Crate v. Municipal Property Assessment Corporation, 2017 CanLII 31051

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: May 18, 2017

FILE NO.: RRD 2017M04

Assessed Person(s): Julia Michelle Crate

Appellant(s): Julia Michelle Crate

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 16

Respondent(s): Township of Severn

Property Location(s): 1163 Birchcliffe Crescent

Municipality(ies): Township of Severn

Roll Number(s): 4351-010-005-07521-0000

Appeal Number(s): 3107253, 3107254, 3107252, 3107255, 3060327 and 3087747

Taxation Year(s): 2012, 2013, 2014 and 2015

Hearing Event No.: 598840

Legislative Authority: Sections 33 and 40 of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Request by: Donald Mitchell, MPAC (“Requester”)

Request for: A review of the Board’s Decision (DM 135586) issued on December 14, 2016

Heard: By written submission

DECISION OF THE BOARD DELIVERED BY PAUL MULDOON

INTRODUCTION

1Donald Mitchell, counsel on behalf of MPAC (the “Requester”) seeks a review of the decision of the Assessment Review Board (“Board”) (DM 135586) delivered by Member Flemming on December 14, 2016. This request for review was filed with the Board on February 23, 2016.

2On October 13, 2015, the Presiding Member heard a motion by MPAC. In the motion, MPAC sought the dismissal of all the appeals. However, in fact, MPAC’s intention was to seek an order dismissing only the appeals under s. 40 of the Assessment Act for the tax years 2013 and 2014, and not other appeals related to the property. The Presiding Member dismissed the motion and ordered all the appeals to be heard as soon as possible. In its request for review, the Requester alleges that the Presiding Member made material errors of law and fact. Although the Board’s decision also dealt with s. 33 appeals and a deemed 2015 s. 40 appeal (based on the s. 33 appeals) under the Assessment Act, those appeals were not the subject of the request for review.

3The Board sought written submissions from the parties on May 6, 2016 regarding this request for review. The Board did not receive submissions from the Township of Severn. Alan Holmes, the Requester’s representative at the hearing, provided submissions dated May 24, 2016.

RELEVANT RULES

4Rules 141 to 146 of the Board’s Rules of Practice and Procedure (“Rules”) set out the process whereby the Board may review a decision. Only those decisions eligible for review under Rule 141 will be reviewed by the Board:

141. Decisions Eligible for Review/Board’s Powers on Review

(1) The Board may review all or part of any final decision at the request

of a party or upon its own initiative, and may:

(a) confirm, vary, suspend, or cancel the decision; or

(b) order a re-hearing before a different Member.

(2) The Board will not review:

(a) interim or interlocutory orders; and,

(b) decisions on requests for review.

5A 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.

(2) The Board will determine initially whether the request has met one or more of the eligible grounds for such a review without providing notice to the other parties. The Board may review or grant a motion request without submissions from other parties.

6The Associate Chair may exercise his discretion to grant a request and order a rehearing or a motion to review only if the Associate Chair is satisfied that the request for review raises a convincing and compelling case falling within the narrow grounds of Rule 145. As 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

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

ISSUE AND ORDER SOUGHT

7The Requester seeks a review of the Board’s decision (DM 135586) pursuant to Rule 145(1)(c). The Requester claims: (1) the Presiding Member erred by deeming s. 40 appeals for the taxation years 2013 and 2014; (2) the Presiding Member erred in finding that a s. 40 appeal for the 2014 taxation year was filed.

8The Requester is seeking an order setting aside the Board’s decision (DM 135586) insofar as it relates to the s. 40 appeals for the 2013 and 2014 taxation years.

DISCUSSION AND REASONS

9The Board grants the request for review in this case.

10The first issue in this matter is whether the Board’s decision is open to review despite being interim and a disposition of motion. Rule 141 of the Board’s Rules states that interim and interlocutory orders are not eligible for review. However, Rule 3 gives the Board broad authority to grant exemptions from the rules where appropriate to ensure that the real questions in issue are determined in a just manner. As a result, Rule 141 does not bar the Board from reviewing an interim or interlocutory decision in exceptional cases where the nature of the question merits reconsideration and the decision finally disposes of a matter. The Associate Chair, in this matter, will exercise discretion to consider this request for review.

11The appeals first came before the Board on May 13, 2015 (Hearing No. 583240). During this initial hearing, the Requester challenged the validity of the s. 40 appeal for the 2014 taxation year on the basis that the appellant had not filed a request for reconsideration with MPAC (which is a precondition to the filing of an appeal with the Board). The hearing was adjourned to a telephone conference call (“TCC”) on July 3, 2015 (Hearing no. 591234) in order to give the appellant time to substantiate their claim that they had filed a Request for Reconsideration for a s. 40 appeal (a Request for Reconsideration for the s. 33 appeals was properly filed).

