Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: September 20, 2019

FILE NO.: RD 2019M21A

AMENDED DECISION ISSUED ON: October 15, 2019

Assessed Person(s): W.H.S.M.

Appellant(s): W.H.S.M.

Respondent(s): City of Mississauga

Property Location(s): Withheld

Municipality(ies): City of Mississauga

Roll Number(s): Withheld

Appeal Number(s): 3334685

Taxation Year(s): 2017

Legislative Authority: Rules 121 and 123 of the Assessment Review Board Rules of Practice and Procedure

Request for: A review of the Board’s Decision WR 157642, issued on January 21, 2019

Heard: In writing

Parties	Counsel/Representative	Submissions
W.H.S.M.	Self-Represented	Requester
City of Mississauga	No one appeared	Not Requested

DECISION DELIVERED BY PAUL MULDOON AND ORDER OF THE BOARD

AMENDED DECISION

In accordance with Rule 114 of the Assessment Review Board’s Rules of Practice and Procedure, as amended May 2019, related to the correction of minor errors and in accordance with Rule 21.1 of the Statutory Powers and Procedure Act regarding the correction of errors, this order is issued to correct typographical errors in the order regarding typographical errors in paragraphs 21 and 33. The amendments have been underlined for ease of reference. There are no other changes in this decision.

INTRODUCTION

1W.H.S.M. filed a written document with the Assessment Review Board (the “Board”) where W.H.S.M. requests that the conduct of the Board Member and of the Member’s Decision, W.H.S.M. v Mississauga (City), 2019 CanLII 5473 (ON ARB), WR 157642 issued on January 21, 2019 (“Decision”) be reviewed. The Decision denied an application for the refund of property taxes that were paid for the 2017 taxation year on the basis of sickness or extreme poverty pursuant to s. 357(1)(d.1) of the Municipal Act, 2001, S.O. 2001, c. 25 (the “Act”).

2While the written document filed with the Board on January 28, 2019 was not on the Board’s Request to Review form, it is being considered a review as it contains the critical elements of a Request to Review. It is being considered under Rules 120 to 123 of the Board’s Rules of Practice and Procedure (“the Rules”).

3The Board is proceeding with this review request as a review raising issues of error in fact or law, and raising issues of natural justice and procedural fairness as W.H.S.M. is raising issues about the way the hearing was conducted, about the nature of questioning, and about specific errors in fact, and in the hearing Member’s understanding and application of the law. W.H.S.M. has asserted that the Decision was wrong and her application should have been granted as “…[her] sickness and extreme poverty [was] imposed by the provincial government.” The Board has reviewed the Request for Review record and has found the issues raised by the W.H.S.M. can be addressed without further submissions from W.H.S.M. or other parties.

4For the reasons provided below, the Board is not satisfied that the Decision contains any serious errors of fact or law such that the Board would have likely reached a different conclusion. The Request to Review is therefore denied.

RELEVANT RULES

5Review 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.

6Request 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.

7When 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 – THE LAW

8A general explanation of the law as it pertains to this kind of application is important to set the context for this decision. According to the Canadian Constitution and the division of powers, municipal property taxes are governed by Ontario provincial statute, in this case, the Act.

9As noted above, this application is regarding relief from paying municipal property taxes. W.H.S.M. filed an application with the City of Mississauga (“City”) seeking to have the 2017 property taxes refunded pursuant to s. 375(1)(d.1) of the Act, which reads:

Cancellation, reduction, refund of taxes

357 (1) Upon application to the treasurer of a local municipality made in accordance with this section, the local municipality may cancel, reduce or refund all or part of taxes levied on land in the year in respect of which the application is made if,

(d.1) the applicant is unable to pay taxes because of sickness or extreme poverty;

10Under this provision, an applicant may request the cancellation, reduction, or refund of all or part of the municipal taxes levied on the property for the year in which the application is made where an applicant is unable to pay all or part of their property taxes due to sickness or extreme poverty.

Authority to Decide

11Under the Act (the provincial statute), the decision-making authority for this kind of application is granted to the municipalities who in turn have the right to delegate this decision-making power to the Board under s. 357(11) of the Act. In this case, the City delegated the decision-making power to the Board.

Is this a tax relief program?

12The decision making process is not a municipally funded grant program but rather a legal proceeding based on the legal question (or “test”) set in s. 357 (1)(d.1) in the Act which is a province of Ontario statute. This means that deciding whether or not to grant the relief requested is not a matter of bureaucratic power, but a matter to be heard and considered in a formal quasi-judicial hearing.

