A.M.F. v. City of Mississauga, 2020 CanLII 97406

Assessment Review Board / Commission de révision de l’évaluation foncière

ISSUE DATE: November 30, 2020 FILE NO.: WR 167195 Appeal Number(s): 3411960 Taxation Year(s): 2019 Hearing Event No.: 735773

Assessed Person(s): A.M.F. Appellant(s): A.M.F. Respondent(s): City of Mississauga Property Location(s): Address withheld Municipality(ies): City of Mississauga Roll Number(s): Roll number withheld

Legislative Authority: Section 357(1)(d.1) of the Municipal Act, 2001, S.O. 2001, c. 25

APPEARANCES:

Parties	Representative
A.M.F.	Self-represented
City of Mississauga	Sean Doyle

HEARD: October 15, 2020 by telephone conference call

ADJUDICATOR(S): Caroline King, Vice-Chair

DECISION

OVERVIEW

1Applicant A.M.F. (the “Applicant”) filed an application with the City of Mississauga (the “City”) to have his taxes reduced, cancelled or refunded because he was unable to pay the taxes levied in 2019 because of sickness or extreme poverty. A pre-hearing for his application was held on September 3, 2020 which resulted in procedural order DM 165462 issued on September 4, 2020 (the “Procedural Order”). This Procedural Order set timelines for the submission of evidence which were not met in this case.

2The question to be determined, is whether the application should be dismissed as requested by the City, as no evidence has been submitted to support the application, and non-compliance with the Procedural order; or whether the hearing should be adjourned.

3For the reasons provided below, the Board is not satisfied that it is appropriate to grant an adjournment and the application is dismissed.

Background

Process – For Inability to Pay Taxes due to Sickness or Extreme Poverty Applications

4The Assessment Review Board (the “Board”) has introduced a two-step hearing process for municipal applications (or appeals) relating to inability to pay taxes due to either sickness or extreme poverty because the Board knows that individuals who file this kind of application with the Board can be dealing with challenging circumstances.

5The Board has made extra effort to remove barriers to participation in the hearing process to ensure that the process is understood, to allow applicants to participate in setting dates for hearings, and to clearly set out the consequences of not complying with board orders.

The First Step - the Pre-Hearing

6The first step is a pre-hearing. At the pre-hearing, applicants have the hearing process reviewed and clarified for them in person. Effort is made to ensure that applicants understand what types of materials and documents are required to prove that they should be granted tax relief.

7Applicants can ask questions during the pre-hearing and they participate in setting the date for hearing. The deadline for the submission of evidence is set based upon the hearing date. Consequences of not following the Board’s directions are explained to applicants at the pre-hearing. The goal of this process is to remove any misunderstandings, provide guidance and support to applicants about what steps they need to take, and to provide certainty to applicants, the municipality, and the Board about the process and procedure for resolving these applications.

8After the pre-hearing, a procedural order is issued so that applicants have a reference document to confirm what happened at the pre-hearing, and to have certainty regarding expectations. The procedural order also contains information so that if applicants have any questions prior to the hearing, these questions can be directed to the Board’s Case Coordinator.

9Applicants are directed to submit their evidence to the municipality and to the Board on the date they helped to set in the procedural order.

The Second Step – the Merit Hearing

10The second step in the hearing process is the actual hearing on the merits of the application. At this hearing, the evidence and documents submitted by the parties in accordance with the procedural order are considered. Parties introduce, then discuss the evidence and provide arguments about whether or not the application should be granted.

Timeline of Events – This Application

11At the September 3, 2020 pre-hearing, at the Applicant’s request and with the consent of the City, the hearing date was changed from November 3, 2020 to an agreed upon earlier date of October 15, 2020. Based on this earlier agreed upon hearing date of October 15, 2020, the Applicant was ordered to provide evidence for the application to the City and the Board by September 29, 2020 with the City to provide any responding submissions to the Applicant and the Board by October 6, 2020. This was confirmed in the Procedural Order was issued on September 4, 2020.

12The Applicant confirmed he received the Procedural Order, understood it, and knew how to contact the Board’s Case Coordinator by email. The Applicant did not comply with the terms of the Procedural Order.

13The Applicant emailed the Board’s Case Coordinator at 2:09 p.m. on September 28, 2020 asking for an extension to file his evidence from the due date of September 29, 2020 to October 2, 2020. The Board’s Case Coordinator responded to the Applicant 41 minutes later advising him that since a formal decision had been issued by the Board (the Procedural Order), he needed to complete the Expedited Board Direction Form setting out his request and the reasons why he required this extension. A copy of the Expedited Board Direction Form was attached to the Case Coordinator’s email.

