Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

October 25, 2022

FILE NO.:

RD 22-026

Assessed Person:

E.G.L.

Appellant:

E.G.L.

Respondent:

City of Toronto

Property Location:

Address Withheld

Municipality:

City of Toronto

Roll Number:

Roll Number Withheld

Appeal Numbers:

3484163 and 3484164

Taxation Years:

2015 and 2017

Legislative Authority:

Section 21.2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 and Rules 101-103 of the Assessment Review Board’s Rules of Practice and Procedure

Parties

Representative

E.G.L.

Self-represented

City of Toronto

Submissions not required

REQUEST FOR:

A review of the Board’s Decision WR 179995 issued on August 9, 2022

HEARD:

In writing

ADJUDICATOR:

Jean-Paul Pilon, Member

DECISION

OVERVIEW

1E.G.L., (the “Requestor”) requested a review of the Assessment Review Board’s (the “Board”) decision E.G.L. v. Toronto (City), 2022 CanLII 73964 issued on August 9, 2022 (the “Decision”).

2The Requestor filed applications with the City of Toronto (the “City”) pursuant to section 323(1) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sch. A. (the “Act”) to have their property taxes for the 2015 and 2017 taxation years cancelled, reduced or refunded because they were unable to pay due to sickness or extreme poverty.

3The City passed a by-law delegating its authority to determine such applications to the Board.

4The hearing to consider the Requestor’s applications was held in writing at the Requestor’s request.

Background and Procedural History

The Decision Issued August 9, 2022

5The Board dismissed the Requestor’s applications in the Decision.

6The Decision began by setting out the two-step test that the Board applies when considering such applications. The first step involves determining whether the applicant was unable to pay taxes in the year(s) at issue. If there was an inability to pay, the second step involves determining whether that inability to pay was because of sickness or extreme poverty. If, however, the Board’s determination on the first question is that the applicant was not unable to pay the taxes at issue, then the application would be dismissed.

7In the Decision, the Board determined that the Requestor had an income of $1,100 per month but that there was insufficient evidence addressing the Requestor’s expenses, assets and liabilities for the two taxation years at issue.

8The Decision also found that the Superior Court had approved payment of the Requestor’s property taxes as part of a settlement, and relied on a recent Board decision, C.G. v London (City), 2022 CanLII 12798, dismissing an application for a refund where the applicant was able to pay his taxes the year after they were due.

9The Board dismissed the Requestor’s application in the first step of its analysis because there was insufficient evidence to find that the Requestor was unable to pay the taxes at issue.

10As a result, the Board determined in the Decision that it did not need to consider the Requestor’s medical evidence, which would have been the second step of the analysis.

The Interim Decision Issued April 5, 2019

11The Decision was preceded by an interim decision of the Board, Toronto (City) v E. L., 2019 CanLII 29140 (the “Interim Decision”).

12The Interim Decision was issued after a number of adjournments had been requested by the Requestor and granted by the Board.

13In the Interim Decision, the Board again adjourned the hearing of these applications, but this time sine die, or indefinitely, to be rescheduled at the Requestor’s request in the format of her choice.

14The Board also made a number of determinations with reasons, including that there were only applications for the 2015 and 2017 taxation years before the Board and that the Requestor had not explained the discrimination or harassment allegations they had raised pursuant to the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”).

Issues for the Review

15The Requestor filed two documents in support of the request for review: one which was dated August 15, 2022, and an affidavit dated September 7, 2022. They were similar to other documents placed before the Board at the hearing by the Requestor in that they were difficult to follow and understand. However, the Board has carefully reviewed the material submitted and has made every effort to understand the arguments being made. From the documents filed in this request, the Board has determined that the Requestor has raised the seven issues for review set out below.

16The Requestor did not say which of the grounds for review in Rule 102 of the Board’s Rules of Practice and Procedure (the “Rules”) applied to each issue, having ticked every box on the request for review form. Rule 102 provides that:

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.

17Rules 102(c) or (d), regarding false or misleading evidence or evidence obtained late, did not apply to any of the issues raised by the Requestor in the request for review. As a result, the list of issues below from the request for review indicates which of Rules 102(a) and (b) would have applied within the context of each Rule.

