Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: May 18, 2017

FILE NO.: DM 2017M1

Moving Party(ies): Municipal Property Assessment Corporation (“MPAC”) Region 09

Respondent(s): 153598 Canada Inc.

Respondent(s): City of Toronto

Property Location(s): 0 Manitoba Street

Municipality(ies): City of Toronto

Roll Number(s): 1919-054-110-10300-0000

Appeal Number(s): N/A

Taxation Year(s): 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015 and 2016

Hearing Event No.: 676466

Legislative Authority: Section 40.1 of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Heard: April 26, 2017 in Toronto, Ontario

APPEARANCES:

Parties	Counsel⁺/Representative
MPAC	Karey Lunau⁺
153598 Canada Inc.	No one appeared
City of Toronto	No one appeared

MEMORANDUM OF ORAL DISPOSITION DELIVERED BY SCOTT McANSH ON APRIL 26, 2017

1Roll number 1919-054-110-10300-0000 (the “roll number”) was assigned to a vacant parcel of development land in Toronto. That land was developed into a condominium and new roll numbers were assigned to the condominium units when the condominium plan was registered. However, the roll number was not deleted upon registration of the condominium plan, as it ought to have been. There continued to be an assessment applied to the roll number, as well as the individual roll number for each condominium unit.

2MPAC brings this motion before me seeking three orders:

a. That service of notice of this motion on 153598 Canada Inc. (the “Assessed Person”) be dispensed with;

b. That new appeals be created for the roll number for taxation years 1999 through 2016 pursuant to s. 40.1(b) of the Assessment Act, RSO 1990, c. A-31 (the “Act”); and

c. That the Assessment Review Board (“Board”) reduce the assessment of the roll number to $0 for each taxation year once the appeal is filed.

3The City of Toronto consents to the motion.

4For the reasons set out below, MPAC’s motion is granted.

REASONS FOR DISPOSITION OF MOTION

Legislation and Rules

5Section 40.1 grants me two discretionary powers “if it appears that there are palpable errors in the assessment roll.” First, s. 40.1(a) grants me the power to “correct the roll” if “no alteration of assessed values or classification of land is involved.” If an alteration of the assessed values or classification of land is involved, s. 40.1(b) limits my powers to extending “the time for bringing appeals and direct the assessment corporation to be the appellant.”

6Taxes have been levied against the Assessed Person over the 1999 through 2016 taxation years and have not been paid. Those tax arrears are the impetus for this motion. But to address those concerns the assessment must be altered, meaning that the relief sought in this motion is pursuant to s. 40.1(b) and the remedy is to have appeals created, with MPAC as the Appellant.

7Rule 58 of the version of the Board’s Rules of Practice and Procedure (the “Rules”) in force when this motion was filed, required a notice of motion to be served on all parties. Rule 3 permits me to “grant all necessary exceptions from there Rules…to ensure that the real questions in issue are determined in a just manner.”

Service

8MPAC was unable to serve the Assessed Person. They tried on a number of occasions to contact the Assessed Person, by mail, email and telephone, and received no response. MPAC asks that service be dispensed with as it has made reasonable efforts to effect service and has been unsuccessful. Further, MPAC notes that the orders sought are to the benefit of the Assessed Person, so there can be no issue of prejudice.

9I agree with MPAC that service ought to be dispensed with here. MPAC has tried all of the obvious routes to service and has been unsuccessful. Given that over 17 years have passed since the roll number should have been deleted, it is not surprising that the Assessed Person is difficult to locate. Further, it is hard to imagine that the Assessed Person would contest this motion, which seeks to remove their tax liability.

10I therefore grant an exemption from the service requirement for this motion.

Palpable Error

11Before I can issue the relief under s. 40.1 of the Assessment Act, I must be satisfied that there “appear to be palpable errors in the assessment roll.” Associate Chair Muldoon held that a palpable error “must be an error that mischaracterises [sic] the fundamental nature or legal character of the property” in Hopper v. Municipal Property Assessment Corporation, 2016 CanLII 24421 (ON ARB), at paragraph 15. The error here is the double assessment of land. That is, the assessment roll assigns a value to the roll number as well as all of the condominium units that were created on this land. That is a mischaracterization of the legal character of the property.

12As I noted in Canadian Tire Corporation Limited v. Municipal Property Assessment Corporation Region 15, 2017 CanLII 3661 (ON ARB), at paragraph 10, “The assessment roll should correspond to parcels that can be separately conveyed.” The roll number does not correspond to land that can be conveyed. The condominium plan registration severed the land into the parcels, which are now assessed as condominium units. The parcel of land that the roll number refers to no longer separately exists.

13A roll number for land that does not exist is a palpable error in the assessment roll. Once I am satisfied there is a palpable error I must determine if it is appropriate to exercise my discretion to create the appeals. I agree with Member Wyger in Municipal Property Assessment Corporation v. Chew, 2015 CanLII 78969 (ON ARB) (“Chew”) at para 23 that “prejudice to the parties must be weighed any time such discretion is exercised.”

14The most prejudiced party from the creation of these appeals is the City of Toronto. If the appeals are created and reduced to $0, the City of Toronto will be deprived of the tax arrears owing for the roll number. The City of Toronto was served with this motion and did not oppose it. This is likely because the taxes to the roll number amount to double taxation, so there is really no prejudice to the City of Toronto. The Assessed Person clearly benefits from the creation of the appeals and MPAC has an interest in a correct tax roll. The balance of prejudice favours the creation of the appeals.

Determination of the Appeals

15MPAC seeks an endorsement from me in favour of their recommended assessment of $0 for all taxation years. They acknowledge that an order pursuant to s. 40.1(b) cannot order a change in assessed value. Rather than modify the assessment, they ask me to prejudge the appeals to save the requirement for a hearing.

16The Board’s current Rules will apply to these appeals once they are filed by MPAC. An instruction on how to decide an appeal that has been ordered, but not yet filed, is not a matter covered by the Rules. Rule 6 states that when the Rules are silent, I may “make whatever procedural orders or directions are required to effectively and efficiently adjudicate a proceeding.” It is most effective to adjudicate the appeals involving the roll number through an administrative application of my consideration of the evidence on this motion.

17I have evidence before me that the roll number was supposed to be canceled in 1998. I have further evidence that assessments of the roll number were double counting of value once the condominium plan was registered. Double counting is inappropriate and unfair, and it is therefore appropriate to reduce the assessed value of the roll number to $0 for all taxation years. There is nothing to be gained by having another Member consider that evidence once MPAC files these appeals. The conclusion is clear.

18I therefore order the Registrar to issue a decision reducing the assessment of the roll number to $0 for each taxation year once MPAC files the appeals.

CONCLUSION

19For the reasons set out above, I dispense with service of 153598 Canada Inc. I order that the time be extended for filing appeals for roll number 1919-054-110-10300-0000 for taxation years 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015 and 2016. I order MPAC to file appeals for each of those taxation years. I further order the Registrar, upon MPAC filing the appeals, to issue decisions reducing the assessment for each taxation year to $0.