Toyota Canada Inc. v. City of Toronto, 2019 CanLII 112423

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: November 22, 2019

FILE NO.: WR 162292

Assessed Person(s): Toyota Canada Inc.

Appellant(s): Toyota Canada Inc.

Respondent(s): City of Toronto

Property Location(s): 1 Toyota Place

Municipality(ies): City of Toronto

Roll Number(s): 1901-052-850-00100-0000

Appeal Number(s): 3338084

Taxation Year(s): 2017

Hearing Event No.: 717889

Legislative Authority: Section 297* of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A

Heard: September 23, 2019 in Toronto, Ontario

APPEARANCES:

Parties

Counsel

City of Toronto

Christopher J. Henderson

Toyota Canada Inc.

Phillip Sanford

DECISION OF THE BOARD DELIVERED BY JENNIFER GRIFFITH AND SUBUOLA AWOLERI

INTRODUCTION

1This appeal is filed by the Toyota Canada Inc. (“Appellant”) because the City of Toronto (“City”) has processed the Phase-in assessment value for the 2009 taxation year for the Subject Property in 2018, nine years after the Assessment Review Board (“Board”) rendered a Board Decision on November 6, 2009 (“Board Decision”) for the 2003 through 2009 taxation years. Municipal Property Assessment Corporation (“MPAC”) is required after the decision is rendered to provide the Phase-in assessment values to the City for the 2009 taxation year so that the levied taxes can be processed. The Phasing in Program was new and only came into effect in 2009. MPAC did not provide the City with the Phase-assessment values for the 2009 taxation year until 2018.

2Upon receiving the Phase-in assessment values, the City processed the levied taxes in 2018 and the late processing resulted in overdue taxes owing by the Appellant for the taxation years 2009 to 2017 by a total amount of $225,535.43. As a result, the Appellant was sent an over-due tax bill in the amount of $225,535.43, which is the subject of this appeal. This value is undisputed by the parties.

3The Appellant argues that there is an expressed or implied time for processing the Phase-in values. On the contrary, the City argues that there is no implied or stated time for processing the Phase-in values. Due to the delay in processing the Phase-in assessment values, the tax implications result in an increase in the amount of taxes levied for the 2009 through 2017 taxation years in the total amount of $225,535.43 for which the Appellant was billed as over-due in 2018. This value was undisputed by the parties.

4The City agrees that there was a long delay in processing the Phase-in assessment values. However, the City states that the delay was because MPAC did not provide the City with the Phase-in assessment values subject to the Board Decision until nine years later in 2018.

5Counsel for both parties agree that the mathematical facts of the case are not at issue and that the issues to be determined are whether there is a legislative time for MPAC to provide the City with the Phase-in assessment values subject to the Board Decision; and whether there is a legislative time for the City to process the Phase-in assessment values.

POSITION OF THE PARTIES

6The Appellant is of the view that MPAC was not in compliance with the legislative time subject to s. 19.1(7) of the Assessment Act, R.S.O. 1990, c. A.31, for providing the Phase-in assessment values to the City, subject to the Board Decision; that the City has no legislative authority subject to s. 326(1) of the City of Toronto Act 2006, S.O. 2006, c. 11, Sched. A to process the Phase-in assessment values nine years later in 2018; and that the late processing of the Phase-in assessment values in 2018 constitutes an error subject to s. 327(1) of the City of Toronto Act. Therefore, the over-due taxes of $225,535.43 should be cancelled.

7The City is of the view that there is no expressed or implied legislative time subject to s. 19.(5) of the Assessment Act for MPAC to provide the Phase-in assessment values subject to the Board Decision to the City; and no expressed or implied legislative time subject to s. 306 of the City of Toronto Act, for the City to process the Phase-in assessment values. Therefore, the appeal should be dismissed.

8At the completion of the hearing, the Board reserved its decision. Based on the following evidence, the Board dismisses the appeal for the 2017 taxation year.

RELEVANT LEGISLATION

9Section 19.1(5)(6)(7) of the Assessment Act states:

Adjustments for certain property classes

19.1 (1) In this section,

“eligible increase” has the meaning prescribed by the Minister. 2007, c. 7, Sched. 1, s. 4; 2008, c. 7, Sched. A, s. 4 1

Phasing in eligible increases

(3) For 2009 and subsequent taxation years, if the current value of land increases because of a general reassessment, the current value of the land shall be reduced according to the following rules:

1. For the first taxation year to which the general reassessment applies, the current value of the land is reduced by an amount equal to 75 per cent of the eligible increase.

