Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: October 20, 2021

FILE NO.: WR 173643

Assessed Person(s): Harbour View Investments Limited

Appellant(s): Harbour View Investments Limited

Respondent(s): City of Brampton

Property Location(s): 10960 – 10990 Airport Road

Municipality(ies): City of Brampton

Roll Number(s): 2110-070-009-05850-0000

Appeal Number(s): 3368966

Taxation Year(s): 2018

Hearing Event No.: 747992

Legislative Authority: Section 334 of the Municipal Act, 2001, S.O. 2001, c. 25

APPEARANCES:

Parties

Representative

Harbour View Investments Limited

Brian Merkel Kimberly van Vliet

City of Brampton

Kumar Sapkota Daryll Ramos

HEARD: May 28, 2021 and July 12, 2021 by telephone conference call

ADJUDICATOR(S): Vincent Stabile, Member

DECISION

OVERVIEW

1This decision relates to an appeal pursuant to s. 334 of the Municipal Act (“Municipal Act”), requesting rectification of tax calculations determined by the City of Brampton (“Brampton”) for the property known as 10960 - 10990 Airport Road, registered to Harbour View Investments Limited (“Appellant”).

2As summarized by the Appellant, the basis for the appeal is that the City of Brampton (“City”) incorrectly calculated the tax adjustments relating to Minutes of Settlement (“MOS”) on supplementary assessments for the 2008, 2009 and 2010 taxation years.

3The alleged error is in the calculation of the tax adjustments. The Appellant claims that City failed to account for Section 40 settlements for each of the 2008, 2009 and 2010 taxation years which increased the assessed value of the vacant land and moved the classification from RT to CX.

4When processing the class changes on the supplementary MOS for 2008, 2009 and 2010, the City continued to reduce the land value at the RT tax rate as opposed to the revised CX tax rate. That resulted in the property being overbilled for the 2008 and 2009 taxation years and underbilling for the 2010 taxation year.

Background

5Appeals were filed under s. 40 of the Assessment Act, R.S.O. 1990, c. A.31 (“Assessment Act”) for the taxation years 2008, 2009 and 2010. The appeals were settled with the Municipal Property Assessment Corporation (“MPAC”). MOS were drafted by MPAC and signed by MPAC, the Appellant and the City in April 2011.

6Appeals were also filed under sections 33 and 34 of the Assessment Act for the 2008, 2009 and 2010 taxation years. Those appeals were settled with MPAC. MOS were drafted by MPAC and signed by MPAC on January 19, 2017, by the Appellant on March 6, 2017 and by the City on April 26, 2017. The Board issued its decision in respect to those MOS on May 12, 2017.

7The City processed the s. 33 and 34 MOS in 2018. Once processed, the Appellant became aware of errors in tax adjustments and made application to the City for rectification. The application was denied, thus an appeal to the Board was filed leading to this hearing.

Procedural History

8It is helpful to set out a time-line of the procedure followed by the parties in respect to the application under s. 334 of the Municipal Act:

a) March / April, 2018 – Section 33 & 34 Appeals settled.

b) 2018 – MOS processed by the City (no specific date provided by the City)

c) July, 2018 – Appellant became aware of errors in calculation of taxes based on the classifications agreed to.

d) February 27, 2019 – Appellant filed an application for rectification with the City.

e) March 13, 2019 – The City responded. The application was denied and also advised that it would not refer the matter to Council.

f) April 10, 2019 – Appellant filed an appeal with the Assessment Review Board (“Board”).

9The hearing had been adjourned several times, thus hearing 744866 held May 28, 2021, was “peremptory”.

Areas of Agreement / Disagreements

10At the initial hearing (744866 – May 28, 2021), the Appellant submitted that the aggregate errors amounted to $62,821.00. The City submitted that errors amounted to $62,826.00, a $5.00 difference in favour of the Appellant.

11Following some preliminary arguments by the City about the validity/enforceability of the MOS, the City made a verbal Offer to Settle of $62,826.00. The Offer was accepted by the Appellant.

12Upon acceptance of the Offer, the City’s representatives requested a brief recess to consult with their Manager.

13Upon resuming, Yvonne Kwiecien, Manager, joined the conference and requested an adjournment prior to the Board entering a decision to permit her to determine how to best implement the anticipated decision to satisfy the City’s Auditors. She further submitted that her office was very busy and required an adjournment for a few weeks to deal with her concern.

