Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: October 21, 2020 FILE NO.: RD 20-028

Assessed Person(s): B.B. Applicant(s): B.B. Respondent(s): City of Mississauga Property Location(s): Withheld Municipality(ies): City of Mississauga Roll Number(s): Withheld Appeal Number(s): 3323457 Taxation Year(s): 2016 Hearing Event No.: 725628

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

Parties / Counsel*/Representative B.B. / P.B. City of Mississauga / Robert Ryan*

REQUEST FOR: A review of the Board’s Decision WR 164093A issued on March 10, 2020 HEARD: In writing ADJUDICATOR(S): Jean-Paul Pilon, Member

DECISION

OVERVIEW

1B.B. (the “Requestor”) requested a review of the Assessment Review Board’s (the “Board”) amended decision issued on March 10, 2020 (WR 164093A). This decision dismissed the Requestor’s application to the City of Mississauga to have her 2016 taxes reduced, cancelled or refunded because she was unable to pay due either to sickness or extreme poverty pursuant to section 357(1) (d.1) of the Municipal Act, 2001, S.O. 2001, c. 25.

Issues

2The request for review alleges six broad errors in the Board’s decision including:

1. That the Board failed to comply with the province’s emergency orders issued as a result of the pandemic;
2. That the Board failed to consider a loan advanced to the Requestor by her representative;
3. That the hearing was unnecessarily delayed, which added to the costs incurred by the Requestor;
4. That the Board did not consider that the Requestor would require the money the Board determined could have been used to pay for taxes for unexpected expenses;
5. That the Board improperly considered a payment toward taxes for the 2016 taxation year made in a subsequent taxation year; and
6. That the Board erred by blending the question of whether the Requestor was unable to pay her taxes with the question as to whether that inability to pay was caused by sickness or extreme poverty.

Result

3The decision does not contain any of the errors listed in Rule 121 of the Board’s Rules of Practice and Procedure (the “Rules”). The request for review is therefore denied.

ANALYSIS

4Rule 121 sets out the grounds that must be present for the Board to review its decisions. All six errors alleged by the Requestor fall into two parts of the Rule. These are that “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” or “(b) the Board made a significant error of law or fact such that the Board would likely have reached a different decision.”

Issue 1: Emergency Order and Time Extensions

5The Requestor first alleged that the Board violated the Requestor’s natural justice rights by not suspending this proceeding or extending time to file a request for review in light of an emergency order that had issued. This falls under Rule 121(a) as a jurisdictional, natural justice and fairness issue.

6The Board’s amended decision was issued on March 10, 2020. The emergency order referred to in the request for review was Ontario Regulation 73/20, which now appears under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c 17, which was enacted on March 20, 2020. This did, in fact, suspend limitation periods in section 1. However, section 2 provided that such suspension was “subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding.” On March 26, 2020, the Board indicated on its website that requests for review “will proceed in accordance with the Rules,” in other words, that there would be no suspension of the timelines for this purpose.

7In the request for review, the Requestor said that 16 days were “lost” in the period between March 10, 2020 and March 26, 2020 by the time the Board clarified that there would be no change to the deadline to file requests for review. However, even if the Requestor’s representative did not actually receive the decision until March 17, 2020 as was indicated in an earlier email to the Board, the decision to suspend work on the request for review was his alone in the face of the discretionary provision in section 2.

8The Requestor’s further allegation was that the Board acted outside of its jurisdiction by not suspending the timelines for requests for review. The Board was, however, given the authority to make that decision by the emergency order. In addition, the Requestor’s representative filed the request for review on time and did not allege any actual prejudice as a result of the existing time limit other than those “lost” days, where at least some of them could have been used to work on the request for review.

9The Board is not therefore satisfied that these circumstances violated the Requestor’s natural justice rights or that the Board acted outside of its jurisdiction.

Issue 2: Evidence of Loan

10The second issue raised in the request for review stated that the decision failed mention a loan that the Requestor’s representative arranged for the Requestor. The Requestor also stated in the request for review that the Requestor “has now been put into a precarious position” of having to pay that loan back. This falls under Rule 121(b) as a significant error of fact or law issue.

11The Requestor is correct that the decision does not mention this loan which the City of Mississauga (the “Municipality”) acknowledged in its submission was raised in oral evidence at the hearing. That alone is not an error since not every piece of evidence at a hearing needs to be mentioned in a decision.

