A.M.C. v. City of Toronto, 2019 CanLII 109528

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

November 14, 2019

FILE NO.:

RD 2019M25

Assessed Person(s):

A.M.C.

Requester:

City of Toronto

Property Location(s):

Withheld

Municipality(ies):

City of Toronto

Roll Number(s):

Withheld

Appeal Number(s):

3260472

Taxation Year(s):

2017

Legislative Authority:

Rules 120, 121, and 123 of the Assessment Review Board Rules of Practice and Procedure

Request for:

A review of the Board’s Decision WR 155944 issued on March 4, 2019

Heard:

By written submission

Parties

Counsel⁺/Representative

Submissions

City of Toronto

Jennifer Boyczuk

Requester

A.M.C.

A.M.C.

Not Received

DECISION DELIVERED BY PAUL MULDOON AND ORDER OF THE BOARD

INTRODUCTION

1The City of Toronto (the “City”) filed a written Request to Review with the Assessment Review Board (the “Board”) regarding Member Weagant’s decision A.M.C. v Toronto (City), 2019 CanLII 18809 (ON ARB), WR 155944 issued March 4, 2019 (the “Decision”) which granted an application for property tax relief for the 2017 taxation year on the basis that the Applicant A.M.C. was unable to pay her property taxes because of extreme poverty pursuant to s. 323(1)(e) of City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A (the “Act”). This Request to Review was filed with the Board on April 3, 2019 under Rules 120, 121, and 123 of the Board’s Rules of Practice and Procedure (the “Rules”).

2The City indicates that it believes the Decision contains an error in fact and/or mixed fact and law regarding the Member’s calculation of income, and/or the Member’s finding that A.M.C. was unable to pay her property taxes due to extreme poverty, such that the Board should have reach a different conclusion and dismiss the application. The Board invited submissions from A.M.C. to respond to the City’s Request to Review. No submissions were received.

3For the reasons below, the Board is not satisfied that the Decision contains any serious errors in fact or of mixed fact and law such that the Board would have likely reached a different conclusion. The Request to Review is therefore denied.

RELEVANT RULES

4Review requests must meet the procedural requirements of Board Rule 120 before they are considered. In this case, the Board finds that the procedural requirements of Rule 120 have been met.

5Request for Reviews will not be granted unless a ground for review listed in Rule 121 is established. That Rule states:

Grounds for Review

121. A request for review will not be granted unless the Board is satisfied that:

(a) the Board acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

(b) the Board made a significant error of law or fact such that the Board would likely have reached a different decision;

(c) the Board heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result;

(d) there is new evidence that could not have reasonably been obtained earlier and would have affected the result; or

(e) any of the situations in Rule 122 exist.

6When the Board is not satisfied that a ground for review has been established, the Board may dismiss the Request for Review based on Rule 123(a).

BACKGROUND

7The following background is not in dispute. A.M.C. lives alone with her children. A.M.C. is estranged from her spouse and has incurred a $5,234 lien from Legal Aid Ontario in relation to efforts to settle family law matters with her estranged spouse and their impending divorce.

8A.M.C. receives $4,942 support annually from Ontario Works/Ontario Disability Support Program, Child Tax Benefits of $12,174, and $1,068 from her estranged spouse. These amounts total $18,184 for 2017, or approximately $1,515.33 per month.

9A.M.C.’s monthly expenses were $1,787 per month.

Errors in Fact/Mixed Fact and Law

10The City alleges the Member made the following errors in fact, mixed fact and law, and law as follows:

a. The Board erred by not considering financial support from family as income;

b. The Board erred by not considering the Applicant’s contributions to a trust fund as discretionary expenditures; and

c. The Board erred by finding that the Applicant was in extreme poverty.

11The answer for the first question has an impact for the second question and therefore the Board has considered them together.

Did the Board err by not considering financial support from family as income?

Did the Board err by not considering the Applicant’s contributions to a trust fund as discretionary expenditures?

12The City asserts that the Member made an error regarding the calculation of income as the Member did not include the monthly transfer of approximately $800 from A.M.C.’s father to A.M.C. and that it is an error in fact and/or mixed fact and law in not calculating these funds as part of A.M.C.’s income.

