Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

November 26, 2021

FILE NO.:

WR 174095

Assessed Person(s):

Anita Doris McGowan and Rodrick John McDonagh

Appellant(s):

Kwok-Leung Lawrence Lai and Grace Wang Qiang

Respondent(s):

City of Hamilton

Property Location(s):

7 Oakwood Place

Municipality(ies):

City of Hamilton

Roll Number(s):

2518-010-051-01900-0000

Appeal Number(s):

3432770, 3432767 and 3432768

Taxation Year(s):

2016, 2017 and 2018

Hearing Event No.:

752183

Legislative Authority:

Section 356(6) of the Municipal Act, 2001, S.O. 2001, c. 25

APPEARANCES:

Parties

Counsel*/Representative

Lawrence Kwok-Leung Lai and Grace Wang Qiang

Kwok-Leung Lawrence Lai

City of Hamilton

Michael Kovacevic*

HEARD:

September 29, 2021 by telephone conference all

ADJUDICATOR(S):

Jennifer Griffith, Member

DECISION

OVERVIEW

1Kwok-Leung Lawrence Lai and Grace Wang Qiang (the “Appellants”) filed an appeal for the Subject Property, a residential property (Property Code 301) located at 7 Oakwood Place, in the City of Hamilton (the “City”) with the Assessment Review Board (“Board”) appealing the decision of Council pursuant to s. 356(6) of the of the Municipal Act, 2001, S.O. 2001, c. 25 (the “Municipal Act”) for the 2016, 2017, and 2018 taxation years.

2Although the apportioned taxes were paid in full, the Appellants are now raising the issue that the relative assessed values used to determine the apportioned taxes for the 2016, 2017, and 2018 taxation years were incorrect and that the correct relative assessed value for each year should be $335,000, based on Minutes of Settlement (“MOS”) agreed to by the Appellant and MPAC to a Request for Reconsideration (‘RFR”) for the 2019 returned assessment, dated March 10, 2019.

3The Municipality takes the position that it properly calculated the apportionment of taxes amongst the parcels for the 2016, 2017 and 2018 taxation years using the relative assessed values of the parcels pursuant to s. 356(2) of the Municipal Act as determined by the Municipal Property Assessment Corporation (“MPAC”). It also takes the position that there are no outstanding taxes to be apportioned pursuant to s. 356(1)(b) for the 2016, 2017 and 2018 taxation years because the taxes have been fully paid, therefore, the appeals should be dismissed.

4Section 356(1) of the Municipal Act states that:

Division into parcels. – Upon application by the treasurer of a local municipality or to the treasurer by an owner of land, the local municipality may,

a) (divide, for the purposes of this section, land which is assessed in one block into two or more parcels if each parcel is one that can be legally conveyed under the Planning Act;

b) apportion the unpaid taxes on the land among the parcels,

i. in proportion to their relative value at the time the assessment roll for the year in which the application is made was returned, or

ii. if council is of the opinion that an apportionment under subclause (i) is not appropriate due to special circumstances, any other manner; and

c) direct what proportion of any part payment of taxes on the land is to be applied to each of the parcels.

5Section 356(2) of the Municipal Act states that:

Statement – Upon the request of the local municipality, the assessment corporation shall provide a statement of the relative value of the parcels and the statement is conclusive.

Issues for the Hearing

6The issues to be determined are:

1. Whether the Board has the jurisdiction to hear the Appellants’ appeal under s. 365(1)(b) of the Municipal Act, if there are no unpaid taxes for the 2016, 2017, and 2018 taxation years for the Subject Property?

2. Whether the Board has any jurisdiction pursuant to s. 356(1)(b) of the Municipal Act to retroactively change the relative assessment values for the 2016, 2017, and 2018 taxation years?

Result

7For reasons stated below, the Board finds that it has no jurisdiction pursuant to s. 356(1)(b) of the Municipal Act to hear this appeal, because there are no unpaid taxes to be apportioned for the 2016, 2017, and 2018 taxation years; and has no jurisdiction pursuant to s. 356(1)(b) of the Municipal Act to change the relative assessment values provided by MPAC pursuant to s. 356(2) of the Municipal Act. Consequently, the Board dismisses the appeal for the 2016, 2017, and 2018 taxation years.

