Offset Design & Build Inc. v. City of Toronto, 2021 CanLII 2449

Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

January 15, 2021

FILE NO.:

WR 167692

Assessed Person(s):

Eric Hopcroft

Appellant(s):

Offset Design & Build Inc., Johnson Chou

Respondent(s):

City of Toronto

Property Location(s):

147 Hanson Street

Municipality(ies):

City of Toronto

Roll Number(s):

1904-094-270-02100-0000

Appeal Number(s):

3393771

Taxation Year(s):

2018

Hearing Event No.:

736975

Legislative Authority:

Section 323(7) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A

APPEARANCES:

Parties

Counsel*/Representative

Offset Design & Build Inc.

Costa Abinajem

City of Toronto

Angus MacKay*

HEARD:

December 17, 2020 by telephone conference call

ADJUDICATOR(S):

Subuola Awoleri, Member

DECISION

OVERVIEW

1Costa Abinajem, on behalf of Offset Design & Build Inc. (the “Appellant”) has appealed the City of Toronto (“City”) Council’s decision regarding the application filed under section 323(1)(d)(i) and (ii) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A (the “Act”) for the refund of the 2018 property taxes due to fire damages sustained on 147 Hanson Street (the “Subject Property”).

2The City Council’s decision granted the Appellant’s application and cancelled the Appellant’s property taxes in the amount of $51.77 for 342 days.

3The Appellant appealed the decision of the City Council to the Assessment Review Board (the “Board”) under section 323(7) of the Act, on the basis that the refund was too low.

Issue for the Hearing

4The only issue to be determined is: should there be an increase in the quantum of tax refunds to the Appellant for the 2018 taxation year?

Result

5For the reasons that follow, the Board finds that there is no evidence to support a conclusion that the Appellant is entitled to an increase in tax refunds for the Subject Property for the 2018 taxation year. Therefore, the Board denies this appeal for the Subject Property for the 2018 taxation year, and the City Council’s decision remains in force.

Preliminary Matter

6At the commencement of the hearing, Angus MacKay, counsel representing the City, requested that the Board dismiss the Appellant’s appeal. The City argued that the Appellant has not provided any evidence to substantiate its claim contrary to Rule 38(4) of the Board’s Rules of Practice and Procedure (the “Rules”). Furthermore, the City argued that due to the Appellant’s failure to provide any evidence, the City could not serve and file any response and that the City acted out of an abundance of caution when it filed its disclosure on October 13, 2020.

7The Appellant objected to the City’s request to dismiss the appeal, since the City advised the Board on August 12, 2020, that it will not be participating in the hearing and takes no position in the appeal. Therefore, the Appellant submitted that the City should not be allowed to participate at the hearing and that the City’s disclosure filed on October 13, 2020 should be inadmissible, since it was filed outside the time lines provided by the Board in the Schedule of Events (“SOE”).

8On August 7, 2020, the Appellant filed an Expediated Board Directed Form (“EBDF”) requesting that the Board makes an order to prevent the Municipal Property Assessment Corporation (“MPAC”) and the City from filing any disclosure at the hearing due to their failure to file responding materials by July 20, 2020, the deadline prescribed in the SOE. The Appellant further requested that the Board cancel the steps in the SOE and schedule the appeal directly to a hearing.

9The SOE provides a detailed timely process for an appeal from its commencement date to the date of the hearing. It sets out what the parties need to do to perfect the appeals prior to the hearing date. Rule 34, along with Schedules A and B to the Rules, provide the SOE for the summary and general streams. This appeal is in the summary stream, and accordingly the SOE is set out in Schedule B. The commencement date assigned by the Board for this appeal was July 6, 2020, and the City was to provide a response and supporting documentation by July 20, 2020, which it failed to do. The Board notes that MPAC is not a party to this appeal and is therefore not required to serve and file any response or supporting documentation.

10On August 12, 2020, the City advised the Board by e-mail that it would not be participating in the hearing and would take no position in the appeal.

11On August 14, 2020, the Board made a ruling according to the EBDF filed by the Appellant, advising the parties that Rules 48 and 49 of the Board’s Rules addressed the Appellant’s concerns. These Rules prevent parties from filing documents or raising new issues at the hearing except in exceptional circumstances. The Board further ordered that:

The dates in the Schedule of Events will remain in place. This means that the Appellant must file a written request with the Board by September 29, 2020 requesting that this appeal be scheduled to a ½ day hearing. The Appellant must then file with the Board, by October 13, 2020 all documents and any written submissions which the Appellant has served on the City of Toronto and on which the Appellant will rely at the hearing.