12Following the initial hearing and prior to the second hearing, the Presiding Member made a note to the file stating Board staff confirmed the Board’s records showed a s. 40 Request for Reconsideration was filed for the 2014 taxation year. This note did not come to the Requester’s attention until reviewing the Board’s file in the preparation of their request for review. During the TCC on July 3, 2015, the appellant did not provide any evidence a s. 40 Request for Reconsideration for the 2014 taxation year was filed with MPAC. The Presiding Member did not provide written reasons but noted on the adjournment order that the “assessment for 2014 and 2015 [were] to be deemed” and that “the matter can therefore proceed to hearing.”

13Prior to the next hearing date, the Requester filed a motion to have all the appeals dismissed. The Requester stated in their request for review that this was an error as MPAC’s intention was to have only the s. 40 appeals for the 2013 and 2014 taxation years dismissed on the basis that there was no legal authority to deem the s. 40 appeals for 2013 and 2014 and that the prerequisite Request for Reconsideration for filing a s. 40 appeal with the Board was not fulfilled for 2014. In DM 135586, the Presiding Member stated the hearings on May 13, 2015 and July 3, 2015 gave the parties sufficient opportunity to raise preliminary matters and found that the doctrine of issue estoppel barred the Requester from moving to have the appeals dismissed.

14Issue estoppel was discussed by the Presiding Member in DM 135586 in paragraphs 12, 13 and 14. The Board finds that it is not a bar to review this decision because the Board did not make a ruling on the s. 40 appeal for 2013.

Issue No. 1: Whether the 2013 and 2014 s. 40 Appeals were deemed

15In this case, the appellant filed s. 33 appeals for the 2012, 2013, and 2014 taxation years on January 4, 2015. In its disposition of MPAC’s motion (DM 135586) the Board stated that s. 40 appeals for 2013 and 2014 were deemed. The Requester submits that there is no legal authority under the Assessment Act for the Board to deem s. 40 appeals for 2013 and 2014. The Requester claims that the Presiding Member’s interpretation of s. 40(26) of the Assessment Act was incorrect.

(26) For 2009 and subsequent taxation years, an appellant shall be deemed to have brought the same appeal in respect of a property,

(a) in relation to the assessments under sections 32, 33 and 34 for the year; and

(b) in relation to the assessment, including assessments under sections 32, 33 and 34, for a subsequent taxation year to which the same general reassessment applies, if the appeal is not finally disposed of before March 31 of the subsequent taxation year or, if an assessment has been made under section 32, 33 or 34, before the 90th day after the notice of assessment was mailed.

16The Board’s disposition on the Requester’s motion states in paragraphs 9 and 15 that s. 40 appeals for 2013 and 2014 were deemed. Appeals may only be deemed within the same reassessment four year cycle. An appeal could not be deemed for the first year of the four year cycle (e.g. for 2013). Furthermore, an appellant is deemed to have made the same appeal in relation to the assessment for a subsequent taxation year. Neither the 2013, nor the 2014 annual assessments are subsequent to the omitted assessments made in June 2014. Therefore, s. 40 appeals for the 2013 and 2014 taxation years should not have been deemed. The s. 40 appeal for the 2015 taxation year was properly deemed.

Issue No. 2: Whether a valid s. 40 Appeal was filed for 2014

17Section 40(3) of the Assessment Act states that an appeal to the Board regarding the assessment of a residential property may only be filed after having filed a Request for Reconsideration with MPAC:

Precondition of appeal

(2) 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.

18In this case, the appellant provided proof only for having filed a Request for Reconsideration for the s. 33 appeals despite the fact that the May 2015 hearing event was adjourned to allow the appellant to provide proof of having filed a Request for Reconsideration for the 2014 annual assessment.

19The only information supporting the appellant’s claim that they had filed a s. 40 Request for Reconsideration for the 2014 annual assessment is the Board’s electronic record referred to in paragraph 4(b) of the DM 135586. The appellant was not able to produce any evidence that a s. 40 Request for Reconsideration for 2014 was filed. The Board agrees with the Requester’s submission that:

29. MPAC did not have access to the Board’s electronic records at the time of the July 3 TCC or October 13 motion date. The Board relied on records not available to MPAC. Subsequent investigation indicates that the Board may have misinterpreted the records.

Therefore the Associate Chair finds that there was no valid s. 40 appeal before the Board for the 2014 taxation year.

ORDER

20The Associate Chair finds that the Requester has raised a convincing and compelling case that the Presiding Member made material errors of law and fact. The Requester’s request is granted and the s. 40 appeals for the 2013 and 2014 taxation years are dismissed. DM 135586 is cancelled. The s. 33 appeals for the 2012, 2013, and 2014 taxation years and the s. 40 deemed appeal for the 2015 taxation year (based on the s. 33 appeals) will proceed to hearing.