Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

May 20, 2016

FILE NO.:

DM 2016M16

Moving Party(ies):

Michael Purcell, Catherine Purcell, Ian Kojima, Anne Kojima, Gail Nielissen, Marten Nielissen, Jayant Lele and Dorothy Lele

Respondent(s):

Municipal Property Assessment Corporation (“MPAC”) Region 05

Respondent(s):

Bajus Consulting Inc. and City of Kingston

Property Location(s):

300, 302, 304 and 306 Wellington Street

Municipality(ies):

City of Kingston

Roll Number(s):

1011-030-110-07730-0000, 1011-030-110-07720-0000, 1011-030-110-07710-0000 and 1011-030-110-07700-0000

Appeal Number(s):

2898497, 2898498, 2898499 and 2898500

Taxation Year(s):

2012

Hearing Event No.:

623847

Legislative Authority:

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

Heard:

April 22, 2016 in Kingston, Ontario

APPEARANCES:

Parties

Counsel^+^/Representative

Michael Purcell, Catherine Paucell, Ian Kojima, Anne Kojima, Gail Nielissen, Marten Nielissen, Jayant Lele and Dorothy Lele

Michael Purcell

Bajus Consulting Inc.

Robert Maratta^+^

MPAC

Roxanne Poulain

City of Kingston

Debbie Brennan

DISPOSITION OF THE BOARD DELIVERED BY JOSEPH M. WYGER

INTRODUCTION

1This matter was a motion for a review of a decision of the Assessment Review Board (“Board”), released on February 2, 2015 as WR 123904. The Associate Chair granted the hearing of a review motion on the narrow legal issue of whether there should have been a hearing on the four subject properties, when no request for reconsideration (“RFR”) was submitted to MPAC. Under s. 40.(3), an RFR is a mandatory precondition to an appeal being brought by anyone entitled to make an RFR under s. 39.1. That latter section provides that an RFR may be requested by “the owner of a property, or a person who has received or would be entitled to receive a notice of assessment under this Act…” The appeals in question were filed by the property developer Bajus Consulting Inc. (“Bajus”) for the 2012 taxation year, because Bajus receives tax grants from the City that are based on the assessed values, under a Brownfield Site Agreement (“Brownfield”). Their position at the hearing was that the assessed values were too low. The Moving Parties who are the owners of the four properties, argue that Bajus was an owner or was entitled to receive notices of assessment at the relevant time. The Respondents, Bajus and MPAC submit that Bajus was neither an owner, nor so entitled, but had properly filed third party appeals pursuant to s. 40.(9) of the Assessment Act (“Act”) and were not required to go through the RFR process.

DISPOSITION OF MOTION

2The motion to cancel the decision is denied. The appeals were properly brought pursuant to s. 40.(9) of the Act and there was no error in law or lack of jurisdiction to hear them.

REASONS FOR DISPOSITION OF MOTION

Moving Parties’ Position

3The Moving Parties were represented by one of the four owners Mr. Michael Purcell. He submitted that in the decision under review, Bajus was identified as the owner on the valuation day of January 2008, as in fact it was. Mr. Purcell asserted that nowhere in the legislation does it state that the person must be the owner during the taxation year in question, which is 2012 in this case. He contended that an RFR under s. 39.1 would cover all of the taxation years in the cycle from 2009 through 2012, and should have been filed by Bajus which owned the property during the valuation year of 2008.

4Mr. Purcell further argued that the Brownfield agreement and the Agreements of Purchase and Sale with the four owners, identify Bajus as the owner for a 10 year period from 2008 and that those agreements apply to successors in title.

5In the alternative, Mr. Purcell contended that Bajus was entitled to receive notices of assessment throughout the relevant time period because of their direct financial connection to the assessed values, through the Brownfield agreement. Mr. Purcell’s written materials explain that “the city is obligated to pay Bajus just as they are obliged to collect taxes from the present owners. This entitles them to the same rights as the owners relative to MPAC and the Assessment Act.” He submitted that it was Bajus’ responsibility to advise MPAC of their entitlement to notices of assessment.

