Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: December 23, 2019

FILE NO.: WR 163142

Assessed Person(s): F. S. and E. S.

Applicant: F. S.

Respondent: City of Toronto

Property Location: Withheld

Municipality: City of Toronto

Roll Number: Withheld

Appeal Number: 3369358

Taxation Year: 2018

Hearing Event No.: 726666

Legislative Authority: Rule 24(e) of the Assessment Review Board Rules of Practice and Procedure

Heard: November 25, 2019 in Toronto, Ontario

APPEARANCES:

Parties	Counsel+/Representative
Ms. F. S.	Mr. F. S. (son of Ms. F.S.)
City of Toronto	Graham Thomson+ and Melanie Shankar

MEMORANDUM OF ORAL DECISION DELIVERED BY SUBUOLA AWOLERI ON NOVEMBER 25, 2019

DECISION

The Board Orders

1The Applicant’s application for relief for the cancellation, reduction or refund of property taxes as a result of an inability to pay due to sickness or extreme poverty under s. 323(1)(e) of the City of Toronto Act, 2006 S.O. 2006 c. 11 (“Act”) is dismissed for the 2018 taxation year for the Applicant’s non-compliance with the Assessment Review Board’s Rules of Practice and Procedure (the “Rules”).

REASONS FOR THE DECISION

2This is a decision that was delivered orally by the Assessment Review Board (“Board”) regarding the City of Toronto’s (“City”) request to have the 2018 taxation year Application dismissed due to the non-appearance of the Applicant or her son at the peremptory hearing on November 25, 2019.

3The Applicant filed Applications for relief from paying property taxes for the 2016, 2017 and 2018 taxation years with the Board.

Adjournment 2016 tax year Application – August 29, 2017

4On August 29, 2017, the 2016 taxation year Application was scheduled to be heard, but it was adjourned at the request of the Applicant’s son to obtain a Certificate of Appointment of Estate Trustee from the Superior Court of Justice, in order to proceed with the hearing. The City did not object to this request.

5The hearing of the 2016 taxation year application was reconvened on November 9, 2017. The Board directed a motion to be considered in writing in order to determine the eligibility of the Estate of E. S. (the Applicant’s deceased spouse) to make an application under s. 323(1)(e) of the Act.

Adjournment 2017 tax year Application – June 22, 2018

6The June 22, 2018 hearing of the 2017 taxation year Application was adjourned pending the Board’s decision on the Estate of E. S.’s standing to proceed with the 2016 taxation year Application.

7On August 24, 2018, the Board issued its interim decision, E.S. v. Municipal Property Assessment Corp., Region 9, [2018] O.A.R.B.D. No. 177, where it determined that the Estate of E. S. is not a person and is not eligible to make an application under s. 323(1)(e) of the Act and the eligibility to apply under this section of the Act ends upon death.

Adjournment 2016 and 2017 tax year Applications – March 15, 2019

8The Board scheduled the hearing of the 2016 and 2017 Applications for March 15, 2019, upon receiving the parties’ availability. The Applicant’s son subsequently requested an adjournment since he was unable to obtain permission from his employers to attend the hearing. The City consented to this adjournment but further requested that the next scheduled hearing be made peremptory due to the delay in hearing the matter.

Adjournment 2016 and 2017 tax year Applications, peremptory hearing – May 13, 2019

9On May 13, 2019, the Board allowed an adjournment of the peremptory hearings of the 2016 and 2017 taxation year Applications, despite the City’s request for dismissal for lack of financial disclosure from the Applicant. The Board provided an oral decision, however at the request of the parties, a written decision was further issued. In that decision, F. S. v. Toronto (City), [2019] O.A.R.B.D. No. 240, the Board specifically ordered that:

Failure by the son to provide these documents on the next hearing date may result to the Board making the appropriate decision, which may include dismissing the applications.

The next hearing is peremptory on the Applicant. That means that the Applicant (or her son who is representing her) should not anticipate any further adjournments and the hearing will proceed on the next scheduled date.

