City of Ottawa v. Walkley Self Storage Corporation, 2015 CanLII 25085

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: May 4, 2015

FILE NO.: DM 131286

Moving Party(ies): City of Ottawa

Respondent(s): Walkley Self Storage Corporation

Property Location(s): 1830-1840 Walkley Road

Municipality(ies): City of Ottawa

Roll Number(s): 0614-116-505-00900-0000

Appeal Number(s): 2951051

Taxation Year(s): 2012

Hearing Event No.: 570156

Legislative Authority: Section 364.(14) of the Municipal Act, S.O. 2001, c. 25, as amended and Ontario Regulation (“O. Reg.”) 325/01 as amended

ARB Case Name: DM 131286

Heard: September 26, 2014 in Ottawa, Ontario

APPEARANCES:

Parties

Counsel

City of Ottawa

J. Pereira

Walkley Self Storage Corporation

R. Poole and D. Fleet

DISPOSITION OF THE BOARD DELIVERED BY TERRY DENISON AND PAUL MULDOON

INTRODUCTION

1This matter has come before the Assessment Review Board (“Board”) a number of times and can be briefly summarized. Walkley Self Storage Corporation (“WSSC”) made an application to the City for the 2012 taxation year under s. 364 of the Municipal Act, 2001, S.O. 2001, c. 25 (“Municipal Act”) for a vacancy rebate. The City denied the rebate for the portion of the building that WSSC claimed was eligible for a rebate and WSSC appealed the decision to the Board pursuant to s. 364.(14) of the Municipal Act. The appeal was heard on December 13, 2013 (“December Appeal hearing”) and the Board allowed the vacancy rebate application. Written Reasons for the decision were provided in Board File No. ID 124106 (“Walkley”) and released on March 31, 2014.

2The City requested a review of the decision pursuant to Rule 141 of the Board's Rules. The powers of Board to review decisions and the grounds for such review are outlined in Rules 141 and 145 of the Board’s Rules of Practice and Procedure (“Rules”). On August 1, 2014, the Board ordered that a motion be heard under Rule 144 and that motion was heard in Ottawa on September 26, 2014. On January 13, 2015, the Board issued an interim decision with respect to a motion to review made pursuant to Rule 141. The Board dismissed the request for a re-hearing and concluded as follow:

[40] In relation to Rule 145 of the Board’s Rules, the Board finds that the City of Ottawa’s motion for review of the Walkley decision does not raise a convincing and compelling case that the Board made an error in law or fact such that the Board would likely have reached a different conclusion on any other ground enumerated in Rule 145. Moreover, the Board is satisfied that the decision is transparent and defensible as being within a range of possible and acceptable outcomes, taking into account the evidence before it and the statutory interpretation. With respect to differences in statutory interpretation by the Board in the London and Armel decisions, the approach taken in the Armel decision should be preferred as it analyzes the relevant parts of the regulation in context and considers the intent and purpose of the relevant legislation.

3In its Decision, the Board also noted that:

[12] The Alternate Executive Chair letter, Mr. DeMarco addresses the issue of the request for a stay by the City by stating “I suspend the implementation of paragraphs 84 and 85 of ID 124106 pending the outcome of the review motion.” The Board invites the parties to make submissions within 15 days from the date of the release of these reasons as to why the stay should be lifted.

4On January 22, 2015, the City wrote to the Board requesting that the Board decision ID 124106 should continue to be stayed by the Board as the City is proceeding with its Motion for Leave to Appeal before the Divisional Court of decision ID 124106. On January 28, 2015, WSSR wrote to the Board opposing the request for the continuation of the stay.

ISSUE IN THIS MOTION

5The City requests the stay suspending the implementation of paragraphs 84 and 85 of ID 124106 issued in this matter be continued pending its Motion for Leave to Appeal at Divisional Court. WSSC opposed the City’s request.

DISPOSITION OF MOTION

6Upon reading the materials filed and hearing the submissions of counsel, the Board orders that the stay outlined in paragraphs 84 and 85 in the Board’s Decision No. ID 124106, that is, the Walkley decision, is lifted.