18The issues set out in the Requestor’s two documents were as follows:

1. Did the Board make a significant error of law by failing to consider applications other than for the 2015 and 2017 taxation years?

2. Did the Board make a significant error of law or fact or violate the rules of natural justice and fairness by failing to consider the Requestor’s medical evidence?

3. Did the Board make a significant error of law or fact or violate the rules of natural justice and fairness pursuant to a number of statutes listed in the request for review?

4. Did the Board violate the rules of natural justice or fairness by not providing the Requestor a fair hearing?

5. Did the Board violate the rules of natural justice or fairness at a hearing in 2017?

6. Did the Board violate the rules of natural justice and fairness by failing to consider emails that the Requestor said had been submitted?

7. Does the Decision contain a significant error of fact in its determination that taxes were paid up to and including the 2019 taxation year?

Result

19The Board did not violate the rules of natural justice or procedural fairness, and did not make any significant error of law or fact such that the Board would have reached a different decision. The request for review is therefore denied.

ANALYSIS

Issue 1 - Did the Board make a significant error of law by failing to consider applications other than for the 2015 and 2017 taxation years?

20The Requestor wrote in the request for review that the Board failed to consider their applications for years other than 2015 and 2017.

21The Board can only adjudicate those applications submitted to the City prior to the deadline set out in section 323(3) of the Act, “before the last day of February of the year following the year in respect of which the application is made.” In this instance, the only applications received by the City and then forwarded to the Board were for the 2015 and 2017 taxation years. There were no other applications before the Board to be adjudicated.

22Moreover, the Requestor did not provide copies of any other applications that had been filed in either the original hearing materials or with the request for review, nor did they say when any additional applications had been submitted. Nothing in the request for review suggested that there was any error in para. 8 of the Interim Decision which said that the Requestor “made a timely application for the 2015 and 2017 taxation year (sic) but has missed that filing deadline for all other taxation years.”

Finding on Issue 1

23The only applications before the Board were for the 2015 and 2017 taxation years, therefore there was no error in the Board considering only those applications.

Issue 2 – Did the Board make a significant error of law or fact or violate the rules of natural justice and fairness by failing to consider the Requestor’s medical evidence?

24Section 323(1)(e) of the Act provides, in part, that “the City may cancel, reduce or refund all of part of the taxes levied on land in the year in which the application is made if… the applicant is unable to pay taxes because of sickness or extreme poverty.”

25The original Decision cited the Board’s review decision, F.E.J.B. v Mississauga (City), 2019 CanLII 59502 (“F.E.J.B.”), which guided the Board’s interpretation of this section of the Act.

26At para 23 of F.E.J.B., the then Associate Chair of the Board wrote:

...If the Board finds there is an ability to pay, the application fails and there is no need to consider the second branch of analysis. However, if the applicant is able to demonstrate an inability to pay part or all of their property taxes, the Board must then determine whether this inability to pay was due to extreme poverty or sickness.

27In this case, the Decision did not specifically find that the Requestor was able to pay the taxes at issue. Instead, quoting another Board decision M. M. U. v Toronto (City), 2015 CanLII 46826, it determined at para. 21 that “there is not enough reliable documentary evidence to confirm the (Requestor’s) information and otherwise satisfy the Board that ‘every reasonable effort has been made to pay all or part of the taxes’ for the 2015 and 2017 taxation years, such that the (Requestor) was unable to pay or part of their property taxes for these years.”

28In addition, the Board made reference in para. 24 of the Decision to the Court-approved settlement which determined that some of it should go to pay property taxes and found that it supported “a finding that the Applicant was able to pay”.

29In other words, the Requestor did not prove on a balance of probabilities that they were unable to pay taxes for the 2015 and 2017 taxation years. As a result, and applying F.E.J.B., the Board was not then required to consider the medical evidence filed where the Requestor did not meet the first part of the two-part test.

Finding on Issue 2

30There was no error in the Board’s not considering the Requestor’s medical evidence.

Issue 3 – Did the Board make a significant error of law or fact or violate the rules of natural justice and fairness pursuant to a number of statutes listed in the request for review?

31The request for review stated that the Board violated a number of statutes including the Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11, the Code and the Canadian Charter of Rights and Freedoms. Reference was also made in the Requestor’s request for review to an application they stated was filed with the Human Rights Tribunal of Ontario after the issuance of the Interim Decision without explaining what it was about or its status. With respect to all of the statutes cited, the Requestor did not provide any explanation as to how the Board has acted contrary to any of their provisions.