13There is not a fund set aside to supplement or pay property owner’s tax payment, rather, an analysis of whether the property tax burden should be reduced or eliminated is based solely on the test set out in the Act. Any tax relief given results in an assessed property owners tax burden being shifted to the other property tax payers in their respective municipality.

What evidence and submissions are heard in this kind of application?

14This test requires that the Member conducting the hearing, hear evidence and submissions regarding whether an applicant has the ability to pay his or her property taxes. If an applicant has demonstrated that they have an inability to pay part or all of his or her property taxes, the Board must then determine whether this inability to pay was due to sickness or extreme poverty.

15The test does not include an assessment of whether there has been a deprivation of dignity or deprivation of a protection to the third party, rather it requires a contextual financial assessment of whether an applicant has the financial means to pay the property taxes and whether any inability to pay property taxes is caused by sickness or extreme poverty. This does not mean that the Board does not recognize that individuals appearing before may have encountered challenging or difficult life situations, it does mean that the law limits the Board about what kinds of issues it has the authority to resolve and the scope of outcome that it can order.

The Scope of the Review

16The Scope of the Review is limited to aspects of the hearing process and the decision made that the Board has authority over. The Board has authority over ensuring that the hearing was conducted fairly before an impartial decision maker who is required to hear the evidence and submissions before him or her and who is required to apply the correct legal test.

ISSUE

17W.H.S.M. asserted certain errors in fact:

a) Her $9,000 Ontario Student Assistant Plan (“OSAP”) loan is not for the whole year of 2017, but rather applies to the school tuition period from May 2017 to April 2018.

b) Her Mercedes Benz car is a 2005 model, and not a 2009 model as indicated in the Decision in paragraph 22.

c) The $400 City Rebate is for the entire year of 2017, and is not a monthly rebate.

d) The $10.00 monthly cost of having a land line is a basic necessity as it relates to safety.

18W.H.S.M. indicated that there was an error in natural justice and in the hearing process of how the Member conducted the hearing and the hearing process in that:

a) The Member asked questions about who W.H.S.M. lives with, about W.H.S.M.’s medical and financial circumstances, about W.H.S.M.’s daughter and whether she received financial assistance from her daughter or other family members. The Member was not interested in knowing the reasons why the applicant is in her current situation or her dignity and privacy rights.

b) The Member was not interested in understanding why W. H.S.M. is studying the functions of the government and the judiciary at university, or that W.H.S.M. was asserting that her current situation was caused by the provincial government.

ANALYSIS

Errors of Fact

19Where it is argued that there is an error of fact in a decision, the Board must consider whether the error alleged is such that the Board would have likely reached a different decision.

OSAP Loan

20The fact that W.H.S.M. received $9,000 per year from OSAP for tuition fees for the period from May 2017 to April 2018 and not for the 2017 tax year as implied in paragraph 8 of the Decision is not an error that would have led the Board to make a different decision. This is because the OSAP loan is not included as income (although it should rightfully be shown as funds being received by W.H.S.M., with the corresponding expense of tuition also represented). Whether or not W.H.S.M. received OSAP, the Member did not include this in her calculations of whether W.H.S.M. had an ability to pay her property taxes. Therefore, while this is an error, it is not an error that will result in the Decision being reviewed because the error would not change the ultimate decision made in the Decision.

Car

21The Board accepts W.H.S.M.’s claim that her car is a 2005 model and not a 2009 model as indicated in the decision. However, the age of the car is not included in any analysis of W.H.S.M.’s ability to pay her property taxes, nor is the outcome of the Decision founded upon the age of the car.

$400 Municipal Rebate

22Likewise, in paragraph 14 of the Decision, the Member records the City’s evidence that W.H.S.M. received a $400 rebate from the City towards her property taxes and in paragraph 23 makes a finding that W.H.S.M. received this rebate. While the Member expresses W.H.S.M.’s property taxes on a monthly basis, there is nothing in the order which suggests that the Member has applied the City’s rebate as a monthly rebate. The Board finds that the Member did not make an error in this regard.

Discretionary Expense? – Cell Phone

23In paragraph 22 of the Decision, the Member makes a finding of fact, or mixed fact and law, that having both a cell phone line and a landline telephone for a combined monthly cost of $46.00 is a discretionary expense. In the document which forms the basis for the Request to Review, W.H.S.M. states that the telephone landline costs $10 per month and it is for safety reasons.

