City of Ottawa v. 1649050 Ontario Ltd., 2018 CanLII 116161

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

November 27, 2018

FILE NO.:

DM 156892

Moving Party(ies):

City of Ottawa

Respondent(s):

1649050 Ontario Ltd.

Property Location(s):

374-378 Dalhousie Street

Municipality:

City of Ottawa

Roll Number:

0614-020-601-37600-0000

Appeal Number:

3249646

Taxation Year:

2016

Hearing Event No.:

707179

Legislative Authority:

Section 364(15) of the Municipal Act, 2001, S.O. 2001, c. 25, as amended

Heard:

November 9, 2018 in writing

APPEARANCES:

Parties

Counsel

City of Ottawa

Lindsay Hinch

1649050 Ontario Ltd.

Wayne Smith

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1The City of Ottawa (the “City”) applies to have the vacant unit rebate appeal filed by 1649050 Ontario Ltd. (the “Company”) dismissed for failing to comply the statutory requirements. Specifically, the City argues that the Company did not submit a timely application to the City, which is a defect that this Assessment Review Board (this “Board”) has no ability to cure. The City says that there is no need for a hearing given that the disposition is clear in law.

2The Company did not file any material on this motion, despite being properly provided with notice.

3I agree with the City that the disposition of this appeal is clear and can be dealt with by way of motion. I grant the City’s motion and dismiss the appeal.

BACKGROUND

4The Company is the owner of the property at 374-378 Dalhousie Street in the City. It applied for a tax refund due to vacancy, pursuant to section 364 of the Municipal Act, 2001, S.O. 2001, c. 25 (the “Act”), for the 2016 taxation year, on March 6, 2017. Paragraph 364(2)(5) of the Act requires that those applications be made “to the local municipality by the last day of February of the year following the taxation yes in respect of which the application is made.” The City advised the Company of its late filing on March 22, 2017.

5The Company contested the rejection, claiming that it had attempted to mail the application in February, but was unsuccessful. The Company did not provide any evidence of its timely filing attempt when asked by the City, both before and after this appeal was filed. The Company appealed the City’s denial to this Board pursuant to subsection 364(15) of the Act.

Rule 24

The City applies for dismissal pursuant to Rule 24 of the Board’s Rules of Practice and Procedure (the “Rules”). That Rule permits a member of this Board to dismiss an appeal without a hearing if any one of the listed conditions is met. There are only two conditions that are relevant to this motion. Clause (a) permits dismissal if I am satisfied that the Board is without jurisdiction. Clause (e) permits dismissal if the Company has not complied with the Act of the Rules. The City does not reference a particular clause of Rule 24, but I will address each of those conditions in turn.

Jurisdiction

6Rule 24(a) permits dismissal without a hearing if “the Board is satisfied that it is without jurisdiction to hear the appeal.” Jurisdiction is conferred on this Board by statute. There are only two provisions of section 364 of the Act that create complaints to this Board. Subsection 364(14) creates a right of compliant if “the municipality mails the determination of the amount of the rebate.” Subsection 364(15) creates a right of complaint if “the municipality fails to mail the determination of the amount of the rebate to the applicant within 120 days of the receipt of the application.” Those are the only provisions that confer jurisdiction on the Board for vacant unit rebate applications.

7In 1703198 Ontario Inc. v City of Pickering, 2018 CanLII 67817 (ON ARB) (“Pickering”), Executive Chair DeMarco was reviewing a decision that addressed a vacant unit rebate that was not filed with the municipality before the end of February. After reviewing the complaint provisions of section 364, he held, at paragraph 11, that “neither of those two circumstances applied because the City determined the application was late and therefore was not valid.” I respectfully disagree. I find that subsection 364(15) applies, so the Board has jurisdiction to consider the complaint.

8Subsection 364(15) applies when “the municipality fails to mail the determination of the amount of the rebate.” That is the case here. The City denied the application because it was late. While that removes the possibility of a rebate, it is not a determination of the amount of the rebate. The City has failed to determine the amount of the rebate. A broad reading of that provision is appropriate given the impact a strict reading would have on taxpayer appeal rights. I find that the complaint was properly made pursuant to subsection 364(15) and that the Board has jurisdiction to hear the appeal. Rule 24(a) does not apply.