32In addition, the Board notes that it accommodated the Requestor’s multiple requests for adjournments and made the unusual decision that the application could be returnable at the time and format of the Requestor’s choosing. While it does appear that the Board scheduled the hearing without input from the Requestor, which resulted in the Decision, the Requestor did not request a further adjournment in their subsequent correspondence with the Board. In fact, on April 4, 2022, the Requestor requested in writing that the hearing be scheduled as a written hearing, which request was granted.

Finding on Issue 3

33The Requestor has not shown that the Board made any significant error of law or fact or violated the rules of natural justice and fairness pursuant to a number of statutes listed in the request for review.

Issue 4 – Did the Board violate the rules of natural justice or fairness by not providing the Requestor a fair hearing?

34The Requestor suggested in several places in the request for review material that a fair hearing was not provided by the Board without any explanation as to how or why.

35Rule 101(b) provides that “a party may request a review of any final decision or order of the Board by filing a request 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.”

36As noted above, the Requestor did not refer to any of the factors or grounds in Rule 102 as was required. However, the Board was able to determine which grounds might have applied to each issue in this instance. On the other hand, the Board cannot guess the reasons for a request for review in the face of a bald allegation that a fair hearing was not provided. It was necessary for the Requestor to explain why they were taking that position.

Finding on Issue 4

37The Board is not satisfied that there was any violation of the rules of natural justice or procedural fairness at the hearing of these applications.

Issue 5 – Did the Board violate the rules of natural justice or fairness at a hearing in 2017?

38There were several references in the request for review material to a medical episode and an ambulance being called to a Board hearing in 2017. However, these did not explain how the Board violated the rules of natural justice or fairness at that time.

39The Board repeats its determination in Issue 4 as to the requirement for a party requesting a review to provide reasons for the request. Moreover, there was an indication in the Requestor’s hearing material that a hearing was convened in 2017 to consider the Requestor’s 2015 application. However, that hearing was adjourned and did not proceed at that time.

Finding on Issue 5

40The Board is not satisfied that there was any violation of the rules of natural justice or procedural fairness at the hearing in 2017.

Issue 6 – Did the Board violate the rules of natural justice and fairness by failing to consider emails that the Requestor said had been submitted?

41The Requestor indicated in the request for review that the Board did not consider emails that had been submitted at the hearing, however it is not necessary for a Member to expressly refer to every piece of evidence that was considered in a decision. In addition, the Requestor did not say what these emails said, did not say how they might have affected the Decision, nor were any additional emails included with the request for review.

Findings on Issue 6

42The Board did not violate the rules of natural justice and fairness by failing to consider emails because it is not clear what emails are being referred to, that such emails had been submitted, or that any particular email in the file had not been considered.

Issue 7 – Does the Decision contain a serious error of fact in its determination that taxes were paid up to and including the 2019 taxation year?

43The Board determined at para. 22 of the Decision that it “considers that the Applicant’s outstanding taxes for 2015 and 2017 were paid in full on the (Requestor’s) behalf on January 24, 2020 due to settlement of a court action.” Although the Requestor appears to take issue with a finding that their taxes were paid up to and including the 2019 taxation year, the Board’s findings related only to the 2015 and 2017 taxation years.

44In the request for review, the Requestor wrote they “had to make a complaint to the City of Toronto in regarding was inappropriately processed by the City of Toronto causing further severe distress health deterioration to my health before Covid-19 circumstances (sic).” This suggests that the Requestor believed that the above determination was made in error but did not say why.

45In fact, in the reply material submitted by the Requestor at the hearing, they wrote that “(the Requestor’s) lawyers paid all outstanding property taxes on behalf (sic), up to and including the 2019 tax year.” Based on that submission, it was open to the Board to make the finding that the taxes were in fact paid for the taxation years in question.

Findings on Issue 7

46The Board did not err by determining that taxes were paid up to and including for the 2019 taxation year.

CONCLUSION

47The Board did not violate the rules of natural justice or procedural fairness, and did not make any significant error of law or fact such that the Board would have reached a different decision. The request for review is therefore denied.