City of Toronto v. Municipal Property Assessment Corporation, 2016 CanLII 14709

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: March 16, 2016

FILE NO.: RRD 2016M4

Assessed Person(s): Panterra Mansions Joint Venture Group

Appellant(s): City of Toronto

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 09

Respondent(s): City of Toronto

Property Location(s): 539 Jarvis St.

Municipality(ies): City of Toronto

Roll Number(s): 1904-068-270-00600-0000

Appeal Number(s): 1878451

Taxation Year(s): 2006

Hearing Event No.: 262658

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

Request by: City of Toronto (“Requester”)

Request for: A review of the Board’s Notice of Decision No. 2317185 released on March 25, 2011

Heard: By written submission

DECISION OF THE BOARD DELIVERED BY PAUL MULDOON

ISSUES AND ORDER SOUGHT

1The City of Toronto (“City”) seeks a review of the Board’s Notice of Decision (Decision No. 2317185) by Member A. Castel released on March 25, 2011. This request for review was filed with the Board on August 27, 2015. I exercised my discretion to accept a late filing on September 2, 2015.

2The City’s request for review arises out of a hearing from September 14, 2010 for the 2006 taxation year. Written reasons were not requested and thus a one page Notice of Decision was released.

3At issue before the Board was the assessment of the property owned by Panterra Mansions Joint Venture Corp (“Panterra”) located at 539 Jarvis St. Con 1 FB PT Park Lot 6 (the “subject property”). The subject property was assessed at $163,000 for the 2006 taxation year and the Board’s decision increased the value to $1,190,000. This amount was allegedly based on Minutes of Settlement; however, the file indicates that neither the owner of the subject property nor the receiver attended the hearing.

4The City filed this request for review as a result of a Superior Court Order (Court File No. 07-CL-7173 dated September, 24, 2007) discovered in October 2014, from Justice Morawetz which appointed an interim receiver for Panterra. The Superior Court Order, in effect, prohibited the continuation of all proceedings, including those before the Board.

5Upon this discovery, counsel for the City wrote to the Board asking that the decision be cancelled. A telephone conference call was convened by the Board and held on June 25, 2015. The presiding Member advised the parties to proceed with a request for review. The owner of the subject property was not involved in this call as they did not respond to the Board’s teleconference call scheduling requests.

6The City now seeks a request for review and cancellation of the decision pursuant to Rule 145(1)(d) and submits that the Superior Court Order is new evidence.

7Christopher J. Henderson, counsel for the City of Toronto, submits that without leave first being obtained from the Ontario Superior Court, the Board did not have the jurisdiction to hear the matter or make a decision. In his submissions, he states “regardless of the outcome or consequences flowing from the Board’s decision (ie. the resulting property taxes), as a matter of law, the proceeding ought not have continued and the matter should never had been heard.”

8MPAC submits, had it been aware of the Order prohibiting the continuation of all proceedings prior to the commencement of the hearing, it would have supported the withdrawal of the City’s appeal. MPAC consents to the City’s request to cancel the Board’s decision.

9The owner/receiver of the property has not responded to any communication from the Board and as noted by the City of Toronto in their request for review documents, correspondence from the receiver ceased in 2014.

RELEVANT RULES

10The Board’s rules respecting requests for review are set out in Rules 141 to 146 of the Board’s Rules of Practice and Procedure (the “Rules”).

11A request for review is received pursuant to Rule 144 which grants the Board with the following authority:

144. Receipt of Request for Review

(1) Where a request for review has been received, the Board may:

(a) seek written submissions from the parties on the issue raised in the request;

(b) grant a motion to argue the question;

(c) grant a re-hearing without a motion; or

(d) confirm, vary, suspend or cancel the decision.

12The grounds for review are stated in Rule 145:

145. Grounds for Review

(1) The Board may consider reviewing its decision if the grounds for the request raise a convincing and compelling case that the Board:

(a) acted outside its jurisdiction;

(b) violated the rules of natural justice or procedural fairness, including allegations of bias;

(c) made an error of law or fact such that the Board would likely have reached a different decision;

(d) should consider new evidence, which was not available at the time of the hearing, but that is credible and could have affected the result; or heard false or misleading evidence from a party or witness, which was discovered only after the hearing and could have affected the result.

13Written reasons, a prerequisite to a request for review is stated in Rule 128:

128. Request Required

A party who requires written reasons for a Board decision must make a request for written reasons at the conclusion of the hearing or in writing within 14 days of the end of the hearing. A party intending to ask for a review of the Board’s decision must request written reasons.

DISCUSSION AND REASONS

14I grant the request for review in this case and cancel the Board’s Notice of Decision (Decision No. 2317185). The City has raised a convincing and compelling case that the Board was without jurisdiction per Rule 145(1)(d).

15I also apply my discretion to grant this request despite Rule 128 that requires written reasons as a prerequisite to a request for review. Written reasons were not requested at the time of the hearing nor within the 14 days following. Due to the historical nature of the appeal and the recent discovery of the Superior Court’s Order, I do not find that Rule 128 serves as a bar to a review request in this exceptional case.

16I accept that the Board did not have authority to make the decision it did in light of the Superior Court Order and in particular, as a result of paragraph 8:

No Proceedings Against the Debtor or the Property

8. THIS COURT Orders that no Proceeding against or in respect of the Debtor or the Property shall be commenced or continued except with the written consent of the Receiver or with leave of this Court and any and all Proceedings currently under way or against or in respect of the Debtor or the Property are hereby stayed and suspended pending further Order of this Court.

17I find that an assessment appeal pursuant to s. 40 of the Assessment Act constitutes a “proceeding against or in respect of the Debtor or the Property” and therefore, it ought not to have been heard by the Board.

ORDER

18For all of the above reasons, the Board orders that this request for review be granted. The Board’s Notice of Decision (Decision No. 2317185) is hereby cancelled.