S. M. and C. M. v. Municipal Property Assessment Corporation, 2017 CanLII 39809

Assessment Review Board

Issue Date: June 20, 2017 File No.: RR 2017M03 Appeal Number(s): 3142366 Taxation Year(s): 2015 Hearing Event No.: 639826

Assessed Person(s): S. M. and C. M. Applicant(s): S. M. and C. M. Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 07, City of Kawartha Lakes Property Location(s): Address Withheld Municipality(ies): City of Kawartha Lakes Roll Number(s): Roll Number Withheld

Legislative Authority: Section 357.(1)(d.1) of the Municipal Act S.O. 2001, c. 25, as amended Request by: S. M. Request for: Reinstatement of appeal 3142366 Heard: By written submission

DECISION OF THE BOARD DELIVERED BY PAUL MULDOON

INTRODUCTION

1S. M. (the “Requester”) is requesting the Assessment Review Board (“Board”) to reinstate appeal 3142366 for the 2015 taxation year by way of a request for review under Rule 145 of the Board’s Rules of Practice and Procedure (“Rules”). This request for review was filed with the Board on October 3, 2016.

2The Requester submits that he did not receive the Amended Notice of Hearing and consequently missed his hearing. The City of Kawartha Lakes (“City”) stated its objection to the reinstatement of the appeal in a letter dated October 3, 2016. The Board sought full submissions from the City by a letter dated January 12, 2017. The City did not make submissions.

RELEVANT RULES

3Rules 141 to 146 of the Board’s Rules set out the process whereby the Board may grant a reinstatement by way of a review of the decision that dismissed the appeal(s). In effect, a reinstatement may be granted pursuant to Rules 141(1) and 144 which enumerate the Board’s powers on review and the following authority:

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.

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.

ISSUE AND ORDER SOUGHT

4The Requester seeks the reinstatement of his appeal 3142366 for the 2015 taxation year. The Requester submits that the appeal was dismissed when he failed to attend the hearing due to not having received the Amended Notice of Hearing.

DISCUSSION AND REASONS

5The Associate Chair considers requests for review as a delegated power of the Executive Chair of the Environment and Land Tribunals Ontario under s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009. As a general rule, the Associate Chair will exercise the discretion authorized under the Rules to grant a new hearing if the Associate Chair is satisfied that: the appeal was dismissed as a result of no fault of the applicant; all parties consent to the rehearing; and there is no obvious prejudice to any party (Transmetro Limited v Municipal Property Assessment Corporation, 2016 CANLII 2587 (ON ARB)). In other cases, discretion will be used on a case-by-case basis.

6The Requester’s hearing was originally scheduled for September 13, 2016 at 2 p.m. by Member McAnsh on July 28, 2016. At the hearing on July 28, 2016, the Requester informed the Board that he was going to move out of his address at the time. On July 29, 2016, the City requested a new hearing date from the Board after getting the Requester’s consent by phone. The Board rescheduled the Requester’s hearing for October 3, 2016 at 2 p.m. On September 13, 2016 the Board rescheduled the Requester’s hearing for October 3, 2016 at 9:30 a.m. The Board obtained the City’s consent for this second schedule change. The City inquired if the Board would serve the Requester with an Amended Notice of Hearing; the Board confirmed that the Requester would be served and the Amended Notice of Hearing was mailed to the Requester on September 23, 2016.

7The Requester submits Canada Post redirected his mail for six months after his move and this service stopped in September 2016. The Requester submits he did not receive the Amended Notice of Hearing and he showed up at 1:10 p.m. because he thought his hearing was at 2 p.m. The Requester confirmed his phone number as shown in ARBIS; however, if he was given notice of the schedule change by phone, the Board has no record of it.

8The Requester was not given proper notice of the new hearing time. By refusing to grant reinstatement in this case, there would be significant prejudice to the Requester. The City objects to the reinstatement; however, it has not provided the Board with reasons behind its objection. The City’s objection notwithstanding, a failure to give notice to any party is a significant procedural error and the potential prejudice to the City arising from having to reappear before the Board cannot overcome the prejudice to the Requester who was not given proper notice.

ORDER

9The Requester’s request for review is granted and the appeal will be reinstated. The Board will arrange for a new hearing date through communication with the parties.