Administrative law – Decisions of administrative tribunals – Assessment Review Board – Municipalities – Property assessment – Errors – Remedies – Alternative remedies – Mandamus – Judicial review – Compliance with legislation
Toth Equity Ltd. v. Ottawa (City),  O.J. No. 2128, 2011 ONCA 372, Ontario Court of Appeal, May 12, 2011, R.J. Sharpe, E.E. Gillese and A. Karakatsanis J.J.A.
The respondent, Toth Equity Limited, claimed that the appellant, the City of Ottawa overcharged it for property taxes on its property for several years as a result of calculation errors it made on several of the respondent’s 2001 tax adjustments. The appellant contended that the alleged errors were the unintended ramifications flowing from a settlement between the respondent and the Municipal Property Assessment Corporation (“MPAC”) as well as decisions previously rendered by the Assessment Review Board (“ARB”) and subsequently denied the respondent’s application without holding a meeting to consider it, pursuant to section 357 of the Municipal Act, 2001 for the cancellation, reduction or refund in taxes which were overcharged due to a “gross or manifest error that is clerical or factual in nature”.
The respondent subsequently started proceedings in Divisional Court stating that the appellant was in breach of its statutory obligation to hold a meeting as the application had been brought within the statutory timelines. The Divisional Court ordered that a meeting be held, stating that the appellant erred in law by refusing to provide the respondent the opportunity to make representations at a hearing in respect of its Claim. The appellant appealed the Divisional Court’s order.
The court held that the Divisional Court erred in law in making its order in two ways. First, requiring the appellant to hold a meeting and render a decision in respect of the respondent’s claim conflicted with the legislative scheme which provided the respondent with a right of appeal to the ARB if the appellant failed to render a decision within a certain period of time. As the Order given by the Divisional Court was in the nature of Mandamus, which lies only where an applicant for judicial review shows that it is owed a legal duty, the existence of the appeal right to the ARB undermined the legal justification for such an order.
The court also held that the Divisional Court erred in holding that the respondent was not required to exhaust all available and adequate remedies within the administrative process before pursuing an application for judicial review. The court held that an appeal to the ARB was an adequate remedy and was not fully exhausted by the respondent. The Order was therefore set aside.
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