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1 STAFF REPORT ACTION REQUIRED 2011 Accounts Receivable Write-off Report Date: March 29, 2012 To: From: Wards: Reference Number: Government Management Committee Treasurer All P:\2012\Internal Services\acc\gm12007(AFS14732) SUMMARY This report recommends the write-off of uncollectible accounts receivable balances totalling $369,237.60, in accordance with the provisions of the Financial Control By-law, as all collection efforts with a prospect of success have been exhausted. The actions being recommended by staff have been reviewed with appropriate Division Heads and Legal Services who concur with the recommendations. RECOMMENDATIONS The Treasurer recommends that: 1. City Council approve the write-off of the uncollectible accounts in the amount of $369, as detailed in Table 1 of this report. Financial Impact There are no financial implications as a result of this report as all accounts recommended for write-off have been provided for in the City's "Allowance for Doubtful Accounts" and expensed in previous years. The write-offs recommended in this report amount to $369, In addition, this report summarizes the following amounts written off by the Treasurer during 2011, in accordance with the Financial Control By-law, after completion of appropriate collection efforts: Staff report for action on 2011 Accounts Receivable Write-off 1

2 a) individual accounts under $50,000 approved by the Treasurer in the amount of $2,087,331.37; and, b) $272, representing three (3) accounts approved by the Treasurer where the City Solicitor was asked to try to recover the amount owing and has concluded the amount to be uncollectible. The Deputy City Manager and Chief Financial Officer has reviewed this report and agrees with the financial impact information. DECISION HISTORY On an annual basis, the Treasurer presents a report to Committee and Council to seek approval for the write-off of uncollectible amounts in accordance with the provision of the Financial Control By-law (Municipal Code, Chapter 71). The Financial Control Bylaw as amended by Council on December 13, 2007, states that: "Write-offs of amounts owing to the City in excess of $50,000 must be approved by Council except for tax reductions as a result of a successful appeal of assessment or taxes by a taxpayer". The Treasurer has the authority to write-off outstanding amounts owing to the City as uncollectible, if the amount is not more than $50,000 and is not an amount raised as taxation or deemed to be taxes, except for items added to the tax bills for collection purposes only and not as a result of a tax or assessment appeal. A further amendment June 24, 2008 authorizes the Treasurer to write-off amounts up to $500,000 where the City Solicitor has been asked to try to recover the amount owing and the City Solicitor concludes that the amount is uncollectible. Following is the link to Chapter 71 of the Toronto Municipal Code, Financial Control: Following is the link to the 2010 Accounts Receivable Write-off Report received by Government Management Committee at its meeting held on May 2, 2011(re: GM3.1): ISSUE BACKGROUND All City divisions are required to review their outstanding receivables on a regular basis and establish appropriate allowances for all accounts where collection is considered doubtful. The Accounting Services Division reviews these provisions annually for adequacy and recommends adjustments where appropriate. Once all collection efforts have been exhausted and senior City staff, Legal Services and/or the City's contracted collection agencies have deemed the amount(s) to be uncollectible, a write-off request is initiated and the required approvals are obtained from the appropriate Division, Director of Accounting Services and the Treasurer. Staff report for action on 2011 Accounts Receivable Write-off 2

