Tribunals Ontario / Tribunaux décisionnels Ontario

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

ISSUE DATE: February 14, 2024

FILE NO.: WR 185703

Assessed Person(s): Richard Stanley Siwek and Jaclyn Dawn Siwek

Appellant(s): Richard Stanley Siwek and Jaclyn Dawn Siwek

Respondent(s): Township of Uxbridge

Property Location(s): 38 Brock Street West

Municipality(ies): Township of Uxbridge

Roll Number(s): 1829-040-004-04600-0000

Appeal Number(s): 3516157

Taxation Year(s): 2022

Hearing Event No.: 783176

Legislative Authority: Section 357(7) of the Municipal Act, 2001, S.O. 2001, c. 25

APPEARANCES:

Parties Representative

Richard Stanley Siwek Self-represented

Township of Uxbridge Sue Straughan

HEARD: February 1, 2024 by video conference

ADJUDICATOR(S): Dan Weagant, Member

DECISION

OVERVIEW

1Richard Stanley Siwek (the “Appellant”) filed applications with the Township of Uxbridge (“Township”) to cancel, reduce or refund all or part of the taxes levied on the subject property for 2019, 2020, 2021 and 2022. These applications were filed pursuant to s. 357.(1)(d)(ii) of the Municipal Act 2001, S.O. 2001, c. 25 (“Act”). That section states that a municipality may cancel, reduce or refund all or part of the taxes levied if a building on the land was damaged by fire, demolition or otherwise so as to render it substantially unusable for the purposes for which it was used immediately prior to the damage.

2The subject property is a one-storey commercial building in the downtown area of Uxbridge. The main floor comprises approximately 2,000 square feet. The subject property has a full basement with a single, interior access from the main floor.

Background

3Sometime in 2018, the Township embarked on a drainage improvement project for its downtown area. That work included the upgrade and enlargement of a large concrete culvert, and ‘dewatering’, which is a method of removing ground water from an area to facilitate construction activity.

4There are several reports and excerpts of reports and communications from various interests involved in the project in evidence that describe the impact of the work on the subject property.

Areas of Agreement

5The Parties agreed that the subject property was damaged as a result of the infrastructure work carried out on the adjacent land and that it continues to exist in its damaged state as of the date of the hearing. There is also agreement on the extent and duration of the impact of this damage.

6The Parties agreed that the taxes attributed to the subject property for the years for which the applications were made are as follows:

• 2019: $9,370.26
• 2020: $9,382.09
• 2021: $9,099.43
• 2022: $9,242.05

Issues for the Hearing

7As set out in s. 357 of the Board must make a series of decisions related to the applications filed by the Appellant:

1. Were the applications filed by the Appellant properly made and in accordance with the Act?
2. Was there damage at the subject property and if so, was it caused by fire, demolition or otherwise?
3. If there was damage to the subject property that was caused by fire, demolition or otherwise, did that damage render the subject property substantially unusable for the purposes for which it was used immediately before the damage occurred?
4. If the damage rendered the property substantially unusable, what portion of the taxes levied on the subject property should be cancelled, reduced or refunded?

Result

8The Assessment Review Board (“Board”) finds that the applications for the cancellation, reduction or refund of taxes levied in 2019, 2020 and 2021 taxation years were not properly made and are therefore dismissed.

9The Board finds that the application for the cancellation, reduction or refund of taxes levied in 2022 taxation year was properly made, and that damage occurred to the subject property that rendered 50% of it substantially unusable throughout 2022.

10The Board orders that 50% of the taxes levied on the subject property be cancelled for the 2022 taxation year.

ANALYSIS

The Legislative Scheme

11Section 357 of the Act provides for applications to reduce, refund or cancel taxes in a given year for a range of reasons. This section sets out the means of application, the reasons for the application and the way the application is processed from the day the application is filed, to its final disposition.

12The disposition of applications under this section lies with municipal council, unless Council passes a by-law delegating its decision-making authority to this Board. Where Council has not passed such a by-law, Council’s decision is subject to appeal by an applicant to this Board. It is the latter of these two paths that brings this appeal to the Board, pursuant to s. 357.(7) of the Act.

13Section 357.(10) states that “…the Assessment Review Board shall hear the appeal and make any decision that council could have made.” The Board is not bound by council’s previous decision. The Board is to address any issues arising from the original application(s) as council would have, and make its decision independently.

Issue 1 – Were the applications for a cancellation, reduction or refund of taxes for 2019 through 2022 properly made?