2. For the taxation year following the taxation year in paragraph 1, the current value of the land is reduced by an amount equal to 50 per cent of the eligible increase.

3. For the taxation year following the taxation year in paragraph 2, the current value of the land is reduced by an amount equal to 25 per cent of the eligible increase. 2007, c. 7, Sched. 1, s. 4.

Assessment corporation to make adjustment

(5) If a change is made to the current value of land other than a change resulting from a general reassessment, the assessment corporation shall make any adjustments required under this section. 2008, c. 19, Sched. A, s. 3.

Adjustment for arithmetical error

(6) If, at any time during a taxation year, the assessment corporation determines that there has been an arithmetical error in an adjustment under this section for the year or a subsequent taxation year, the corporation shall make an adjustment to correct the error. 2008, c. 19, Sched. A, s. 3.

Notice of adjustment

(7) If an adjustment is made under subsection (5) or (6) and no notice showing the adjustment is otherwise given under this Act, the assessment corporation shall notify the person against whom the land is assessed and the municipality within 90 days of making the adjustment. 2008, c. 19, Sched. A, s. 3.

10Section 301.(1); Section 306.(1); Section 310.(6)(9)(a); Section 326.(1); Section 327 of the City of Toronto Act states:

Adjustments

301 (1) If the City is required to make payments to a body under section 318, the City shall,

(a) in the case of a deficiency of taxes for the body caused by the cancellation, reduction, refund or writing off of taxes, charge back to every such body its share of the deficiency in the same proportions as the bodies share in the revenues from taxes;

(b) in the case of a surplus of taxes for the body caused by the application of this Part, credit every such body with its share of the surplus in the same proportions as the bodies share in the revenues from taxes. 2006, c. 11, Sched. A, s. 301 (1).

Adjustments to roll

306 (1) The treasurer shall adjust the tax roll for a year to reflect changes to the assessment roll for that year made under the Assessment Act after the tax roll is prepared. 2006, c. 11, Sched. A, s. 306 (1)

Late payment charges

Other interest

310 (6) The City shall pay interest at the same rate and in the same manner as interest is paid under subsection 257.11 (4) of the Education Act on overpayments arising as a result of,

(a) an error of the City, a local board or other body for which the tax was being raised; and

(b) a change under the Assessment Act,

(i) in an assessment on a property,

(ii) in the property class in which a property is placed, or

(iii) if parts of a property are placed in different property classes, in the allocation of the assessment on the property between the parts. 2006, c. 11, Sched. A, s. 310 (6).

Not retroactive

(9) Interest under subsection (6) begins to accrue after the later of,

(a) in the case of overpayments described in clause (6) (a), the day the error is corrected and, in the case of overpayments described in clause (6) (b), 120 days after the day the City is notified of the change by the assessment corporation, the Assessment Review Board or a court; and

Increase of taxes

326 (1) Upon application made by the city treasurer, the City may increase the taxes levied on land in the year in respect of which the application is made to the extent of any undercharge caused by a gross or manifest error that is a clerical or factual error, including the transposition of figures, a typographical error or similar error, but not an error in judgement in assessing the land. 2006, c. 11, Sched. A, s. 326 (1).

Error in calculating taxes

327 (1) Despite paragraph 1 of subsection 291 (2), upon application made by the city treasurer, the City may, if it is satisfied that there was an error in the calculation of taxes on land under Part XII (Limits on Traditional Municipal Taxes), under Part IX of the Municipal Act, 2001 or under Part XXII.1, XXII.2 or XXII.3 of the old Municipal Act, authorize the use of an amount of taxes referred to in paragraph 1 of subsection 291 (2) for the year in which the application is made which reflects what the taxes would have been on the land for the previous year if the error had not been made. 2006, c. 11, Sched. A, s. 327 (1).

Meeting

(2) Before making a decision under subsection (1), council shall,

(a) hold a meeting at which the treasurer and the person in respect of whom the application is made may make representations to council; and

(b) notify the treasurer and the person in respect of whom the application is made of the meeting by mail sent at least 14 days before the meeting. 2006, c. 11, Sched. A, s. 327 (2).

