Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: January 17, 2019

FILE NO.: RD 2019M01

Assessed Person(s): A.P.

Appellant(s): A.P.

Respondent(s): City of Toronto

Property Location(s): Withheld

Municipality(ies): City of Toronto

Roll Number(s): Withheld

Appeal Number(s): 3108233

Taxation Year(s): 2015

Hearing Event No.: N/A

Legislative Authority: Rule 123 of the Assessment Review Board’s Rules of Practice and Procedure

Request for: Review of the Board’s decision WR 150543 issued on July 25, 2018

Heard: By written submission

Parties	Counsel+/Representative	Submissions
A.P.	Self-represented	Requester
City of Toronto	Jennifer Boyczuk+	Received

DECISION DELIVERED BY PAUL MULDOON AND ORDER OF THE BOARD

INTRODUCTION

1A.P. seeks a review of A. P. v Toronto (City), 2018 CanLII 70339 (ON ARB) WR 150543 (the “Decision”). He alleges that the Decision contains a number of errors that would have affected the result. The City of Toronto (the “City”) argues that A.P. is simply rearguing submissions that were rejected in the Decision and that a review cannot succeed on that basis. This Request for Review was filed with the Board on August 23, 2018.

ISSUES AND ORDER SOUGHT

2There are four broad concerns raised by A.P. in his submissions:

a. That the Decision erred in find that he had the ability to pay his 2015 property taxes;

b. That the Decision erred in find that he had alternative revenue sources open to him, including renting out rooms in his home;

c. That the Decision misstated to the legal test; and

d. That there is new evidence that likely would have changed the result.

3For the reasons that follow, the Assessment Review Board (the “Board”) finds that none of those concerns justify altering the Decision. A.P.’s Request for Review is denied.

RELEVANT RULES

4Review requests must meet the procedural requirements of Rule 120 before they are considered. There are no procedural concerns with A.P.’s request. Reviews can only be granted if the provisions of Rule 121 are met: That Rule states:

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.

5If the Board is satisfied that a provision of Rule 121 is met, the remedies available are set out in Rule 123, which states:

123 Upon consideration of a request for review, or on its own initiative, the Board may:

(a) dismiss the request;

(b) reinstate the appeal, with or without conditions; or

(c) after providing all parties an opportunity to make submissions,

i. confirm, vary, or cancel the decision,

ii. order a rehearing on all or part of the matter, or

iii. order a motion to decide the review.

ERRORS OF FACT OR LAW

6Three of A.P.’s claims are that the Decision contains “a significant error of law or fact such that the Board would likely have reached a different decision.” Those are therefore claims under Rule 121(a).

Ability to Pay

7A.P. argues that the Decision erred in finding that he had the ability to pay his 2015 property taxes. He points out that his monthly expenses are more than his monthly income and that he borrowed money from his son to pay the taxes.

8The Decision notes, at paragraph 15, that A.P.’s monthly balance is negative $539.84. The Decision addressed the funds from A.P’s son at paragraphs 23 and 24. It held that the funds from the son were not a loan, but financial support. The Board is not satisfied that the Decision is in error in that conclusion. A.P. provided documents to the Board, including bank statements, that the Decision considered. A finding that the funds from the son were financial support was a reasonable interpretation of the evidence. There is no error in the Decision on A.P.’s ability to pay the 2015 property taxes.

Alternative Revenue Sources

9The Decision held, at paragraph 28, that there is “substantial equity in the subject property which is accessible to the Applicant.” A.P. argues that the Decision did not adequately consider the limitations imposed by the Ontario Disability Support Program. He says that he cannot refinance the home, or rent out space to tenants without compromising his entitlements to support.

10The Decision specifically addresses the limitations imposed by the Ontario Disability Support Program at paragraph 28. The Decision held, at paragraph 31 that, while the house could have been used for income, A.P. was able to pay his taxes even without that extra income. Thus, the ultimate decision that he was unable to pay his taxes was not impacted by the assessment of the income generating potential of the home. The Board is not satisfied that the Decision contains an error that would have affected the result on alternative revenue sources.

Legislative Test

11A.P. points out that the Decision misstates the test for who is eligible for refunds. Clause 323.(1)(e) of the City of Toronto Act, 2006, SO 2006, c.11, Sched. A, states that a person is entitled to a cancelation, reduction, or refund of taxes if “the applicant is unable to pay taxes because of sickness or extreme poverty.” However, the Decision states the test and “sickness and/or extreme poverty” at paragraphs 1, 3, and 21. The Decision also cites the test as “sickness and extreme poverty” at paragraph 8. Those are not the correct framing of the legal test.

12The test in clause 323.(1)(e) first requires that an applicant prove an inability to pay taxes. It is only once that is proven that the reason for the inability to pay should be considered. Relief can only be granted if the reason that the taxes cannot be paid is either sickness or extreme poverty. There is no need to prove both sickness and extreme poverty. However, every applicant must prove an inability to pay and either sickness or extreme poverty.

13The question to be determined is if the Decision’s misstating of the legal test is “such that the Board would likely have reached a different decision.” The Board is not satisfied that the result would change if the test was correctly stated. The Decision explicitly finds, at paragraph 32, that “he has the ability to pay… all his property taxes in 2015, which he paid in full without interest or penalties.” That is, the Decision clearly found that A.P. had the ability to pay his 2015 property taxes. Proving an inability to pay the taxes is an essential element of the test set out in clause 323.(1)(e).

NEW EVIDENCE

14A.P. seeks to enter some new evidence about discretionary expenses that were highlighted in the Decision. The Decision noted, at paragraph 27, that A.P. had spent some discretionary funds “which includes purchases from the Beer Store, LCBO, Kitchen Stuff Plus and Yorkdale Adult (sic) totaling $205.14.” The Decision held that the payment of taxes should come before those types of expenditures.

15A.P. provides evidence that $140 of that value was for a computer training course at the Yorkdale Adult Learning Centre, which was refunded when the course was complete. The small liquor expenses were, he says, for his son, who paid him back. That is, the new evidence is that nearly none of those expenses were true expenses, they were all repaid.

16The test for new evidence is that it “could not have reasonably been obtained earlier and would have affected the result.” A.P. does not explain why he was unable to provide that evidence at the hearing. He expresses some concern with recalling minor expenses nearly two years later, which is reasonable. These are also not significant expenses. It is not clear, however, that the explanations for the expenses would have affected the result.

17The Decision turns, in large part, on the equity in the property. The Decision found that A.P. holds nearly $400,000 in equity in the home. The general finding appears to be that an applicant with significant property wealth is able to pay their property taxes. That is not an uncommon finding, though the point is far from clear in the Board’s jurisprudence. For instance, in J.P.B. v Toronto (City), 2018 CanLII 32179 (ON ARB), at paragraph 23, the Board held that “the provision for reduction, cancellation or refund of taxes is intended to benefit a property owner, so in that way it would be absurd for the Board to deny the application because the applicant owns the subject property and considers it an asset.”

18Neither position can be said to be wrong in law. That is, both considering the equity in the home, and refusing to consider it are reasonable outcomes. Each case will turn on its own facts and each Member of this Board must weigh the evidence and determine if the applicant is able to pay their taxes. The Decision provides a path to finding that A.P. had the ability to pay his 2015 property taxes. The new evidence would not alter that path.

ORDER

19A.P. has not satisfied the Board that the Decision contains any significant errors that would have affected the result. The Request for Review is therefore denied.