14Section 357.(3) prescribes the timing of applications filed under s. 357.(1) and states “An application under this section must be filed with the treasurer on or before the last day of February of the year following the year in respect of which the application is made.” For example, an application made for the 2015 taxation year would have to been filed on or before the last day of February, 2016 to be compliant with the Act.

15The documentary evidence adduced by the Appellant includes the original application. It was signed and dated on December 23, 2022. It also bears a date stamp (presumably applied by the Township) of January 7, 2023. The application form itself indicated that it was intended to apply to 2019, 2020, 2021 and 2022. As prescribed by s. 357.(3), the timing for filing of the 2019 application was on or before the last day of February, 2020; for 2020, the last day of February 2021; and for 2021, the last day of February 2022.

16The Board has no jurisdiction to alter application deadlines under s. 357.(1). In Chiocchio v (Belleville City), 2018 CanLII 58332 (ON ARB) (“Chiocchio”) the Board found that “…the application is out of time and the Legislature has not given this Board the power to extend his time to appeal. Nothing in the Rules alters that lack of legislative authority…”

17A December 2022 filing date, as indicated in evidence would only comply with the timing provision of the Act for 2022, as it is before the last day of February 2023, the filing deadline for applications pertaining to 2022.

Findings on Issue 1

18The Board finds that the application subject to this appeal was properly filed for 2022 only and that the Board has no means of extending timelines for the applications for 2019, 2020 or 2021. The Board also finds therefore, that the applications for 2019, 2020 and 2021 are dismissed.

Issue 2 - Was there damage at the subject property and if so, was it caused by fire, demolition or otherwise?

19The Applicant submitted multiple documents that described the process of the project that occurred adjacent to the subject property and the damage to the subject building resulting from that project. These documents provide the timeline associated with construction activity and the resulting damage to the subject property. As the Parties agree that damage occurred to the subject property, it is not necessary to recount the specific progression of damage.

20However, the Board must determine the cause of the damage. This too is agreed to by the parties. It was the municipal drainage project that caused the damage to the subject property. The Board heard that at the beginning of the project there were small cracks in the subject foundation and basement floor. The evidence clearly shows that as the construction progressed, these cracks worsened and a portion of the basement floor began to give way.

Findings on Issue 2

21The Board finds that in this case, the damage was caused by the Township’s drainage project and therefore constitutes “damage by fire, demolition or otherwise” as set out in the Act.

Issue 3 - Did the damage render the subject property substantially unusable for the purposes for which it was used immediately before the damage occurred?

22The Appellant submitted that the building damage began in the Spring of 2020. By the fall of 2020, the damage had worsened to the point where the Township and general contractor both issued an email message to the Appellant that, owing to the condition of the building, it should not be occupied for any reason. Subsequently, there were engineering inspections carried out and by January of 2021, the directives from the Township and general contractor were amended to indicate that the back portion of the building should not be occupied, with specific reference to the ‘lunch room’ and associated areas “at the back of the building”.

23The Appellant testified that since January 2021, the conditions at the property have not changed and throughout 2022, the use restriction continued and that this use restriction was due to the damage caused to the building.

24The Appellant further testified that the area of the main floor affected by the ongoing use restriction comprised approximately 50% of the total area and that the access to the basement was within the restricted use area on the main floor and as a result access to and use of the basement was affected throughout 2022. The main floor use was and remains office - commercial in nature, and that was the use immediately prior to the restrictions placed on it.

25Finally, the Appellant testified that the subject property was used as a business office immediately prior to the damage occurring and that the damage rendered 50% of the building unusable for that purpose.

26None of the Applicant’s testimony was refuted by the Township.

Findings on Issue 3

27The Board finds that 50% of the subject property was rendered substantially unusable for the purposes for which it was used immediately prior to the damage. That use restriction continued throughout 2022.

Issue 4 - What portion of the taxes levied on the subject property should be cancelled, reduced or refunded?

28Having determined that 50% of the building is substantially unusable for the purposes for which it was used immediately prior to the damage, the Board must determine the amount of the taxes to be cancelled, reduced or refunded for 2022. It is clear from the evidence at hearing that the condition of the building did not change during 2022 and that the damage that caused a portion of the building to remain unused continued throughout that year.

Findings on Issue 4

29The Parties agree that the taxes levied in 2022 were $9,242.05. As 50% of the building is determined to be substantially unusable in 2022, the amount of taxes to be cancelled, reduced or refunded is $4,621.03, rounded.

ORDER

30The Board orders that $4,621.03 of the taxes levied on the property at 38 Brock Street West for 2022 be cancelled by the Township of Uxbridge.

"Dan Weagant"

DAN WEAGANT MEMBER Assessment Review Board

Website: www.tribunalsontario.ca/arb