Notice

(3) Within 14 days after making its decision, the council shall notify the treasurer and the person in respect of whom the application is made of the decision. 2006, c. 11, Sched. A, s. 327 (3).

Appeal

(4) Subsections 326 (6), (7) and (8) apply to a decision of a council under this section, with necessary modifications. 2006, c. 11, Sched. A, s. 327 (4).

No authority to change previous year’s taxes

(5) Nothing in this section authorizes the City to change the taxes levied on land for a previous year. 2006, c. 11, Sched. A, s. 327 (

ISSUES

11The issues to be determined are:

1. Is there an implied time limit for MPAC to provide the Phase-in values to the City under s. 19.1 of the Assessment Act?

2. Is there an implied time limit for the City to process the Phase-in assessment values it receives from MPAC?

APPELLANT’S EVIDENCE

12Phillip Sanford Counsel for the Appellant called on David Coulter M.I.M.A. to be qualified as an Expert Witness. Mr. Coulter provides a copy of his Curriculum Vitae and testifies to his academic achievements and work experiences. He was qualified as a witness with taxation experience and no objection were raised. He then testifies to the evidence contained in his report which was prepared on May 24, 2019.

13Mr. Coulter testifies that the Subject Property is a 20.89-acre site with a 300,000 square foot industrial facility, built in 1970 with subsequent expansions occurring in many stages through 2018. The facility houses the head office and administrative staff, with the remainder of the property used for research, development and distribution.

14Mr. Coulter testifies that on October 13, 2009 Minutes of Settlement (“MOS”) were signed and filed with the Board amending the assessments as returned for the 2003 through 2009 taxation years. The Board issued its Notices of Decision based on the MOS on November 6, 2009. The values were undisputed.

15Mr. Coulter states that in 2009, the same year that the Board issued its decision, the Province legislated a new tax program called the “Reassessment and Phase-in Program”, to Phase-in dramatic increases in assessment over a four-year period (2009 – 2012). He also states that decreases in assessments are not subject to Phase-in and are implemented in full.

16As part of the Phase-in program, Mr. Coulter states that MPAC is required to prepare a 2005 base year “notional assessment” to be as a starting point for the 2009 Phase-in calculation for any property that experiences assessment increases or decreases that are not solely caused by the general reassessment. Specifically, the notional assessment is the 2008 taxation year assessment roll, adjusted for physical changes, new construction, demolitions, tax class changes, or appeals.

17Mr. Coulter states that on October 6, 2010 the City issued a refund cheque to the Appellant in the amount of $225,721.30 for a portion of the taxes paid for the period 2003 through 2009, with no calculation or backup information. He states that Toyota accepted the cheque, because Altus estimated the tax refund to be in the range of $200,000 to $225,000 for that same period. Therefore, no appeal was filed by the Appellant for that period. For purposes of clarification, the Board notes that this refund relates to the period prior to 2009, and, therefore, is not related to the issue of the revised taxes payable for the taxation years from 2009 to 2017.

18Mr. Coulter testifies that on February 8, 2018 the City issued the Appellant an overdue Tax Notice and billing for “Revised Taxes 2009” with a covering letter authored by Tony Villella (the then Supervisor of Appeals in the Revenue Services Division). The letter stated in part that:

“Your City of Toronto property taxes have been recalculated because of a decision issued by the Municipal Property Assessment Corporation (MPAC) or the Assessment Review Board (ARB) changing the Current Value Assessment (CVA) of the property for the year 2009. The enclosed statement shows the amount of taxes outstanding because of the recalculation in accordance with the revised assessment. The amount shown on this statement is due 30 days from the date of this letter.”

Attached to the letter is a Property Tax Account Statement dated February 8, 2018, showing the over-due property taxes for 2009 in the amount of $11,820.11.

19Mr. Coulter states that he was not aware that the Phase-in assessment values for the 2009 taxation year were not included in the February 8, 2018 billing. He testifies that it was not until the Appellant received a second Property Tax Account Statement dated February 15, 2018, showing an overdue amount of $225,535.43 for the 2009 through 2017 taxation years; and through discussions with the City. The statement shows a further breakdown of the amount owing for each year. The yearly over-due tax breakdown is as follows:

YEARS TAXES ($)

2009 19,467.74

2010 22,109.14

2011 17,741.13

2012 5,177.19

2013 19,533.56

2014 25,899.12

2015 30,622.88

2016 31,852.71

2017 53,131.96

20On cross-examination, Mr. Coulter confirms that the total overdue amount of $225,535.43 and the corresponding breakdown value per year are both accurate.

