Act to a level that is materially and substantially above that of the simple and ordinary meaning of poverty. The Board believes that individuals must demonstrate that after having called upon every resource available to them and having explored every reasonable opportunity to mitigate any financial stresses, there are no means of being able to pay some or all of their property taxes.

18The Board has considered the oral testimony of A. C. and C. L. and has reviewed all of the evidence pertaining to the Applicant’s and C.L.’s financial situation to determine whether the Applicant is able to pay her taxes and whether she is living in extreme poverty.

19The Board is not satisfied that the Applicant is unable to pay her property taxes because of sickness, nor that her circumstances rise to the level of “extreme poverty” for the following reasons:

• At the first sitting of the hearing, A. C. presented the Applicant’s bank book only. She was informed that in the next hearing both the Applicant and C. L. had to provide the Board with their bank and credit card statements. However, they failed to provide the Board with these documents at the second sitting with no clear explanation.

• The Applicant and C. L. have total assets of $250,655.05 against total liabilities of $20,353. Their total cash in the bank as of December 2016 is $14,628.85. The 2016 property taxes of the subject property are $1,616.74 ($134.73 per month).

• The Applicant and C. L. are not in possession of a car however, the parking space belonging to the property is sitting idly without being utilized to generate some income.

• C. L. testified that in 2016 she travelled to Thailand for vacation with her boyfriend and spent $2,000.00. In 2017 she also travelled to Vietnam.

• The life style of the Applicant and C. L. based on the Financial Information Report, does not suggest that the Applicant and C. L. are living in extreme poverty.

• Moreover, even if the Board agrees that in the circumstances of this case, all the monthly expenses incurred by the Applicant and C. L. constitute basic needs, which the Board does not (i.e. Fibe T.V., cell phones in addition to a land line phone, excessive spending on food and eating outside), the total amount of the household cash in the bank and the existing equity in the house is sufficient for the Applicant to pay her property taxes and therefore fulfill her responsibility as a property tax payer.

20The Board agrees with Counsel for the City who stated that the payment of property taxes remains one of the foremost obligations of all home owners and when this obligation is not met the tax burden is passed on to all other tax payers.

21Having examined all the evidence and statements made by A.C. on behalf of the Applicant and C. L., the Board is not persuaded that the Applicant is unable to pay her property taxes. In fact, the evidence reveals that the Applicant has been able to pay her 2016 property taxes despite her medical condition and does not qualify for relief under the Act from paying all or part of her property taxes.

CONCLUSION

22Based on the reasons stated above, the Board finds that the Applicant did not establish that she had an inability to pay her taxes because of sickness, nor that extreme poverty existed in her case.

23The Board therefore dismisses the Applicant’s application and determines that this application does not qualify for relief under the Act.