1806780 Ontario Inc. v. City of Markham, 2018 CanLII 78266

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

August 13, 2018

FILE NO.:

WR 154242

Assessed Person(s):

1806780 Ontario Inc.

Appellant(s):

1806780 Ontario Inc.

Respondent(s):

City of Markham

Property Location(s):

7163 Yonge Street Unit 123A, 123B, 123C

Municipality(ies):

City of Markham

Roll Number(s):

1936-010-022-02754-0000, 1936-010-022-02755-0000 and 1936-010-022-02756-0000

Appeal Number(s):

3174160, 3175302 and 3175303

Taxation Year(s):

2015

Hearing Event No.:

700277, 700278 and 700279

Legislative Authority:

Section 364.(15) of the Municipal Act, 2001

Heard:

June 20, 2018 in Markham, Ontario

APPEARANCES:

Parties

Representative

1806780 Ontario Inc.

Ted White and Michael Uster

City of Markham

Colin Moore

DECISION OF THE BOARD DELIVERED BY ANTHONY LAREGINA AND JEAN-PAUL PILON

PRELIMINARY MATTERS

1At the initiation of the hearing the parties requested that the complaints relating to the properties at 7163 Yonge Street Units 123A, 123B, and 123C (“subject properties”), all of which have separate roll numbers that are owned by 1806780 Ontario Inc. (the “Complainant”), should be combined into one hearing. The subject properties were scheduled to be heard in three separate hearings 700277 and 700278 on June 20, 2018 and 700279 on June 21, 2018.

2On the basis of Rule 78 of the Assessment Review Board’s (“Board’s”) Rules of Practice and Procedure the Panel decided to combine the three complaints into one hearing on the basis that the three properties are currently being used as one office space. Furthermore the vacancy period, evidence, and owners for all three units are identical. The Board has determined that the proceedings will involve similar questions of fact, law and policy.

INTRODUCTION

3Ted White, on behalf of the Complainant, submitted an application for vacancy rebate on February 22, 2016 for the 2015 property taxes relating to the subject property at 7163 Yonge Street Units 123A, 123B, and 123C also known as unit 39, 40, and 41. Mr. White requested a refund from the City of Markham (“City”) on the grounds that the subject properties were vacant during the entire 2015 taxation year.

4Colin Moore on behalf of the City submitted that the application was denied on the grounds that the Appellant did not file pertinent information and documentation within the allotted time as requested by the City.

ISSUES/EVIDENCE

5The Complainant is the owner of 7163 Yonge Street, units 123A, 123B, and 123C.

6Section 364 of the Municipal Act, 2001, S.O. 2001, C. 25 (the “Act”) provides that local municipalities, including the City of Markham, “shall have a program to provide tax rebates to owners of property that has vacant portions if that property is in any of the commercial classes…”

7The Complainant submitted an Application for Rebate of Property Taxes pursuant to the Municipality’s program on February 22, 2016 in which it indicated the subject properties were vacant for the entire 2015 calendar year. The Complainant’s application was rejected by the City on August 10, 2016.

8The Complainant’s complaint (the “Complaint”) to the Board was filed pursuant to s. 364.(15) of the Act which provides that:

If the municipality fails to mail the determination of the amount of the rebate to the applicant within 120 days of the receipt of the application…the applicant may complain in writing to the Assessment Review Board.

9We find the Complaint was therefore properly before us because the City failed to mail the determination of the rebate to the Complainant within 120 days.

10In summary, the Complainant’s application was denied because, in the words of the City’s rejection notice, “additional supportive documentation was not submitted” prior to a date given by the Municipality.

11At the conclusion of the hearing, the Complainant raised three arguments based on the evidence it presented: first, that the City had allowed additional time for documentation to be provided; second, that even if the documentation requested had been provided, the City would have denied the application in any event; and third, that most of the documentation requested did not exist and could not have been provided.

12The City argued, based on its evidence, that dispensation for late filing has not been provided and that the application was denied because of the Complainant’s non-compliance with its documentation requirements, a decision the City was entitled to make.

13Subsection 364(16) of the Act provides that the Board shall determine the amount of any rebate owing to an applicant. It was not disputed that the Board’s function in such a hearing was to determine the application for a rebate as the Municipality should have done within 120 days.

14The Complainant submitted an estimate of the rebate that it argued should have been granted by the City, relying on a previous Board decision referred to below in which the Board stood in the City’s shoes and ordered a rebate. The City, however, continued to rely on its decision to deny the Complainant’s application.

15The threshold issue before us was therefore simply this: was the City justified in denying the Complainant’s application?

DECISION

16For the reasons that follow, we find that the City was justified in denying the Complainant’s application because the Complainant failed to comply with the City’s valid request for additional documentation. Further, we find that the Complainant’s silence in the face of the Municipality’s request for additional documentation was insufficient and that there was, at minimum, an obligation for the Complainant to indicate to the Municipality that the requested documents did not exist.

BOARD’S ANALYSIS

17The City wrote to the Complainant on April 22, 2016 requesting that the Complainant provide further documentation to assist in its determination of the Complainant’s application for a rebate. This request was made pursuant to s. 364.(8) of the Act which provides that:

For the purposes of determining the proper amount of any rebate payable under (section 364), the municipality may, by letter sent by mail, served personally or delivered by courier, require the owner or manager of a property referred to in an application under this section to provide any relevant information or produce any relevant records within such reasonable time as is set out in the letter.

