G. S. v. City of Toronto, 2018 CanLII 6892

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: February 12, 2018

FILE NO.: WR 149643

Assessed Person(s): G. S.

Applicant(s): G. S.

Respondent(s): City of Toronto

Property Location(s): Withheld

Municipality(ies): City of Toronto

Roll Number(s): Withheld

Appeal Number(s): 3165260

Taxation Year(s): 2016

Hearing Event No.: 687868, 689771 and 691175

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

Heard: October 24, November 22 and December 6, 2017 in Toronto, Ontario

APPEARANCES:

Parties	Counsel⁺/Representative
G. S.	Self-represented
City of Toronto	Jennifer Boyczuk⁺ and Melanie Shankar

DECISION OF THE BOARD DELIVERED BY MARGARITA OKHOVATI

INTRODUCTION

1G.S., (the “Applicant”) is a 45-year old single woman who lives with her 14-year old son in a one-bedroom and two-bathroom condominium with two parking spaces. The property has a total area of 1,056 square feet (“sq. ft.”). It was built in 1988 and was purchased on April 29, 2004 for $215,000.

2The Applicant filed this application with the City of Toronto (the “City”) seeking a cancellation, reduction or refund of property taxes for the 2016 taxation year on the basis of sickness and/or 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 on October 24, 2017. That hearing was adjourned to November 22, 2017 for the Applicant did not provide the Assessment Review Board (“Board”) with all the required documents. On the second sitting because of the Applicant’s time constraints the hearing could not be concluded therefore, it was scheduled again for December 6, 2017.

ISSUE

4The issue before the Board is to determine whether the Applicant’s property taxes for the 2016 taxation year should be cancelled, reduced or refunded as a result of the Applicant’s inability to pay due to sickness or extreme poverty under the Act.

DECISION

5The Board finds that based on the evidence before it, the Applicant would have been able to pay her 2016 property taxes notwithstanding its finding of sickness. The Board finds that in 2016 the Applicant was not in a condition of extreme poverty. The Board therefore, dismisses this application for the 2016 taxation year.

REASONS FOR DECISION

Legislation

6Section 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;

7In 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

The Applicant’s Evidence and Position:

Sickness

8The Applicant testified that 25 years ago she fell off the balcony and injured her spinal cord. She stated that she worked as a billing analyst with Rogers Communications Company for 10 years from 1999 until 2009. In 2009 she fell again and had surgeries on her knees and ankles. She stopped working in 2009. The Applicant has been receiving disability since 2009 and presently she uses a wheel chair. The Applicant submitted that that she was unable to pay her property taxes because of sickness related to these injuries and surgeries.

Extreme Poverty

9The 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 property 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. The Applicant submitted that she was living in extreme poverty and was therefore unable to pay her property taxes.

10The Applicant testified that her husband went back to Guyana, South America, three years ago after they were separated in 2005. She stated that her husband sends $500.00 every month as a child support. The Applicant testified that she owns a 2015 XTERRA PRO-4X SUV Nissan which she purchased brand new for $38,000. She stated that her boyfriend paid $10,000 to assist her with the down payment. She stated that she drives the car only to run errands in the neighborhood, to go to her appointments and take her son to school. She stated that for the rest of the time she uses the services of wheel transportation.

11The Applicant testified that she borrowed money from three different loan companies for the amount of $16,787. In addition, she has a car loan for $27,109 and a social services loan for $7,193.53. She stated that msi Spergel Inc. assists her to pay and manage her loans.

12The Applicant testified that she has a cousin who lives in New Jersey, United States. She stated that her cousin borrowed $4,000 to $5,000 from her in March 2016 before the cousin visited her in Toronto in May, 2016. The Applicant stated that her cousin paid that money back to her in US dollars when she visited her in Toronto. The Applicant stated that she exchanged the US dollars to Canadian dollars in a money mart and deposited to her Royal Bank Account. The Applicant stated that she could not remember the exact amount. She stated further that while her cousin was visiting her in Toronto, the Applicant cashed all that money from her account and gave it to her cousin but did not explain why she did this. She stated that both she and her cousin spent that money on going to movies, lunch and casinos. She stated that usually she gambles $100-200 in casinos but the majority of the money was spent by her cousin.

