Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: May 10, 2017 FILE NO.: ID 145642

Assessed Person(s): Armel Corporation, 879011 Ontario Limited Appellant(s): Armel Corporation Respondent(s): City of Guelph Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 22

Property Location(s): 219 Silvercreek PKY N, 292 Speedvale Ave W/Line 2 963 - 1045 Paisley RD, 104 – 108 Silvercreek PKY N, 715 Line 3 Wellington ST W Municipality(ies): City of Guelph Roll Number(s): 2401-040-016-28100-0000, 2308-040-016-31800-0000, 2308-040-017-06900-0000, 2308-040-017-08503-0000, 2308,050-015-06000-0000 Appeal Number(s): 3104130, 3104129, 3104127, 3104128, 3104032 Taxation Year(s): 2014 Hearing Event No.: 662477

Legislative Authority: Section 364.(14) of the Municipal Act, 2001, S.O., 2001, c. 25, as amended

Heard: February 16, 2017 in Guelph, Ontario

APPEARANCES:

Parties	Counsel+/Representative
Armel Corporation	Paul Grosman
City of Guelph	Shawn McConkey, Frank Tassone

INTERIM DECISION OF THE BOARD DELIVERED BY SUBUOLA AWOLERI

INTRODUCTION

1The appeal before the Assessment Review Board (“Board”) is the denial of vacant unit rebate applications for five properties made under s. 364 of the Municipal Act (“Act”), filed with the City of Guelph (“City”) in 2015 for the 2014 taxation year. The City rejected these applications by a letter dated March 5, 2015, addressed to the Appellant, stating that the applications were not made by the last day of February of the year following the taxation year in respect of which the application was made pursuant to s. 364.(2)(5) of the Act.

2Paul Grosman, representing the Appellant, submits that the applications were made within the statutory time limit.

ISSUE

3The Board has to determine whether the 2014 vacant unit rebate applications were made by February 28, 2015.

4The parties agreed that should the Board determine that the applications were made within the statutory time limit; the applications shall be referred back to the City for determination of the amount of the rebates, as the City did not make a determination on this in the first instance and the parties have not made submissions in this regard.

DECISION

5The Board determines that the vacant unit rebate applications for the five properties were made by February 28, 2015, within the statutory time limit as prescribed under s. 364.(2)(5) of the Act. The applications are referred back to the City for a determination of the amount of the rebates. If, within 120 days of the release of this decision, the City fails to make a determination of the amount of the 2014 vacant unit rebates for the five properties, or the parties are unable to reach an agreement in this regard, this appeal shall revert to the Board for a determination of the amount of the 2014 vacant unit rebates.

REASONS FOR DECISION

Legislation

6Section 364.(1) of the Act states:

364. (1) Every local municipality shall have a program to provide tax rebates to owners of property that has vacant portions if that property is in any of the commercial classes or industrial classes, as defined in subsection 308 (1), or in a class prescribed under clause (12) (a.0.1).

Requirements of program

(2) A tax rebate program under this section must meet the following requirements:

1. The program shall apply to eligible property as prescribed by the Minister of Finance for the purposes of this section.

2. If the property is in any of the commercial classes, the rebate shall be equal to 30 per cent, or such other percentage as may be prescribed, of the taxes applicable to the eligible property as determined under clause (12)(b).

3. If the property is in any of the industrial classes, the rebate shall be equal to 35 per cent, or such other percentage as may be prescribed, of the taxes applicable to the eligible property as determined under clause (12)(b).

4. 1 If the property is in a class prescribed under clause (12)(a.0.1), the rebate shall be equal to the percentage prescribed in the regulations.

5. An application may be made by or on behalf of the owner.

6. The application shall be made to the local municipality by the last day of February of the year following the taxation year in respect of which the application is made or such later date as the Minister of Finance may prescribe, either before or after the expiry of the time limit.

7. Unless otherwise prescribed by the Minister of Finance, an owner or a person on behalf of the owner shall submit one application for a taxation year, except that an interim application may be made for the first six months of the taxation year.

Complaint

(14) A person who has made an application under this section may, within 120 days after the municipality mails the determination of the amount of the rebate, complain to the Assessment Review Board in writing that the amount is too low.

Same, if no determination of rebate

(15) If the municipality fails to mail the determination of the amount of the rebate to the applicant within 120 days of the receipt of the application or such later date as the Minister of Finance may prescribe, the applicant may complain in writing to the Assessment Review Board.

