Zakrzewski v. Municipal Property Assessment Corporation, 2018 CanLII 58335

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

June 25, 2018

FILE NO.:

DM 2018M04

Moving Party(ies):

Ludomir Zakrzewski, 2028367 Ontario Ltd.

Respondent(s):

Municipal Property Assessment Corporation (“MPAC”)

Region 9

Respondent(s):

City of Toronto

Property Location(s):

11 Towns Road

Municipality(ies):

City of Toronto

Roll Number(s):

1919-012-020-01200-0000

Appeal Number(s):

N/A

Taxation Year(s):

2003, 2004, 2005, 2006, 2007, 2008, 20019, 2010, 2011, 2012 and 2013

Hearing Event No.:

693867

Legislative Authority:

Section 40.(1) of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Heard:

By written submission

APPEARANCES:

Parties

Counsel

Ludomir Zakrzewski,

2028367 Ontario Ltd.

Karol Pawlina

MPAC

Karey Lunau

City of Toronto

No one appared

DISPOSITION OF THE BOARD DELIVERED BY LESLIE FLEMMING AND SCOTT McANSH

1Ludomir Zakrezewski and 2028367 Ontario Ltd. (the “Applicants”) are the owners of the property municipally described as 11 Towns Road, Toronto (the “Property”). The Applicants move for:

a. a declaration that there are palpable errors in the assessment roll with respect to the Property in the taxation years 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012 and 2013;

b. an order pursuant to s. 40.1(b) of the Assessment Act, RSO 1990, c A.31 (“Act”) extending the time for bringing assessment appeals for those 11 taxation years; and

c. an order that MPAC be directed to be the appellant in those appeals.

2MPAC argues that this motion should be dismissed because there are no palpable errors on the assessment roll for this Property. MPAC further argues that, even if we find that there are palpable errors in the assessment roll, we should not exercise our discretion to create late appeals.

3We find that there was an error in the measurement of the Property, but that the error was not plain on its face and cannot, therefore, be a palpable error. The error existed in MPAC’s records for a period of approximately 53 years, and an even larger error appears to have been in the various owners’ records for even longer. The accuracy of the lot size was only raised by the Applicants after a survey was conducted in 2016. The error did not “jump out” at any owner, or MPAC, for decades. This was not a palpable error, and s. 40.1 is not available to the Applicants.

REASONS FOR DISPOSITION OF MOTION

4In 2003, Mr. Zakrzewski purchased the Property in trust for 2028367 Ontario Ltd. The agreement of purchase and sale indicated that the Property had 209.67 feet of frontage and 125.80 feet of depth, but did not set out a total area. MPAC records at the time recorded the frontage of 209.67 feet and a depth of 100 feet, for a total area of 20,908.8 square feet (“sq. ft.”).

5In 2016 the Applicants had a survey of the Property conducted, which showed the same frontage, but a depth of only 75.08 feet and an area of 13,787 sq. ft. When this was brought to MPAC’s attention, it reviewed its records and discovered that it had recorded the correct frontage and depth, but an assessor had miscalculated the area of the property in 1963, likely due to the irregular shape of the lot. MPAC corrected its records in 2016, calculating the total lot area to be 13,503.6 sq. ft., which was slightly less than the area shown in the Applicants’ survey and 7,405.2 sq. ft. less than MPAC had shown in its records before 2016.

6It appears that the incorrect lot information in the agreement of purchase and sale flows from a failure to account for an acquisition of 9,370 sq. ft. by the Canadian National Railway Company (“CNR”) in 1948. However, the Applicants did not appear to be aware of the error in lot size until they had the survey conducted in 2016.

7With the amended lot size information, MPAC reduced the assessment of the Property for the 2016 taxation, from $820,000 to $779,250. The Applicants filed successful tax refund applications, under the City of Toronto Act, 2006 for the 2014 and 2105 taxation years. The Applicants submit that the mistake in the lot size caused them to overpay taxes for the 11 taxation years before us. The Applicants contend that the 7,405.2 sq. ft. error in size in MPAC’s records is a palpable error and that we should exercise our discretion to create appeals for the 11 years in question.

8The Applicants are asking us to undertake the two-step process outlined in s. 40.1(b) of the Act, which states:

Correction of Errors

40.1 If it appears that there are palpable errors in the assessment roll… (b) 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.