Adjournment 2018 tax year Application – July 22, 2019

10On July 22, 2019, the hearing of the 2018 Application was adjourned at the Applicant’s son’s request. The parties further requested that the 2016 and 2017 taxation year Applications be heard before the 2018 taxation year Application.

Adjournment 2016, 2017 tax year Applications, peremptory hearing - August 22, 2019

11On August 22, 2019, the peremptory hearing of the 2016 and 2017 Applications was adjourned at the Applicant’s son’s request due to a medical emergency.

12On October 10, 2019, the Board sent an e-mail to the parties outlining the numerous adjournments in the Applications and specifically advised the parties that:

The Board will not be granting any further adjournments for these appeals. All three appeals will be scheduled to a mutually agreed upon date by the parties. The 2016 and 2017 appeals are to be heard at 9:30 a.m. and 2018 appeal will be heard at 1:30 pm. Please note that you are expected to be in a position to provide all the necessary documentation at the hearing. If for any reason you are unable to attend, please be advised that the presiding Member will continue the hearing in your absence. [emphasis added]

The Board further requested for the parties’ availability by October 18, 2019.

13On October 11, 2019, the Applicant’s son by e-mail to the Board consented to a hearing date of the 2016, 2017 and 2018 Applications at anytime from November 25 to 29, 2019.

Peremptory hearing 2016, 2017 and 2018 tax year applications - November 25, 2019

14On October 15, 2019, the Board provided the parties with an electronic copy of the hearing notice, advising that the hearing of the 2016, 2017 and 2018 Applications will be on November 25, 2019. The 2016 and 2017 Application will be heard at 9:30 a.m. and the 2018 Application will be heard at 1:30 p.m. The Board further advised the parties that:

“Formal notice of hearing will be mailed out today. (sic) Please note that both these hearings are marked Peremptory. No further adjournments will be granted…”

15On the same day, the Applicant’s son by e-mail to the Board, requested if the Applications could be heard by telephone or video conferencing.

16On November 16, 2019, the Applicant’s son e-mailed the Board advising that he is yet to receive the formal written notices for the 2016 and 2017 taxation year Applications. On November 18, 2019, the Board advised him that the notices were mailed out on October 15, 2019 and an electronic copy of the hearing notice was sent to all the parties by e-mail on the same day. A reference copy of the electronic copy of the notice of the hearing was further attached to the e-mail.

Adjournment requested for 2018 tax year Application – November 19, 2019

17On November 19, 2019, the Applicant’s son confirmed by e-mail to the Board that he received the electronic copy of the hearing notice and that it was in his spam box. However, he stated that he did not receive the written notice confirming the hearing date. He further requested that:

“on the basis of procedural fairness and balance of convenience I request the Board set aside and order 1 new hearing date” (sic)

18On the same day, the Board advised the Applicant’s son by e-mail that the hearings are marked peremptory and no further adjournments will be granted and the hearings will proceed as scheduled on November 25, 2019.

Withdrawal of 2016 and 2017 tax year Applications – November 22, 2019

19On November 22, 2019, the Applicant’s son sent an e-mail to the Board advising that he decided to withdraw the 2016 and 2017 taxation year Applications. He stated as follows:

“This is my notice that I have decided to withdraw the applicants for the 2016 and 2017 tax years due to inability to attend this beyond my control since my employer is unwilling to provide the leave needed. (sic)

I request an order without prejudice and for the hearings be cancelled. (sic)

I will only proceed with 2018 matter and on a motion on the matter of definition of “sickness” and related matters to be scheduled at a further time and date” (sic)

20On the same day, the Board sent an e-mail to the Applicant’s son and the City advising that the hearing of the 2016 and 2017 taxation year Applications have been cancelled. However, the 2018 hearing scheduled for 1:30 p.m. will proceed as scheduled on Monday, November 25, 2019 and further reiterated that the 2018 hearing is peremptory.

