Brampton Brick Limited v. City of Brampton, 2021 CanLII 6251

Tribunals Ontario / Tribunaux décisionnels Ontario

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

ISSUE DATE: January 28, 2021

FILE NO.: ID 167595

Assessed Person(s): Brampton Brick Limited

Appellant(s): Brampton Brick Limited

Respondent(s): City of Brampton

Property Location(s): 225 Wanless Drive

Municipality(ies): City of Brampton

Roll Number(s): 2110-060-001-08400-0000

Appeal Number(s): 3209715, 3181756 and 3265870

Taxation Year(s): 2015 and 2016

Hearing Event No.: 736276

Legislative Authority: Sections 357 and 364 of the Municipal Act, 2001, S.O. 2001, c. 25

APPEARANCES:

Parties	Representative
Brampton Brick Limited	Peter Tam
City of Brampton	Kumar Sapkota

HEARD: December 10, 2020 by video conference

ADJUDICATOR(S): Carly Stringer, Member

INTERIM DECISION

OVERVIEW

1Brampton Brick Limited (the “Appellant”) has brought appeals pursuant to s. 357 and 364 of the Municipal Act relating to the 2015 taxation year, and pursuant to s. 364 of the Municipal Act relating to the 2016 taxation year, in regards to its property at 225 Wanless Drive in the City of Brampton (the “Subject Property”).

2There are two questions to be answered in this proceeding:

a. Is the Appellant entitled to relief pursuant to s. 357(1)(g) of the Municipal Act for the 2015 taxation year?

b. Is the Appellant entitled to relief pursuant to s. 364 of the Municipal Act for the 2015 and 2016 taxation years and, if so, what is the amount of rebate owing?

Description of Subject Property

3The Appellant is the owner and occupant of the Subject Property, which is an industrial facility that manufactures bricks.

Background

2015 Applications

4The Appellant filed a tax rebate application for the Subject Property with the City of Brampton under s. 357(1)(g) of the Municipal Act for the 2015 taxation year (“First Application”). Section 357(1)(g) provides that a municipality may cancel, reduce, or refund all or part of taxes levied on land for the year if repairs or renovations prevented the normal use of the land for a period of at least three (3) months during the year.

5The Appellant also filed an application for the Subject Property with the City of Brampton under s. 364 of the Municipal Act for the 2015 taxation year (“Second Application”) (Collectively, the First Application and the Second Application are the “2015 Applications”). Section 364(1) provides for vacant unit rebates where applicants who follow a prescribed process can recover a portion of their municipal property tax for a given year when a commercial or industrial property is wholly or partially vacant for a period of at least 90 days, among other criteria.

6The City of Brampton did not make decisions respecting the 2015 Applications within the timelines prescribed by legislation. Therefore, pursuant to s. 357(8) and 364(15) of the Municipal Act, the Appellant brought complaints before the Assessment Review Board (“Board”) relating to the 2015 Applications.

2016 Application

7The Appellant subsequently filed a vacant unit rebate application for the Subject Property under s. 364 of the Municipal Act for the 2016 taxation year (“2016 Application”). The City of Brampton denied the 2016 Application on the basis that “the portion of the building that was not used was not clearly delineated.”

8Pursuant to s. 364(14) of the Municipal Act, the Appellant brought an appeal before this Board relating to the 2016 Application.

Issues for the Hearing

9There are two issues to be decided in this proceeding:

a. Is the Appellant entitled to relief pursuant to s. 357(1)(g) of the Municipal Act for the 2015 taxation year?

b. Is the Appellant entitled to relief pursuant to s. 364 of the Municipal Act for the 2015 and 2016 taxation years and, if so, what is the amount of rebate owing?

Result

10For the reasons that follow, the Board finds as follows:

a. The Appellant is not entitled to relief pursuant to s. 357 of the Municipal Act for the 2015 taxation year; and

b. The Appellant is entitled to relief pursuant to s. 364 of the Municipal Act for the 2015 and 2016 taxation years.

ANALYSIS

Issue 1 – Is the Appellant is entitled to relief pursuant to s. 357(1)(g) of the Municipal Act for the 2015 taxation year?

11In accordance with s. 357(8) of the Municipal Act, the Board shall treat this as a new hearing for the First Application.

12As noted above, s. 357(1)(g) of the Municipal Act provides that a municipality may cancel, reduce, or refund all or part of taxes levied on land for the year if repairs or renovations to the land prevented the normal use of the land for a period of at least three (3) months during the year.

13The Appellant sought s. 357 relief in relation to two portions of the Subject Property: first, relating to Tunnel Kiln #1, a 10,732 square foot space that was shut down from January 1, 2015 to June 19, 2015; and second, in relation to Tunnel Kiln #2, a 10,445 square foot space that was shut down from September 1, 2015 to December 31, 2015. The Appellant’s application to the City of Brampton stated that there was renovation and repair taking place with the kilns associated components during the shut-down periods.

14Ziggy Pabla provided evidence on behalf of the Appellant. He clarified that each kiln would take approximately one (1) week to cool down after use, then several days would be taken to conduct repairs to the kilns, including refilling expansion joints. Then, it would take approximately one (1) week for each kiln to heat up to a level appropriate for use. Overall, it would take just under three (3) weeks for each kiln to undergo repairs.

15Mr. Pabla testified that the kilns were shut down for longer than three (3) weeks in 2015 due to a downturn in the economy that did not require the company to be operating at full production. The City did not dispute this evidence.