12Accordingly, Mr. MacKay advised the Board at the hearing, that based on the City’s e-mail on August 12, 2020, the City takes no position in the appeal and that the disclosure filed with the Board on October 13, 2020 contrary to the SOE was not in evidence. Mr. MacKay further advised the Board that MPAC is not a party to the appeal, that MPAC’s representative present at the hearing was a witness for the City, and that since the City will not be participating in the hearing, the testimony of the witness will not be necessary.

13The Board ruled that the City would not participate at the hearing and that the City’s disclosure filed with the Board on October 13, 2020, which includes MPAC’s response to the appeal is inadmissible, due to it being filed contrary to the SOE.

ANALYSIS

14The Board finds that the Appellant has not complied with Rule 38(4) of the Board’s Rules and has not provided the Board with any supporting documentation to assist the Board in making a determination on whether there should be an increase in the amount of tax refunds.

15Rule 38(4) provides that:

Statements of issues and responses must contain:

If the issue is the cancellation, reduction or refund of taxes pursuant to the Board’s authority under the Municipal Act, Municipal Act, 2001, City of Toronto Act, 2006, or Provincial Land Tax Act, 2006:

(a) the amount of taxes that have been paid or are owing;

(b) the proposed amount of the refund or reduction;

(c) a full statement of the grounds to support the cancellation, reduction or refund of taxes; and

(d) a list of all facts, legal grounds and documents that the party relies on in support of its position.

16The Appellant did not furnish the Board with any document supporting its position, contrary to Rule 38(4)(d). The Appellant only filed with the Board a 2-paged typed synopsis of its position.

17Mr. Abinajem, who was representing the Appellant, testified that the Subject Property was purchased as a house damaged by fire. He added that the following amounts was spent on the Subject Property: $25,000 to demolish the damaged structure; $2,000 to present a new plan to the City’s committee of adjustment, which was not approved; $9,000 to drain water from the land; and an undisclosed amount was spent to “shore” the pavement of the Subject Property and the neighbour’s property in accordance with the City’s Building Code.

18Mr. Abinajem submitted that he believes that the value of the Subject Property is zero. He submits that he made this conclusion based on his research that no purchaser will buy a vacant land with a hole due to excavation. He added that he searched for comparable properties within the vicinity and there was no vacant land with a hole in it for sale. Therefore, he concluded that the City should refund all the property taxes paid by the Appellant in 2018 in the amount of approximately $2,512.71, including $495 paid as interest and penalty.

19The Appellant did not provide the Board with a cost to cure. Typically, in these appeals, appellants present as evidence a report from a third party on the cost to restore the damaged property. In this appeal, the Appellant did not present any evidence on the cost it incurred in the process of restoring the Subject Property. Neither did the Appellant provide any receipt for the amount it claims was spent. The Appellant did not provide any evidence to support his submission that the Subject Property has zero value. Mr. Abinajem acknowledged during the hearing that he is not an appraiser.

20More importantly, if the Appellant believes that the Subject Property was incorrectly assessed by MPAC, as he submitted that it has zero value, the Appellant can file a section 40 appeal with the Board under the Assessment Act.

21The Appellant requested the Board to cancel the amount it paid as interest and penalties in the amount of $495. The Board’s statutory jurisdiction does not extend to interest and penalties as section 323(1) of the Act only provides for cancellation, reduction or refund of all or part of “taxes levied on land”.

22Mr. Abinajem advised the Board that this is the first time he is appearing as a representative before the Board. This does not exclude Mr. Abinajem from complying with the Board’s Rules. All representatives appearing before the Board should be conversant with the Rules.

23Pursuant to Rule 38 (4) (d), the Appellant has not provided the Board with any supporting documentation to make a determination on whether it is entitled to an increase in refunds of property tax. The Board can only make decisions based on evidence.

CONCLUSION

24The Board finds that the Appellant is not entitled to an increase in the amount of refunds, as it did not present any additional evidence to show justification for this increase.

25The Board dismisses the Appellant’s appeal and the City Council’s decision remains in force for the 2018 taxation year.