Viva Properties Limited v. City of Toronto, 2017 CanLII 39836

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: June 21, 2017

FILE NO.: DM 2017M04

Moving Party(ies): Viva Properties Limited

Respondent(s): City of Toronto

Respondent(s): Municipal Property Assessment Corporation (“MPAC”), Region 09

Property Location(s): 1663 Neilson Rd.

Municipality(ies): City of Toronto

Roll Number(s): 1901-126-240-00051-0000

Appeal Numbers(s): 2962141, 3012475, 3073858 and 3148543

Taxation Years(s): 2013, 2014, 2015 and 2016

Hearing Event No.: 673564

Legislative Authority: Rule 83 of the Assessment Review Board’s (“Board”) Rules of Practice and Procedure

Heard: June 20, 2017 in Toronto, Ontario

APPEARANCES:

Parties	Representative
Viva Properties Limited	Colin Francis
MPAC	No one appeared
City of Toronto	No one appeared

DISPOSITION OF THE BOARD DELIVERED BY DIRK VANDERBENT

DISPOSITION OF MOTION

Background

1On May 24, 2017, the Appellant, Viva Properties Limited (“Viva”), filed a motion in writing, seeking an adjournment of the hearing of above referenced appeals. The hearing is currently scheduled to commence on June 20, 2017. Notice of the Hearing was delivered to the parties on April 7, 2017. The only evidence filed in support of this motion is an affidavit by Chris Ratnasingham, a senior consultant with Viva’s legal representative, Altus Group Tax Consultants Paralegal Professional Corporation (“Altus”). In his affidavit, Mr. Ratnasingham advises that he will be Viva’s expert witness and that he is currently scheduled to attend the Institute of Municipal Assessors (the "IMA") conference in Ottawa on the hearing date. He also indicates that MPAC consents to the adjournment. The Municipality did not provide the Board with any response the adjournment request.

2On May 25, 2017, the Board advised the parties that the Appellant’s request for the adjournment is denied, with written reasons to follow. These are those reasons.

REASONS FOR DISPOSITION OF MOTION

Legislation and Rules

3The relevant legislation and Board’s Rules of Practice and Procedure are:

Assessment Act, RSO 1990, c A.26

Duty re appeals

36. (5) As soon as practicable after the return of the assessment roll for a municipality or for non-municipal territory, as the case may be, the Assessment Review Board shall hear and dispose of all appeals respecting assessments for the year for which the roll is returned.

Assessment Review Board Rules of Practice and Procedure

Motion for Adjournment

83. A party may bring a motion for an adjournment of a hearing event, setting out:

(a) the consent of the other parties, if applicable;

(b) a suggested date for hearing event;

(c) detailed reasons for the request;

(d) evidence that the party made all reasonable efforts to avoid the adjournment; and

(e) any inconvenience to other persons.

Factors to Consider

84. Before granting any adjournment, the Board must consider:

(a) the interests of the parties in a full and fair proceeding;

(b) the impact of the adjournment on parties and other persons;

(c) the integrity of the Board’s process, including the Board's ability to efficiently resolve all appeals filed with the Board within the current four year cycle;

(d) the circumstances giving rise to the need for an adjournment;

(e) the timeliness of the request for the adjournment;

(f) the position of the other parties;

(g) the public interest in the delivery of the Board’s services in a just, timely and cost effective manner; and

(h) any practice directions issued by the Board.

Powers of the Board upon Adjournment Request

85. When an adjournment is granted the Board may impose any conditions it considers appropriate.

Issue

4The only issue is whether Viva’s request for an adjournment should be granted.

Discussion

5Rule 84 lists the factors that I must consider before granting an adjournment. I will address each factor in turn.

6The first factor is “the interests of the parties in a full and fair proceeding.” While it is obvious that fairness requires that Viva be able to call its expert witness, Viva did not provide any rationale to support its position that Mr. Ratnasingham’s attendance at the conference should take priority over attending a scheduled hearing before the Board.

7The second and sixth factors are “the impact of the adjournment on parties and other persons” and “the position of the other parties”. In this case, MPAC consents to the adjournment, and the Municipality provided no response, so there is no indication that the Municipality opposes the adjournment. Here, the only impact on other persons is that Mr. Ratnasingham would not be able to attend the conference on June 20,2017.

8The third factor is “the integrity of the Board’s process, including the Board's ability to efficiently resolve all appeals filed with the Board within the current four year cycle.” Section 36(5) of the Assessment Act imposes on the Board an obligation to hear and dispose of all appeals as soon as practicable after the return of the roll. The Board cannot resolve disputes on a timely basis if hearings do not proceed when scheduled. Each delay results in wasted time and resources, due to the difficulty in reassigning Members of the Board on short notice. The Board emphasizes that the original appeal was filed in 2013, so this appeal proceeding has now been outstanding before the Board for four years.

9The fourth and fifth factors are “the circumstances giving rise to the need for an adjournment” and “the timeliness of the request for the adjournment.” The Board notes that the date of an annual conference for an association such as the IMA is published months in advance. For these appeals, the Board conducted several administrative telephone conference calls, the last being held in January 26, 2017 when the Board directed that the matter be set down for hearing. The Notice of Hearing was served on the parties on April 7, 2017. The Board notes that Viva has not provided any explanation why it did not advise the Board before the Notice of Hearing was sent, that it preferred to avoid scheduling the hearing on any of the IMA conference dates. The Board further notes that Viva also has not provided any explanation for failing to contact the Board immediately upon receipt of the Notice of Hearing, to advise of the scheduling conflict and request a different hearing date.

10The final relevant factor is “the public interest in the delivery of the Board’s services in a just, timely and cost effective manner.” It is important that hearings take place when scheduled. The hearing is scheduled just four weeks from the date the motion to adjourn was filed with the Board. Granting the adjournment, at this point, would result in wasted resources for the other parties and the Board. The Board cannot deliver its services in a timely and cost effective manner if the personal schedule of a party, or its witness or representative, is given priority over the Board’s process. Attendance at an annual conference should not take precedence over this hearing at this late stage in the proceeding, particularly as this proceeding has been before the Board for four years.

11I have considered all of the factors set out in Rule 85. The only factor supporting an adjournment here is the position taken by the other parties. None of the other factors support granting the adjournment. Based on the above analysis and findings, Viva’s motion for an adjournment is denied.