Dundeal Canada (GP) Incorporated v. Municipal Property Assessment Corporation, 2016 CanLII 2579

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: January 22, 2016

FILE NO.: DM 2016M10

Moving Party(ies): Dundeal Canada (GP) Incorporated

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 9

Respondent(s): City of Toronto

Property Location(s): 250 Dundas Street West

Municipality(ies): City of Toronto

Roll Number(s): 1904-065-560-00600-0000

Appeal Number(s): 2956398, 3009971 and 3075208

Taxation Year(s): 2013, 2014 and 2015

Hearing Event No.: 607730

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

Heard: Motion by written submission

WRITTEN SUBMISSIONS:

Parties

Counsel⁺/Representative

Dundeal Canada (GP) Incorporated

Dan Rosman⁺

MPAC

Georgia Ribeiro

City of Toronto

No one participated

DISPOSITION OF THE BOARD DELIVERED BY PAUL MULDOON AND

BERNARD COWAN

MOTION

1This is a motion pursuant to Rule 145 of the Assessment Review Board’s (“Board”) Rules of Practice and Procedure (“Rules”) for review of a Decision whereby the appeals were dismissed by a Board Order issued on July 3, 2015 for failure to have notified the Board that a Statement of Issues (“SOI”) had been served by the date ordered at a January 29, 2015 pre-hearing conference (“PHC”).

2The moving party requests that the Board reinstate the appeals.

3The City of Toronto provided no submissions, and MPAC’s submission was minimal, simply agreeing to “restoration of the complaints” due to past laxity in enforcement of Orders.

DISPOSITION OF MOTION AND ORDER

4The motion is granted.

5The Board reinstates the dismissed appeals.

6Within 10 days of the issuance of this Disposition of Motion, the moving party shall inform the Board and the other parties as to the status of the appeals. Specifically, if a SOI has been served, and if so, when; if Responses to the SOI have been served, and if so, when; if the parties have reached a resolution pending the outcome of the motion, and if so, when the Board might anticipate receipt of Minutes of Settlement.

7In the event that any SOI and Statements of Response (“SOR”) have already been exchanged, within one month of the issuance of this Disposition of Motion the parties are ordered to file a Draft Procedural Order with the Board. The Draft Procedural Order will be adopted by the Board with notice to the parties, or the appeals will be set to a PHC to adopt a Procedural Order.

REASONS FOR DISPOSITION OF MOTION AND ORDER

Background

8On January 18, 2013, the Board’s Associate Chair issued a memorandum to the Board’s stakeholders “Re: Appeals Streaming Strategy for the 2013-2016 Assessment Cycle”. This document forewarned the Board’s stakeholders of the change in process and timelines that would be enshrined by the document set out in the next paragraphs herein.

9On April 2, 2013 the Board implemented an updated version of its Rules, and so informed the stakeholders comprising the assessment community.

10Rules 43, 86 and 87 establish the process and timelines expected of the parties by the Board for appeals commencing with the 2013 taxation year. These include:

• Within 6 months of filing an appeal, generally by September 30, 2013 for a 2013 tax year appeal, MPAC will have released requested assessment data, SOI and SORs will have been served on all parties.

• Within 16 months of serving the SOI and SORs, generally by July 31, 2014 for a 2013 tax year appeal, the parties will have filed those respective documents with the Board, or at least 60 days prior to the first PHC, if earlier.

• On their own initiative, once pleadings have been exchanged, the parties could have requested a PHC to establish a Procedural Order (“PRO”) setting out procedural processes inclusive of hearing dates and related matters. Alternatively, if no PRO is approved within 18 months of filing an appeal, generally by September 30, 2014, the Board will set a peremptory PHC having adoption of a PRO as its primary purpose.

11Additionally, on April 2, 2013, the Board reinforced the Rules referenced above, by release of its “Practice Direction, Scheduling Pre-hearings and Hearings.” This document highlights features of the process and timelines set out immediately above, and also references Rules 7 and 8 that address consequences of non-compliance with Board Rules and/or Board Orders.