3 COMMENTS Accounts may be recommended for write-off for a variety of reasons including bankruptcy, business closure, inability to trace customer and Court judgements. For 2011, two (2) accounts, identified in Table 1 below, in the amount of $369, are recommended for write-off. Table 1: Individual Accounts over $50,000 Recommended for Write-Off Employee / Employee / Customer Division Year Customer Name No. Solid Waste Management Corporate Finance Amount ($) Transit Plastique Inc. 119, North York Symphony (Toronto Philharmonia) 249, TOTAL $369, Transit Plastique In July, 2008 the City entered into an agreement with Transit Plastique for the purchase and removal of polyethylene (PET) bottles that were collected through the City s Blue Box Program. Transit Plastique agreed to purchase the bottles at a cost of $ per metric tonne for the period of August 1, 2008 November 1, The contract provided that the reconciliation of weights and monies owing would be carried out at the termination of the contract or at other intervals agreed to by both parties. Transit Plastique refused to reconcile the weights and monies owing prior to the termination of the contract which led to an outstanding balance of $41, The contract also provided that if Transit Plastique failed to remove the PET bottles, the City may re-sell the material which had not been removed and subsequently charge it with any loss, cost and expense incurred in the re-sale. Ten (10) loads were not picked up by Transit Plastique during the contracted period and were shipped to another customer at a reduced price which led to a loss of $53, Lastly, Transit Plastique failed to submit a provincial exemption certificate leading to PST arrears of $7, and GST arrears of $4, In total, Transit Plastique owes the City of Toronto $119, ($107, $12, late payment charges). On July 27, 2009, Transit Plastique filed a Notice of Intention to Make a Proposal to its creditors under the Bankruptcy and Insolvency Act. This proposal was subsequently rejected and Transit Plastique was deemed to have made an assignment in bankruptcy as of November 4, On November 16, 2009, the City of Toronto submitted a Proof of Claim to Transit Plastique s Bankruptcy Trustee in the amount of $107, On August 27, 2010 the City was advised by the Bankruptcy Trustee that secured creditors were owed over $2,000, and that there was no possibility that the City, an Staff report for action on 2011 Accounts Receivable Write-off 3

4 unsecured creditor, would be able to collect anything. On March 28, 2011 the City was again advised by the Bankruptcy Trustee that there would be no recovery for the City. Upon the bankruptcy of a debtor, the creditor is barred from commencing a claim against the debtor. A claim can only be commenced after the creditor is discharged from bankruptcy. Unfortunately, corporate debtors are rarely discharged from bankruptcy as this often requires the payment of all outstanding debts. Given that Transit Plastique has been assigned in bankruptcy the City can no longer bring a claim against it. Since the City has filed a Proof of Claim with the Bankruptcy Trustee it must wait for the distribution of the estate, which may take several years. Staff will continue to monitor the file, however given the number of preferred and secured creditors it is highly unlikely that the City will fully recover the amounts owing. Toronto Philharmonia (North York Symphony Association) At its meeting held on May 21, 22 and 23, 2002, Toronto City Council authorized a line of credit guarantee to the Royal Bank in respect of a line of credit held by the North York Symphony Association operating as the Toronto Philharmonia (the NYSA) in the amount of $200,000 for a two (2) year period. NYSA had the line of credit with Royal Bank until December 31, In 2007 the line of credit was assumed by The Bank of Nova Scotia. The City of Toronto Guarantee was ultimately extended to May 31, 2012 and increased to $250,000 by way of various extensions approved by Council over the years. For the duration of the Guarantee, the NYSA has operated with few tangible assets. Presumably, that is why it was required to obtain a guarantor for its line of credit. The NYSA gradually utilized the Guarantee to cover its operating losses and did not accumulate any assets. To the contrary, the NYSA liquidated what limited tangible assets it did have in order to cover its ongoing operating costs. Ultimately, NYSA's financial difficulties resulted in it being entirely insolvent, with no assets and a large debt load. As reported to Executive Committee and Council in July 2011 (re: EX7.7 "Amendments to the Operating Line of Credit and Loan Guarantee Policies and Approval of the Capital Loan Policy"), the NYSA became insolvent and the Bank of Nova Scotia demanded the payment of $249, from the City in May The City paid the demand in November 2010 and received an assignment of a general security interest in all of NYSA's assets. Legal Services has advised that there is no reasonable basis to believe that the City would be able to recover any monies from NYSA because the NYSA has no assets. As such, it is recommended that the amount be written off. Treasurer s Write-offs In 2011, the Treasurer approved the write-off of: Staff report for action on 2011 Accounts Receivable Write-off 4

