Kambiz David Goel v. Municipal Property Assessment Corporation, 2018 CanLII 118877

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

December 05, 2018

FILE NO.:

RD 2018M15

Assessed Person(s):

Kambiz David Goel

Appellant(s):

Kambiz David Goel

Respondent(s):

Municipal Property Assessment Corporation (“MPAC”) Region 09

Respondent(s):

City of Toronto

Property Location(s):

500 Yonge Street

Municipality(ies):

City of Toronto

Roll Number(s):

1904-068-210-01700-0000

Taxation Year(s):

2015 and 2016

Hearing Event No.:

695665

Legislative Authority:

Rule 123 of the Assessment Review Board’s Rules of Practice and Procedure, as amended

Request for:

A review of the Board’s Decision DM 2018M07 issued on April 25, 2018

Heard:

By written submission

Parties

Representative

Submissions

Kambiz David Goel

Self-represented

Requester

DECISION DELIVERED BY PAUL MULDOON AND ORDER OF THE BOARD

INTRODUCTION

1On May 23, 2018, Kambiz David Goel (the “Requester” ) filed a written Request for Review with the Assessment Review Board (the “Board”) respecting the Decision of Member Scott McAnsh issued on April 25, 2018, DM 2018M07 (the “Decision”).

2The Requester is the owner of 500 Yonge Street (“Subject Property”). On June 9, 2017, the Requester filed a motion for leave to file late appeals for the 2015 and 2016 taxation years. At the hearing, the Requester submitted that he did not receive a notice of assessment for those years because they were mailed to an incorrect address by MPAC. The Requester sought relief in the form of: (1) an extension of time to file the requests for reconsideration (“RfR”) with MPAC; and, (2) an extension of time to file the appeals with the Board.

3In the Decision, the Board found that it did not have the legal authority to grant the relief sought. Specifically, the Board held that s. 40(3) of the Assessment Act required that the Requester first file an RfR with MPAC before an appeal could be brought to the Board where the property in question is in the residential, farm or managed forests property class. Since the legislature had not granted the Board with the authority to extend the time for filing RfRs for taxation years that have already passed, the Board concluded that it did not have the jurisdiction to accept the late appeals. The request for leave was denied on these grounds.

4For the reasons that follow, the Board concludes that the Request for Review should be allowed.

ISSUES

5The Requester seeks to review the Decision pursuant to Rule 122(b). The Requester submits the Board erred in law and fact such that the Board would likely have reached a different decision.

6The Requester asks that the Board vary the Member’s Decision and grant leave to file the appeals for the 2015 and 2016 taxation years.

RELEVANT RULES

7Rule 120 of the Board’s Rules of Practice and Procedure (the “Rules”) sets out the process whereby the Board may review a decision. The remedies that may be granted on a review request are set out in Rule 123:

Review Order

123. Upon consideration of a request for review, or on its own initiative, the Board may:

(a) dismiss the request;

(b) reinstate the appeal, with or without conditions; or

(c) after providing all parties an opportunity to make submissions,

i. confirm, vary, or cancel the decision,

ii. order a rehearing on all or part of the matter, or

iii. order a motion to decide the review.

8Those remedies can only be granted if the Board is satisfied that one or more of the grounds set out in Rule 121 are met. Rule 121 states:

Grounds for Review

121. A request for review will not be granted unless the Board is satisfied that:

(a) the Board acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

(b) the Board made a significant error of law or fact such that the Board would likely have reached a different decision;

(c) the Board heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result;

(d) there is new evidence that could not have reasonably been obtained earlier

and would have affected the result; or

(e) any of the situations in Rule 122 exist.

DISCUSSION AND REASONS

9Subsection 40(3) of the Assessment Act requires that all property classified as residential, farm, or managed forest must file an RfR with MPAC prior to bringing an appeal to the Board.

10The Requester submits the Subject Property does not fall within the classes of property enumerated in subsection 40(3) of the Assessment Act. Instead, the Requester submits that the subject property is a commercial retail building, classified a CT – Commercial. Hence, the Requester submits that the Board erred in finding there was a requirement under the Assessment Act to file an RfR with MPAC as a precondition to bringing the appeals to the Board. Further, without the requirement to file an RfR, the Board had the authority to grant leave for the late appeals pursuant to Rule 26(b) and should have done so considering the extenuating circumstances.

11In this matter, there are two issues: first, is the subject property caught within the requirements under subsection 40(3) of the Assessment Act? And if the subject property does not fall under those requirements, should the Board otherwise grant the request to file late appeals?

12With respect to the first issue, the Requester, in the submissions provided to the Board, attached MPAC’s 2016 Property Profile for the subject property. The Property Profile confirms that the subject property is a commercial retail building, classified as Commercial and is described as: Retail – one- storey, generally under 10,000 s.f. The Board accepts the subject property is not classified as residential, farm, or managed forest and does not fall under subsection 40(3) of the Assessment Act. As such, the Requester is not required to file an RfR as a precondition to filing an appeal with the Board.

13With respect to the second issue, the Requester submits that the requirements set out in Rule 26 of the Board’s Rules of Practice and Procedure (“Rules”) with respect to requesting leave to file late appeals are met, and should be granted by the Board.

14Rule 26 of the Board’s Rules states as follows:

The Board may accept an appeal received after the time set in the Assessment Act only if the appellant satisfies the Board, by way of affidavit evidence, that:

(a) the appeal was mailed within the time set out in the Assessment Act; or

(b) the appellant is a person entitled to receive a notice of assessment who did not receive notice, and filed the appeal with the Board within 30 days of becoming aware of the assessment or classification that is the subject of the appeal.

15The Requester submits that the requirements set out in Rule 26(b) have been established. According to the submissions, the Requester became aware of the increased assessment in January of 2017. However, the Requester filed an RfR rather than directly seeking relief by requesting to file late appeals. According to the submissions, MPAC advised the Requester that extension letters were needed from the Board in order for MPAC to process the requests and the Requester did so within 30 days by filing an affidavit with the Board.

16Based on the submissions of the Requester, I am satisfied that the Board made a significant error of law or fact such that it would have likely reached a different decision.

ORDER

17The Member’s Decision is varied as follows: leave to file late appeals with the Board for the 2015 and 2016 taxation years is granted.