18Section 364.(9) of the Act provides that:

A person who receives a letter under subsection (8) shall, within the time set out in the letter, provide to the municipality all the information that is within the person’s knowledge and produce all of the records required that are within the person’s possession or control.

19The City requested the following documentation from the Complainant pursuant to s. 364.(8) of the Act: a sketch, a rent roll, and an Multiple Listing Service (“MLS®”) listing for each unit to be provided on or before May 22, 2016. It was not disputed that no additional documentation was provided to the City by the Complainant by that date.

20On the Complainant’s first argument, that the City had allowed additional time for documentation to be requested, the Complainant relied on the evidence of its witness, Caterina Chiarandini, an employee of the firm of the Complainant’s paralegal. Ms. Chiarandini testified that she was aware that a former employee of her firm had been told by the person processing the application at the City that the time for production of the documentation would be extended until June 13, 2016. However, neither party to that conversation was present at the hearing to be cross-examined on the inconsistent evidence before us. In addition, the document noting this event did not appear to be drafted contemporaneous to the event, nor was it supported by any documentation from the City to confirm it.

21The City’s representative at the hearing and witness, Mr. Moore, on the other hand, testified that no additional documentation relating to the subject properties was received from the Complainant prior to either deadline provided by the City, which extension would not have been granted by the City in any event in the face of the Complainant’s silence.

22We preferred the evidence of the City in determining the extension was not granted on a balance of probabilities. This was because the contested evidence before us that the City had granted an extension was, at best, second hand, where there was no corroborating evidence. In any event, even if the extension had been granted, the documentation before us that was sent to the City on June 13, 2016 did not comply with the City’s request. Instead, it consisted of a cover letter indicating that three MLS® listings for the subject property and other properties were included along with a terminated agreement of purchase and sale for the subject property, but in fact the documents included only three identical copies of an MLS® listing for a different property at 1 Steelcase Road, Markham and not the subject property.

23We therefore found that the Complainant did not comply with the City’s request for additional documentation.

24The Complainant’s second argument was that we should attach weight to the anecdotal evidence of its witness that other and unrelated applications to the City had not been granted in similar circumstances and that the City would not likely have granted this one.

25We also found this argument unconvincing, where other applications might have had different considerations and where different issues might have arisen. It is the City’s responsibility to determine every application for a rebate on its own merits.

26On the Complainant’s third argument, that most of the documentation requested did not exist and could not have been provided, the Complainant’s witness testified that the Complainant complied by sending further documentation to the City, including a sketch and agreement of purchase and sale for the subject property, in 2017 and 2018. In addition, the Complainant’s principal Michael Uster relied on his affidavit and testified by telephone that his company does not use MLS® listings and relies on other methods of advertising such that it was not able to comply with the City’s request as it relates to MLS® listings. However it was clear from Mr. Uster’s evidence that the sketch existed at the time of the City’s original request for information but was not sent and further not provided to Mr. White until well after the deadlines imposed by the City.

27Our determination is that it was not open to the Complainant to simply ignore the City’s request for information, or, if an extension time was, in fact, granted, provide the City with information unrelated to its request. Instead, what the Complainant should have done was indicate to the City that only the sketch could be provided and that the remainder of the information requested could not be provided because it did not exist.

28Finally, the Complainant relied on a previous decision of the Board, 1602978 Ontario Inc. v. City of Markham, 2015 CanLII 32541 (ON ARB) involving a vacancy rebate application for similar rental properties owned by a different corporate entity in which Mr. Uster was the principal. In that case, the City rejected the Complainant’s application because the Complainant had not met the City’s requirement of providing an MLS® listing or advertisement for the properties as had been requested. The issues in that case were whether the Board could consider the rebate application in the absence of documents required by the City and, if so, what the rebate should be.

29The panel in that decision did find that it could deviate from the municipality’s evidentiary requirements which led it to determine that the complainant was entitled to a rebate. It went on to find that the complainant in that case could not have provided the documentation required because it used other marketing strategies to advertise the sale and rental of its properties.

30It is our view, however, that the decision is distinguishable because it indicates that Mr. Uster testified that his company had “cooperated fully with all questions or requests by the City respecting the rebate application, other than provided non-existent MLS® listings or rental advertisements.” The evidence of such cooperation appears to have been uncontested.

31Furthermore in 1602978 Ontario Inc. v. City of Markham the panel did not encourage any board or tribunal to deviate from a municipality’s evidentiary requirements other than in matters that clearly merit doing so.

32Here we find there is no merit in doing so as there was no cooperation with the City, where the Complainant failed to provide any response to the City’s legitimate and lawful requests for information. Those requests for documentation were reasonable ones to prove the allegation of vacancy that would justify a rebate: for a sketch to determine the extent of the property that was the subject of the application; for a rent roll, which would have confirmed that no rent had been received; and an MLS® listing to determine that the Complainant had attempted to mitigate its damages by attempting to re-rent the units. Even if it was the case, as Mr. Uster testified, that the latter two documents did not exist, it was implicit in s. 364(9) of the Act the obligation to provide a meaningful response to the City’s request in the same way the complainant in the previous decision did.

CONCLUSION

33For these reasons we therefore find that the amount of the rebate is $0.