Armel Corporation v. Municipal Property Assessment Corporation Region 22, 2017 CanLII 36450

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: June 06, 2017

FILE NO.: RRD 2017M09

Assessed Person(s): Armel Corporation

Appellant(s): Bayshore Capital Inc.

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 22

Respondent(s): City of Guelph

Property Location(s): 612 652 Speedvale Avenue West

Municipality(ies): City of Guelph

Roll Number(s): 2308-040-017-71500-0000

Appeal Number(s): 2969629

Taxation Year(s): 2012

Hearing Event No.: 545305

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

Request by: Armel Corporation and Bayshore Capital Inc. (“Requesters”)

Request for: A review of the Board’s Decision (WR 122537) issued on December 04, 2014

Heard: By written submission

DECISION OF THE BOARD DELIVERED BY PAUL MULDOON

INTRODUCTION

1Paul Grosman, on behalf of Armel Corporation and Bayshore Capital Inc. (the “Requesters”) seeks a request for review of the decision of the Assessment Review Board (“Board”) (WR 122537) by Member Dan Weagant issued on December 04, 2014. This request for review was filed with the Board on December 24, 2014.

2This review was put on hold pending the Divisional Court’s decision on a similar matter between the City of Ottawa and Walkley Self-Storage Corporation. In the appeal decision, Justice Taylor gave reasons for judgment orally on behalf of the Court. The decision is unreported: City of Ottawa v. Walkley Self-Storage Corporation and Municipal Assessment Corporation, Region No. 3 (14 June 2016), Ottawa DC-14-00002018-0000, (On Div Ct) (“Walkley”). The Board was provided with a copy of the transcript of the oral reasons for judgment by counsel for Walkley Self-Storage Corporation. In Walkley, the Divisional Court addressed vacancy rebates pursuant to section 364(1) of the Municipal Act and Ontario Regulation 325/01. The Board provided a copy of the Walkley decision and sought submissions from the City of Guelph (the “City”) regarding the applicability of the Walkley decision on February 16, 2017. The City did not provide submissions.

3The issues before the Board at the hearing were whether the Board’s previous decisions regarding the property at 612-652 Speedvale Avenue West (the “subject property”) estopped the Board from deciding on the subject property’s eligibility for a vacancy rebate under section 364 of the Municipal Act and whether the subject property was eligible for a vacancy rebate for the 2012 taxation year. The presiding Member decided facts and issues for the 2009 and 2010 taxation years were different from those for the 2012 taxation year and that issue estoppel was not applicable. On the merits of the case, the presiding Member found that the subject property was not eligible for a vacancy rebate. The presiding Member did not have the benefit of the Divisional Court decision in Walkley when he heard and decided on this matter.

4In their request for review, the Requesters submit that the presiding Member denied them natural justice and made material errors of law and fact.

RELEVANT RULES

5Rules 141 to 146 of the Board’s Rules of Practice and Procedure (the “Rules”) set out the process whereby the Board may review a decision.

6A 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.

7The Associate Chair may exercise 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

8The Requesters seek a review of the Board’s decision (WR 122537) pursuant to Rules 145(1)(b) and (c). The Requesters submit that the Board denied them natural justice by failing to deliver a timely decision. The Requesters claim that the presiding Member was biased because he did not disclose that he had made a previous decision on the same kind of property on the same issue. The Requesters also submit that the presiding Member erred in law by finding that issue estoppel was not applicable and in fact by failing to identify that the rental agreement used by the Requesters was a lease. Finally, the Requesters submit that the presiding Member erred in law by failing to follow the Board’s interpretation of section 364 in Walkley Self Storage Corporation v. Municipal Property Assessment Corporation, Region No. 03 [80 O.M.B.R 209], which was confirmed by the Divisional Court in Walkley after the presiding Member had issued his decision and this request for review was filed with the Board.

9The Requester seeks an order granting a motion hearing to argue the grounds for review pursuant to Rule 144(1)(b).

DISCUSSION AND REASONS

10The Board grants the request for review in this case. However, rather than granting a motion to argue the review request, the Board will cancel the decision pursuant to Rule 144(1)(d).

11The review of this matter was put on hold pending the Divisional Court’s leave and appeal decisions in Walkley. In light of the Divisional Court’s decision in Walkley, there is merit in reviewing the Board’s decision in this matter in order to assess whether it falls within the Divisional Court’s interpretation of section 364 of the Municipal Act or whether it can otherwise be distinguished. In Walkley, Justice Taylor, speaking for the Divisional Court, found that storage units are eligible for vacancy rebates if the conditions under section 1 of O. Reg. 352/01 are met. Justice Taylor clarified the meaning of “not used” in O. Reg. 325/01 section 1.(2)(a) as “a storage unit which is not rented to a customer” in the context of self-storage. Justice Taylor further clarified that “capable of being leased for immediate occupation” in section 1.(2)(b) meant a storage unit that is not rented and that neither the form of the rental agreement nor whether the persons renting the unit actually occupied it were relevant considerations.

12The Board sought submissions from the City regarding the applicability of the Divisional Court’s decision in Walkley, but no submissions were received from the City. The Board is of the view that the Divisional Court decision in the Walkley is applicable and binding on the Board.

13In light of the Divisional Court’s decision in Walkley, the Requester’s submissions regarding issue estoppel and allegations errors of fact and law do not need to be addressed. The facts of this case satisfy the test for vacancy rebate eligibility under section 1 of O. Reg. 352/1 as interpreted by the Divisional Court. However, the Requester’s allegation that the presiding Member acted in a biased manner should be addressed. Neither the presiding Member’s finding that the circumstances of the 2012 appeal were different from those of similar appeals in preceding years, nor the presiding Member’s refusal to apply the discretionary doctrine of issue estoppel, amount to bias. Both findings were within the presiding Member’s jurisdiction, fell within the range of possible and acceptable outcomes and attract a high level of deference. Other than bald submissions, the Requesters provided no evidence or compelling submissions that the presiding Member conducted himself in any way to suggest that he was biased.

14The Requesters are seeking an order granting a motion for review. A review motion on the merits of this review request is not necessary nor is a rehearing of the matter necessary in light of the Divisional Court’s decision in Walkley. In order to expedite the resolution of this matter, the Associate Chair finds that the subject property is eligible for a vacancy rebate. The only issue to be decided is the quantum of the vacancy rebate.

ORDER

15The parties did not make submissions regarding the applicability of Walkley. In the absence of any submissions to suggest otherwise, the Associate Chair finds that the Divisional Court decision in Walkley is binding on the Board and that this review request is an opportunity to clarify the Board’s interpretation of section 364 of the Municipal Act and Ontario Regulation 325/01. Therefore, the Associate Chair will exercise his discretion to cancel the Board’s decision (WR 122537) and substitute the following order:

The subject property at 612-652 Speedvale Avenue West meets all of the requirements set out in section 364 of the Municipal Act and O. Reg. 325/01 and does not fall within any of the exclusions set out in sections 1.(5) and 1.(6) of O. Reg. 325/01. The subject property is eligible for a vacancy rebate for the 2012 taxation year. The parties are ordered to determine the quantum of the vacancy rebate owing to the Requesters and the details of the calculation within 90 days of the issuance of this decision. If the parties agree as to the amount of the rebate, Minutes of Settlement shall be filed with the Board within 90 days of the date of the issuance of this decision. If the Board does not receive Minutes of Settlement within 90 days of the issuance of this decision, the Requesters shall set a date for a hearing before the Board for the determination of the quantum of the rebate owing.