Compliance with the Act

9Rule 24(e) permits dismissal if “the appellant has not complied with statutory requirements or these Rules.” The City argues that the Company has to complied with the filling deadline set out in paragraph 364(2)(5) of the Act, and that the appeal should be dismissed on that basis.

10There are a number of cases in which the Board has held that it cannot grant relief if a vacant unit rebate application has failed to comply with the municipal filing deadline. In CFS Leasing Ltd v. Municipality of Strathroy-Caradoc, [2015] CanLII 40077 (ON ARB) Member Weagant held, at paragraph 14, that “the Municipality was correct in denying the application as it was not filed to them in time.” Similarly, in Pickering, Executive Chair DeMarco held, at paragraph 12, that “the time limit for making a vacancy rate application is determined by statute and there is no discretion for the Board to extend it.”

11The City argues that the Board’s inability to extend the filing deadline is confirmed by 2397146 Ontario Inc. v Brampton (City), [2018] CanLII 37737 (ON ARB) (“Brampton”). That case involved a late application for relief under section 357 of the Act. The Board was addressing the timeliness of the appeal to the Board, not the application to the municipality. The Board held, at paragraph 25, that “the Legislature did not intend to confer on this Board the power to alter the timelines set out in subsection 357(7).” That decision does not have any direct application to the filing deadline for vacancy rebates to a municipality.

12I do, however, find the reasoning in Brampton persuasive on the general principle, stated at paragraph 20, that if “the Legislature had intended to grant this Board the power to extend the timeline… it would have done so expressly, as it has in other contexts.” There is nothing in section 364 that indicates an intention to confer any flexibility in the filing deadlines. I agree with the finding in Pickering that the Board has no discretion to extend the deadline for filing a vacant unit rebate application with the City.

13The evidence before me is that the Company did not file its 2016 application for a vacant unit rebate with the City until March 6, 2017, nearly a week after the February 28, 2017 filing deadline. The City properly denied the application for failing to comply with the Act. Failing to comply with statutory requirements is a valid ground of dismissal pursuant to Rule 24(e).

Discretion

14Dismissal is not granted simply because one of the listed conditions in Rule 24 is met. Dismissal is a discretionary remedy and this Board held, in Municipal Property Assessment Corporation, Region No. 9 v 234900 Ontario Ltd., [2017] CanLII 74719 (ON ARB) at paragraph 8, that dismissal “is an extreme remedy and should only be granted in the clearest of cases.” I must consider if this is appropriate case in which to dismiss this appeal.

15The Company did not comply with the filing deadline in the Act, so the provision in Rule 24(e) is met. The evidence of late filing is clear and this Board has no ability to cure the Company’s late filing. This is a clear case. But this Board held in Municipal Property Assessment Corporation, Region 14 v Upper Keele Inc., [2018] CanLII 248 (ON ARB) at paragraph 10, that the “prejudice to each party will always be the primary consideration on a dismissal motion.” That is, dismissal should only be granted when the breach is clear and the balance of prejudice favours dismissal.

16The Company is not meaningfully prejudiced by this dismissal. The Company’s appeal will be denied if this matter proceeds because the state of the law is clear. There is, therefore, some benefit to the Company in ending the proceeding at this stage. The Company also had an opportunity to make submissions and file evidence on this motion, so there is no breach of procedural fairness in dismissing the appeal. The Company’s rights are not seriously impacted by the dismissal.

17The City would be prejudiced if the appeal is not dismissed. It would need to prepare for and appear at a hearing that can have only one outcome. That delay and expense is prejudicial to the City.

18The balance of prejudice favours dismissing this appeal.

CONCLUSION

19The City’s application for dismissal is granted. This appeal has a fatal defect that cannot be cured at a hearing. The Company failed to comply with the Act by filing its application with the City after the filing deadline. There is nothing to be gained by holding a hearing on that issue. The appeal is dismissed.