13The Applicant testified further that her brother and girlfriend assist her financially whenever she is in need.

Applicant’s Financial Evidence:

14The Applicant submitted a copy of the Form 1 – Financial Information (Exhibit 1) and also provided evidence at the hearing regarding her total monthly income, expenses, assets and liabilities as detailed hereunder.

Income Pension (CPP) $ 997.00 Child Support $ 500.00 Child Tax Benefits $ 238.52 Insurance (Long Term Disability $1,651.98 Other Income $ 159.00 Income Total $3,546.50/month

Expenses a. Mortgage $1,074.96 b. Property Taxes $ 175.44 c. Home/Auto Insurance $ 191.64 d. Condominium Fees $ 658.80 e. Water/Heat/Hydro $ 87.54 f. Cell Phone/Cable/Internet $ 211.97 g. Groceries $ 400.00 h. Meals Outside $ 38.00 i. Household Supplies $ 25.00 j. Transit/TTC $ 160.00 k. Credit Card/Loans $ 310.93 l. Loan/Payment to Social Services $ 100.00 m. Gas $ 150.00 n. Car Loan $ 425.00 o. Clothing $ 100.00 p. Recreation/Entertainment $ 106.33 q. Vacation $ 10.00 r. Other Expenses $ 52.50 Expenses Total $4,278.11/month

NET INCOME TOTAL $ -731.59

Assets Assessed value of the house in 2016 $ 306,000.00 Automobile $ 32,534.00 Assets Total $ 338,534.00

Liabilities Car Loan $ 27,109.00 Loans $ 16,787.00 Mortgage $ 253,528.01 Social Services Re-Payment $ 7,193.53 Liabilities Total $ 304,617.54

NET WORTH TOTAL $+ 33,916.46

15Based on the information submitted in the Form 1 – Financial Information (Exhibit 1), the net worth of the Applicant is $33,916.46.

Applicant’s Final Remarks

16“The City has to note that it is not easy for me to access equity. I believe it was last year when I called a mortgage company to get a loan but was turned down. I bought a brand-new car for firstly I like it and secondly it has certain height for my wheel chair.”

City’s Evidence and Position

17Melanie Shankar, City Representative advised the Board that the Applicant’s property taxes for 2016 is $2,105.20 and the compounded interest and fees are $380.21 of which, the Applicant has paid $1,901.96 and the remaining balance is $583.45.

Sickness and Extreme Poverty

18Jennifer Boyczuk, Counsel for the City, submitted that the City accepts the Applicant is sick. She is on disability and unable to work. She stated that the City opposes this application as the Applicant does not have an inability to pay her 2016 property taxes and the Applicant’s case does not qualify as a case of extreme poverty. She submitted further that the Applicant’s case should be dismissed for the following reasons:

• The Applicant did not use her discretion in expenses incurred like buying an expensive brand new car while she could buy a second hand or a less expensive car.
• The Applicant has spent substantial amount of money on entertainment namely, playing in casinos. She could have spent a small portion of it to pay her property taxes.
• There is no evidence to suggest that the Applicant was able to get all the money back from her cousin after it was spent on entertainment.
• The Applicant is in possession of two parking spaces. She could have rented the second space to generate additional income.
• The assessed value of the subject property for 2016 is $306,000, which is lower than the real value of the property. In June 2016, a similar condominium in the neighborhood was sold for $365,000 (Exhibit 1, Tab 4). Even if we consider the assessed value of the subject property with the balance of mortgage in December 2016 for $253,528, the equity in the house is $52,472, which could have been leveraged to eliminate the loan and pay her property taxes.
• The Applicant had many opportunities to reduce her expenses but did not take any steps to do so.
• 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 assets and the expenses.