5 individual accounts receivable balances of $50,000 or less that totalled $2,087, (2010: 257,439.38) consisting of: individual water accounts totalling $1,805,215.78; Transportation Services - $66,606.85; Toronto Water - $81,755.68; Long Term Care Homes and Services - $22,356.31; and, amounts from other divisions totalling $111,396.75; an individual Utility account related to Dundas Street East in the amount of $114, where the City Solicitor's office negotiated a settlement of the account and concluded that the balance of the account is uncollectible and should be written off; a litigation matter in the amount of $80, involving a former employee where the City Solicitor obtained a Court Judgement, however it was then determined uncollectible as a result of an assignment of bankruptcy by the former employee; and, $76, in relation to Toronto Water recovery of costs to excavate and replace sewer pipe due to nearby construction. The City Solicitor's office negotiated a settlement with $76, remaining unrecoverable. Individual Water Accounts, including Dundas Street East In 2011, the Treasurer approved the write-off of 4,101 individual water accounts receivable balances of $50,000 or less that totalled $1,805, ( $0). All of the amounts written off relate to inactive water accounts billed to tenants or to previous owners for which there is no legal mechanisms that would allow the water arrears to be added to a property's tax account for collection. All of the amounts had been issued to a collection agency and returned as uncollectible. All attempts to collect the outstanding arrears have proven unsuccessful. Of the 4,101 water accounts written off: 3,884 accounts (94.7%) had a balance of $1,000 or less written off; 4,082 accounts (99.5%) related to water consumed up to December 31, 2004 (and as far back as 1991); 19 accounts (0.5%) include water consumption and billing adjustments dated after January 1, 2005 and no later than June These accounts total $12,900 and half the value of these transactions were posted in 2004 and prior, and the other half represent billing adjustments processed after In addition, based on a settlement negotiated between the City (represented by the City Solicitor's Office) and the solicitors for the property owners, and recommendations made by Legal Services, the Treasurer authorized the write-off of water arrears in the amount of $114, on the Utility Account for the property located at Dundas Street East. Staff report for action on 2011 Accounts Receivable Write-off 5

6 Table 2, below, summarizes the 4,101 water accounts which were recommended and approved for write-off totalling $1,805,215.78, plus the one account in the amount of $114, related to Dundas Street East. Table 2: Water Receivable Amounts Written Off During 2011 Percentage # of Amounts Percentage of Write-off Amounts of Total Accounts Written-off Total Write-off Accounts Average Amount per Account $0 - $100 2, % $83, % $37.62 >$100 - $500 1, % $308, % $ >$500 - $1, % $195, % $ Sub-total (>$1,000) 3, % $588, % $ >$1,000 - $5, % $302, % $1, >$5,000 - $10, % $102, % $6, >$10,000 - $33, % $812, % $18, TOTAL Accounts under $50,000 4, % $1,805, % $ Dundas St. E , , TOTAL Written Off in ,102 $1,920, $ Since amalgamation in 1998, the City has realized water revenues of $7.4 billion (up to 2011 inclusive) and $3.0 billion (up to 2004). In comparison, the City has written off uncollectible water arrears totalling $9,981, (including the $1.9 million written off in 2011) representing 0.13% of total revenues up to 2011, or 0.33% of total revenues from 1998 to For water consumed prior to January 1, 2004, only the principal consumer of the water can be made to pay for water charges. Where water has been supplied to a tenant or a previous owner for periods prior to January 1, 2004, the water charges are deemed a debt owed to the City by the tenant or the previous owner, not the owner. The enactment of the Municipal Act, 2001 in January 2003 (now continued under the City of Toronto Act) established a municipality s ability to hold the property owner ultimately responsible for water charges provided that the Council of a municipality enacts a by-law establishing that property owners are responsible for all water-related charges and/or fees. At its meeting held on July 22, 23 and 24, 2003, Council approved a harmonized water collection policy holding property owners financially responsible for all water related charges incurred on their property, regardless of the consumer, effective January 1, 2004, and authorizing the adding of unpaid water balances to the corresponding property tax account (re: Administration Committee Report No. 7, Clause 6 Administration and Collection of Water Accounts ). To view the Council decision follow the link: Staff report for action on 2011 Accounts Receivable Write-off 6

