Z.C. v. City of Hamilton, 2022 CanLII 14083

Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: February 25, 2022

FILE NO.: RD 20-068

Assessed Person: Z.C.

Applicant: Z.C.

Respondent: City of Hamilton

Property Location: Address Withheld

Municipality: City of Hamilton

Roll Number: Roll Number Withheld

Appeal Number: 3416587

Taxation Year: 2019

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

Parties	Representative
Z.C.	Self-represented
City of Hamilton	Submissions not received

REQUEST FOR: A review of the Board’s Decision WR 166795 issued on November 5, 2020

HEARD: In writing

ADJUDICATOR: Jean-Paul Pilon, Member

DECISION

OVERVIEW

1Z.C. (the “Requestor”) requested a review of the Assessment Review Board’s (the “Board”) Decision WR 166795 issued November 5, 2020 (the “Decision”).

Background

2The Requestor filed an application with the City of Hamilton (the “Municipality”) to have her 2019 property taxes reduced, cancelled or refunded because she was unable to pay due to either sickness or extreme poverty pursuant to section 357(1)(d.1) of the Municipal Act, 2001, S.O. 2001, c. 25 (the “Act”). The Municipality passed a by-law delegating its authority to determine such applications to the Board pursuant to section 357(11) of the Act.

3In the Decision, the Board reduced the property tax levy for the Requestor’s property from $5,272.29 to $2,326.00, essentially because this was the amount left over at the end of the year in three bank accounts held by the Requestor and by another adult resident of the property, E.C.

4In the request for review, the Requestor submitted that the Decision contained two errors of fact and one error of procedure. The Municipality made no submissions in the request for review.

5The first error of fact cited in the request for review related to paragraph 21 of the Decision which said that “the total bank account balances on December 31, 2019 of $2,326 represents (sic) the best evidence of the amount available for 2019 property tax payments, after all necessary expenses were paid.”

6In the request for review, the Requestor argued that this determination was incorrect because it included an Ontario Disability Support Payments (“ODSP”) payment deposited at the end of December, 2019 that was intended for expenses to be incurred in January, 2020.

7The second error of fact alleged in the request for review was that the Board failed to take into account how the Requestor would have spent that surplus money “if there was any additional funding left over,” instead of paying property taxes. In the request for review, the Requestor said that these funds would have been used for chiropractic services, massage therapy and psychological counselling not covered by OHIP.

8The third error alleged in the request for review was one of procedural fairness. Specifically, the Requestor submitted that she was not given an opportunity to explain why the Board’s findings were incorrect, nor was she able to make submissions on the approach used by the Board in determining that there were surplus funds that could be used to pay taxes.

Issues for the Review

9Rules 102 (a) and (b) of the Board’s Rules of Practice and Procedure (the “Rules”) provide that:

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

(a) the Board acted outside of 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.

10Therefore, the issues in this request for review are as follows:

1. Was there a significant error of fact in the Board’s determination of the amount available for tax payments in paragraph 21 of the Decision such that the Board would have reached a different decision?;

2. Was there a significant error of fact in the Board not taking into account how the Requestor would have spent any surplus funds such that the Board would have reached a different decision?; and

3. Did the Board violate the rules of procedural fairness in not giving the Requestor an opportunity to explain why the Board’s findings were incorrect, and in not providing an opportunity for submissions on the Board’s approach in finding that there were surplus funds that could have been used to pay property taxes?

Result

11The Board finds that there were no errors of fact or procedure in the Decision or the process and therefore denies the request for review.

ANALYSIS

Issue 1 - Was there a significant error of fact in the Board’s determination of the amount available for tax payments in paragraph 21 of the Decision such that the Board would have reached a different decision?

12In the Decision, the Board determined that the Requestor’s household could have paid $2,326.00 toward property taxes because that was the sum left over in their bank accounts at the end of 2019. In the request for review, the Requestor argued that this was incorrect because the Board’s determination of income for 2019 included an ODSP payment attributable to January, 2020 that had been deposited early.