Board’s Analysis

19As noted in paragraph 18 above, the Applicant’s evidence regarding sickness was not disputed by the City. The Board notes that the Applicant’s evidence and arguments about her sickness was related to her injuries and mobility. The Board finds the Applicant’s oral testimony in this respect to be reliable. The Board also notes that the Applicant is a recipient of Ontario Disability Support Program. Therefore, the Board finds that the Applicant satisfies the “sickness” portion of the test.

20The Applicant’s inability/ability to pay her 2016 property taxes will be discussed in conjunction with the discussion about poverty.

21The 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.

22The Board has considered the oral testimony of the Applicant and has reviewed all of the evidence pertaining to the Applicant’s financial situation to determine whether the Applicant is able to pay her 2016 property taxes and whether she is living in extreme poverty.

23The 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:

24The Board notes that from January to October 2016, there is a total of $10,150 withdrawals from the Applicant’s bank accounts by Woodbine Gaming and Ontario Lottery and Gaming Corporation (Exhibit 2). When asked to explain regarding these withdrawals, she stated that she and her cousin spent the money on entertainment mostly playing in casinos and going for lunch and movies.

25The Board is not convinced with the Applicant’s story regarding her cousin. There is no corroborating documentary evidence or clear oral evidence to support the Applicant’s story. The Applicant was very vague regarding the date of her cousin’s visit to Toronto. As well, she did not remember the exact amount of money her cousin borrowed or returned to her. It was brought to the Applicant’s attention that according to her oral testimony, her cousin visited her in May/June 2016 however, the Royal Bank of Canada (“RBC”) statement shows that there are two withdrawals under Woodbine Gaming, $306.00 on March 18, 2016 and $204.00 on October 31, 2016. In addition, there are charges to RBC Master card by Ontario Lottery and Gaming Corporation (“OLG”) the sum of $166.00 in January 23, 2016. (Exhibit 7). The Applicant was asked to explain regarding these withdrawals. She stated that she must have taken some friends to casino for dinner and playing on those days.

26Moreover, even if the Board finds the Applicant as a credible witness with respect to her cousin’s story, which the Board does not, it was the Applicant’s money which was allegedly borrowed by her cousin, returned to the Applicant and at the end given back to the cousin. There was no evidence to suggest that the Applicant asked for the cousin to repay her.

27Moreover, according to the Separation Agreement of the Applicant and her husband (Exhibit 5), both the Applicant and her husband maintain a life insurance in the face amount of $100,000 naming each other as the beneficiary and keeping the life insurance in effect until death. When the Applicant was questioned in this matter, she stated that she never paid premium for this insurance and in fact is unaware whether she is covered by this life insurance. She stated that she will explore about it.

28Furthermore, the Board notes that the Applicant has received $981.50 (Exhibit 8) as an income tax refund for 2016, which she could use to pay her property taxes.

29Moreover, City Counsel questioned the Applicant regarding several amounts of cash ($43, 209.46 in total) deposited in the Applicant’s RBC account (Exhibit 7). In this respect, the Applicant explained that her brother and her girlfriend assist her financially whenever she is in need and these transfers mostly via e-mail were done by her brother and girlfriend.

30After considering the totality of the Applicant’s evidence, the Board is of the view that the Applicant’s circumstances do not rise to the level of “extreme poverty”. In the Board’s opinion, the Applicant had sufficient funds to cover the balance of her 2016 property taxes, which is $583.45 or $48.62 per month.

31The 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.

CONCLUSION

32Based on the reasons stated above, the Board finds that despite the Applicant’s sickness, she had the ability to pay all of her 2016 property taxes. The Board also finds that the Applicant was not living in a condition of extreme poverty.

33The Board therefore dismisses the Applicant’s application and determines that this application does not qualify for relief under the Act.