Tribunals Ontario
Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE: September 05, 2024
FILE NO.: DM 186703
Assessed Person(s): 415 Lakeshore Investments Inc.
Appellant(s): BWH-2023 Limited Partnership
Respondent(s): City of St Catharines
Property Location(s): 29 Queenston Street
Municipality(ies): City of St Catharines
Roll Number(s): 2629-030-001-14400-0000
Appeal Number(s): 3522379 and 3522381
Taxation Year(s): 2021 and 2022
Hearing Event No.: 784693
Legislative Authority: Section 357.(7) of the Municipal Act, 2001, S.O. 2001, c. 25
Parties
Counsel/Representative
BWH-2023 Limited Partnership
Jill Bender
415 Lakeshore Investments Inc.
Submissions not received
City of St Catharines
Rebecca Jackson
REQUEST FOR: Dismissal of Appeal(s)
HEARD: August 28, 2024 in writing
ADJUDICATOR(S): Christopher Voutsinas, Vice-Chair
MOTION DECISION
OVERVIEW
1The City of St. Catharines (the “Municipality”) brings this motion request to dismiss certain appeals made pursuant to the Municipal Act, 2001, S.O. 2001, c.25 (the “Act”) in connection with 29 Queenston Street in the City of St. Catharines (the “Subject Property”) for the 2021 and 2022 taxation years.
2BWH-2023 Limited Partnership/BWH-2023 GP Inc. (the “Respondent”) opposes the Municipality’s motion request to dismiss those appeals.
3The Assessment Review Board (the “Board”) received submissions from the Municipality and the Respondent. The Municipal Property Assessment Corporation (“MPAC”) is not participating in this motion.
Background
4The Respondent filed an Application for Cancellation, Reduction, Refund of Property Taxes with the Municipality dated February 28, 2023 in connection with the Subject Property. The Application was filed under s. 358 of the Act.
5The Application states under Reason for the Appeal that pursuant to a 2016 building permit to convert a building at the back of the Subject Property to residential use, the Subject Property is still in the process of being rebuilt, is unusable due to the ongoing reconstruction works since 2016, and that the assessment should be amended accordingly.
6Further to the Application, the Municipality issued a Notice of Decision dated September 1, 2023 as well as an amended Notice of Decision dated November 10, 2023 at the request of the Respondent as they indicated they had not received the initial Notice until October 13, 2023 (i.e. outside of the 35 day appeal window). The Notices are substantially the same. The Notices include a reference to s. 357(f) in the opening statement and show Gross or Manifest Error under Reason for the Applications. The Decisions show a tax increase of $850.27 and $832.11 for the 2021 and 2022 taxation years, respectively.
7Subsequent to the Decisions on the tax application, an Amended Property Assessment Notice followed for the 2023 taxation year.
8The Respondent filed appeals of those Decisions with the Board asserting that while their application was made under s. 358 of the Act that the Municipality processed the application under s. 357(f) of the Act and that s. 357 should apply not s. 358. In turn, the Municipality filed a request to dismiss those appeals – the subject of this motion – asserting that the Respondent’s s. 358 application, Gross or Manifest error, was processed under s. 358 and that the reference to s. 357(f), Gross or Manifest Error, is a clerical error.
Result
9For the reasons that follow, the Board finds that the reference to s. 357(f) in the Municipality’s Notices of Decision is a clerical error only and that the Respondent’s s. 358 application was processed by the Municipality as such i.e. under s. 358.
10The Board finds that there is no proper s. 357 application before the Municipality and as such no proper appeal of the same before the Board. The Respondent did not file an application under s. 357 for the 2021 and 2022 taxation years and the Board does not have the jurisdiction to create such an appeal. The Board cannot in the context of a s.358 application by the Respondent, consider an appeal of a different decision for a different type of relief relative to a s. 357 application that simply was not made.
ANALYSIS
Applicable Law
11Relevant portions of s. 357 and s. 358 of the Act are included in Appendix A at the end of this decision for reference purposes.
Respondent’s Position
12The Respondent takes the position that: (i) while it made its application to the Municipality pursuant to s. 358 of the Act, Gross or Manifest Error, that the Municipality issued Notices of Decision indicating that it had processed the application pursuant to s. 357(f) of the Act, (ii) neither s. 357 or s. 358 permit a municipality to increase taxes levied on a property and as such the Municipality exceeded its authority in issuing notices increasing the taxes on the Subject Property for the 2021 and 2022 taxation years, (iii) that prior to a making a decision, a municipality must hold a council meeting at which an applicant may make representations in connection with their application, and (iv) the Respondent has a right to appeal the Municipality’s decisions and that it would be prejudiced if this is denied.
Municipality’s Position
13The Municipality takes the position that the Respondent’s application was indeed filed under s. 358, Gross or Manifest Error, and that the reference to s. 357(f) as Gross or Manifest Error, in the Notices is a clerical error only and that the appeals for the 2021 and 2022 taxation years were processed by the Municipality under s.358, Gross or Manifest Error.
The Board’s Analysis
14The Board has considered the submissions and evidence of both parties.