9Only if we find that the error in lot size is “palpable” do we have the discretion to create late appeals. The presence of a palpable error in the assessment roll is a statutory precondition to our exercise of discretion.

Is the size error a “palpable error” in the assessment roll?

10That an error has taken place is not in dispute, and the parties agree that the area of the land that was recorded incorrectly in MPAC’s records as 7,405.2 sq. ft. larger than it actually is. It appears that this error flowed from a mathematical error made by an assessor in 1963, where the lot measurements were correct but the lot size was recorded as 0.48 acres, when it is in fact 0.31 acres. MPAC’s records are not the only ones in error. The agreement of purchase and sale appears to show the land acquired by CNR in 1948 as part of the Property. The Applicants did not appear to notice that error upon purchasing the Property, and they did not raise it with MPAC in the requests for reconsideration (“RfR”) they filed in May, 2005 and March, 2009. The Applicants had a survey of the Property conducted in April 2016 and raised the lot size issue with MPAC shortly thereafter, in May 2016.

11The word “palpable” is not defined in the Act, or any other related legislation. The Oxford English Dictionary, defines “palpable” as:

1. (Of a feeling or atmosphere) so intense as to seem almost tangible.

2. Plain to see or comprehend.

3. Able to be touched or felt.

12That definition describes an error quite unlike the error here. The Applicants owned the Property for 13 years with an incorrect lot size in both their agreement of purchase and their annual assessments from MPAC, but did not appear to notice. The Applicants did not raise the size of the lot in either of their RfR’s of their assessment. That is not an indication that the error is plain to see.

13The palpable error remedy is unique in the Act in that it has no limitation period. This Board has held that “a frequent reliance on s. 40.1 would obviously undermine the limitation scheme that dominates the Act.” Municipal Property Assessment Corporation v. Guelph Eramosa Township [2018] CanLII 263 (ON ARB) [“Guelph”] at para. 11. The relief in s. 40.1 should only be applied “in the clearest of circumstances”; see Hopper v Municipal Property Assessment Corporation, 2016 CanLii 24421 (ON ARB) [“Hopper”] at para. 13. A number of decisions of this Board have considered measurement errors as palpable errors and show that only very large measurement errors can be considered palpable.

14Member Stabile addressed errors in measurement as palpable errors in Scott v. Municipal Property Assessment Corporation Region No. 15, [2015] O.A.R.B.D. No. 64 [“Scott”]. Member Stabile found that the discrepancies in lot size and the size of the garage did not amount to palpable errors. He held that the failure of MPAC to have picked up discrepancies from a series of building permits issued by the municipality did not give rise to a palpable error. The error in lot size in Scott was small, being recorded by MPAC as only 3.4% larger than it actually was.

15Associate Chair Muldoon considered whether measurement errors were palpable errors in Hopper, supra. He reversed a decision in which the Member had held that a mistake in measurement of a basement was a palpable error. The error there was also small and only apparent after a careful measurement.

16Vice-Chair McAnsh found lot size errors to be palpable errors in Guelph, supra. He held the errors there, where parcels of land were recorded as being up to 146 times larger than they actually were, were palpable because they would be “plain and obvious to anyone that took even a cursory look at the properties,”; see paras. 8 and 9.

17The lot size error here is more similar to those in Scott and Hopper, than to those in Guelph. The error is recording the lot as approximately 50% larger than it actually is, not multiples of size as in Guelph. The error was not noticed by anyone for decades. This seems to stem from the irregular shape of the lot. Even when careful modern calculations are done there is a disagreement on the total area. The Applicants’ survey shows an area of 13,787 sq. ft., while MPAC’s calculation from that survey, and other sources, is 13,503.6 sq. ft. This shows that the area of lot is difficult to calculate accurately and that small errors in area are not likely to be plain and obvious on a cursory examination of the Property. The area calculation error is a reasonable calculation error and not a palpable error in the assessment roll.

18We have found that there are not palpable errors in the assessment roll, which is a statutory precondition to our discretionary power to create late appeals. As such, we will not consider whether this would have been an appropriate case in which to create late appeals. We note, however, that “valid reasons for missing the statutory filing deadline in other provisions of the Act” are an important consideration in the discretionary analysis; see Guelph, supra at para. 12. There is no evidence before us on that point.

CONCLUSION

19This motion is dismissed. We find that there are no palpable errors in the assessment roll for the Property for the 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, and 2013 taxation years.