George Giannaris v. City of Toronto, 2012 ONSC 5183

Giannaris v. City of Toronto

CITATION: Giannaris v. City of Toronto, 2012 ONSC 5183

DIVISIONAL COURT FILE NO.: 368/11

DATE: 20120913

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

GEORGE GIANNARIS Appellant

– and –

CITY OF TORONTO Respondent

In Person

Angus MacKay, for the Respondent

HEARD at Toronto: September 13, 2012

ORAL REASONS FOR JUDGMENT

LAX J. (orally)

1The appellant, Mr. Giannaris, has been involved in an ongoing dispute with the City of Toronto regarding his property taxes for his property in the City of Toronto at 983 Pape Avenue.

2He alleges there are errors or omissions in the calculation or collection of his property taxes. He acknowledges that he owes money for arrears but disputes the amount of arrears the City is claiming.

3The City says that the last year the plaintiff’s property taxes were paid was 2007 and that there are arrears for the years 2008, 2009 and 2010.

4On August 10, 2010, Mr. Giannaris commenced a claim in the Small Claims Court against the City in which he sought a full “proper accounting” of his taxes. At the same time he brought a motion to restrain the City from performing collection actions with respect to his outstanding property taxes.

5The motion was returnable on October 7, 2010. The City’s responding materials for the motion were served on September 28 and the City agreed to suspend bailiff collection efforts for unpaid property taxes pending the outcome of Mr. Giannaris’s claim.

6On September 15, 2010, Thomson J. adjourned the October 7 motion and ordered the parties to attend a “to be spoken to” hearing to address paragraphs 4 and 5 of the City’s defence. Those paragraphs plead:

(i) That the plaintiff’s claim is statute barred, and

(ii) That the Small Claims Court has no jurisdiction to deal with the claim and Mr. Giannaris must pursue a remedy pursuant to the provisions of the Assessment Act, the Municipal Act, the Municipal Act 2001 and/or the City of Toronto Act, 2006.

7The “to be spoken to” hearing was held on December 1, 2010, at which time Thomson J. ordered both parties to prepare an accounting and to meet with a court appointed referee. She reserved a decision on the Limitations Act and jurisdiction issues to June 2011. It is apparent from her subsequent reasons that she hoped the hearing before the referee might narrow the amount in dispute between the parties and lead to an amicable resolution of the claim. Unfortunately, this did not occur.

8Referee Gill Reece met with the parties on May 13, 2001 and found that the matter could not be determined by an accounting process as it turned on the Court’s jurisdiction and whether the claim was out of time. She reported this to Justice Thomson. The “to be spoken to hearing” then resumed before Her Honour on June 28, 2011 and following argument, she delivered her ruling.

9On the limitations issue she found that the legal positions of the parties “gelled” in February 2007 when corrections were made to the tax bill for the Giannaris property. The evidence supports this finding. I can find no error in Thomson J.’s determination that Mr. Giannaris discovered that taxes had been miscalculated in February 2007 when the City adjusted Mr. Giannaris’s tax bill. From that time, the only issue between the parties has been whether these calculations are correct.

10Mr. Giannaris wants the Court to declare that his calculation is the correct one but Thomson J. correctly found that the Small Claims Court has no jurisdiction to issue a declaratory order. Moreover, Mr. Giannaris had no monetary claim at the time his action arose. By his own admission, he owed the city $10,000 in taxes in August 2008.

11The Assessment Act, the Municipal Acts and/or the City of Toronto Act, 2006 form a comprehensive code for property assessment and taxation. This legislative scheme contains numerous appeal provisions by which a taxpayer can seek to correct errors or pursue property tax or refunds or other relief. None of these are through a claim at Small Claims Court. The equitable doctrine of unjust enrichment is ousted by this comprehensive statutory scheme. See Re Zaidan Group Ltd. v. City of London 1990 2624 (ON CA), [1990] O.J. No. 33 at para. 3 (C.A.), see also Alcorn v. Bayham (Municipality), 2002 37328 (ON SCDC), [2002], O.J. No. 4288 (Div. Ct.).

12In the result, the appeal is dismissed.

COSTS

13I have endorsed the Appeal Book and Compendium, “For oral reasons, the appeal is dismissed with costs of $5,500, payable within thirty days.”