Assessment Corporation v London (City), 2015 OARB minicounsel 114

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: August 10, 2015

FILE NO.: DM 132336

Moving Party(ies): 625041 Ontario Limited; Municipal Property Assessment Corporation (“MPAC”) Region 23

Respondent(s): MPAC Region 23; 625041 Ontario Limited

Respondent(s): City of London

Property Location(s): 1510-1540 Fanshawe Park Road West

Municipality(ies): City of London

Roll Number(s): 3936-090-460-13870-0000

Appeal Number(s): 2981646, 3027047 and 3090904 (deemed 2015)

Taxation Year(s): 2013, 2014 (and deemed 2015)

Hearing Event No.: 578929

Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Heard: April 13, 2015 in London, Ontario

APPEARANCES:

Parties

Counsel⁺/Representative

625041 Ontario Limited

Peter Stavrou

MPAC

Jeff Langford and William Somerville

City of London

No one appeared

MEMORANDUM OF ORAL DISPOSITION DELIVERED BY DAN WEAGANT ON APRIL 13, 2015

DISPOSITION OF MOTIONS

Motion by 625041 Ontario Limited to Adjourn the Hearing

1Mr. Stavrou moved to have the hearing adjourned to a later date to allow him more time to prepare.

Motion by MPAC, Region 23 to Dismiss the Appeals

2Mr. Somerville moved to dismiss the appeals for the 2013 and 2014 taxation years, owing to the Appellant’s failure to meet the requirements of a Board Order issued in January 2014.

REASONS FOR DISPOSITION OF MOTIONS

Motion to Adjourn the Hearing

3These appeals have been adjourned on at least two previous occasions, once in September 2014 and a second time on December 3, 2014. The September 2014 adjournment was granted by the Assessment Review Board (“Board”) prior to the scheduled hearing date of September 24, 2014. The September 2014 hearing date was set in July 2014.

4At the December 3, 2014 hearing, the appeals were adjourned and at the request of MPAC, a Board Order was to be issued setting out specific dates for disclosure, responses and inspections, as required. MPAC cited the Appellant’s lack of response to MPAC’s requests for information related to the subject property, specifically rent rolls and access for inspection, as the reasons for the request.

5On January 8, 2015, a Board Order was issued, indicating that the parties agreed that disclosure in accordance with the Board’s Rules of Practice and Procedure (“Rules”) Rule 45 had not taken place. The Board ordered as follows:

• The Appellant shall disclose to MPAC, no later than February 13, 2015, a written statement outlining the reasons for the appeals; the subject property’s income and expense statements for the 2010, 2011 and 2012 taxation years; a list of maintenance issues along with quotes and / or invoices to indicate the possible cost-to-cure these issues; and any documentary evidence the Appellant intends to present at the hearing.

• Inspections of the subject property are to be completed no later than February 27, 2015.

• MPAC and the City shall reply to the Appellant no later than March 13, 2015 and that reply shall include the disclosure of any documentary evidence that MPAC or the City intends to present at the hearing. (This part of the order is predicated on the Appellant submitting an issue statement, costs to cure and access for inspection by MPAC).

6Mr. Stavrou stated that the Board’s Rules allow for an adjournment if the adjournment is not prejudicial to the other parties involved.

7Mr. Somerville responded that while adjournments may be granted by the Board, as has occurred on these appeals twice in the past, where adjournments result in the inefficient use of time and resources, they are in effect prejudicial to the pother parties. He pointed out that the Board’s Order 134109, issued on January 8, 2015 was binding and that the Appellant’s failure to meet the requirements of that Order constitutes undue delay.

8Mr. Stavrou cited travel plans and his busy schedule, including impending court dates as reasons for his request for an adjournment. Subsequent to the issuance of Board Order 134109, Mr. Stavrou made two requests for adjournment to the Board, one on January 8, 2015 and another on March 19, 2015; both of which were denied. Mr. Stavrou submitted email correspondence with Provincial Offences Court where a court date had been scheduled on April 13 in London on the same day as the current hearing. This court date was set on December 11, 2014 at Mr. Stavrou’s request, yet the adjournment request of January 8, 2015 made no reference to this impending court date. Mr. Stavrou revealed this conflict in his March 19 adjournment request and to accommodate his schedule, the Board agreed to schedule the hearing at 1:30 pm as opposed to the normal 9:30 am start time.

9The Board finds that the evidence indicates a pattern of delay by Mr. Stavrou, for his own sake. At no time since July of 2014 when the original hearing was scheduled did Mr. Stavrou make any effort to facilitate discussions or resolution of this matter with MPAC. He repeatedly referred to information provided to MPAC relating to previous years’ appeals on the subject property and other properties, which the Board finds to be irrelevant in the subject appeals. There is no record of response from Mr. Stavrou to MPAC regarding their written request in November 2014 for access to the property for the purpose of inspection.