21Although Mr. Coulter confirms that the above total overdue amounts and corresponding breakdown of the tax values per year are accurate, he presented the following statements to show that there are errors in the City’s calculations of the taxes levied for 2009 taxation year:

i) 2009 Original Tax Calculation as at May 2009 is a Total of $636,796.25;

ii) 2009 1^st Revision Tax Calculation as at February 2010 is a Total of $618,523.63; and

iii) 2009 Final Revised Tax Calculation in 2018 is a Total of $637,991.33.

22Mr. Coulter testifies that the Commercial Residual Now tax amount of $2,680,018 for the Commercial Tax (CT) and Commercial Residual Now tax amount of $642,771 for Commercial Excess Land Tax (CU) stated in the 2009 1^st Revision Tax Calculation as at February 2010 are incorrect and constitute an error. He testifies that these errors negatively impact the levied taxes for the 2010 and subsequent year, because under the Provincial tax capping rules, the 2009 actual tax forms the basis for determining the maximum allowed increase or decrease for the 2010 taxes. However, on cross-examination Mr. Coulter was unable to say what the correct value should be.

23Mr. Coulter states that while it is customary for MPAC to provide the Phase-in calculations when the Board issues Notices of Decision; in his view, City staff are very knowledgeable and perfectly capable of making the calculation on their own. They did not have to wait for the Phase-in assessment values from MPAC.

24Mr. Coulter is also of the view that it should have been obvious to City staff that the Notices of the Decision did not include the Phase-in assessment values and that City staff could have relied on the assessment roll as returned for the 2010 taxation year to make the correct adjustments to the 2009 taxes, as opposed to waiting for the information from MPAC.

25Mr. Coulter states that in his experience in pursuing and resolving hundreds of tax applications, City staff has proceeded on the basis that they are subject to limitation; that City staff revises “historical” tax calculations to eliminate errors; and that the practice of City staff is to adjust tax billings for only the current tax year.

26Mr. Coulter also states that while this appeal deals with a situation where a taxpayer has been under billed because of “omissions” and “errors” by the City, there are many situations where he has found overbilling which City staff decline to adjust based on the interpretation they have been given to the City of Toronto Act.

APPELLANT’S SUBMISSIONS

27Counsel submits that there are no mathematical issues.

28Counsel submits that the partial adjustment in the 2009 1^st Revision Tax Calculation as at February 2010 with a total of $618,523.63 is fair.

29Counsel argues that there are legislative time limits for MPAC to provide the Phase-in assessment values; and legislative time limits for the City to process the Phase-in assessment values for the 2009 through 2018 taxation years. Therefore, the processing of the Phase-in assessment values for the 2009 through 2017 taxation years in 2018 constitutes an error.

30In support of these arguments, Counsel cited s. 19.1(7) of the Assessment Act and argued that MPAC did not comply with the requirements of this section, by notifying the Appellant within 90 days of making an adjustment in the assessment of the Subject Property. Counsel also cited s. 301.(1) Adjustments; s. 306.(1) Adjustment to the Roll; s. 326.(1) Increase of taxes; and s. 327(1) Error in calculating taxes, of the City of Toronto Act and argues that there are legislated times for correcting errors and for processing Phase-in assessment values and that s. 327 (5) prevents the City to only issuing a tax increase for the current year upon discovering an error in the calculation of taxes levied.

CITY’S EVIDENCE

31Christopher J. Henderson is Counsel for the City.

32Counsel submits a copy of an Affidavit of Sara Baxter (“Affidavit”), which she affirmed and signed on June 13, 2019. The Affidavit contained the City’s evidence as prepared by Ms. Baxter.

33Counsel states that the City relies upon the Affidavit and because Ms. Baxter is not in attendance, Counsel offers a summary of some of the most relevant facts contained in the document. Mr. Sanford further stated that he does not intend to cross-examine Ms. Baxter as statements of facts in her Affidavit are uncontested.