7 Where accounts receivables exist for water consumed prior to January 1, 2004, and where internal collectors have been unsuccessful at recovering tenant-incurred water arrears, these accounts are issued to an external collection agency for skip trace investigation, the goal of which is to locate the consumer and to secure payment of the outstanding amount. Furthermore, Demand Letters may be mailed by Legal Services and in the case of a bankruptcy, a Proof of Claim form is mailed to the Trustee in Bankruptcy. Only after all collection efforts have been exhausted is an account recommended for write-off. Transportation Services Transportation Services had recommended that the Treasurer approve write-offs of $66, ( $60,670.95). The Division invoices third parties for repairs made to the Transportation infrastructure (poles, guide rails, traffic signals etc.) in the range of $1.1 million annually. This is as a result of motor vehicle accidents for which reports are obtained from Toronto Police Services to support the invoicing for the damages. Motor vehicle accident files over $1,000 are forwarded to Legal Services for collection action which may include litigation or small claims court action. Legal may recommend settlement based on the information available. Amounts under $1,000 are sent to two collection agencies. These amounts were deemed uncollectible by the collection agency and/or Legal Services. A write-off request was initiated and the required approvals were obtained. Toronto Water (including Write-Off related to Settlement of Account related to Excavation and Replacement of Sewer Pipe) Toronto Water had recommended that the Treasurer approve write-offs totalling $81, ( $0) related to accounts under $50,000. They recommended a writeoff of $20, regarding a pollution spill cleanup invoice. They also recommended write-offs in the amount of $61, regarding invoices for damage done to Toronto Water infrastructure. All invoices were sent to Legal for litigation. Based on the legal advice given to Toronto Water they ultimately settled with the third parties. The residual amounts were deemed uncollectible and recommended for write-off from Legal. Writeoff requests were initiated and the required approvals were obtained. In addition to the above, the City Solicitor's office negotiated a settlement in relation to recovery of costs incurred by Toronto Water to excavate and replace sewer pipe due to nearby construction, with $76, remaining unrecoverable and recommended for write-off. Long-Term Care Long Term Care (LTC) Homes & Services had recommended that the Treasurer approve write-offs in the amount of $22, ( $61,085.57). Ontario Regulation Act 79/10, and prior legislation prohibits the LTC Home from discharging a resident based on the resident's financial situation including the non-payment of accommodation fees. Referrals for write-off are not made while the resident is living in the Home; all accounts referred for write-off from the Long-Term Care Homes & Services Division are accounts of deceased or discharged residents, the majority being deceased residents. It is usually Staff report for action on 2011 Accounts Receivable Write-off 7

8 the case that when a resident passes away, the estate searches conducted by our Legal Services Division, concludes that the estate is insolvent and therefore the account remains outstanding. Legal then recommends the amount be written off. Other Divisions Other Divisional amounts totalling $111, ( $135,682.86) include various amounts deemed uncollectible by the respective Division, Accounting Services and/or Legal Services. Litigation Involving a Former Employee At its meeting held on May 21 23, 2003, City Council adopted the confidential recommendations of the Administration Committee contained in a confidential communication (April 29, 2003) from the City Clerk regarding "Legal Proceedings to Recover Amounts Owing on Overpayment to Former City Employee" (re: Administration Committee Report No. 4, Clause 17). The City commenced legal action in 2003 against the former employee and after extensive litigation received a Court Judgement on June 12, 2008 ordering the former employee to pay the $80, plus costs of $5,000 to the City. However, on June 27, 2008, the former employee filed an Assignment of Bankruptcy. This assignment of bankruptcy listed the City of Toronto as a creditor which prevented the City from receiving any monies towards the amount owed as ordered by the Court judgement. Since July 2008, the Legal Services Division has been reviewing the assets of the former employee and has determined that there are no assets which the City could trace to the overpayment (e.g. the former employee's home is listed under someone else s name, etc.). At this time, Legal has determined that the City would be unable to successfully argue to the Courts that the money had been held in a resulting or constructive trust that was not affected by the bankruptcy. As a result, Legal concluded that there are no other feasible options for collecting this Judgement and recommended that the amount be written off. CONTACT Mike St. Amant Casey Brendon Director, Accounting Services Director, Revenue Services Tel: (416) Tel: (416) Fax: (416) Fax: (416) SIGNATURE Giuliana Carbone Treasurer Staff report for action on 2011 Accounts Receivable Write-off 8

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