12PHC No. 571353 was scheduled by the Board for January 28, 2015, as the Board was not aware of SOIs, SORs or draft PROs having been filed for any of the properties on the hearing list.

13At the PHC, the Board commenced by canvassing the approximately 30 representatives for all 60 +/- properties on the docket as to the stage of exchange of SOIs and SORs. Only two hands were raised to indicate that any SOIs had been served! No SORs were indicated to have been served.

14The Board proceeded to read its prepared Opening Comments that incorporated the following information, commentary and Order:

i. The parties were advised that they were all in default of the Board’s Rules, having failed to comply with Rules 86 and 87.

ii. Producing and/or adopting a PRO at the PHC was likely impossible, as the “process” established by the “new” Rules requires the exchange of pleadings before the other procedural dates and a hearing date can be meaningfully scheduled.

iii. The Board informed the parties of the firm dates for the exchange of SOIs and SORs, and for filing of Draft PROs with the Board. It stated that “Non-compliance, considering the considerable notice you have already had to do so, will have sanctions applied.” [bold emphasis added]

iv. Documents (one for each property) would be provided to all appellants, cross-appellants, and MPAC for execution. This Procedural Acknowledgement (“PA”) stipulates that each signator will “…accept and proceed procedurally in accordance with a listing of procedural dates…”

v. The dates for the exchange of pleadings were ordered and Notice was given to the parties that “…pursuant to s. 8.2 of the Assessment Review Board Act, failure to inform the Board that a SOI filing deadline has been met shall be a default whereby the appeals will be dismissed without further notice.” [bold emphasis added]

vi. Having outlined the intended process for all representatives, the tribunal tempered the ordered dates and the intended sanction for non-compliance by indicating that any party would be afforded the opportunity to address any matter individually before or in lieu of executing a PA.

15The Board recessed the PHC to enable the parties to review the PAs. All appearing representatives respecting the moving party to this motion and those representing other like motions executed the document and left the PHC. None of these chose to address the Board respecting the dates ordered, the sanctions indicated for non-compliance, or otherwise.

16The PA executed by the moving party’s representative at the PHC indicated the ordered deadline for service of a SOI, the ordered deadline date for filing notice of service of the SOI with the Board, and that dismissal of the appeals without further notice would result for any non-compliance.

17The Board did not receive notice of service of a SOI by the ordered date from the moving party, and consequently dismissed that party’s appeals. This motion for reinstatement ensued, as have 12 other like motions by different parties, all of which were dismissed for like reasons.

18Numerous explanations for the defaults and/or respecting arguments supporting the motions were advanced by the moving parties for this and the other like motions, either singularly or in multiples. These can be paraphrased and described as follows:

a) Administrative, staff or consultant error or inadvertence, inclusive of a misconception that the PHC was a telephone conference call, not in-person.

b) Explanations were frequently made in the past for non-compliance with Orders, and were frequently accepted by the Board without sanction. Examples include awaiting information from the client; SOI served but notice not filed with the Board; default rapidly cured on learning of it; settled with MPAC either before or after the deadline for filing notice with the Board; deadline for service of SOI extended on consent by MPAC’s staff or its counsel.

c) Characterizations of the dismissal of the appeals included terms such as draconian, excessive, procedurally unfair, and unjust.

d) Dismissal of the appeals is prejudicial to the appellant alone.

e) No SOI forthcoming. Filed protectively as a “watching brief” to ensure that notices of hearing events are received and that this tenant is informed of any notice of potential change to an assessment.

19Rule 145 of the Board’s Rules sets out the grounds for review of a Board’s decision to dismiss these appeals. It states:

(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

(e) heard false or misleading evidence from a party or witness, which was discovered only after the hearing and could have affected the result.

20The Board is of the view that paragraphs (1) (a), (c) and (e), immediately above, are not applicable to this or the other like motions.

21The Board denies the applicability of paragraph (1) (d) to these motions. While one might conceivably argue, for example, that a staff error in not filing notice of service of a SOI is new evidence not available at the January 28, 2015 hearing, the Board does not consider this argument to have merit. To characterize these explanations re errors as such “new evidence” would diminish this long standing Board Rule in like circumstances to these matters to an absurdity and open the floodgates to certain abuse.