14An adjournment was granted, and at the continued hearing (747992 – July 12, 2021), the Appellant maintained its submission that the errors amounted to $62,821.00. The City took no position on the figures set out by the Appellant, notwithstanding discussions about the calculations and the offer made by the City and accepted by the Appellant on May 28, 2021.

15Further, the City purported to withdraw the Offer made and submitted that the appeal had been filed late and that the Board had no authority to hear the matter.

Issues for the Hearing

16At issue in this proceeding is:

1. A determination if the application was filed on time which will give the Board authority to deal with the appeal.

2. A determination by the Board of whether the Appellant is entitled to a reduction or refund of taxes by reason of a gross or manifest error that is clerical error and factual in nature but not an error in judgment, in the calculation of taxes payable for the taxation years 2008, 2009 and 2010 but levied in the taxation year 2018, as provided by s. 334(1) and s. 357 (1)(f) of the Municipal Act.

Result

17For reasons stated below, the Board finds that the appeal was filed within the time prescribed, and that the Board has authority to deal with the appeal.

18Further, the Board finds that the Appellant has been overcharged the sum of $62,821.00 by reason of a gross or manifest error that is clerical and factual in nature, including the transportation of figures, a typographical error or similar type of error, but not an error in judgment, in the calculation of taxes payable for the taxation years of 2008, 2009 and 2010 but levied in the taxation year 2018.

19The Board finds that this was a factual error and not an error in judgment.

20The Board finds that there were no arrears of taxes payable by the Appellant.

21The Board therefore finds that the Appellant is entitled to a refund of $62,821.00.

ANALYSIS

Legislation

[Municipal Act, 2001, S.O. 2001, c. 25](https://www.canlii.org/en/on/laws/stat/so-2001-c-25/latest/so-2001-c-25.html)

22Sections 334(1) and (2) state:

Application for cancellation, etc.

334 (1) An application to the treasurer of a local municipality for the cancellation, reduction or refund of taxes levied in the year in respect of which the application is made by a person who was overcharged by reason of a gross or manifest error that is a clerical error, the transposition of figures, a typographical or similar type of error in the calculation of taxes under this Part, 2001, c. 25, s. 334 (1); 2002 c. 17, Sched. A, s. 56.

Procedures

(2) Section 357 applies to an application made under subsection (1). 2001, c. 25, s. 334 (2).

23Section 357(1) (f) states:

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,

(f) a person was overcharged due to a gross or manifest error that is clerical or factual in nature, including the transposition of figures, a typographical error or similar error but not an error in judgment in assessing the property.

Timing

(3) An application under this section must be filed with the treasurer on or before the last day of February of the year following the year in respect of which the application was made.

Where no decision

(8) If council fails to make its decision by September 30 of the year following the year in respect of which the application is made, an applicant may appeal to the Assessment Review Board by October 21 of the year by filing a notice of appeal with the registrar of the board and the appeal shall be a new appeal.

Decision

(10) The Assessment Review Board shall hear the appeal and may make any decision that council could have made.

Decision final

(17) A decision of the Assessment Review Board is final.

Issue 1 – Was the Application filed within the time prescribed? If so, does the Board have authority to deal with the appeal?

24An Application pursuant to s. 334 of the Municipal Act triggers the provisions of s. 357 of the Municipal Act which deals with the appeal process.

25As noted above, s. 357(3) prescribes that the Application is to be filed by the last day of February of the year following the year in respect of which the application was made.

26The evidence was that the Appellant became aware of the error in calculation in July 2018. The Application was filed before the last day of February 2019. The City did not argue the date the Application was made.

27The City submitted that the Application should have been made by the last day of each of February of 2009, 2010 and 2011 suggesting that s. 334(1) which states in part “… of taxes levied in the year in respect to which the application is made” should be interpreted to apply to the taxation years under appeal pursuant to Sections 33 and 34 of the Assessment Act.

28The Appellant submits that it relied on the MOS and that there was no reasonable way of determining the error unless and until the MOS were implemented by the City.