24Any analysis of discretionary expenditure requires a contextual analysis. Questions such as: "Why should this cost be considered a basic living necessity?”; “Why is it necessary for you to have both a cell phone and a telephone landline?” can help provide a contextual basis for determining whether such expenses are discretionary or whether they are more properly considered a basic living necessity.

25Depending on the evidence and submissions at a hearing, where it is determined that a person requires ongoing psychiatric care since 1999, where she lives alone, is a 61 year old woman and her source of income is Ontario Disability Support Program, it could reasonably be found that having both a landline and a cell phone is not a discretionary expense, rather, it is an expense for a basic living necessity. However, this $10 expense is minimal such that even if this finding was an error, it is not an error that would have likely caused the Member to reach a different decision. This finding is based on the fact that W.H.S.M. gives her daughter $340.00 every month which in excess of what the monthly property taxes owing, and further that the assessed value of the house in 2017 is $557,000. As the Member correctly states in paragraph 16 of the Decision:

An ability to pay requires individuals to demonstrate that, after having called upon every resource available to them, and having explored every reasonable opportunity to mitigate any financial stresses, there are no means to pay some or all of their property taxes.

26The Member found in paragraph 21 of the Decision that W.H.S.M. did not explore accessing her equity in her home. As there was significant equity in W.H.S.M.’s home, and W.H.S.M. had transferred more money to her daughter who lives outside the W.H.S.M.’s home than was owing in property taxes, there was sufficient evidence to find that W.H.S.M. had an ability to pay her 2017 property taxes.

Natural Justice, Procedural Error - Errors of Hearing Conduct

27As noted above in paragraphs 11 and 12, this application is not a tax relief program, rather it is a legal proceeding where Members are required to determine whether applicant’s such as W.H.S.M. are unable to pay their taxes because of sickness or extreme poverty. This legal proceeding requires that evidence be introduced and considered. Typical information required includes: who the applicant lives with, the applicant’s medical circumstances where there is a claim of sickness, financial circumstances including what support the applicant receives from family members, the applicant’s sources of income and the applicant’s expenditures (including any transfers of funds to family members).

28W.H.S.M.’s correspondence with the Board indicates that the Member asked W.H.S.M. these types of questions and conducted her hearing in such a way as to ensure that W.H.S.M. answered these questions. It is understood that questions about an individual’s medical condition(s), and personal finances can be felt to be overly intrusive and invasive of a person’s privacy impacting on a person’s dignity; however, given the nature of this type of legal proceeding, these are the very kind of questions that must be answered in a hearing in order for a Member conducting the hearing to answer the legal test as set out in the provincial statute. The Board is required to know the answers to these questions, even though applicants may feel that it intrudes upon their privacy and dignity. The Board finds that the Member’s conduct in asking relevant questions and listening to the parties responses and submissions to ensure that necessary evidence is presented at the hearing is a not an error at law. It should also be noted that the hearings in these matters are usually heard in camera recognizing that sensitive health and financial matters may be discussed.

29The evidence and information that the Member must have relates to the legal test set out in the provincial statute, and information about W.H.S.M.’s choice of studies is not relevant to determining whether W.H.S.M. has an ability to pay her taxes, and if not that lack of ability was due to sickness or extreme poverty. The Member did not error in excluding evidence that was not relevant to the matter before her.

30While W.H.S.M. has stated that her current situation is caused by the government, the test does not require an analysis of the cause of financial circumstances, it requires that if there is an inability to pay property taxes it must be because of either sickness or extreme poverty. In this case, the Member made a finding that W.H.S.M. had an ability to pay her property taxes, which the Board has found is supported by the facts of this case. The Member did not err in not considering the cause of W.H.S.M.’s financial circumstances.

31The Board understands that the nature of the application, and the requirement for certain information was difficult for W.H.S.M., however, the Board finds that the Member’s hearing conduct in asking relevant questions, requiring that W.H.S.M. answer the questions, focus on the evidence required for this kind of application, and listening to the answers and submissions of both parties does not constitute an error in natural justice or procedural error.

Conclusion

32In 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. Based on the Board’s review of the Requestor’s submissions, the hearing record and the Decision, the Board is not satisfied that there is a serious error in fact or law in the Decision, or that there was a serious error in how the hearing was conducted, such that the Board would have likely reached a different decision. The Request to Review is therefore denied.

ORDER

33The Request for Review is denied. The Decision dismissing W.H.S.M.’s application under s. 323(1)(d.1) of the Act is confirmed.