22Only the denial of natural justice or the synonymous denial of procedural fairness set out in paragraph (1) (b) remains as a possible basis for the Board’s consideration respecting this or these like motions.

23Numerous principles are encompassed within the concept of natural justice. These include:

• Right to be represented

• Opportunity to present evidence

• Opportunity to challenge evidence

• Right for the person who hears to decide

• Within jurisdiction and with unfettered discretion

• Right to a decision based solely on evidence, absent judicial notice

• Adequate notice

• Right to be present

• Form of hearing

• Opportunity to be heard

• Right to be heard by an impartial unbiased decision maker

24The Board is not convinced that the specific process leading to the dismissal of this group of appeals crosses the threshold beyond which natural justice is denied, for several reasons.

25Firstly, the first six principles are not applicable, as the moving party and those respecting the other like motions were all represented at the PHC from which the ordered notice of service of SOIs arose orally and by way of the PA document. No evidence, argument or decision was applicable.

26Secondly, there was no representation at the January 28, 2015 PHC that the deadline for providing notice of service of any SOI, or for serving any SOI was inadequate. No appearing party accepted the opportunity provided by the Board to address any matter ordered during their attendance.

27Thirdly, the moving parties were represented at the PHC (although there is an issue in this regard respecting one of the 13 motions). There was no right to be present at any event when the sanction for non-compliance was clearly indicated to automatically apply “without further notice”; nor should there have been.

28Fourthly, the form of hearing was by way of an in-person PHC with adequate notice, established to address the moving party’s non-compliance with the Board’s Rules and Practice Direction by presumably having failed to serve a SOI, having failed to provide a copy of a served SOI to the Board, and having failed to forward a draft PRO for adoption in the event that pleadings had in fact been exchanged. The outcome, as opposed to the form of hearing, was the Order of the Board, as acknowledged by execution of a PA.

29Fifthly, the opportunity to be heard was at the January 28, 2015 PHC. Every appellant had a further opportunity to be heard by submitting a request to the Board for an extension of the date for service of the SOI and/or the notice of service to the Board. Opportunities such as these are always available to parties to appeals, as was the opportunity to remedy the defaults in service of SOIs between the time of receipt of Notice of the PHC and the PHC itself.

30Sixthly, the decision maker who issued the Order dismissing the appeals that are the subject of this motion issued 24 other identical Orders for the identical reason, 12 of which others are the “other like motions” referred to herein. This constitutes the impartiality and absence of bias that is expected of any Board Member in like circumstances.

31The Board acknowledges that the Member who issued the Order dismissing the 24 appeals on July 3, 2015 was on the tribunal panel at the January 28, 2015 PHC and is on the tribunal panel for this motion hearing. It is the Board’s view that the order dismissing the appeals was perfunctory and automatic. The decision therein was restricted solely to whether or not the notice of having served a SOI was received by the Board within the ordered time frame, thereby ensuring that bias was not applicable.

32Furthermore, the Board is satisfied that the aforesaid Member’s capability to provide information respecting the PHC, its opening commentary, and the resultant oral Order and its acknowledging PA, all of which were known to the appearing parties at the PHC, is of assistance to this tribunal panel’s objective.

33Finally, it is argued by some that procedural fairness necessitates following Rule 2. It requires that the Rules be interpreted liberally “…to ensure the just, most expeditious and least expensive determination of every proceeding on its merits.” Taken literally, almost any explanation or argument offered for review of a motion to override an order for dismissal for failure to comply with a Board Order must result in reinstatement, so the merits of the appeal can be addressed. This result could neuter the Board’s long-standing pre-hearing process, effectively negate the utility of section 8.2(c) of the Assessment Review Board Act, and continue to erode the increasing incidences of lack of adherence to Board Orders that is encroaching increasingly on the Board’s processes.

34For the aforesaid reasons, the Board is satisfied that none of the five grounds for a successful Review of this motion to set aside the Order dismissing the appeals, as set out in Rule 145, appears to have been met.