14At the October 15, 2020 merit hearing, the Applicant confirmed that he received this email and the Board’s Expedited Directions Request Form and confirmed that he had not emailed the Board or the Case Coordinator since September 29, 2020.

15The Applicant did not submit his evidence on October 2, 2020 as he indicated he could in his September 28, 2020 email to the Board. It wasn’t until October 13, 2020, or October 14, 2020, that the Applicant attended the municipal offices of the City and left some documents (including a completed Expedited Board Direction Form requesting an adjournment) in a municipal drop box. Around the same time by regular Canada Post mail he sent these documents to the Board.

16The representative for the City indicated that because of the current circumstances with COVID-19, he is not working at the offices and he did not have immediate access to the drop box.

17The Applicant acknowledged and agreed that the Board would not receive these documents by the hearing date of October 15, 2020.

The Adjournment Request

18In order to be successful at an application, the Applicant needs to provide evidence in the form of documentation to support his application. This was explained at the pre-hearing and is clearly set out in the Procedural Order.

19At the merit hearing on October 15, 2020, the Applicant asked for the hearing to be adjourned. The Applicant stated that he had been unwell and not able to comply with the Procedural Order, and that his wife had been in Trillium Hospital from October 11, 2020 to October 14, 2020 and he wanted an adjournment so he could secure the evidence and documentation required for the merit hearing.

20The Applicant was asked if there had been any change in his condition from September 3, 2020 (when he sought an earlier hearing date) to September 29, 2020 when the evidence was to be submitted. He stated that he was unwell and unable to do things and that his condition was ongoing.

Are there any exceptional circumstances to adjourn the hearing due to a delay in submitting evidence?

21Paragraph 4 of the Procedural Order states that adjournments to submit documents and evidence will only be granted in exceptional circumstances. Specifically, it states:

Adjournment requests to obtain missing documentation will only be granted in exceptional circumstances, and the Board may only consider the documentation filed in accordance with this procedural order at the next hearing. As a result, compliance with this order is extremely important.

22The City contested the adjournment request on the grounds that it prejudiced the City, caused delay to the hearing process, and the Applicant not only understood at the pre-hearing and in the Procedural Order what steps he had to take, but also it was at the Applicant’s request that the hearing date be changed to an earlier date, which meant that the evidence was to be submitted even earlier.

23For the reasons below, the Board found that it was not appropriate to grant an adjournment in order for the Applicant to submit his documentation to support his application.

24The Application first emailed the Case Coordinator on September 28, 2020, asking that the September 29, 2020 due date for evidence be extended to October 2, 2020. While the Board emailed a response 41 minutes later with directions about how to make this request, the Applicant did not make a meaningful effort to contact the Board with the requested information until the scheduled hearing started on October 15, 2020. (While he mailed some documents shortly before the hearing, he acknowledged that the Board would not receive the documents before the hearing).

25The Board accepts the Applicant’s evidence that his wife was in Trillium Hospital from October 11, 2020 to October 14, 2020. The Board accepts that this would present a challenging personal circumstance for the Applicant. However, the issue with the hearing proceeding was not the Applicant’s condition at the October 15, 2020 hearing, rather, it was because the Applicant had not submitted his evidence on September 29, 2020, which occurred before the Applicant’s wife was admitted to the hospital. Further, it is noted, that the Applicant had already indicated his interest in changing the evidence due date on September 28, 2020, which was almost two weeks before his wife was admitted to the hospital.

26To determine if there were any exceptional circumstances, the Board inquired if he could clarify the nature of his illness, and if he had any medical documentation. The Applicant had no medical documentation from around the time period of September 3, 2020 to September 29, 2020, or after. The Applicant did not wish to disclose the nature of his illness.

27While the Board explained that it cannot require Applicant’s to disclose this information, the information could be considered as evidence about why the Applicant’s situation could be considered an exceptional circumstance, and the Applicant was encouraged to provide some details or explanation. The Applicant confirmed that he understood, but that he did not wish to disclose the nature of his illness.

28The Applicant did state that he had a medical note dated February 29, 2020 which predates his attendance at the September 3, 2020 pre-hearing. If this medical note and the information it contained was relevant to the hearing process, the Applicant had the opportunity to provide this information at the September 3, 2020 pre-hearing, in response to the September 4, 2020 Procedural Order, in his email contact with the Board on September 28, 2020, or at any time before the hearing. This would have been especially important if it could impact the hearing process and the timelines which the Applicant was actively involved in setting.

