CHC Student Housing Oshawa 1 v. City of Oshawa, 2017 CanLII 70652

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: October 17, 2017

FILE NO.: RRD 2017M14

Moving Party(ies): CHC Student Housing Oshawa 1, DC Land Corp. and 1700 Simcoe Street (Ari) Ltd.

Respondent(s): City of Oshawa

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region No.13

Property Location(s): 1670/1700 Simcoe Street North

Municipality(ies): City of Oshawa

Roll Number(s): 1813-070-003-09200-0000

Appeal Number(s): 2897272, 2897273, 2908850, 2953879, 3019115, 3047256, 3053884, 3053885, 3080337, 3080193, 3125573, 3125574, 3150130, and 3150131

Taxation Year(s): 2011, 2012, 2013, 2014 (deemed appeal), 2015 (deemed appeal), and 2016 (deemed appeal)

Hearing Event No.: 625676

Legislative Authority: Sections 33, 34 and 40 of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Request by: CHC Student Housing Oshawa Inc. (“Requester”)

Request for: A review of the Board’s Decision WR 141544 issued on September 30, 2016.

Heard: By written submission

REQUEST FOR REVIEW DECISION DELIVERED BY PAUL MULDOON

INTRODUCTION

1Mr. Philip L. Sanford, on behalf of CHC Student Housing Oshawa Inc. (the “Requester”) seeks a review of the decision of the Assessment Review Board (“Board”) (WR 141544) delivered by Member Wyger on September 30, 2016. This request for review was filed with the Board on October 28, 2016.

2The issue before the Board at the hearing was whether the property at 1670/1700 Simcoe Street North (the “subject property”) should be classified as residential or multi-residential. Following a comprehensive analysis, the Board found that student suites were self-contained units and that the subject property should be classified as multi-residential. At the hearing, the Requester argued the subject property should be classified as residential because the individually rented bedrooms, rather than the suites, were the units in the context of s. 4(1) of Ontario Regulation 282/98 (“O. Reg. 282/98”).

3In its request for review, the Requester does not seek a change in the classification of the subject property but claims that the Board lacked jurisdiction to hear the City of Oshawa’s (the “City”) appeals for the 2013, 2014, 2015, and 2016 taxation years because there was no valid appeal for the 2013 taxation year, or because the City failed to provide notice of the appeal to the Requester pursuant to s. 40(9) of the Assessment Act (the “Act”). The Requester argues if the 2013 appeal was not valid or was made a nullity due to lack of notice, the 2014, 2015, and 2016 appeals could not have been deemed. The Requester seeks an order cancelling the portion of the Board’s decision (WR 141544) with respect to the 2013, 2014, 2015, and 2016 taxation years pursuant to Rule 144(d) of the Board’s Rules of Practice and Procedure (the “Rules”), or for the Board to exercise one of its other powers under that Rule.

4The Board sought submissions on the review request from the other parties on February 22, 2017. MPAC did not make submissions. The City sent its submissions to the Board on March 16, 2017. The Requester sought and was granted an opportunity to file reply submissions with the consent of the City. The Requester filed reply submissions and additional jurisprudence with the Board on March 27, 2017.

RELEVANT RULES

5Rules 141 to 146 of the Board’s Rules set out the process through which 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.

7The Associate Chair may exercise discretion to grant a request and order a rehearing or a motion to review only if the 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.

ISSUES AND ORDER SOUGHT

8The Requester seeks an order cancelling the portion of the Board’s decision (WR 141544) with respect to the 2013, 2014, 2015, and 2016 taxation years pursuant to Rule 144(d) of the Board’s Rules of Practice and Procedure (the “Rules”), or for the Board to exercise one of its other powers under that Rule. The Requester submits that the Board lacked jurisdiction to hear the appeal for the 2013 taxation year as well as the deemed appeals for the 2014, 2015, and 2016 taxation years because a valid appeal for the 2013 taxation year was not filed or because the City failed to provide notice of the appeal to the Requester also known as third party notice pursuant to s. 40(9) of the Act.

DISCUSSION AND REASONS

9The Board grants the request for review in part and orders a motion to argue whether the request for review should be granted.

10The parties agree: the Requester purchased the subject property in April, 2012; City staff filed appeals for the 2011 and 2012 taxation years and provided notice of those appeals to the previous owner; and appeals for the 2011, 2012, 2013, 2014, 2015, and 2016 taxation years were before the Board at the hearing on June 22, 2016.

11In the request for review, the Requester submits it became aware of a potential irregularity regarding third party notice after the Board’s decision (WR 141544) was issued. The Requester submits it requested evidence from the City that there was a valid appeal for the 2013 taxation year after it searched for but was unable to find third party notice. The Requester claims the City was only able to provide evidence in relation to the 2011 and 2012 appeals and submits that there was no valid appeal before the Board for the 2013 taxation year and consequently, appeals for the 2014, 2015, and 2016 taxation years could not have been deemed. The Requester challenges both the existence of an appeal for the 2013 taxation year and the fulfillment of the third party notice requirement under s. 40(9) of the Act.

12The City submits the legislative treatment of classification appeals under s. 40 of the Act differ significantly from that of valuation appeals and either should fall under the statutory deeming provisions or should be considered ongoing until the classification changes. The City also submits the Requester’s position is untenable since the Board had the authority to add the Requester as a party under s. 40(14) of the Act. The City argues since the Requester’s representative appeared and fully participated in the hearing, the purpose behind the notice provisions of the Act was fulfilled. The City also relies on the doctrines of laches and issue estoppel and argues that since the matter was decided on its merits, any potential procedural deficiencies should be cured by relying on Rules 2, 3, 4, 5, and 10 of the Board’s Rules or Rule 16.01 of the Rules of Civil Procedure. The City submits accepting the Requester’s argument would lead to the inconsistent outcome in which the subject property is classified as multi-residential for the 2011 and 2012 taxation years but residential for the 2013, 2014, 2015, and 2016 taxation years. Finally the City requests that the Board exercise its discretionary powers under s. 40.1 of the Act to extend the time for bringing appeals for the 2013 to 2016 taxation years.

13In its reply submissions, the Requester reiterates the argument that a fresh 2013 appeal was necessary for the 2013 to 2016 taxation cycle. The Requester submits that the City’s submission regarding continuity of classification appeals is contrary to the legislative scheme. Similarly, the Requester submits that the Board’s authority to add a party to an appeal is irrelevant since the existence of valid appeals for the 2013 to 2016 taxation cycle is in dispute. The Requester relies on the Board’s and the Divisional Court’s jurisprudence to argue that third party notice of an appeal is a legislative prerequisite for the Board’s jurisdiction, failure to provide notice of an appeal is fatal to a proceeding, and that subsequent conduct by a party cannot cure a lack of jurisdiction. Finally, the Requester submits neither the legislation nor the Board’s jurisprudence enables the Board to cure a fundamental procedural deficiency.

14The issues raised in the Requester’s submissions regarding whether the 2013 appeal is valid and whether the provisions of s. 40(9) of the Act were complied with are important issues which would benefit from further clarification. By having more full and complete submissions from all of the parties, the Board will be in a better position to provide guidance on the matter.

ORDER

15The Associate Chair grants a motion to argue the request for review. The Board would benefit from all parties, including MPAC, making submissions at the motion regarding the issues raised by the Requester, specifically regarding whether a valid appeal exists for the classification of the subject property for the 2013 taxation year, and whether or not notice of the appeal was provided to the Requester.