ANALYSIS

Issue 1: Whether the Board has the jurisdiction to hear the Appellants’ appeal under s. 365(1)(b) of the Municipal Act, if there are no unpaid taxes for the 2016, 2017, and 2018 taxation years for the Subject Property?

The Appellants’ Evidence

8The Appellants confirm that the apportioned taxes levied to the Subject Property (Roll 2518-010-051-01885) at 7 Oakwood Place were fully paid in January 2021 and that there are no outstanding taxes for the 2016, 2017 and 2018 taxation years.

9Based on the above evidence, the Appellants submits that there are no outstanding taxes for the 2016, 2017 and 2018 taxation years, because the taxes are fully paid.

The City’s Evidence

10Michael Kovacevic, Counsel for the City, called David Janaszek, Tax Assessment and Appeals Administrator, Corporate Services as a witness for the City. Mr. Janaszek testifies to the evidentiary report he prepared dated May 17, 2021.

11Mr. Janaszek testifies that in 2020, the City initiated the tax apportionment process for the Subject Property pursuant to s. 356(1) of the Municipal Act for the 2016, 2017 and 2018 taxation years. The apportionments as recommended for the Subject Property were approved on November 12, 2020 and the City completed the tax adjustments by November 20, 2020.

12The City refunded the property owner of 11 Oakwood Place for 2016, 2017 and 2018 property taxes associated with and that were apportioned to the Appellants’ property tax account. Notice of the City’s decision regarding the apportionment for the 2016, 2017, and 2018 was sent to the Appellants on November 24, 2020. Upon receipt of the notice, the Appellants paid in full the property taxes for 2016, 2017, and 2018 taxation years that were apportioned to their property. As such, there are no taxes outstanding taxes to be apportioned for the 2016, 2017 and 2018 taxation years.

13Based on the evidence, the City argues that the appeals for the 2016, 2017 and 2018 taxation years should be dismissed, as there are no outstanding taxes to be apportioned pursuant to s. 356(1)(b) of the Municipal Act because the apportioned taxes were paid in full. In support of this argument, the City cited Quarre Properties Inc., and Heartland (Seven) Limited v Richmond Hill (Town), [2016] ONARB 24420 at paragraphs 25 and 29.

14Paragraph 25 of the decision states that:

The language of s.356(1)(b) is clearly limited to parcels of land with unpaid taxes, though s.356(1)(c) contemplates that there could be some situations where taxes have been paid in part, and gives council the authority to apportion those partial payments as they see fit. The jurisdiction of this Board is explicitly limited to situations involving unpaid taxes; and

15Paragraph 29 of the decision states that:

The Board has no jurisdiction in situations where the taxes have been paid, and therefore, has no jurisdiction here. Due to this lack of jurisdiction, the Appellants’ appeal must be dismissed.

16The City also relies cited Yang v Toronto (City) [2019] CanLII 18815 (ONARB) at paragraph 16 which states:

The Board finds that the submissions and documents received clearly indicate that there were no unpaid taxes. The statute is clear that for the Board to consider an appeal under this section, there must be unpaid taxes.

Findings on Issue 1

17In reviewing the evidence of the parties the Board finds that both the Appellants and the City confirm that the apportioned taxes pursuant to s. 356(1)(b) of the Municipal Act for the 2016, 2017 and 2018 taxation years for the Subject Property have been fully paid. As there is no other factual evidence to the contrary presented at this hearing, the Board accepts the submissions of the Appellants and the City that all of the apportioned taxes for the 2016, 2017, and 2018 taxation years have been fully paid. The Board finds that s. 356(1)(b) of the Municipal Act provides no jurisdiction to the Board to hear this appeal because there are no unpaid taxes to be apportioned.

18This finding is supported by the above two cases cited by the City in Quarre Properties Inc., and Heartland (Seven) Limited v Richmond Hill (Town), [2016] ONARB 24420 at paragraphs 25 and 29; and in Yang v Toronto (City) [2019] CanLII 18815 (ONARB) at paragraph 16, which the Board accepts because these two cases clearly state that the Board has no jurisdiction to hear appeals pursuant to s. 356(1)(b) of the Municipal Act if there are no unpaid taxes.

Issue 2 - Whether the Board has any jurisdiction pursuant to s. 356(1)(b) of the Municipal Act to retroactively change the relative assessment values for the 2016, 2017 and 2018 taxation years?