15It is undisputed that the Respondent filed an Application for Cancellation, Reduction, Refund of Property Taxes under s. 358, Gross or Manifest Error, of the Act. The Application contains the following description of s. 358 (as selected by the Respondent): “…error…that is clerical or factual in nature, including the transposition of figures, a typographical error or similar errors, but not an error in judgment in assessing the property”. The other two options under which to make an appeal are s. 357 and s. 334 – neither of which are selected by the Respondent. Further in its Response at paragraph 2, the Respondent states “… it is true that the Appellant [Respondent] checked the s. 358 box when filing its Municipal Act Application…”.
16The Respondent relies on the one reference in the opening statement of the Notices of Decision that says: “…the above notice has been received and reviewed by staff…under s. 357(f)”.
17The Municipality asserts that this reference is a clerical error as the application made by the Respondent is a s. 358 application. Further, the Municipality provides copies of internal documentation that clearly references the Reason for Appeal as s. 358, Gross or Manifest Error (Municipality’s Motion Material, Exhibits 3 and 4).
18The Municipality also submits in its Motion Material an email to the Respondent’s representative dated October 13, 2023 where they state: “We submitted the Tax Application to MPAC with notes stating (convert commercial building a rear to residential. Full interior tear down and still under renovation – unusable not rented) and MPAC changed the Tax Class from Residential back to Commercial as the Residential units have not been completed nor occupied.” This description substantially conforms to the description provided by the Respondent in its Application under Reason for Appeal. The Respondent’s representative responds to the Municipality’s email on the same day stating: “…we are the ones who filed the s. 358 application…”. In fact, there are several exchanges between the Respondent’s representative and the Municipality where the Respondent’s representative refers to the s. 358 application and while the Municipality responds referencing the “Tax Application”, at no time does the Municipality reference s. 357(f) nor endeavor to correct the Respondent’s representative’s repeated references to s. 358 (Exhibit 7 of the Municipality’s Motion Material).
19Further, the Municipality includes in its Motion Material at Exhibits 9 and 10, respectively, copies of MPAC’s Response sheets to the Municipality for the 2021 and 2022 taxation years where under MPAC Remarks, MPAC writes “358 tax application…”
Findings
20The Board finds that the Application submitted by the Respondent and processed by the Municipality including Notices of Decision falls under s. 358 of the Act. As such, s. 357 does not apply.
21As it relates to the other matters raised by the Respondent in paragraph 12 above, the Board cannot make any determination at this interim point. The parties have not provided sufficient evidence and arguments in their submissions on these matters. As such, the Board will not deal with the other matters at this time as they require adjudication at a full hearing.
CONCLUSION
22The Respondent’s assertion that their s. 358 application was processed as a s. 357(f) application is denied.
23The Municipality’s motion request to dismiss is denied at this time.
ORDER
24The Board orders the Municipality’s motion request to dismiss is denied and that the Respondent’s s. 358 application be dealt with as such.
25The parties are directed to proceed to their full hearing on the remaining matters.
26The Board orders the Respondent’s s. 358 application be addressed as a s. 358 application not a s. 357(f) application.
"Christopher Voutsinas"
CHRISTOPHER VOUTSINAS
VICE-CHAIR
Assessment Review Board
Website: www.tribunalsontario.ca/arb
APPENDIX A
Cancellation, reduction, refund of taxes
357 (1) Upon application to the treasurer of a local municipality made in accordance with this section, the local municipality may cancel, reduce or refund all or part of taxes levied on land in the year in respect of which the application is made if,…
(f) a person was overcharged due to a gross or manifest error that is clerical or factual in nature, including the transposition of figures, a typographical error or similar error but not an error in judgment in assessing the property; or…
Timing
(3) 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. 2001, c. 25, s. 357 (3); 2017, c. 10, Sched. 1, s. 48 (1).
Application by treasurer
(4) Despite subsections (2) and (3), an application under clause (1) (f) or (g) may be made by the treasurer of the local municipality on or before April 30 of the year following the year in respect of which the application is made if no application is made by a person described in subsection (2) within the deadline set out in subsection (3). 2001, c. 25, s. 357 (4).
Meeting
(5) On or before September 30 of the year following the year in respect of which the application is made, council shall,
(a) hold a meeting at which the applicants may make representations to council;
(b) notify the applicants of the meeting by mail sent at least 14 days before the meeting; and
(c) make its decision. 2001, c. 25, s. 357 (5).
Notice
(6) Within 14 days after making its decision, council shall notify the applicants of the decision and specify the last day for appealing the decision. 2001, c. 25, s. 357 (6).
Appeal
(7) Within 35 days after council makes its decision, an applicant may appeal the decision of council to the Assessment Review Board by filing a notice of appeal with the registrar of the board. 2001, c. 25, s. 357 (7)….
Decision
(10) The Assessment Review Board shall hear the appeal and may make any decision that council could have made. 2001, c. 25, s. 357 (10)….
Decision final
(17) A decision of the Assessment Review Board is final. 2001, c. 25, s. 357 (17).