Facts

7The facts of this appeal are not in dispute:

• Five vacant unit rebate application forms were completed by Robert Furman dated February 24, 2015;
• The five vacant unit rebate application forms were deposited in a Canada Post mail box on February 25, 2015 by Ronald Jordan Gidge;
• The last day of February 2015, which is February 28, was a Saturday, therefore the deadline for the applications was the next business day which is March 2, 2015;
• The City stamped each of the application forms as received on March 3, 2015; and,
• By a letter dated March 5, 2015, Frank Tassone advised the complainant that the applications have been rejected for failing to meet that statutory deadline.

Submission by the City

8Mr. McConkey presented as Exhibit 5, the five vacant unit rebate applications each stamped “Received March 03, 2015” by the City. He submits that the fifth day is the guaranteed delivery day by Canada Post. Using the calendar he presented as Exhibit 6, he submits that the vacant unit rebate applications were mailed on February 25, 2015, the fifth guaranteed day of delivery is March 4, 2015. February 28 (the last day of February 2015) was a Saturday, the deadline for the application was the next business day; March 2, 2015. The applications were received on March 3, 2015 after the statutory deadline; consequently it was not made by the last day of February 2015.

9Mr. McConkey cited a prior decision of the Board. In CFS Leasing Ltd. v. Municipal Property Assessment Corp. [2015] O.A.R.B.D. No. 183, the Board determined that the 2013 application for vacant unit rebate was not made by the last day of February 2014. In this complaint, the application was sent to the wrong recipient; the Ministry of Finance, which received it on February 24, 2014 and forwarded it to the municipality and was subsequently received by the municipality on March 6, 2014. The wrong application form was also used. The Board determined that the application was made but it was not made to the municipality by the last day of February 2014.

10Mr. McConkey also referred the Board to 2299004 Ontario Inc. v. Brampton (City) 2016 CarswellOnt 17607, where the Board determined that the Application was not made by the last day of February 2015. In this appeal, the Appellant stated that he called on the last day of February from China to remind his General Manager of Operations, Mr. Moreau, to file the application at the City. Mr. Moreau testified that he went to City Hall and presented the documents on Friday, February 28, 2015. The Board noted that this day was a Saturday and found that the Appellant’s testimony was not plausible and further determined that it was unlikely that the application stamped by the City as Received on Friday March 13, 2015 was delivered to the City in person two weeks earlier.

Submission by the Appellant

11Mr. Grosman submits that the five applications were all mailed on February 25, 2015, which is the day it was dropped into the Canada Post mail box; consequently the applications were made before the last day of February 2015. To corroborate his argument he presented as Exhibit 2, the Affidavit of Mr. Furman, who deposed to the fact that he completed the vacant unit rebate forms for all five properties on February 24, 2015 and he personally confirmed that they were deposited in a Canada Post mail box on February 25, 2015 as confirmed by a February 2015 Mail Log attached as Exhibit B to his affidavit.

12Furthermore, Mr. Grosman introduced as Exhibit 3, the Affidavit of Ronald Jordan Gidge, who deposed to the fact that he personally deposited the five vacant unit rebate application forms in a single envelope into a Canada Post mail box on February 25, 2015. The February 2015 Mail Log was also attached to his affidavit.

13Mr. Grosman argued that it is the date in which the applications were mailed that satisfies the requirement of s. 364.(2)(5) of the Act. Sequel to this, he cites the prior decision of the Board in Rathcliffe Holdings Limited v. Toronto (City) [2008] O.A.R.B.D. No. 187, (“Rathcliffe”) which also has similar facts as the present appeal, where one of the issues for determination by the Board was whether or not the complainant submitted the 2005 vacancy unit rebate application within the statutory time limit pursuant to s. 364.(2)(5) of the Act. The vacancy unit rebate application was deposited in a Canada Post mail box on February 23, 2006. Mr. Grosman, representing the complainant argued that in accordance to s.16.06(2) of the Rules of Civil Procedure, “the effective date of service by mail is on the fifth day after the document was deposited in a Canada Post Mail box” and the fifth day being February 28, 2006. The City argued that the effective service date is the date it was postmarked; as this date is the evidence that it was received by Canada Post. Member Whitehurst in his deliberations referred to three service procedures by mail as: “posted, postmarked and mail received”. Member Whitehurst further reviewed several sections of the Act that deals with time limits and concluded that:

the plain and ordinary meaning of the words “shall be made” found in paragraph 364 (2) (5) is the least onerous burden for complying with the time limits found in Part X of the Municipal Act because the words “shall” is less forceful than “must” and the word “Made” is less forceful than “filed” or “delivered.