34Counsel submits that when s. 19.1 of the Assessment Act first came into effect in 2009, the roles, responsibilities and processes as between the Board, MPAC and the municipalities to ensure that the Phase-in assessment values was received and appeals processed in a timely way and in all cases had not yet been set up.

35Counsel submits that the date in which the City received the 2009 Board Decision was among the earliest of the Board Decisions the City received for the 2009 taxation years, which is the first year for which the Phase-in assessment values was required under s. 19.1 of the Assessment Act. Counsel states that it is common for a Board Decision to be received several years after the taxation year to which the decision relates; and receiving the Board Decision within the same year is somewhat uncommon.

36In November 2009, Counsel submits that MPAC had not yet finalized a consistent and/or acceptable process with the City for provision of Phase-in assessment values for the 2009 taxation year, when the City received the Subject Property’s 2009 Board Decision.

37Counsel submits that the City never received either an Advisory Notice of Assessment (“ANA”) or the MOS regarding the Subject Property and the 2009 Board Decision. In the absence of the Phase-in assessment values, the City did not process the 2009 Board Decision.

38Counsel submits that as part of periodic quality-control audits of the City’s accounts, City staff ran a technical report from the City’s property tax accounts on or about February 2018, to locate properties where Board Decisions had not yet been processed.

39The Subject Property was identified in February 2018 as one of approximately ninety-four properties across the City where an appeal had not been processed due to missing Phase-in assessment values. After contacting MPAC and receiving the Phase-in assessment values, the City processed the appeals in February 2018. As a result, the 2009 Board Decision resulted in a debit to the Subject Property’s taxes in that year in the amount of $19,467.74.

40Counsel submits that it is not the norm that processing Board Decision result in a property tax increase because the majority of s. 40 Assessment Act appeals are filed by property owners respecting their own property. It is somewhat rare for a property owner to pursue such a step where it would be to their financial detriment.

41Counsel submits that in this case, processing the results of the 2009 Board Decision also caused property tax increases to the property owner for all subsequent taxation years. That is because the property’s taxes are “clawed back” under Part XII of the City of Toronto Act. However, a property that is in the converse position, it is “capped” under Part XII of the City of Toronto Act, and processing an appeal later will have the opposite effect for subsequent years, that is, it will lead to either a property tax reduction (refund), or it could have no effect.

42Counsel submits that City staff analyzed a random sampling of twenty-nine of the approximately ninety-four properties whose appeals were processed in February 2018 due to the late receipt of the Phase-in assessment values from MPAC, and all but two experienced property tax credits and refunds. Counsel submits that one of those properties that received a property tax credit and refund is 850 Progress Avenue, which is owned by the Appellant, the same owner of the Subject Property.

43Counsel also addressed the issue as submitted by Counsel for the Appellant that the Commercial Residual Now tax amount of $2,680,018 for the Commercial Tax (CT); and Commercial Residual Now tax amount of $642,771 for Commercial Excess Land Tax (CU) stated in the 2009 1^st Revision Tax Calculation as at February 2010 are incorrect and constitute an error. In addressing this issue, Counsel called Anne Brooks, a Revenue Analyst with the City to testify and to explain the tax amount as stated above for the CT and CU tax classes. Ms. Brooks states that the calculations are partial adjustments value that is based on the information the City had at the time of the calculation. The values expressed in the notice excluded the Phase-in assessment values which was pending from MPAC.

44Ms. Brooks further states that the partial adjustment is the normal procedure and standard process used by the City. When the Phase-in assessment values are received from MPAC, the Phase-in assessment values are entered into the system and the tax value changes accordingly to reflect the correct amount of taxes levied for the year in question. With the input of the Phase-in assessment values, the City issued the 2009 Final Revised Tax Calculation on February 15, 2018 in the amount stated above.

CITY’S SUBMISSIONS

45Counsel argues that the processing of the Phase-in assessment values subject to the 2009 Board Decision in 2018 is not an issue of an error.

46Counsel argues that there is no implied legislated time for MPAC to provide the Phase-in assessment values to the City; and no implied legislated time for the City to process the Phase-in assessment values.

47Counsel argues that the cap and claw-back adjustment reflected in the 2009 1^st Revision Tax Calculation as at February 2010 is a total of $618,523.63, reflects the best estimate of value, based on the information the City had at the time.