13The Board accepts that this ODSP payment was made early, in December, 2019 for January, 2020, just as every other deposit from ODSP in 2019 in the bank records filed was also made early, at the end of the preceding month. More to the point, the Requestor did not take into account in this submission that a payment attributable to January, 2019 must also have been made early in December, 2018, although records for that month were not filed.

14ODSP payments were made into two of the three bank accounts in evidence at the hearing, and each one of the complete monthly statements for those accounts included a single ODSP payment at the end of each month. There were no complete monthly bank statements including two ODSP payments in a single month, nor were there any complete statements from those accounts missing any ODSP payments.

15There was no error in counting an ODSP payment made in December, 2019 because a similar payment that would have been made in December, 2018 was not included in the Board’s calculation of income. In other words, ODSP payments were not double counted in the Board’s determination of the household’s income for 2019.

Finding on Issue 1

16This was not an error of fact.

Issue 2 – Was there a significant error of fact in the Board not taking into account how the Requestor would have spent any surplus funds such that the Board would have reached a different decision?

17In this part of the request for review, the Requestor set out how any surplus funds would have been spent instead of paying taxes, adding that they “would like the opportunity to discuss any further points if necessary.”

18There is no indication that this was a submission before the Board at the hearing. This is important because a request for review is not an opportunity to supplement evidence or submissions that could have been made at a hearing, nor is it an opportunity to provide a reply to a Board decision to which a party disagrees. In any event, having heard the evidence and submissions of the parties at a hearing, the Board reserved its decision and ultimately found that there were surplus funds that could have been used to pay taxes. What the Requestor now says she would have preferred to have done with those funds is not relevant or indicative of any error in the Decision.

Finding on Issue 2

19This was not an error of fact.

Issue 3 – Did the Board violate the rules of procedural fairness in not giving the Requestor an opportunity to explain why the Board’s findings were incorrect, and in not providing an opportunity for submissions on the Board’s approach in finding there were surplus funds that could have been used to pay taxes?

20The Requestor wrote that “during the (hearing) the Board made no mention of the balance as being a possible amount of payment towards the 2019 tax bill or ask for further clarity on the ODSP deposit process.” Further, the Requestor wrote that “they did not have the opportunity to refute or explain why the Board’s findings were incorrect.”

21In Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653 at p. 682 quoted at para. 21 of Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699, the Supreme Court of Canada determined that “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case.”

22The context of this case was an application by the Requestor to reduce, cancel or refund the 2019 property taxes because of an inability to pay due to sickness or extreme poverty. After receiving the application from the Municipality, the Board held a pre-hearing teleconference and subsequently issued a Procedural Order DM 165943 amended on September 11, 2020 (the “Procedural Order”). In the Procedural Order, the Board set out the questions to be determined by the Board and the documentation to be filed by the parties in anticipation of the full hearing. To that end, the Requestor filed the banking records which were in evidence at the hearing.

23The monthly banking statements filed by the Requestor were in the standard form of such documents and showed the details for each transaction listed including the date, the nature of the transaction or the name of the party transacting, the amount of money withdrawn, the amount of money deposited, and the balance of the account after each entry in each calendar month. In addition, at the bottom of each statement was a summary of “total funds out”, “total funds in” and the “closing balance” for the month.

24These were the documents used by the Board to determine how much money was left over in the household’s bank accounts at the end of the year. It was a straightforward means often used by the Board to determine whether surplus funds existed that could have been used to pay taxes.

25Returning to the first part of Issue 3 above, that the Requestor did not have “the opportunity to refute or explain why the Board’s findings were incorrect”, there was no error in the Board reserving its decision which was issued in writing later. The review process set out in the Rules exists for parties who believe that Board decisions are in error, and the Requestor pursued that course in filing this request for review.

26The second part of Issue 3 was also not demonstrative of any error. It was entirely reasonable and foreseeable that the Board would make reference to the basic banking evidence before it in concluding there was money available to pay taxes when the issue before the Board was the Requestor’s inability to pay.

Finding on Issue 3

27There was no violation of the rules of procedural fairness in this proceeding.

CONCLUSION

28The Board finds that there were no errors of fact or any violation of procedural fairness in the Decision or in the process.

ORDER

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