Tribunals Ontario

Assessment Review Board

ISSUE DATE: July 28, 2021 FILE NO.: RD 21-006

Assessed Person(s): D.N. Appellant(s): D.N. Respondent(s): City of Mississauga Property Location(s): Address withheld Municipality(ies): City of Mississauga Roll Number(s): Roll number withheld Appeal Number(s): 341963 Taxation Year(s): 2019

Legislative Authority: Rules 101-103 of the Assessment Review Board’s Rules of Practice and Procedure

Parties	Representative
D.N.	Self-represented
City of Mississauga	Submissions not required

REQUEST FOR: A review of the Board’s Decision WR 166792 issued on October 30, 2020 HEARD: In writing ADJUDICATOR: Jean-Paul Pilon, Member

DECISION

OVERVIEW

1D.N. (the “Requestor”) requests a review of the Assessment Review Board’s (“Board”) Decision WR 166792 dated October 30, 2020 (the “Decision”).

Background

2The Requestor filed an application with the City of Mississauga (the “Municipality”) for his 2019 property taxes to be reduced, cancelled or refunded because he was unable to pay those taxes due to sickness or extreme poverty pursuant to section 357(1)(d.1) of the Municipal Act, 2001, S.O. 2001, c. 25. The Board dismissed the Requestor’s application in the Decision.

Issues for the Review

3The Requestor gave the three reasons that the Decision should be reviewed without selecting any of the grounds for review on the pre-printed form:

1. That the Board erred at paragraph 13 of the Decision where it determined that a balance of $2,622 in the Requestor’s chequing account at the end of 2019 was “clear evidence that the (Requestor) was able to pay all of his property taxes in 2019, with a small balance left over.” In the request for review, the Requestor wrote that this money was for unspecified expenses and a mortgage payment that would be withdrawn at the beginning of January, 2020;
2. That the reason the Requestor had, in his words, “sufficient funds,” presumably referring to the fact that the taxes owing in 2019 were paid prior to the hearing, was because he received a loan from his son which would have to be paid back on the sale of his home; and
3. That because 12 years ago, the Requestor and his spouse had to close their hairdressing business that had been open for 35 years as a result of a recession, business competition and health issues. It went on to say verbatim: “to help to keep our home and still working part time when can to pay our bills and property tax (sic)”.

Result

4This request for review is dismissed.

ANALYSIS

The Rules

5Rule 101(b) of the Board’s Rules of Practice and Procedure effective April 1, 2021 (the “Rules”) provides that “a party may request a review of any final decision or order of the Board by filing a request for review in writing no more than 30 days after the decision was issued, which shall include…the reasons for the request, addressing the factors set out in Rule 102.”

6Use of the term “shall” in Rule 101 means that providing the factors set out in Rule 102 is a mandatory requirement. Those factors or grounds are set out in the pre-printed check boxes on the request for review form which the Requestor did not complete.

7Rule 102 provides that:

102. A request for review will not be granted unless the Board is satisfied that:

(a) the Board acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

(b) the Board made a significant error of law or fact such that the Board would likely have reached a different decision;

(c) the Board heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or

(d) there is new evidence that could not have reasonably been obtained earlier and have affected the result.

8In view of Rule 101, the fact that the Requestor did not specify any of these factors or grounds in the request for review would have been reason enough to dismiss the request. However, it is clear that the request for review raises none of the issues set out in Rules 102(a), (c) and (d) relating to jurisdiction, natural justice, procedural fairness, false evidence, misleading evidence or new evidence that could not have been reasonably obtained earlier.

9As a result, to be determined in this request for review is whether any of these three reasons amount to significant errors of law or fact such that the Board would likely have reached a different decision pursuant to Rule 102(b).

Issue 1 – Outstanding Balance

10The request for review does not state that the Board was in error in its determination in paragraph 13 of the Decision that there was a balance of $2,622 in the Requestor’s chequing account at the end of 2019. It only says that those funds were accounted for because they were to be withdrawn at the beginning of 2020 for a mortgage payment and unspecified expenses.

11This determination is not an error because it is not disputed that those funds were in that account at the end of 2019, when the taxes at issue were attributable to the same taxation year.