29The Board has insufficient information to find the Applicant’s circumstances are likely exceptional in the absence of more information, evidence, or further explanation about the Applicant’s condition, which the Applicant could have provided the Board on September 3, 2020, in response to the Procedural Order, or at the merit hearing on October 15, 2020.

30The Board is not satisfied that there are any exceptional circumstances to merit an adjournment in order for the Applicant to secure and then submit his missing documentation. The adjournment request on this ground is not granted.

The City’s Request to Dismiss - Natural Justice Considered

31The City requested that the application be dismissed for non-compliance with the Procedural Order and prejudice to the City. The Applicant wanted the application to proceed, but on a new hearing date.

32On the hearing date of October 15, 2020, neither the Board, nor the City had seen any of the Applicant’s evidence or documentation even though the importance of submitting evidence had been reviewed with the Applicant both verbally at the pre-hearing, and then in writing in the Procedural Order. The timeline for the submission of evidence was triggered by the Applicant’s request for the earlier hearing date (which then required earlier submission of evidence).

33As indicated above, a key function of the procedural order is to ensure that applicants are ready to proceed and participate at the hearing with advance notice of the expectations, the exchange of information and documentation required, and it provides notice about the potential consequence if they do not follow the directions in the procedural order. Notice is a key component of ensuring applicants understand the process and have a reasonable opportunity to participate in the resolution of their application. Paragraph 11 of the Procedural Order states:

Failure to comply with the above may result in a dismissal of the application.

34For the reasons set out below, the Board finds that the Applicant had a reasonable opportunity to participate in the resolution of his application.

35The Applicant participated in setting the dates for the hearing (which moved up the related deadline for submission of documents), knew how to contact the Board, did not comply with the terms of the Procedural Order, and did not submit his documents late, for instance on his self-selected document filing deadline of October 2, 2020.

36While this has been already stated, it is important to emphasize that all persons are to have a reasonable opportunity to participate in the resolution of their application. The two-step hearing process for applications (appeals) for inability to pay due to sickness or extreme poverty was created to provide additional support and information, as well as providing applicants with contact with the Board prior to the actual merit-based hearing. Applicants are told what can happen if they don’t comply with the procedural order i.e. their applications can be dismissed. The same information appears in the procedural order itself.

37In this case, the Applicant received and understood the Procedural Order issued and the dates it set with his input. He understood that he was notified of the importance of following the directions in the Procedural Order as his application could be dismissed if he didn’t.

38There was no barrier of understanding about: the hearing process itself, the documents required to support his application, how to complete the Board’s Expedited Request Form, or how to communicate with the Board electronically. After the Applicant emailed the Board on September 28, 2020, he made no effort to follow-up with the Board in advance of the October 15, 2020 merit hearing. While he did mail some documentation to the Board, he acknowledged that the Board would not be in receipt of his mailed documentation by the commencement of the hearing at 9:30 a.m. on October 15, 2020. Apart from the Applicant’s statement that he was not well, and his wife had been in the hospital, no other information was provided.

39The City’s request to have the Applicant’s application dismissed is granted, not only for the lack of compliance with the Procedural Order, but because even if the Applicant gave oral testimony on October 15, 2020, the City could not have adequate advance knowledge of the Applicant’s case, a meaningful opportunity to test the evidence submitted, or a meaningful opportunity to respond to the Applicant’s case. This would have resulted in unfair prejudice and a denial of natural justice to the City.

40The Applicant has not provided sufficient evidence to establish that he is entitled to the relief sought. Based on the evidence before the Board, the Board finds that he has had a reasonable opportunity to participate in the resolution of the application. Accordingly, his application is dismissed.

Documentation Received after the October 15, 2020 hearing:

41At the end of the October 15, 2020 hearing, the decision was reserved. The parties were advised that if after the submissions were reviewed, the decision was to dismiss the application, any materials mailed to the Board by the Applicant (including written materials supporting his request to adjourn the October 15, 2020 hearing) would be returned. If the hearing was adjourned, the materials would be reviewed and considered.

42The decision was made to dismiss the application, and therefore, the Applicant’s materials (including the materials to request the adjournment) received by the Board after the October 15, 2020 hearing were not considered and were returned to the Applicant.

CONCLUSION

43The Board finds there are no exceptional circumstances in this case which merit an adjournment of the hearing in order for the Applicant to provide the documentation as originally directed at the pre-hearing and to in the Procedural Order.

44The Board finds that Applicant has had a reasonable opportunity to participate in the resolution of his application and that the City would be prejudiced by any delay in the hearing process and that no adjournment will be granted.

ORDER

45The application is dismissed.