14Member Whitehurst determined that:

…having regard to the plain and ordinary meaning of the words “shall be made” within the context of part X of the Municipal Act, the Board finds the application was served on the Municipality when it was “Posted” on February 23, 2006.

15Mr. Grosman referred the Board to the motion filed by the City in Toronto (City) v. Rathcliffe Holdings Ltd. [2009] O.A.R.B.D. No. 95, to dismiss the vacant unit rebate on the grounds that the Board had no statutory jurisdiction to make a decision on the vacancy unit rebate application because the application was not made within the statutory time limit. The Board again determined that the application was made by the last day of February 2006. In making this determination, the Board referred to North West Traffic Licensing Authority v. Brady [1981] RTR 265 (C.A. Civ. Div.), as a persuasive authority, where it was determined by the English Court of Appeal that the application made by the appellant was made in time since it was made at the time it was posted (emphasis added).

Board’s Analysis

16The Board concludes that the five applications for vacant unit rebate were made by February 28, 2015.

17There being no dispute as to the facts in this appeal, the determination of this appeal is a question of law based on the interpretation of s. 364(2)(5) of the Act which provides that, “The application shall be made to the local municipality by the last day of February of the year following the taxation year …” (emphasis added). The Act does not define the words “shall” or “made”. In Toronto (City) v. Municipal Property Assessment Corp. 2013 ONSC 6137, 2013 CarswellOnt 13617Justice Molloy, referred to the general principles of statutory interpretation by stating that:

“the provisions of the Act must be read in their statutory context having regard to the ordinary and grammatical meaning of the words used, harmoniously with the scheme and object of the Act and the intention of the legislature.”

18The Oxford Dictionary defines “shall” as expressing a “command, instruction or obligation” for example the Applicant father, shall have access to the children every weekend. The word “made” is defined in the context of a verb, being the past and past participle of “make” which is defined as “to create, to compose or draw up, to prepare”. For example, Sarah made a dress for Mary on Sunday, and the dress was delivered to Mary on Wednesday. At what point in time can we determine that the dress was made; on Sunday. This poses no difficultly in reasoning. The intention of the legislature is clear in this instance, any other intention would have been expressly stated by the legislature as rightfully determined by Member Whitehurst in the Rathcliffe decision, where he reviewed various sections of the Act that provides time limits for certain applications to the municipality such as s. 357.(3) which states:

An application under this section must be filed with the treasurer on or before February 28…(emphasis added).

19Section 343.(9) also provides that the date in which the treasurer sends the tax bill is the proof of the date in which it was sent in the absence of any evidence to the contrary. Obviously, the legislative intent was not to put an onerous burden on the applicants for vacant units rebates, as the applicants do not have control over the procedures adopted by various municipalities in receiving mails. As correctly submitted by Mr. Grosman, the Appellant in this appeal does not have information and control of the procedure at the City and this was not presented in evidence at the hearing.

20In CFS Leasing Ltd. (supra), the application was mailed using the wrong form relating to s. 8 of the Provincial Land Tax Act and was made to the wrong recipient, the Ministry of Finance. In 2299004 Ontario Inc. (supra), the Board determined that there were issues regarding the credibility of the Applicant. The facts of these two cases are distinguishable from the present appeal, and the reasons furnished by the Board for determining that the applications were not made before the last day of February were inter alia fact specific.

21Conversely, the Rathcliffe decision, as correctly submitted by Mr. Grosman, bears similar facts with the present appeal. The decision by Member Brownlie in Toronto (City) v. Rathcliffe Holdings Ltd. was not subject to further appeal in the Divisional Court.

Conclusion

22The Board determines that the 2014 vacant unit rebate applications for the five properties were made by February 28, 2015. These applications are referred back to the City for a determination of the quantum of the rebates for the five properties under appeal. If, within 120 days of the release of this decision, the City fails to make a determination of the amount of the 2014 vacant unit rebates for the five properties, or the parties are unable to reach an agreement in this regard, this appeal shall revert to the Board for a determination of the amount of the 2014 vacant unit rebates.