12It is also not a significant error of fact or law because it would not likely have changed the Board’s decision. This is because evidence that the Requestor was in receipt of additional funds, whether they had to be paid back or not, would have supported the conclusion that there was no inability to pay taxes, not changed it. In addition, the request for review did not indicate specifically when the loan had to be paid back. The request for review said that time is “now,” which means that such repayments are irrelevant for the 2016 taxation year that was considered at the hearing.

13This is not, therefore, an error of law or fact.

Issue 3: Delays

14The Requestor’s third issue relates to the fact that this application for the 2016 taxation year was not heard until 2020. The Requestor argued that the application should have been heard sooner following the Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27, [2016] 1 SCR 631 (“Jordan”) which set a “presumptive ceiling” for delays of 18 months at para. 105. The Requestor said that this delay caused the Requestor to incur additional penalties and interest on unpaid taxes. This would also fall under Rule 121(a) as a natural justice and procedural fairness issue.

15Jordan applies to criminal proceedings in Provincial and Superior Courts. It does not apply to provincial quasi-judicial tribunals like the Board.

16There were four adjournments in total in this matter, two of which were requested by the Requestor, which delayed the resolution of the application. In addition, there was an additional written request to adjourn the January 3, 2020 hearing from the Requestor that resulted in the decision that is the subject of this request for review. That request was denied because there were no exceptional circumstances raised in the request as were required by Rule 82. In any event, there is no indication in the request for review as to what the remedy would have been had any delay been determined to be a reviewable issue.

17In the end, despite the final request to adjourn the hearing and the Requestor’s other two requests that partially delayed the resolution of this application, the application was heard and a decision issued just over two months later. The facts presented in the request for review do not demonstrate any denial of natural justice resulting from delay.

Issue 4: Funds Remaining

18The Member determined that the Requestor’s own evidence showed that the Requestor had $6,400 remaining at the end of 2016, “after primary life and household expenses had been accounted for.” The Requestor submitted that the Member did not consider that unexpected household expenses might arise and that the Requestor lives a frugal lifestyle having “nothing beyond the basic necessities of life.” The Requestor cited two cases in support of this point. This falls under Rule 121(b) as a significant error of fact or law issue.

19The first case cited, T.I. v. Toronto (City), 2020 CanLII 24875 (ON ARB), is distinguishable because, in that case, the Applicant was unable to pay his property taxes and “went without many of the basic necessities of life including medication” (para. 53). Here it was acknowledged that the Requestor was able to afford those necessities.

20The second case cited was G.J. v. Municipal Property Assessment Corp. Region No. 3, [2009] O.A.R.B.D. No. 27, which is also distinguishable because it relied on an outdated interpretation of the statute, saying that sickness or poverty needed to be considered before inability to pay. In any event, it is not supportive of the Requestor’s position because at para. 23 it says that “this subsection was intended to provide relief for someone in extreme need, who has made a valiant effort to honour obligation but can no longer do so due to ‘extreme’ circumstances,” which is not the situation here.

21In addition, the possibility that the Requestor might have unanticipated expenses is speculative. Moreover, it is clear that she did not have such expenses in 2016 which was the only year that was considered at the hearing. The funds the Requestor had left over exceeded the taxes that were due, therefore there was no error in the determination that those funds could have been used to pay taxes that had not been paid.

22This is not, therefore, an error of law or fact.

Issue 5: Later Payment of Taxes

23The Requestor said that “the Member erred in law by considering evidence of a tax payment made after the taxation year 2016 elapsed.” This falls under Rule 121(b) as a significant error of fact or law issue.

24It is not clear what payment is being referred to, and the request does not provide details or elaboration in relation to this payment. The Member determined at para. 13 that the balance owing on the taxes levied in 2016 remained at $2,231.90. Without further explanation, the Board cannot determine this is a significant error of fact.

Issue 6: The Legal Test

25Finally, the Requestor alleged that the decision applied an incorrect test by blending the questions relating to inability to pay and extreme poverty. This falls under Rule 121(b) as a significant error of fact or law issue.

26The decision is clear on the test that was applied. It determined that there was no inability to pay and that that the Board needed not consider whether there was sickness or extreme poverty. Once the Board determined there was no inability to pay, as it did, the application was properly dismissed.

27This is not, therefore, an error of law.

CONCLUSION

28The Board is not satisfied that the decision contains any of the errors listed in Rule 121 that would justify granting the request for review. As a result, the request for review is denied.