16I am satisfied based on Mr. Pabla’s evidence that repairs were being conducted on Tunnel Kilns #1 and #2 during the 2015 year, preventing their normal use for approximately three (3) weeks each. However, the remainder of the time each kiln was shut down in 2015 was due to economic factors, not as a result of repairs or renovations being conducted. Section 357(1)(g) requires that repairs and renovations, not economic factors, prevent normal use for at least three (3) months during the year. Therefore, neither Tunnel Kiln #1 nor Tunnel Kiln #2 satisfy the requirements to trigger an entitlement under s. 357(1)(g).

Findings on Issue 1

17The Appellant is not entitled to relief pursuant to s. 357(1)(g) of the Municipal Act for the 2015 taxation year.

Issue 2 - Is the Appellant entitled to relief pursuant to s. 364 of the Municipal Act for the 2015 and 2016 taxation years and, if so, what is the amount of rebate owing?

18In accordance with s. 364(16) of the Municipal Act, the Board shall determine the amount of any rebate owing to an eligible property.

Is the Subject Property eligible for relief?

19The Appellant sought relief relating to five (5) prescribed areas of its property:

a. Tunnel Kiln #1, a 10,732 square foot space allegedly vacant from January 1, 2015 to June 19, 2015;

b. Holding Room #1, a 21,584 square foot space allegedly vacant from January 1, 2015 to June 19, 2015;

c. Tunnel Kiln #2, a 10,445 square foot space allegedly vacant from September 1, 2015 to December 31, 2015, and from January 1, 2016 to August 15, 2016;

d. Holding Room #2, a 21,420 square foot space allegedly vacant from September 1, 2015 to December 31, 2015, and from January 1, 2016 to August 15, 2016; and

e. Track #8, a 12,502 square foot space allegedly vacant from January 1, 2015 to December 31, 2015, and from January 1, 2016 to August 15, 2016.

20The Appellant argues it is entitled to a rebate because it satisfied the criteria for an “eligible property” per s. 1(3) of Ontario Regulation (“O. Reg.”) 325/01, as follows:

a. Each unit was vacant for a period of at least 90 consecutive days;

b. Throughout the period of time, the portion of the building was not used and was clearly delineated or separated by physical barriers from the portion of the building that was used.

c. The application did not relate to vacant space as a result of seasonal business;

d. In each case, the vacant space was not leased to a tenant who was in possession of the space; and

e. The vacant space is not included in a subclass for vacant land under subsection 8(1) of the Assessment Act.

21In addition to viva voce evidence from Mr. Pabla regarding use of the space in 2015 and 2016, the Appellant produced an affidavit sworn by J. Brad Duke on February 10, 2016, supporting the Appellant’s Second Application; copies of the Appellant’s “Application for Rebate of Property Taxes” submitted to the City of Brampton for the 2015 and 2016 taxation years; and a number of photos dated February 25, 2015 and February 7, 2017. These photos showed the kilns, holding rooms and the track at issue in these rebate applications, clearly separated from the portion of the building in use by seemingly thick brick walls and doors. These photos were not provided to the City of Brampton in support of the applications, however the City of Brampton did not oppose my consideration of the photos in rendering my decision.

22The City of Brampton provided little to no direct evidence, other than conjecture respecting why it would have made the determination of “not sufficiently delineated” back in 2017.

23In light of the totality of the evidence before me, particularly Mr. Duke’s affidavit, Mr. Pabla’s testimony, the applications, and the photos, I am satisfied that the portions of the property in question are “eligible property” that qualify for a vacant unit rebate.

What amount of relief is owing?

24The Municipal Act provides that the Board shall determine the amount for a refund of taxes under s. 364. I find that the Appellant is entitled to a vacant unit rebate as follows:

a. Tunnel Kiln #1, being 10,732 square feet of space vacant from January 1, 2015 to June 19, 2015;

b. Holding Room #1, a 21,584 square foot space vacant from January 1, 2015 to June 19, 2015;

c. Tunnel Kiln #2, being 10,445 square feet vacant from September 1, 2015 and December 31, 2015, and from January 1, 2016 to August 15, 2016;

d. Holding Room #2, a 21,420 square foot space vacant from September 1, 2015 to December 31, 2015, and from January 1, 2016 to August 15, 2016; and

e. Track #8, a 12,502 square foot space vacant from January 1, 2015 to December 31, 2015, and from January 1, 2016 to August 15, 2016.

25The parties did not address the quantum of rebate, and there is no evidence on this issue. Therefore, I cannot make a determination respecting the amount of relief owing.

CONCLUSION

26For these reasons:

a. the appeal pursuant to s. 357 of the Municipal Act for the 2015 taxation year is denied;

b. the property outlined at paragraph 24 herein is eligible for a vacant unit rebate in accordance with s. 364 of the Municipal Act for the 2015 and 2016 taxation years; and

c. the Board cannot make a determination respecting the amount of relief owing pursuant to s. 364 of the Municipal Act for the 2015 and 2016 taxation years.

ORDER

27The Board dismisses appeal number 3209715.

28The Board orders that the property outlined at paragraph 24 herein is eligible for a vacant unit rebate in accordance with s. 364 of the Municipal Act for the 2015 and 2016 taxation years.

29The parties shall confer regarding the amount of an appropriate rebate, given the determination at paragraph 24 herein. The outcome of the parties’ discussions shall be conveyed to the Board in writing within 45 days of the release of this Interim Decision. If the parties are in agreement regarding the amount, I will issue a final Decision accordingly.

30If the parties are unable to reach an agreement regarding the amount, they are to advise the Board in writing within 45 days of the release of this Interim Decision. The Board will then convene a hearing in writing on the issue of quantum. The parties will be further advised respecting the timing of filing materials.

31I am seized.