12Beyond that sentence, paragraph 13 of the Decision went on to say that: “this is clear evidence that the (Requestor) was able to pay all of his property taxes in 2019, with a small balance left over.”

13The Board finds that this is an error because it was not a case where the taxes for 2019 were going to be paid from the chequing account balance of $2,622, leaving a “small balance left over.” As noted above, the taxes at issue had already been paid by the time the application was heard, therefore the balance outstanding of $2,622 could hardly have been characterized as a “small balance.”

14In any event, even if this determination in the Decision was a significant error of fact as that term is used in Rule 102(b), the Board would not likely have reached a different decision but for that error.

Finding in Issue 1

15This is not a significant error of fact such that the Board would likely have reached a different decision.

Issue 2 – Funds from the Requestor’s Son

16The Requestor’s second reason in the request for review is that he had sufficient funds to pay the taxes because he borrowed money from his son that would have to be paid back on the sale of the property against which the taxes in question were levied.

17This source of funds was noted at paragraph 6 of the Decision where it said that the Requestor received $1,000 a month from his son. The Decision did not say that these amounts would have to be paid back, nor did it make reference to any promissory note even though one was filed prior to the hearing.

18It is assumed that this significant error alleged by the Requestor in the request for review is that the Board failed to consider the promissory note and that these funds were in the form of a loan to the Requestor.

19The first question to be determined by the Board in these applications is whether an applicant was unable to pay taxes for the taxation year in question. To make that determination, the Board considers evidence of funds available to an applicant to satisfy that obligation, which may include funds that are borrowed. In general, it should make no difference whether those funds are gifted or borrowed because they are funds that can be used to satisfy an applicant’s tax obligation. This is because: “individuals must demonstrate that after having called upon every resource available to them and having explored every reasonable opportunity to mitigate their financial stresses, they have no means of being able to pay some or all of their property taxes (emphasis added).” (S.C. v. Whitby (Town), [2016] O.A.R.B.D. No 55 at para. 37)

20In this case, the Requestor might have been left with the impression that it was determined in the Decision that these funds were in the form of a gift rather than a loan. Neither circumstance, however, would have made any difference to the Board’s ultimate decision.

21This is not a significant error of fact that would have affected the result pursuant to Rule 102(b).

Finding on Issue 2

22There is no error in this part of the Decision.

Issue 3 – Additional Submissions

23As noted above, the request for review contains general information regarding the business previously owned by the Requestor and his spouse, their earlier bankruptcy, health issues and employment.

24None of this information was included the Decision and the request for review does not specify how any of it amounts to a significant error in the Decision. If the submission in the request for review was intended to say that this information was before the Member and not considered, then the request for review would have had to have said first, that it was before the Board at the hearing, and second, that the Board’s failure to consider it was a significant error of fact or law that would have affected the decision. The request for review did neither. If, on the other hand, the Requestor provided this additional information to supplement the information before the Board, the Board’s response is that a request for review is not an opportunity to present evidence that could have been presented at the hearing.

25In any event, it would have been unlikely that circumstances involving the Requestor’s business interests 12 years prior to the taxation year in question would have been of any relevance to the issue before the Board at the hearing. There was also no evidence submitted prior to the hearing or in the original application to the Municipality to indicate that the Requestor was alleging that he or his spouse (who was unmentioned in the application to the Municipality) were unable to pay taxes due to sickness.

26There is no serious error in this part of the Decision. In fact, the Requestor’s indication in the request for review that the Requestor and/or his spouse are “still working part time” is a further indication that the Decision was correct in dismissing the Requestor’s application. This is because that income, which was disclosed only on the Municipality’s form of financial statement and not in any of the other documentation submitted to the Board, would have further supported the conclusion that the Requestor was not unable to pay the taxes at issue.

Finding on Issue 3

27The submission of this additional information in the request for review is not indicative of any error in the Decision.

CONCLUSION

28The Board is not satisfied that the Decision contains any significant error of law or fact such that the Board would likely have reached a different decision pursuant to Rule 102(b).

ORDER

29The Board orders that this request for review is dismissed.