MPAC’s Position

6Roxanne Poulain, representing MPAC, was at both the hearing and a previous motion dealing with the 2012 tax year appeals for these properties. She advanced the simple position that statutory references to owners or persons entitled to notices are in relation to the tax year in question, 2012. Bajus sold the properties in 2008 and was not an owner during the 2012 tax year and so was not entitled to receive notices of assessment. Bajus was not required to request an RFR, and could appeal these assessments under s. 40.(1) and s. 40.(9), as a so-called third party appellant.

Bajus’ Position

7Robert Maratta, counsel for Bajus, echoed Ms. Poulain’s arguments and supported them with affidavit evidence and title documents that clearly showed that Bajus was not the owner of any of the four properties in the taxation year of 2012. He provided affidavit evidence to demonstrate that Bajus had not received any notices of assessment following the sales in 2008. Only the owners of the four properties received notices from 2009 onward.

8On whether Bajus was entitled to receive notices, Mr. Maratta referenced s. 14(1) of the Act that directs the roll to contain the names of “all persons who are liable to assessment.” Section 31 directs MPAC to deliver notices of assessments “to every person described in subsection 14(1)…” Section 17 of the Act states that “land shall be assessed against the owner.” Mr. Maratta contended that the Brownfield agreement with the City does not act to make Bajus an “owner” nor does it create an entitlement to receive notices under any of these provisions.

Legislation

9Section 14(1) of the Act states:

14(1) Assessment roll contents. – The assessment corporation shall prepare an assessment roll for each municipality, for each locality and for non-municipal territory and the assessment roll shall contain the following information as well as the information required under subsections (1.1) and (1.2):

1. The name and surnames, in full, if they can be ascertained, of all persons who are liable to assessment in the municipality or in the non-municipal territory, as the case may be.

2. The amount assessable against each person who is liable to assessment, opposite the person's name.

3. A description of each property sufficient to identify it.

4. The number of acres, or other measures showing the extent of the land.

5. The current value of the land.

6. The value of the land liable to taxation.

7. The value of land exempt from taxation.

8. The classification of the land.

9. Such other information as may be prescribed by the Minister. 2006, c. 33, Sched. A, s. 13(1).

10Section 17.(1) of the Act states:

Land assessed against owner

17. (1) Subject to section 18, land shall be assessed against the owner. 1997, c. 29, s. 7 (1).

11Section 31.(1) of the Act states:

Notice of assessment

31. (1) If there is a change in any information described in subsection 14 (1), (1.1) or (1.2) in respect of a parcel of land and the change is not reflected in the last assessment roll as returned, the assessment corporation shall deliver to every person described in subsection 14 (1) who is affected by the change a notice, in a form approved by the Minister, showing,

(a) the person’s assessment and the current value of the parcel of land;

(a.1) the classification of the parcel of land;

(b) the person’s school support, if applicable; and

(c) such other particulars as are directed by the Minister to be shown in the notice,

and the assessment corporation shall enter in the roll opposite the name of the person the date of delivery of the notice or shall make one or more certificates to be attached to the roll or to any part of the roll certifying the date or dates upon which the notices were delivered, and the entry, certificate or certificates are proof, in the absence of evidence to the contrary, of the delivery. R.S.O. 1990, c. A.31, s. 31 (1); 1997, c. 5, s. 20; 1997, c. 43, Sched. G, s. 18 (23); 2004, c. 7, s. 4 (1); 2006, c. 33, Sched. A, 21 (1-3).

12Section 39.1(1) of the Act states:

39.1 (1) Reconsideration of assessment – For 2009 and subsequent taxation years, the owner of a property or a person who has received or would be entitled to receive a notice of assessment under this Act may request the assessment corporation to reconsider the following matters no later than March 31 of the taxation year in respect of which the request is made:

1. Any matter that could form the basis of an appeal under subsection 40 (1).

2. Any matter that could form the basis of an application under section 46.

13Section 40.(1) of the Act states:

40.(1) Appeal to Assessment Review Board. – Any person, including a municipality, a school board or, in the case of land in non-municipal territory, the Minister, may appeal in writing to the Assessment Review Board,

(a) on the basis that,

(i) the current value of the person’s land or another person’s land is incorrect,

(ii) the person or another person was wrongly placed on or omitted from the assessment roll,

(iii) the person or another person was wrongly placed on or omitted from the roll in respect of school support,

(iv) the classification of the person’s land or another person’s land is incorrect, or

(v) for land, portions of which are in different classes or real property, the determination of the share of the value of the land that is attributable to each class is incorrect; or

(b) on such other basis as the Minister may prescribe.

