Toth v. Ottawa (City), 2010 ONSC 2605
CITATION: Toth v. Ottawa (City), 2010 ONSC 2605
DIVISIONAL COURT FILE NO.: 07-DV-1329
RE-RELEASE DATE: 2010/06/30
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PIERCE, R.S.J., MATLOW AND POWER, JJ.
B E T W E E N :
TOTH EQUITY LIMITED
Applicant
Mr. P. Milligan for the Applicant
- and -
THE CITY OF OTTAWA
Respondent
Mr. S. Huxley, for the Respondent
HEARD: February 3, 2010 at Ottawa
MATLOW, J.:
(THESE REASONS FOR JUDGMENT AMEND THOSE DATED MAY 14, 2010)
[1] Judgment is to issue for an order in the nature of mandamus requiring the Council of the City of Ottawa to hold a meeting pursuant to section 357 (5) of the Municipal Act, S.O. 2001 C.25, at which the applicant may make representations to Council with respect to any overcharge in the taxes levied in 2005 against the property located at 2446-2470 Bank Street, Ottawa, pertaining to the 2003, 2004, 2005 taxation years and applied to subsequent years due to a gross or manifest error that is clerical or factual in nature as set out in section 357 (1) (f) of the Municipal Act and requiring the Council to make a decision with respect to the issues raised by the applicant at the meeting with respect to the taxes levied in those years. Submissions by counsel with respect to the costs of this application may be exchanged and delivered to the office of this court at Ottawa within thirty days.
[2] The following are the essential facts leading to this application. The property in issue is a 100,516 square foot shopping centre with over thirty tenants and is known as Towngate Shopping Centre in Ottawa. In the 2000 tax year, the property's assessment for municipal taxation purposes was apportioned between the commercial and shopping centre classes by a consent order of the Assessment Review Board. In 2000, based on that order, 62% was allocated to the commercial property class and 38% to the shopping centre class. However, for the 2001 tax year, the apportionment was, according to the applicant, reversed as the result of an error of a type described in section 357 (1) (f) of the Municipal Act.
[3] It is the applicant's contention that this error has created an unwarranted increase in its taxes for 2001 and for each subsequent year which will continue from year to year unless the error is corrected. According to the applicant, the net overcharge to the present is $405,920.48 which sum it has paid.
[4] In September, 2005, when the error was discovered, the applicant, through its representative, made an application to the treasurer of the City pursuant to section 357 (1) (f) of the Municipal Act for the correction of the error. Sections 357 (1) (f) reads as follows:
357 (1) (f) 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, 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.
[5] In response, the applicant was advised that no correction could be made.
[6] In December, 2005, the applicant requested the clerk of the City for an opportunity to make representations to the Council pursuant to section 357 (5) of the Municipal Act. Section 357 (5) reads as follows:
357 (5) On or before September 30 of the year in respect of which the application is made, council shall,
hold a meeting at which the applicant may make representations to council;
notify the applicants of the meeting by mail sent at least 14 days before the meeting; and
make its decision.
[7] A response to the applicant from the Program Manager, Assessment, Revenue Division, advised the applicant that the City had no authority pursuant to section 357 (5) to make the corrections sought and, in any event, the statutory deadlines for making the request had passed. This position was subsequently maintained in response to a follow up by the applicant and it has continued to the present.
[8] It is my view that in refusing to afford the applicant the opportunity to make the representations that it sought to make, the City erred in law by declining the jurisdiction that the Legislature had conferred on it and by refusing to provide the hearing before Council to which the applicant was entitled. The right to make representations to Council for the purpose intended by the applicant is a special and unusual right intended to be used precisely in the circumstances of this case and it could not properly be withheld by City officials or even by Council itself.
[9] Nor would it have made any difference if some other procedure were open to the applicant to seek the same remedy. Although I doubt, but do not decide, that an appeal to the Assessment Review Board was available to the applicant, even if it were available, that would not have deprived the applicant of the right to pursue the remedy in accordance with the procedure that it has chosen to follow. The applicant was not required to exhaust other means of obtaining relief first.
[10] On the evidence before us, the applicant's original application for an opportunity to make representations to Council was made on February 26, 2005. It was made with respect to taxes for the years 2003, 2004 and 2005 which were "levied" in 2005. The statutory deadline imposed by section 357 (3) of the Municipal Act for making that application was, accordingly, February 28, 2005. It follows that applicant's application was made two days before it would have become statute barred.
[11] For these reasons I conclude that the City's actions failed to meet the requisite standard of correctness and that this court must now intervene.
Matlow, J.
Pierce, R.S.J.
Power, J.
RE-RELEASED: June 30, 2010
CITATION: Toth v. Ottawa (City), 2010 ONSC 2605
DIVISIONAL COURT FILE NO.: 07-DV-1329
RE-RELEASE DATE: 2010/06/30
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PIERCE, R.S.J., MATLOW AND POWER, JJ.
B E T W E E N :
TOTH EQUITY LIMITED
Applicant
- and -
THE CITY OF OTTAWA
Respondent
REASONS FOR JUDGMENT
MATLOW, J.
RE-RELEASED: June 30, 2010