D Brad Farm Ltd. v. Municipal Property Assessment Corporation, 2018 CanLII 107717

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

November 06, 2018

FILE NO.:

DM 2018M25

Moving Party:

D Brad Farm Ltd.

Respondent:

Municipal Property Assessment Corporation (“MPAC”), Region 26

Respondent:

Municipality of Chatham-Kent

Property Location:

Heron Line

Municipality:

Municipality of Chatham-Kent

Roll Number:

3650-480-005-06300-0000

Appeal Number:

3275658

Taxation Years:

2017

Hearing Event No.:

701872

Legislative Authority:

Rule 26(b) of the Assessment Review Board Rules of Practice and Procedure

Heard:

In writing

APPEARANCES:

Parties

Representative

D. Brad Farm Ltd.

Bev Seney

MPAC

No one appeared

Municipality of Chatham-Kent

No one appeared

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1D Brad Farm Ltd. (the “Company”) seeks permission to file the 2017 appeal of the property located on Heron Line in the Municipality of Chatham-Kent after the time set in the Assessment Act, RSO 1990, c. A.31 (the “Act”). In 2017, it was seeking to have the property placed in the farm property class by the Ontario Ministry of Agriculture and Rural Affairs (“OMAFRA”) through the request for reconsideration process, but made an error on the application form. As a result of that error, its application was denied by OMAFRA. The Company did not receive OMAFRA’s rejection letter until after the filing deadline to this Assessment Review Board (the “Board”) had passed. It now seeks this Board’s permission to file that appeal late.

2For the reasons that follow, I find that this Board does not have the authority to permit the Company to file an appeal of the 2017 assessment of the property.

Background

3The Company filed a timely request for reconsideration with MPAC of the 2017 taxation year assessment of the property on December 22, 2016. MPAC sent the Company an application form to OMAFRA for the farm property class because the farm classification was in issue in the request for reconsideration that was sent to MPAC. This is due to the fact that section 30 of Ontario Regulation 282/98 (the “Regulation”) requires that requests for reconsideration applications to place property in the farm property class “must be made to the Administrator and not the assessment corporation.” “Administrator” is defined as OMAFRA in section 29.

4The Company submitted its 2017 taxation year request for reconsideration of the property class to OMAFRA on January 16, 2017. That was also a timely application because the Company’s filing deadline for requests for reconsideration was February 8, 2017. The Company then had two requests for reconsideration processes open: a value request with MPAC, and a classification request with OMAFRA. MPAC responded to the request for reconsideration filed with it on July 4, 2017. That response set out an October 4, 2017 deadline for filing an appeal with this Board.

5The Company followed up on its classification request for reconsideration on October 23, 2017. It was informed the next day that the application to OMAFRA had been denied some time before, but the Company did not receive that denial letter. The apparent reason for the denial was that the Company had accidently indicated that the majority of its shareholders were not Canadian. That is not the case. That issue was rectified for the 2018 taxation year.

6The Company first submitted this request for a late appeal on October 27, 2017.

Late Appeals

7The Company is presumed to know the law and the Act set an ultimate filing deadline for an appeal that it could have calculated on January 16, 2017, when it sent its request for reconsideration to OMAFRA. The Act sets out two filing deadlines for the 2017 taxation year when a request for reconsideration has been filed. There is the conditional filing deadline, set in paragraph 1 of subsection 40(5), which is “90 days after the issuance date printed on the notice.” There is also the ultimate filing deadline, set by paragraph 2 of subsection 40(5), which is “90 days after the notice should have been mailed.” Subsection 30(3) of the Regulation puts OMAFRA in place of MPAC when the farm property class is in issue. Subsection 39.1(7) of the Act provides MPAC with 180 days to respond a request for reconsideration, so OMAFRA had the same amount of time. The Company’s ultimate filing deadline was therefore 270 days after January 16, 2017, which was October 13, 2017. They were presumed in law to know that filing deadline and this Board has no legal authority to extend that deadline.

8The limited common law power this Board has to extend filing deadlines is set out in Rule 26(b). That Rule sets out the limited cases in which this Board can grant appeals that are prohibited under the Act. There are three requirements: (1) the person must have been entitled to receive a notice of assessment; (2) the person must not have received that notice; and (3) the person must file an application within 30 days of becoming aware of the issue.

9This Board recently held that the term “notice of assessment” does not mean a response to a request for reconsideration, see Werzberger v Municipal Property Assessment Corporation , Region 09, 2018 CanLII 73665 (ON ARB) at paragraph 14. That phrase means the annual notice of assessment sent by MPAC. The Board was also clear that a person that files a timely request for reconsideration is aware of the issues in dispute, so the 30 day time limit in Rule 26(b) would begin to run at that point in time.

10The Company does not meet the requirements of Rule 26(b). It was entitled to notice, so meets the first requirement of the Rule. But, it received its 2017 notice of assessment, so doesn’t meet the second requirement. It also knew the issues in December 22, 2016 when it filed its request for reconsideration and did not approach this Board until October 27, 2017, 309 days later. That is an application that is 279 days late.

Conclusion

11The Company did not file its 2017 assessment appeal on time and does not fall within the limited situations in which this Board can extend the time for filing appeals. The Company’s motion for permission to file the 2017 assessment appeal is denied.