14Section 40.(3) of the Act states:

40.(3) Precondition of appeal. – For 2009 and subsequent taxation years, if a property is in the residential, farm or managed forests property class, or in such other circumstances as the Minister may prescribe, no appeal may be brought to the Assessment Review Board under subsection (1) by a person who is entitled to make a request for reconsideration under section 39.1 in respect of the property, if the person has not made the request within the time required under that section.

15Section 40.(9) of the Act states:

40.(9) Where appeal concerns another person. – Where the appeal concerns the assessment of another person,

(a) the notice of appeal shall state a name and address where notices can be given to the person; and

(b) the appellant shall deliver or mail a copy of the notice of appeal to the person within the time limited by subsection (6), (7) or (8), as the case may be.

16Rule 145 of the Act states:

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

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

Analysis

Preliminary Matter - Standing of the Parties

17Although the Board ordered the review motion on the aforementioned narrow legal issue, Mr. Purcell raised the question of the parties’ standing before the Board at the hearing. The Associate Chair in granting the review motion also referenced the Member’s written statement that three of the property owners “attended the hearing not as appellants and without standing.” This is not correct as property owners always have full party status. I find, based on the Affidavit evidence, and the recollections of both Ms. Poulain and Mr. Purcell, that despite that statement, the owners were permitted to participate in the hearing of the appeals related to their properties. There appears to have been no breach of natural justice or procedural fairness.

Preliminary Matter – Clarification Letter

Following the hearing, Mr. Purcell e-mailed the Board with an attachment that was described as a clarification of one of his arguments in his final statement. The Board asked the other parties if they would consent to the Board giving consideration to this late submission. Consent was denied by both MPAC and Bajus, so the attachment was not opened and so given no consideration. I don’t think it was necessary for Mr. Purcell to clarify, as I believe that I have understood and characterized his position and arguments quite clearly in this disposition. That understanding leads me to find that the property owners have simply misconstrued the intent and meaning of the applicable provisions of the Act.

Legal Owner – 2012 Notice of Assessment

18I accept the evidence that Bajus was not a legal owner in the 2012 taxation year, had not received notices of assessment, nor were they entitled to receive notices of assessment for that taxation year. I accept all of Mr. Maratta’s and Ms. Poulain’s submissions on the operation of the applicable provisions of the statute. There was no error of law or lack of jurisdiction for the Board to conduct the hearing, and so the decision resulting from that hearing will stand.

19I have reviewed the Brownfield Site Agreement and one of the Agreements of Purchase and Sale to consider Mr. Purcell’s contention that Bajus remained entitled to receive notices of assessment for the 2012 taxation year. The Brownfield agreement defines Bajus as the “Owner” and includes “any successors, assigns, agents, partners and affiliated corporations.” The agreement specifically requires the Owner to obtain from future owners an agreement to assume all the obligations under the Brownfield agreement, which is registered on title and runs with the land. The Agreement of Purchase and Sale with Mr. Purcell and the others is replete with references to the Brownfield agreement and the buyers’ obligations with respect thereto, including assigning all tax grants from the City back to Bajus.

20None of these private contractual arrangements between Bajus, the City of Kingston and the four property owners makes Bajus liable to assessment under s. 14 of the Act. They do not make Bajus the legal “owner” of the land for the purposes of s. 17 of the Act. Nothing in these contractual arrangements entitles Bajus to receive notices of assessment from the assessing authority. Bajus was not required to file an RFR in order to have valid appeals and was perfectly within its statutory rights under s. 40. (1)(a)(i) to allege that the current value of “another person’s land is incorrect.”

21The provisions of s. 39.1 and s. 40 apply to the annual assessment in the singular taxation year in question. Section 39.1 clearly states that the request to reconsider by the owner is to be made by March 31 of the taxation year “in respect of which the request is made.” Only the owners of the properties in 2012 would have been required to file an RFR for that taxation year, not the owner of the properties four years earlier. Bajus had only to comply with the provisions of s. 40.(9) of the Act, which in fact they did.

CONCLUSION

22I conclude that the Board had jurisdiction to conduct the hearing and render the decision, and that there were no errors of law or fact such that the Board would likely have reached a different decision. The Board’s decision WR 123904 is confirmed.