Court File and Parties
CITATION: Giannaris v. City of Toronto (Revenue Services), 2013 ONSC 6493 DIVISIONAL COURT FILE NO.: 301/13 DATE: 20131017
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
GEORGE GIANNARIS Appellant
– and –
CITY OF TORONTO (REVENUE SERVICES) Respondent
Counsel: In Person Christopher J. Henderson, for the Respondent
HEARD at Toronto: October 17, 2013
Oral Reasons for Judgment
HIMEL J. (orally)
[1] Mr. Giannaris appeals the decision dated June 11, 2013 of Frank J. to this Court. In that proceeding, Mr. Giannaris applied for a declaration that he owed no property tax arrears in response to a Tax Arrears Certificate registered against his property on November 1, 2012. He also applied for injunctive relief to prevent the City’s efforts to collect those arrears. The application was brought under R. 14 of the Rules of Civil Procedure.
[2] Mr. Giannaris owns property located at 983 Pape Avenue in Toronto. In materials filed before the Court on that application, he said that the City did not calculate his property taxes correctly and that the City has been taking improper collection steps. He says he is being victimized by the City through its deliberately deceitful conduct. He says he has been overcharged since 2000 and that the records are incorrect. He claims the City’s actions have put him to great expense, effort and financial risk.
Background
[3] Property taxes on this property have been in arrears since 2000. In 2010, Mr. Giannaris brought a Small Claims Court action alleging miscalculation of his property taxes. He sought “a full and proper accounting” of his taxes. He moved for an order restraining the City from taking collection action. The City voluntarily undertook to take no collection actions for two years.
[4] The Small Claims Court Judge ordered Mr. Giannaris to produce a full accounting of tax payments and credits and the City to produce responding accounting materials. This was with a view to settlement of the case. However, the case did not settle. Deputy Judge Thomson dismissed the action on June 18, 2011 finding that Mr. Giannaris’s claim was barred by the Limitations Act, 2000, S.O. 2002, c. 24 Sch. B. as he brought the action more than two years after the cause of action arose and the Assessment Review Board Act, R.S.O. 1990, c. A.32 provides a comprehensive statutory code to launch complaints about calculation of property taxes.
[5] Mr. Giannaris appealed the dismissal to the Divisional Court. The Court upheld the Deputy Judge’s decision and dismissed the appeal on September 13, 2012. Lax J. found no errors were made by the Small Claims Court Judge. Mr. Giannaris then brought an application in Superior Court under R. 14.
[6] The matter before Frank J. was heard on May 29, 2013. Frank J. found that the appellant’s case raised no issues that were not before Thomson J. There were no new documents and no new facts. She noted that he attempted to raise a “fresh argument” concerning the “Frozen Assessment Listing” (“FAL”) mistake. Frank J. held that Mr. Giannaris could have appealed the decision to the Assessment Review Board. She held that issue estoppel had been made out in that the application had raised the same limitation period issue as at trial, and it raised the same issue of where the City’s property tax calculations should be decided. She noted that the decision was judicial, that the decision of the Divisional Court is final and the parties are the same. She cited Danyluk v. Ainsworth Technologies Inc. 2001 SCC 44, 2001 S.C.C. 44.
[7] She held issue estoppel applied and the application concerning the calculating of taxes owing was dismissed.
[8] She went on to find that she would have dismissed the action for abuse of process as allowing it to proceed would “violate such principles as judicial economy, consistency and integrity of the administration of justice: see Toronto (City) v. Canadian Union of Public Employees CUPE Local 79, 2003 SCC 63, 2003 S.C.C. 63 at para. 37.
[9] Further, Mr. Giannaris applied to halt the tax sales process that the City initiated to recover the tax arrears. Apparently, the mortgagees have paid what was owing to the City. No further certificate was filed. As a result, the City was no longer pursuing payment. She held that the issue is moot. As well, there was no evidence of impropriety in the collection process. Ultimately, the application under Rule 14 was dismissed. Following submissions, she fixed costs at $7,000 payable to the City by Mr. Giannaris.
The Matter Before the Divisional Court
[10] Mr. Giannaris served a Notice of Appeal on July 9, 2013 and now appeals the decision of Frank J. to the Divisional Court. Counsel for the City of Toronto takes the position that he has brought this appeal to the wrong court. The City advised Mr. Giannaris of its position three times in writing to tell him that this Court lacks jurisdiction to hear this appeal. The City therefore brings a cross motion to quash the appeal for lack of jurisdiction and, in the alternative, to strike the case from the Divisional Court list.
[11] Section 19(1) of the Courts of Justice Act sets out the scope of the Divisional Court jurisdiction from a final order of a judge of the Superior Court. The application brought before Frank J. does not fall within any of these provisions as it sought declaratory and injunctive relief. Under s. 6(1) of the Courts of Justice Act, an appeal lies from a final order of a judge of the Superior Court to the Court of Appeal. Where a matter is brought in the wrong court, the appropriate relief is to quash the appeal: Coote v. Ontario (Human Rights Commission) 2010 ONCA 580 and s. 134(3) of the Courts of Justice Act.
[12] I am satisfied this case is in the wrong court. Mr. Giannaris was told by the City several times and did nothing to withdraw his appeal. I, therefore, quash the appeal.
COSTS
[13] I have endorsed the back of the Motion Record, “For oral reasons given, I find the appeal has been brought in the wrong court and should have been brought in the Court of Appeal (s.6(1) of the Courts of Justice Act). Accordingly, this appeal is quashed. I exercise my discretion under s.131 of the Courts of Justice Act and R. 57 and fix costs in the amount of $1,500 inclusive of disbursements and HST, an amount I deem fair and reasonable in the circumstances payable by Mr. Giannaris to the City within 30 days.”
HIMEL J.
Date of Reasons for Judgment: October 17, 2013 Date of Release: October 25, 2013
CITATION: Giannaris v. City of Toronto (Revenue Services), 2013 ONSC 6493 DIVISIONAL COURT FILE NO.: 301/13 DATE: 20131017
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
HIMEL J.
BETWEEN:
GEORGE GIANNARIS Appellant
– and –
CITY OF TORONTO (REVENUE SERVICES) Respondent
ORAL REASONS FOR JUDGMENT
HIMEL J.
Date of Reasons for Judgment: October 17, 2013 Date of Release: October 25, 2013