Findings on Issue 1

29The Board agrees with the Appellant that it had a right to rely on the settlement reached with MPAC resulting in MOS signed by all parties, including the City in 2017, as noted in paragraph 6, above. The implementation of the MOS was strictly within the control of the City. The evidence is that the City processed the MOS in 2018, although no specific date was provided. In any event, the City is strictly responsible for any delay in their implementation.

30The Board finds that the most reasonable interpretation of s. 334(1) is that “… taxes levied in the year in respect of which the application is made…” must apply to the year the MOS were implemented and tax notices provided to the Appellant reflecting the implementation of those MOS.

31Any different interpretation would result in an unjust enrichment to the City to the detriment of the Appellant solely from the delay in reaching a settlement with MPAC and any associated delay in implementing the MOS by the City. From a practical consideration, that would lead to an absurd result.

32The Board finds that the Application was made within the time prescribed under s. 357(3) of the Municipal Act.

33The Board therefore finds that it has authority to deal with the Application/appeal pursuant to the provisions of s. 357(8)(10) and (17) of the Municipal Act.

Issue 2 – Is the Appellant entitled to a reduction or refund of $62,821.00 having been overcharged by reason of a gross or manifest error that is clerical and factual in nature, including the transposition of figures, a typographical error or similar type error, but not an error in judgment, in the calculation of taxes payable for the taxation years 2008, 2009 and 2010 but levied in the taxation year 2018?

34The Appellant submitted that the City erred in calculating the tax adjustments relating to s. 33 and 34 MOS on supplementary assessments for the 2008, 2009 and 2010 taxation years. The error related to the City failing to account for s. 40 MOS for each of the 2008, 2009 and 2010 taxation years which increased the assessed value of the vacant land and moved the classification from RT to CX.

35The City continued to reduce the land value at the RT tax rate instead of the revised CX tax rate, resulting in calculation errors amounting to $62,821.00 for the 2008, 2009 and 2010 taxation years as follows:

2008

$30,874.00

2009

$35.186.00

2010

$3,239.00 [positive adjustment to the credit of Brampton]

36In evidence was written confirmation from MPAC that the terms of settlement as set out in the s. 33 and 34 MOS were accurate. MPAC explains that the City applied the s. 40 MOS and the s. 33 and 34 MOS out of sequence resulting in incorrect tax calculations for the 2008, 2009 and 2010 taxation years.

37In evidence during the initial hearing day, the City agreed with the Appellant and in fact stated that the error amounted to $62,826.00. Further, in evidence during the initial hearing day, the City made an Offer to the Appellant for $62,826.00 accepted by the Appellant but reduced by the Appellant to $62,821.00.

Findings on Issue 2

38On the evidence received, the Board finds as a fact that the City made a gross or manifest error resulting in an overcharge to the Appellant of $62,821.00 for taxes payable for the taxation years 2008, 2009 and 2010 but levied in taxation year 2018.

39The Board finds that this was a factual error, as explained by MPAC and the Appellant. It was not an error in judgment.

40There was no evidence to suggest that there were any arrears of taxes payable by the Appellant.

41The Board therefore finds that the Appellant is entitled to a refund of $62,821.00 for taxes payable for taxation years 2008, 2009 and 2010 but levied in taxation year 2018.

42Although not critical to the ultimate finding by the Board, it is instructive to consider the Offer made by the City and accepted by the Appellant as part of the evidence from the parties during the hearing.

43Based on the evidence heard at the hearing, the Board finds that the City made an Offer to Settle in the amount of $62,826.00. The Offer was accepted by the Appellant, reducing it to $62,821.00, agreed to by the City.

44There is no specific Rule in the Rules of the Board that deals with an Offer to Settle. The Board, as a Tribunal, may admit as evidence any oral testimony pursuant to the provisions of s.15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. (“SPPA”).

45Accordingly, the Board finds that the Offer and Acceptance, received as oral evidence at the hearing, constituted an agreement and therefore enforceable by the Board under it authority provided by s. 15(1) of the SPPA.

CONCLUSION

46The Board finds that the Appellant is entitled to a refund of $62,821.00 for taxes payable for taxation years 2008, 2009 and 2010 but levied in taxation year 2018.

ORDER

47The Board orders that Brampton refund to the Appellant $62,821.00 for taxes payable for taxation years 2008, 2009 and 2010 but levied in taxation year 2018.