Submissions filed by the Parties in this Motion

7The City submits as follows:

The Rules of Civil Procedure, Rule 63.01(1), provides for automatic stay on delivery of notice of appeal from an interlocutory of the final order, unit the disposition of the appeal. The Board’s Rules recognizes the Board’s ability to apply the Rules of Civil Procedure.

As all similar self-storage vacancy rebate matters before the Board are currently on hold pending the outcome of the City’s appeal, we would request that the Board continue to stay ID 124016 until disposition of the matter by the Divisional Court.

8WSSC states that:

1. The stay of implementation of the Interim Decision No. 124106 released March 31, 2014 should be lifted; and

2. A final decision of the Board should issue forthwith determining the tax rebate for the captioned property for the 2012 taxation year pursuant to section 364 of the Municipal Act, 2001;

a. In the amount of $2,375.52, plus

b. Interest thereon pursuant to the provisions of section 364(20) of the Municipal Act, 2001 at the rate of 3% per annum commencing June 28, 2013 and continuing thereafter until the date of payment to Walkley Self Storage Corporation.

9WSSC states that the City has never expressed any disagreement with either the figure of $2,375.52 or the basis of calculating it. WSSC also states that:

a. Best achieves the just, most expeditious and least expensive determination of the proceedings before the Board, in terms of the resources of both the Board and the parties, all without the prejudice to the City; and

b. Assures that finality will be more quickly and inexpensively obtained.

10In reply, the City states that:

The City has not verified the amount of the rebate submitted by Mr. Fleet for the Walkley property, and has not calculated rebates for any other self-storage vacancy rebated matter that is currently in abeyance in Ottawa.

11The City further states that, if the stay is lifted, the City may have to recalculate recoveries if it is successful on its appeal. The City further states municipalities in Ontario have similar self-storage vacancy rebate matters before the Board pending the outcome of this matter, the continuance of the stay until disposition of the matter by Divisional Court is the most efficient process and use of resources.

REASONS FOR DISPOSITION OF MOTION

12When this matter came before the Board in first instance, the Board suspended the implementation of the decision, that is, it did not require the City to pay the vacancy rebate to WSSC. Since that time, the City filed a Request for Review and a motion was granted under Rule 141. The motion was heard in Ottawa on September 26, 2014 and issued its Decision on January 13, 2015 confirming the Board’s Decision ID 124106. The City is requesting that the requirement to pay the vacancy rebate remains suspended pending the outcome of the Divisional Court proceeding while the WCCS opposes such a request.

13There is no specific Rule that would give guidance to the Board in terms of the exercise of its discretion as to when continue to suspend the implementation of one of its decision pending appeal proceedings. Hence, the Board will exercise its discretion based on basic principle relating to whether implementing the decision would create any undue hardship or prejudice to the parties.

14The City does not expressly state that it will suffer undue hardship or prejudice should the stay not be lifted. The City does state, however, that it has not verified the amount of rebate submitted by WSSC for the Walkley property and that it may have to recalculate rebate amounts if successful on its appeal. The City, it appears, views that this matter may be akin to a test case, and hence, it would be preferable to have the Court deal with the legal issues and then resolve other matters at a later time.

15The Board finds that the implementation of its decision should no longer be suspended. First, the Board strives for finality in its decisions and deal with all matters that are before it. In this way, any review court will have the benefit of all aspects of the Board’s decision and the Court decision would finalize the matter and there would be no outstanding matters to be referred back to the Board.

16Second, the Board finds that there is no substantial prejudice for the City in verifying the amount of rebate submitted by the WSSC and then rebating that amount. There is no suggestion by the parties that the amount of the rebate is such that the City would be put in fiscal peril.

17Further, it should be noted that if the City pays the rebate, and interest, and it is found to have paid in error (because the Board was in error in finding the applicability of the rebate), s. 364.(22) of the Municipal Act, 2001 provides that:

If a rebate is paid under this section and the municipality determines that the rebate or any portion of the rebate has been paid in error, the municipality must notify the owner of the property in respect of which the rebate has been made of the amount of the overpayment and upon doing so the amount shall have priority lien status and shall be added to the tax roll.

18The Board, therefore, finds that the Board’s interim decision should be implemented.

CONCLUSION

19The Board orders that Board’s decision ID124106 should be implemented.