35However, procedural fairness may have another aspect that might, or might not, encompass some of the explanations for default set out in paragraph 18 above.

36Paragraphs 18 (a) (b) and (c), above, address inconsistency with prior Board approaches that can be characterized as having been lenient. However, in this instance, the dismissed appeals were subject to new Rules, as forewarned by the Associate Chair’s streaming strategy memorandum, and as described in a new Practice Direction. The parties appearing on January 28, 2015 were advised that they were in default of the Rules. They were read an Order for serving SOIs and filing notices. And they were informed of and acknowledged by a PA of the consequences. Surely, new Rules, extensive opening comments by the presiding Members, and a PA incorporating a signed acknowledgement of the consequences of additional default should have caught the attention of the attendees. What appears to have transpired, instead, for those representing some of the dismissed appeals, was the absence of their internal communication as to the unique but extensively explained PHC and its implications.

37So long as parties’ representatives continue to have explanations such as those in paragraphs 18 (a) and (b) above, they are not likely to be able to expect a predictable uniformity in the Board’s processes that they so rightly request. They should welcome the Board’s enforcement of its Orders, facilitate its control of its processes, and take responsibility for their own obligations.

38Respecting paragraph 18 (d) above, the Board is aware of the proposition whereby if the only prejudice is to the party whose appeal is dismissed and none others, then the sanction of dismissal may be too severe. However, that may be those parties’ subjective views. The Board envisages prejudice elsewhere, even in the circumstances to this matter. Such instances might include:

• Prejudice to the public interest. Non-compliance and the resultant dismissal of the appeals has resulted in costs to MPAC, to the municipalities who fund it, and to the Board, all of which are publicly funded. MPAC has acknowledged that it does not object to the relief sought by the motions for review. However, the Board would expect that MPAC, as it should, would prepare for an anticipated influx of SOIs arising from PHCs by staff allocation. When these SOIs fail to arrive, there is likely a public cost to address these circumstances.

• The municipality is prejudiced, notwithstanding its non-active participation in these appeals, by virtue of the delay that the motion has caused in providing certainty as to the final tax roll.

• Where applicable, cross-appellant tenants or owners may be prejudiced by delaying addressing settlement resolutions pending the outcome of the motion, or implementation of same with finality. In such circumstances, the prejudice may spread to MPAC and the municipality, for if the appeals are reinstated, added complexity and delays may result pending another SOI added to the mix, and the resultant procedural delays, all of which have cost implications to the non-offending parties.

• While not direct, there is perhaps a “hidden” prejudice to many of the participants at the January 28, 2015 PHC, and to the Board. Specifically, the Board refers to those participants who did, in fact, comply with the Order by filing notice of having served their SOIs with the Board. They are the ones who did “whatever it takes” to comply with the Order, quite possibly with some concerted effort, and hence some prejudice. What does the Board say to these participants at future events? How can the Board at future events continue to control its processes when these compliers conclude that they can move effortlessly into non-compliance?

39Authorities were introduced for the Board’s consideration by two of the Moving Parties, some of which were of interest, some of which could be differentiated, and many of which are fact specific to the respective circumstances addressed therein. As no Respondent participated actively in the motions now before the Board, and because of their disposition as addressed below, the Board refrains from addressing these authorities individually.

Conclusion

40Notwithstanding the Board’s view that the explanations for default leading to the dismissals of the appeals, and the arguments for granting the relief sought by these motions, may have not met the five grounds for review established by Rule 145, the Board nevertheless grants the motion to reinstate the subject appeals. It does so because of its recognition that the stakeholders, as a group, were not forewarned as to how seriously the Board now takes its updated Rules. And it does so with the expectation that its stakeholders will endeavor more persistently to abide by its Orders in the future.

41All stakeholders should be aware that this reinstatement of the appeals is in the nature of an “amnesty”. This Disposition of Motion is not to be construed as a precedent in any future motions for review of a decision whereby appeals are dismissed for an appellant’s non-compliance with a Board Order oral, or written, resulting from an initial like default and for which the sanction is set out therein.