Appellants’ Evidence

19The Appellants state that their only issue is that the relative assessed values used to calculate the apportioned taxes for the 2016, 2017 and 2018 taxation years were incorrect and should be $335,000 for each year, based on MOS agreed to by the Appellant and MPAC to a RFR for the 2019 returned assessment, dated March 10, 2019.

20The Appellants take the position that the relative assessed values determined by MPAC should be retroactively reduced to $335,000 for the 2016, 2017 and 2018 taxation years. In support of this argument, the Appellants present the following documents:

I. A letter dated October 27, 2020 from Shannon Stott, Financial Tax Analyst, City of Hamilton regarding Apportionment of 2016, 2017 and 2018 Land Taxes for 7 -11 Oakwood Place Originally Assessed Against Roll No. 2518-010-051-01900-0000;

II. Minutes of Settlement, 2019 Tax Year, Results of RFR, Property Assessment Notice, dated March 10, 2019; and

III. Property Assessment Notice for the 2021 property tax year, dated November 24, 2020.

21The Appellants state that the relative assessed values of $357,640 for the 2016 taxation year, $383,569 for the 2017 taxation year, and $409,498 for the 2018 taxation year stated in Shannon Stott’s letter dated October 27, 2020 for the Subject Property are higher than the reduced assessment value of $335,000 agreed to in the RFR signed MOS for the 2019 taxation year, dated March 10, 2019.

22Based on this argument, the Appellants are of the view that the relative assessed values provided by MPAC to the City as stated in Shannon Stott’s letter should be retroactively reduced to $335,000 for the 2016, 2017, and 2018 taxation years.

23The Appellants argue that the RFR signed MOS revised value of $335,000 for the 2019 taxation year was the same value stated in the Property Assessment Notice dated November 24, 2020 for the 2021 taxation year. Therefore, the Appellants submit it is only fair that this same value should be applied to the 2016, 2017 and 2018 taxation years.

The City’s Position

24The City takes the position that It calculated the apportionment of taxes properly among the parcels for the 2016, 2017 and 2018 taxation years, by using the relative assessed values of the parcels as per s. 356(2) of the Municipal Act, as determined by MPAC for these same three taxation years.

25The City argues that the revised assessed value of the Appellants’ property as reflected on the 2019 RFR MOS applies only to the 2019 taxation year and that the revised assessment cannot be used as the relative value pursuant to s. 356(2) of the Municipal Act for the 2016, 2017 and 2018 taxation years.

26The City further argues that the 2019 RFR MOS are not intended nor permitted to be applied retroactively nor used for any year other than 2019 taxation year for which it was filed.

27Regarding the Appellants’ Property Assessment Notice for the 2021 taxation year, dated November 24, 2020 which showed that the returned assessment is $335,000. The City again argues that this assessment value of $335,000 only applies to the 2021 taxation year and cannot be used as the relative assessed value under s. 356(2) of the Municipal Act to the 2016, 2017 and, 2018 taxation years.

28The City also submits that references to the 2012 and 2016 CVAs in the of the RFR signed MOS for the 2019 taxation year and the Property Assessment Notice for 2021 taxation year refer to the valuation years and should not be misunderstood for the taxation years.

29Based on the above submissions, the City argues that the Board has no jurisdiction under s. 356(1)(b) of the Municipal Act to retroactively change the relative assessment value provided by MPAC for the 2016, 2017 and 2018 taxation years. Therefore, this issue should be dismissed.

Findings on Issue 2

30In reviewing the above evidence, Board finds that the it has no jurisdiction pursuant to s. 356(1)(b) of the Municipal Act for determining relative assessment values because this jurisdiction is clearly given to the MPAC pursuant to s. 356(2) of the Municipal Act. Therefore, no weight is given to this issue by the Board.

CONCLUSION

31The Board finds that it has no jurisdiction pursuant to s. 356(1)(b) of the Municipal Act to hear this appeal because there are no unpaid taxes to be apportioned for the 2016, 2017, and 2018 taxation years; and the Board has no jurisdiction pursuant to s. 356(1)(b) of the Municipal Act to change the relative assessment values provided by MPAC pursuant to s.356(2) of the Municipal Act

32Consequently, the Board dismisses the appeal for the 2016, 2017, and 2018 taxation years.

ORDER

33The Board orders that the appeal for the 2016, 2017 and 2018 taxation years be dismissed.