Municipal Property Assessment Corporation ("MPAC"), Region No. 9 v. 234900 Ontario Ltd., 2017 CanLII 74719

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: October 31, 2017

FILE NO.: DM 2017M05

Moving Party: Municipal Property Assessment Corporation (“MPAC”), Region No. 9

Respondent: 234900 Ontario Ltd.

Respondent: City of Toronto

Property Location: 3895 McNicoll Avenue

Municipality: City of Toronto

Roll Number: 1901-126-430-00820-0000

Appeal Numbers: 3113250, 3113249, 3113235, 3113246, 3113247, 3113248, 3113244 and 3147513

Taxation Years: 2013, 2014, 2015, and 2016

Legislative Authority: Rule 24(e) of the Assessment Review Board’s Rules of Practice and Procedure, as amended

Heard: By written submission

Parties	Representative
MPAC	Jonathan Langille
234900 Ontario Ltd.	Chris Ratnasingham
City of Toronto	No one appeared

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

DISPOSITION OF MOTION

1MPAC brings this motion to dismiss these appeals due to the failure of 234900 Ontario Ltd. (the “Company”) to comply with an order of the Assessment Review Board (the “Board”). Specifically, MPAC claims that it has been incurably prejudiced by the Company’s failure to provide a Statement of Issues on or before May 12, 2017, as ordered by the Board on February 24, 2017.

2The Company provided a Statement of Issues with its response to this motion, on August 14, 2017. The hearing for these appeals is set to be heard on October 11, 2017. The Company submits that there remains adequate time for an inspection of the property and a Statement of Response from MPAC. MPAC denies that there remains time for those steps to be properly completed, and that it is prejudiced by the abridged time that remains. MPAC also opposes any adjournment.

3For the reasons set out below the motion is dismissed and these appeals are adjourned to be assigned a commencement date by the Registrar, in consultation with the parties.

REASONS FOR DISPOSITION OF MOTION

4MPAC relies on Rule 24(e) of the Board’s Rules of Practice and Procedure (“Rules”). That Rule states, in relevant part, that I “may dismiss an appeal without holding a hearing event if… the appellant has not complied with… these Rules.” The issue here is not, however, compliance with the new Rules. The issue is compliance with the February 24, 2017 order of this Board.

5While Rule 24(e) only speaks to compliance with the Rules, the Board has control over its processes pursuant to s. 25.0.1 of the Statutory Powers Procedure Act, RSO 1990, c S.22. That section states, in relevant part, that the Board “has the power to determine its own procedures and practices and may for that purpose… make orders with respect to the procedures and practices that apply in any particular proceeding.” Such control must include the power of dismissal.

6MPAC notes that it was ordered to provide initial disclosure in the same February 24, 2017 pre-hearing and complied by providing that information on February 27, 2017. However, most these appeals were filed on August 27, 2015. Rule 86(2), of the Rules in force at that time, required MPAC to provide initial disclosure, and all pleadings to be exchanged, within six months of filing. That is, MPAC should have provided initial disclosure well before February 27, 2016. But MPAC did not provide its initial disclosure until a full year later.

7The Board’s February 24, 2017 order did require the Company to provide a Statement of Issues on or before May 12, 2017 and the Company did not provide that document until three months later, after this motion had been filed. MPAC argues that the three month delay in providing a Statement of Issues is flagrant and inexcusable and that the only just disposition of this motion is a dismissal. The Company did not specifically address prejudice in its response, but noted MPAC’s previous default.

8I do not find that this is an appropriate case for a dismissal order. Dismissal is an extreme remedy and should only be granted in the clearest of cases. The delay here by both parties was outside of the former Rules and the February 24, 2017 order of this Board. However, that was not an uncommon occurrence under the former Rules. The Board enacted new Rules on April 1, 2017. One of the main policy rationales for the introduction of new Rules, and a new appeal management process, was to provide a framework in which compliance would be expected and enforced.

9The February 24, 2017 order at issue here, however, was made while the former Rules were in force. It would be unfair to both parties to immediately enforce compliance through dismissal upon the new Rules coming into force. The Board will strictly enforce the new Rules, and expects compliance. But appeals that proceeded pursuant to the former Rules must be weighed on their own facts, carefully considering the prejudice to each party.

10Both parties here were in breach of the Board’s Rules or orders. It would be fundamentally unfair to only punish the Company for its breach, which is what a dismissal order amounts to. A dismissal order is an inappropriate response to mutual breaches of the Board’s Rules and orders.

11The Company suggests that an adjournment would be a proper way to manage these appeals because there is another newly constructed building on the property for which it expects MPAC will issue supplementary assessments. The Company will likely appeal those assessments and suggests that holding one hearing for all of the appeals on the property would be a more efficient use of the Board’s resources. MPAC argues that an adjournment would only award the Company for its non-compliance.

12I disagree with MPAC that an adjournment here would award the Company. An adjournment provides all of the parties with more time to complete their procedural steps, which benefits everyone. The transition to the new Rules will require some flexibility. Motions to dismiss may be appropriate in some future case, but this is not such a case.

13I order that these appeals be adjourned to the Registrar. The Registrar shall assign a commencement date, in consultation with the parties, and the parties shall comply with the schedule of events set out in Schedule “B” of the Rules.