Overcharges
358 (1) Upon application to the treasurer of a local municipality made in accordance with this section, the local municipality may cancel, reduce or refund all or part of the taxes levied on land,
(a) in one or both of the two years preceding the year in which the application is made for any overcharge caused by a gross or manifest error in the preparation of the assessment roll that is clerical or factual in nature, including the transposition of figures, a typographical error or similar errors, but not an error in judgment in assessing the property; or
(b) in the year or years in respect of which an assessment is made under section 33 or 34 of the Assessment Act for any overcharge caused by a gross or manifest error in the preparation of the assessment that is clerical or factual in nature, including the transposition of figures, a typographical error or similar errors, but not an error in judgment in assessing the property. 2017, c. 10, Sched. 1, s. 50 (1)….
Timing — error in assessment roll
(3) An application in respect of an error in the preparation of the assessment roll must be filed with the treasurer between March 1 and December 31 of a year and may apply to taxes levied for one or both of the two years preceding the year in which the application is made and the application shall indicate to which year or years it applies. 2017, c. 10, Sched. 1, s. 50 (1).
Timing — error in assessment under s. 33 or 34 of Assessment Act
(3.1) An application in respect of an error in the preparation of an assessment under section 33 or 34 of the Assessment Act must be filed with the treasurer on or before December 31 of the second year following the year in which the assessment was made and may apply to taxes levied for the year or years in respect of which the assessment was made and the application shall indicate to which year or years it applies. 2017, c. 10, Sched. 1, s. 50 (1)….
Restriction
(5) Despite subsections (3) and (3.1), an application shall not be made for taxes levied in a year if the assessment on the land for that year was subject to an appeal or application under section 40 or 46 of the Assessment Act unless,
(a) the error is made subsequent to the commencement of all appeals or applications;
(b) the appeal or application,
(i) is made by a person other than the taxpayer,
(ii) is withdrawn before the appeal or application is actually heard,
(iii) is made in respect of a change to or the addition of the school support of the taxpayer on or to the assessment roll, or
(iv) is made in respect of a change to the name or mailing address of the taxpayer on the assessment roll; or
(c) the appeal or application is in a class of appeals or applications prescribed by the Minister. 2008, c. 7, Sched. O, s. 5 (1); 2017, c. 10, Sched. 1, s. 50 (2)….
Confirmation
(7) An application shall not be heard by council under subsection (9) unless the assessment corporation confirms an error in the assessment referred to in the application. 2001, c. 25, s. 358 (7)….
Meeting
(9) On or before September 30 of the year following the year in which the application is made, council shall,
(a) hold a meeting at which the applicant may make representations to council;
(b) notify the applicant of the meeting by mail sent at least 14 days before the meeting; and
(c) make its decision. 2001, c. 25, s. 358 (9)….
Increase of taxes
359 (1) Upon application made by the treasurer of the local municipality, a local municipality may increase the taxes levied on land in the year in respect of which the application is made to the extent of any undercharge caused by a gross or manifest error that is a clerical or factual error, including the transposition of figures, a typographical error or similar error, but not an error in judgement in assessing the land. 2001, c. 25, s. 359 (1); 2002, c. 17, Sched. A, s. 63 (1)….
Deadline
(2.1) An application under this section must be made on or before December 31 of the year following the year in respect of which the application is made. 2002, c. 17, Sched. A, s. 63 (2)….
Meeting
(3) Council shall,
(a) hold a meeting at which the treasurer and the person in respect of whom the application is made may make representations to council;
(b) notify the treasurer and the person in respect of whom the application is made of the meeting by mail sent at least 14 days before the meeting; and
(c) make its decision. 2001, c. 25, s. 359 (3).
Notice
(4) Within 14 days after making its decision, council shall notify the treasurer and the person in respect of whom the application is made of the decision and specify the last day for appealing the decision. 2001, c. 25, s. 359 (4).
Appeal
(5) Within 35 days after council makes its decision, the person in respect of whom the application is made may appeal the decision of council to the Assessment Review Board by filing a notice of appeal with the registrar of the board. 2001, c. 25, s. 359 (5).
Non-application
(9) Subsections (4), (5), (6) and (7) do not apply to applications made under subsection (1) if a delegation by-law under subsection (8) is in force on the day the application is made. 2001, c. 25, s. 359 (9)….
Decision final
(11) A decision of the Assessment Review Board under this section is final. 2001, c. 25, s. 359 (11).
Adjustment of tax roll
(12) Immediately after a decision of council or the Assessment Review Board, the treasurer shall adjust the tax roll to reflect any increase of taxes on the land made by the decision. 2006, c. 32, Sched. A, s. 147.
When tax payable
(12.1) Once the tax roll is adjusted, the amount of the increase of taxes is deemed to have been always levied in accordance with the adjusted tax roll except the amount is not payable until 21 days after the day the treasurer sends a tax bill to the taxpayer with respect to the amount. 2006, c. 32, Sched. A, s. 147.
Overcharges
(12.2) If a decision of council under this section is appealed and the Assessment Review Board determines there is an overcharge of taxes on the land,
(a) the municipality shall refund the overpayment, if any; and
(b) subsections 345 (6) to (9.2) apply with necessary modifications to the overcharges. 2006, c. 32, Sched. A, s. 147….