Yavari v. Ontario (Minister of Finance), 2024 ONSC 5296

by Landmark Law

In this case, the applicant sought judicial review of the Ontario Minister of Finance's decision to deny relief from the Non-Resident Speculation Tax (NRST) under section 20 of the Land Transfer Tax Act (LTTA). It is important to note that the policy was meant to tax speculators and not taxpayers who are settling in Canada. The applicant argued that due to COVID-19-induced delays, she missed the statutory deadline for obtaining permanent residency by 10 days, which otherwise would have entitled her to a rebate of the $510,000 NRST paid. The applicant claimed the decision was unreasonable and procedurally unfair, arguing that the Minister's discretion was improperly constrained.

The applicant provided evidence of delays in mandatory language exam and medical tests due to the pandemic. She had purchased a home in 2017 and resided there while securing education and employment, eventually obtaining a work permit and applying for permanent residency, which was granted 10 days after the four-year eligibility period under the LTTA.

The Minister reasoned that purchasing the property carried inherent risks, which included not obtaining permanent residency within the specified timeframe. Despite acknowledging the impact of COVID-19, the Minister maintained that the pandemic did not constitute special circumstances justifying an exemption from the NRST.

The court found the Minister's decision unreasonable, noting that it failed to adequately consider the impact of the pandemic as a special circumstance. The decision was quashed, and the case was remitted to the Minister for a fresh review, taking into account the effect of COVID-19 on the applicant's delay in obtaining permanent residency. The court also ruled that this was not an appropriate case for granting mandamus to compel the Minister to grant relief. As the successful party, the applicant was awarded $10,000 in costs.

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