10The Board also finds that, while the hearing process must proceed in a manner that is fair and free from prejudice, these measures apply equally to all parties. When filing an appeal with the Board, the Appellant’s representative must accept equal responsibility for the timely resolution of the appeal. Mr. Stavrou has had nine months to participate in the process and has failed to meet this obligation, including a demonstrated unwillingness or inability to meet the requirements of an Order of this Board, which the Board finds to be unfair to the other parties.

11Accordingly, the motion to adjourn the hearing is dismissed.

Motion to Dismiss the Appeals

12Mr. Somerville submitted that the representative’s failure to disclose the reasons for the appeals and the unresponsiveness to a request by MPAC for access for the purpose of inspection does not allow MPAC to argue their case, leading to his motion to dismiss the appeals.

13Mr. Stavrou responded by indicating, surprisingly given his position earlier in the day, that he was now prepared to argue his case before the Board and objected to the motion to dismiss the appeals, indicating that to dismiss the appeals would be unfair to him and the corporation he represents. Further, Mr. Stavrou cited Rule 58 which states:

• Serving the Notice of Motion Unless the Board agrees to a lesser time, the notice of motion and all supporting documents must be served at least 10 days before the date for the hearing of the motion. A notice of motion must be served on all parties, the Board Registrar, and any other person as directed by the Board. An affidavit stating that this was done must be filed with the Board before or at the hearing of the motion.

14Mr. Stavrou submitted that he was at a disadvantage because MPAC did not serve notice of their motion to dismiss these appeals in time as stipulated by Rule 58.

15Mr. Somerville submitted that, since the motion to dismiss arose from out of events at the hearing (specifically the dismissal of the motion to adjourn), Rule 63 applies, which states:

• Motion Made at Oral Hearing A motion may be made at an oral hearing only if the need for the motion arises out of events at the hearing. The motion will be heard or decided in accordance with any procedures ordered by the presiding member. If the moving party is aware of the need for a motion before the hearing, the moving party should respect the other parties’ right to notice and serve a notice of motion under the Rules and request that the Board reduce the time required for service of the notice, if necessary.

16Mr. Somerville submitted that since this is a peremptory hearing, as ordered by Board Order 134109, it was a reasonable assumption on MPAC’s part that the hearing would proceed on that basis with the other requirements of that Board Order having been met. The result being that the motion to dismiss the appeals has arisen out of events at the hearing. He further submitted that the Appellant knew fully that the hearing is peremptory, that the Appellant’s representative did not fulfill Board Order 134109 as he did not provide submissions as required and did not accommodate access to the subject property for inspection.

17Mr. Somerville concluded that Mr. Stavrou had ample time to prepare and his failure to do so puts MPAC in a prejudicial situation whereby they do not have the necessary data and disclosure from the Appellant to argue their case.

18Mr. Stavrou summarized his position by suggesting his previous submissions for earlier appeals should be sufficient and attempted on several occasions at hearing to argue his case on the appeals rather than the motion at hand. He concluded that he was upset by the process, that it was unfair to taxpayers and that he would be unnecessarily prejudiced by the granting of MPAC’s motion to dismiss.

19The Board does not take motions to dismiss lightly and recognizes that granting such motions effectively end an Appellant’s opportunity to argue their case. In this case, Mr. Stravrou has conducted himself, and his carriage of the appeals in such a way as to create undue delay. He has ignored repeated requests for information from MPAC and has failed to adhere to a Board Order to deliver that information and to grant access for inspection by MPAC.

20The Board agrees with Mr. Somerville. The Appellant’s representative’s failure to meet the requirements of the Board Order, and his unresponsiveness to requests for information from MPAC have placed MPAC in a position that they are not able to argue a case for current value of the subject property. The Board also agrees with Mr. Somerville, that this motion arose out of events at the hearing and that Rule 63 applies.

21The Board finds that the motion has arisen from the Appellant’s representative’s unwillingness or inability to adhere to Board Order 134109 and for that reason, and the reasons cited for dismissal of the earlier motion to adjourn, MPAC’s motion to dismiss is granted.

22Appeals 2981646 and 3027047 for the 2013 and 2014 taxation years are dismissed. This decision also applies to the deemed 2015 appeal.

2015 DEEMED APPEAL

23An appeal for the 2014 taxation year is presently before the Board. Section 40.(26) provides that the appellant is deemed to have made the same appeal for the subsequent taxation year if the appeal is not finally disposed of before March 31 of the subsequent taxation year. The Board has not disposed of the 2014 appeal before March 31, 2015. For that reason, this decision also applies to the 2015 taxation year.

24Section 40.(26) of the Act directs:

Deemed appeals, 2009 and subsequent years

For 2009 and subsequent taxation years, an appellant shall be deemed to have brought the same appeal in respect of a property,

(a) in relation to the assessments under sections 32, 33 and 34 for the year; and

(b) in relation to the assessment, including assessments under sections 32, 33 and 34, for a subsequent taxation year to which the same general reassessment applies, if the appeal is not finally disposed of before March 31 of the subsequent taxation year or, if an assessment has been made under section 32, 33 or 34, before the 90th day after the notice of assessment was mailed.