48In support of his argument that there is no implied legislated time for MPAC to process the Phase-in assessment values subject to the 2009 Board Decision, Counsel cited the Assessment Act, s. 19.1(5) Assessment Corporation to make adjustment – Counsel argues that there is no stated time, and that the Assessment Act is silent on the issue of time; and s. 19.1(6) Adjusting for arithmetical error – Counsel argues that there is no evidence that MPAC provided Phase-in assessment values containing arithmetical error.

49Counsel also cited the City of Toronto Act, s. 306.(1) Adjustment to roll – Counsel argues that there is no stated time for adjusting the tax roll; s. 310.(6) Other interest - Counsel argues that in the case of overpayment for reason/s stated, the City pays the property owner/s interest as required by the City of Toronto Act; s. 310. (9)(a) Not retroactive - Counsel argues that accrued interest is based on the conditions stipulated in this section of the City of Toronto Act; and s. 327. (1) Error in calculating taxes - Counsel argues that this section does not apply because the 2009 Final Revised Tax Calculation in 2018 in the amount of $637,991.33 is correct.

50Counsel argues that the Appellant presents no prejudicial arguments in their Conclusion and Arguments. However, the City recognizes that the tax bill is unfortunate for the Appellant.

51Counsel also added that other properties in the same situation received refunds larger than the Appellant’s over-due tax bill as stated above.

52Finally, Counsel cited Neamsby Investments Inc. v. Markham (Town), [2007] O.J. No. 4573 (“Neamsby”) in support of their argument and to provide guidance to the Board. In Neamsby, there was an express time limit under s. 331(9) of the Municipal Act, 2001, S.O. 2001, c. 25 “for a municipality to mail a list of comparable properties to be used to adjust the level of taxation for a newly built property to bring the property into the capping and claw back regime.” The City of Markham received the list of comparable properties from MPAC on or about May 27, 2002, and in accordance to s. 331(9) of the Municipal Act, the City of Markham was required to mail this list within 60 days of that date. The City of Markham mailed it late in 2005, although it related to 2001. The Divisional Court held that the 60-day time limit was directory and not mandatory. That:

the interpretation of s. 333(9) as directory furthered the object of s. 331 without contradicting the scheme of the Act or common law principles of fairness to taxpayers

There was no evidence of prejudice to the applicant who had passed the liability for property taxes to its tenant

Nothing adversely affected the taxpayers right to initiate a complaint under s.331

To treat the time limit provision as mandatory would defeat the purpose of s.331

BOARD’S FINDINGS

Is there an implied time for MPAC to provide the Phase-in assessment values to the City under s. 19.1 of the Assessment Act?

53Section 19.1(5) requires MPAC to make any adjustment to a property assessment if there is a change to its current value assessment (“CVA”). A Board decision was issued 2009, which changed the CVA of the Subject Property. MPAC did not make the requisite adjustment. s. 19.(7) further required MPAC to notify the person against whom this assessment was made within 90 days of making the adjustment. The issue in this appeal is that the Assessment Act does not stipulate the time frame in which MPAC is required to make the adjustment. MPAC did not make the adjustment until the City made inquiries to MPAC in 2018.

54The Appellant argues that there is an implied legislative time under s. 19.1(7) of the Assessment Act for MPAC to process and provide the City with the Phase-in assessment values for the Subject Property based on the Board Decision. The City argues that there is no implied time for MPAC to process the Phase-in assessment values under s. 19.1 and disagrees with the Appellant’s argument that s. 19.1(7) provides a time for MPAC to provide the City with the Phase-in assessment values.

55The Board rejects the Appellant’s argument because the requirement under s. 19.1(7) is for MPAC to provide notice within 90 days of making an adjustment under s. 19.1(5) and s. 19.1(6). MPAC in this appeal did not make any adjustment until 2018, when it provided the City with the phase-in information. The Board agrees with the City and finds, contrary to the Appellants submission, that, there is nothing in the wording of the statutory provisions, to indicate that there is an expressed or implied legislative time frame for MPAC to provide the City with this information. Furthermore, there was no evidence adduced to show that the calculations issued in 2018, were incorrect.

Is there an implied legislative time for the City to process the Phase-in assessment values it receives from MPAC?