21On Saturday, November 23, 2019, the Applicant’s son by e-mail advised the City’s counsel, Graham Thomson, that he realised that these hearings need legal counsel and he will be seeking a Lawyer for the 2018 hearing. Mr. Thomson responded on the same day stating that the Applicant’s son has had ample opportunity and notice of the hearing to retain legal counsel and his failure to do so prior to the hearing does not justify a further adjournment.

22This contested request to adjourn the previously agreed upon November 25, 2019 hearing date was not granted. There was nothing in the Applicant’s son’s request to support a finding that there were any exceptional circumstances to adjourn this peremptory hearing. The request was not granted.

23The hearing proceeded as indicated in the notice of hearing.

Hearing of the 2018 taxation year Application on November 25, 2019

24The Applicant’s son did not appear at the hearing which commenced at 1:30 p.m. The City requested that the 2018 taxation year Application be dismissed.

25The Board waited for 30 minutes to afford the Applicant’s son enough time to appear at the hearing. At 2:00 p.m. the Board dismissed the 2018 taxation year Application for the Applicant’s non-compliance with the Rules. Furthermore, the Applicant has been provided with a reasonable opportunity to participate at the peremptory hearing. The notice of the hearing expressly stated that the hearing is peremptory and that the hearing would continue in the Applicant’s absence. The Applicant’s representative was given an opportunity to provide dates and agreed to the hearing date between November 25 - 29, 2019. The hearing did continue in his absence, no evidence or submissions were provided on behalf of the Applicant and the Application was therefore dismissed.

26The Board finds that the Applicant is in breach of the Rules and dismisses the 2018 taxation year Application.

27Rule 24(e) of the Board’s Rules provides that:

A Board Member may dismiss an appeal without holding a hearing event, or after a hearing event, if:

(e) the appellant has not complied with statutory requirements or these Rules.

28Based on the history of these Applications, the Applicant’s son has acted unreasonably and with utmost disregard for the Rules. The Applicant’s son acknowledged that he received the electronic copy of the hearing notice for the hearing of the three taxation year Applications. This notice clearly stated that all three Applications were marked peremptory and will be heard on the same day at different times.

29In an email to the Board on November 22, 2019, the Applicant’s son advised the Board that he was unable to get time off from his employers to attend the hearing. Consequently, he is withdrawing the 2016 and 2017 Applications and he will only be proceeding with the 2018 hearing at a further date and time. This indicates that the Applicant’s son received the hearing notice, he was aware of the scheduled date and time of the hearing of the three Applications. On November 19, 2019, he admitted that he received the electronic copy of the hearing notice. The Board finds that the Applicant’s son had notice of the 2018 taxation year Application and understood that it was peremptory as stated in Board’s notice of the hearing that was e-mailed and mailed to the parties on October 15, 2019.

30On November 23, 2019, the Applicant’s son in an e-mail to Mr. Thomson advised that he will be seeking legal counsel for the hearing. The Board agrees with Mr. Thomson that the Applicant has had more than enough time to seek legal advice. These Applications have been before the Board since 2017 and have never proceeded to a hearing, primarily due to the Applicant’s son frequent request for adjournments.

31All parties appearing before the Board should be conversant with the Board’s Rules as non-compliance with the Rules “may” result in a dismissal. The Applicant’s son’s unreasonable actions have costs implications, which according to Rule 116, could be imposed by the Board on its own initiative. However, this panel is restrained in making a cost order against the Applicant due to the nature of these Applications. The Applicant is seeking relief from paying property taxes due to sickness or extreme poverty. The Applicant in this Application is therefore deemed to lack the financial capacity to bear the additional implication of a cost order, otherwise this would be an appropriate case to order costs against the Applicant.

32The Board finds that the Applicant is in breach of the Rules and the City is prejudiced by the Applicant’s breach due to the resources the City has invested in the preparation and attendance at the hearing. The Applicant filed these Application with the Board and it is incumbent on the Applicant to actively pursue it. This breach is entirely attributable to the Applicant. The Board grants the City’s request to dismiss the Applicant’s 2018 taxation year application for relief from paying property taxes.