13The Member found in paragraph 15 that the father’s $800 monthly contributions mirror the amount of money which was transferred to the children’s trust account. The Member noted that this $800 was not for A.M.C.’s own use and did not result in a higher income as the funds were transferred out of A.M.C.’s own bank account into a trust fund for her children. These facts were not disputed by the City, nor did they dispute that the funds were not intended for A.M.C.’s own use, but intended for A.M.C.’s children.

14The dispute the City is making is that this $800 income was not calculated as part of A.M.C.’s income.

15The Board is not satisfied that this is an error in fact, or in mixed fact and law. The evidence and testimony presented supports the Member’s finding of fact and interpretation of what should be included as income. The funds were not intended for A.M.C.’s own use, nor did the funds remain in A.M.C.’s bank account.

16It was not disputed that the funds were not intended for the A.M.C.’s own use, it follows that the funds are not available for A.M.C. to spend. Therefore, in the context of the facts before the Board, it was not discretionary for A.M.C. to transfer the funds to a trust account for her children when that was the agreed upon intent for the funds, and therefore, this was not a discretionary expenditure.

17The requirement at law is to explore every reasonable opportunity to mitigate financial stresses in order to pay some or all of the property taxes. This case involves a family in the midst of what could be called a family crisis. In the context of these facts, including the fact that the funds were not intended for A.M.C.’s own use, it can be argued that it is not reasonable to require funds, that did not belong to A.M.C., be diverted to pay property taxes.

Did the Board err by finding that A.M.C. was in extreme poverty?

18In considering whether any Applicant is in extreme poverty, the Board is required to carry out a contextual analysis. This includes whether there is any shortfall in covering expenses of the basic necessity of daily living, and what resources and assets are available to an Applicant including any equity in an Applicant’s home.

19After determining A.M.C.’s income and expenses, it was determined that A.M.C. is operating at a shortfall of approximately $187 per month.

20While there was equity in the house, a contextual analysis requires consideration of what access A.M.C. had to this equity in the context of the dissolution of her marriage. The Board notes that it was not disputed that A.M.C. was found to be entitled to receive Legal Aid in support of her efforts to resolve her family law dispute. (The City did not appear to dispute at the hearing whether the home that A.M.C. resides in with her children was the matrimonial home.)

21While the Member could have investigated further the status of the dissolution of family assets at the hearing, the Board finds that it was open to the Member to consider the facts and submissions before him in determining what assets were available for A.M.C. to meet her legal obligations including accessing the equity in the family home.

22Whether the Board relied on the 2017 phased-in value of the house, or engaged in a valuation of the house based on the City’s sales data, the key in this case is whether it was reasonable for A.M.C. in the context of her family law dispute to access the equity in the house.

23From the circumstances of the case, it is reasonable to conclude that A.M.C. and her children are in a state of acute poverty related in part to their family status and not able to cover the basic needs of daily life. These circumstances include minimal level of support paid to A.M.C. by her estranged spouse, the low income and modest expenditures by A.M.C. which still result in a net monthly deficit, the support given by Legal Aid Ontario assisting A.M.C. in her settlement dispute regarding her impending divorce which is not yet settled. The Board finds that it is also was reasonable for the Member to come to the finding that the equity in the house was not currently available to A.M.C. relating to the ongoing dissolution of her marriage. This does not mean that a differently constituted panel would come to the same conclusion, rather it means that it was within the range of reasonable outcomes.

CONCLUSION

24In summary, to meet the threshold for a Request for Review under Rule 122(b), the Board must be satisfied that there was a significant error of fact or law such that the Board would likely have reached a different decision had those errors not been made.

25The caselaw submitted by the City is not directly on point and therefore does not guide the Board in this case.

26The Board is not satisfied that the Member erred in determining A.M.C.’s income or in not considering the transfer of funds to A.M.C.’s children, as agreed upon, was a discretionary expenditure.

27It is anticipated that the current state of A.M.C.’s family law matters are transitory in nature and that in subsequent years, access to any equity in the matrimonial home will not continue to be complicated by family law proceedings.

28The Board is not satisfied that the Member erred in determining that A.M.C. was unable to pay her 2017 property taxes due to extreme poverty.

ORDER

29The Request for Review is denied. The Decision granting A.M.C.’s application under s. 323(1)(e) of the Act is confirmed.