56The Appellant argues that s. 301.(1) Adjustments; s. 306.(1) Adjustment to the Roll; s. 326.(1) Increase of taxes; and s. 327(1) Error in calculating taxes, of the City of Toronto Act have legislative time for processing the Phase-in assessment values for the 2009 taxation year. On the other hand, the City disagrees that there is an expressed or implied time for processing the Phase-in assessment values for the 2009 taxation year. The Board agrees with the City and finds, contrary to the Appellant’s submission, that, there is nothing in the wording of the statutory provisions, to indicate that there is an expressed or implied legislative time frame for the City to process the Phase-in values received from MPAC. Furthermore, as determined by the Board, there was no evidence adduced to show that the calculations issued in 2018, were incorrect.

57Regarding Mr. Coulter’s assertion that City staff decline to adjust overbilling because of the interpretation they have been given to the City of Toronto Act, the City argues that in situations where it is determined that taxpayers have overpaid their taxes, refund cheques including interest subject to s. 310(6); and s. 310(9)(a) of the City of Toronto Act have been issued to the taxpayers. The Board accepts the City’s explanation because the Appellant’s evidence shows that on October 6, 2010 the City issued a refund cheque to the Appellant in the amount of $225,721.30 for a portion of the taxes paid for the period 2003 through 2009.

58The Appellant argues that there was an error, due to the late processing of the Phase-in assessment values pursuant to s. 327(1). The City argues that s. 327(1) does not apply because the 2009 Final Revised Tax Calculation in 2018 in the amount of $637,991.33 is correct. The Board accepts the final calculation and finds that the Appellant also agrees that the calculation is correct and adduces no factual evidence to the contrary.

59The Appellant submits that the City had no right to carry out a partial adjustment and it should have requested for the phase-in information from MPAC. The Appellant added that there is nothing in the statutes that permits the City to wait endlessly for the phase-in information; and that there is no statutory basis for what the City has done in going back in years to calculate the taxes. As stated above, the Board finds that there is no legislative time stated in these sections cited by the Appellant for processing the Phase-in assessment values.

60Mr. Coulter testifies that the City staff should not have waited for MPAC to provide the Phase-in assessment. Instead, City staff should have calculated and processed the Phase-in assessment values. The Board rejects the view of Mr. Coulter, and accepts the City’s argument that City staff has no jurisdiction to calculate the Phase-in assessment values.

61The Appellant further argues that the over-due billing in 2018 should be cancelled, because it was processed nine years after the Board’s Decision in 2009. The Board finds that this argument is disingenuous, because the Appellant accepted a refund cheque in the amount of $225,721.30 for a portion of the taxes paid for the period 2003 through 2009, seven years from the earliest taxation year of 2003. Whereas, the Appellant objects to the late processing of the taxes nine years later in this appeal, because it results in an increase in taxes reflecting an over-due amount as stated above.

62Regarding the 2009 1^st Revision Tax Calculation as at February 2010 is a Total of $618,523.63, Mr. Coulter testifies that the Commercial Residual Now tax amount of $2,680,018 for the Commercial Tax (CT); and Commercial Residual Now tax amount of $642,771 for Commercial Excess Land Tax (CU) stated are incorrect and constitute an error. The Board finds that Mr. Coulter presents no factual evidence to show what the correct value should be. Therefore, the Board puts no weight on the argument that the values are incorrect.

63The Board finds that the Neamsby case is distinguishable from this appeal. Neamsby had an express time limit, which is different from this appeal. There is no prejudice suffered by the Appellant, as it would have been required to pay the same amount of taxes if the phase-in calculations had been processed earlier. The amount of taxes levied is accurate as submitted by both parties. The Board agrees with the City that there is no prejudice argued by the Appellant, as Mr. Sanford argued that the Appellant has a right to state when there has been an error but did not advance any position whether this error (if any) caused any prejudice to the Appellant.

64Based on all the evidence the Board finds that there is no expressed or implied legislative time in the Assessment Act for MPAC to provide the Phase-in assessment values to the City; and no expressed or implied legislative time for the City to process the Phase-in assessment values. The Board also finds that there is no evidence of any error; and no evidence of prejudice to the Appellant.

DECISION

65Based on the evidence, the Board dismisses the appeal for the 2017 taxation year.

“Jennifer Griffith”

JENNIFER GRIFFITH

MEMBER

“Subuola Awoleri”