Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: December 31, 2018

FILE NO.: DM 157442

Moving Party(ies): City of Mississauga

Respondent(s): Panagiotis Michalakos

Property Location(s): 180 Queen Street South

Municipality(ies): City of Mississauga

Roll Number(s): 2105-120-004-17500-0000

Appeal Number(s): 3271996

Taxation Year(s): 2016

Hearing Event No.: 707265

Legislative Authority: Rule 82 of the Assessment Review Board Rules of Practice and Procedure

Heard: October 5, 2018 by written submission

APPEARANCES:

Parties	Counsel+/Representative
City of Mississauga	John O’Kane+
Panagiotis Michalakos	Roman Andrzejewski

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1The City of Mississauga (the “City”) seeks a retroactive order of this Assessment Review Board (this “Board”) to alter the time set out in the schedule of events assigned to this appeal. The schedule of events for this summary proceeding appeal was assigned on January 24, 2018 and required that disclosure be completed by March 20, 2018, that parties have a mandatory meeting by May 15, 2018, and that all material be filed with the Board by May 29, 2018. Neither party fully complied with that schedule.

2The City received Panagiotis Michalakos’ disclosure on March 27, 2018, seven days after the date in the schedule of events assigned for disclosure. A mandatory meeting was never held. Mr. Michalakos applied to the Board, on May 22, 2018, to have the appeal set to a hearing because the City had not served any material. The Board granted that request and set a hearing for August 13, 2018. The City’s lawyer was ill at that time and the hearing was adjourned by the Board at the City’s request. The hearing has not yet been scheduled because this motion has not yet been disposed of.

3For the reasons that follow, I grant the City’s request. The City has already served its material on Mr. Michalakos. The parties must hold a mandatory meeting within 30 days of the release of these reasons and file all material to be relied on at a hearing must be filed with the Board within 45 days of the release of these reasons.

Background

4This appeal seeks a rebate of taxes due to the property at 180 Queen Street South being damaged by fire on November 5, 2015. The City granted a rebate. But Mr. Michalakos believes that he is entitled to a larger rebate, so he complained to this Board. As noted above, this appeal was assigned a schedule of events. That schedule is assigned to each appeal to ensure that the parties prepare in a timely way for a hearing before the Board.

5The City did not provide any material to Mr. Michalakos until it provided a statement of response on May 22, 2018. After the City investigated the matter, it served witness statements, and related documents, on Mr. Michalakos on August 3, 2018. The City sought consent to the late service at that time and Mr. Michalakos did not consent. This motion for an extension of time was first sought on August 3, 2018 and the City filed its materials on August 17, 2018. Mr. Michalakos did not file any material in this motion, despite being properly served with notice of the motion.

Law

6The Board’s Rules of Practice and Procedure (the “Rules”) govern procedural matters before the Board. Rule 82 states that, once a schedule of events has begun, “the Board will not alter any timeline set out in the schedule of events, other than in exceptional circumstances.”

7The City argues that the key considerations in an alteration of timelines are the impact on the Board’s process and the prejudice to the parties. The City relies on the framework set out in dismissal motions such as Municipal Property Assessment Corporation, Region 14 v Upper Keele Inc., 2018 CanLII 248 (ON ARB) (“Upper Keele”) and Municipal Property Assessment Corporation, Region No 7 v Cherry, 2018 CanLII 60392 (ON ARB). That framework holds that dismissal is an extreme remedy that is only available in the clearest of cases. The City argues that a denial of a request for an extension of time to serve documents should also only be denied in the clearest of cases. I disagree.

8Rule 82 states that the extensions of time are only to be granted in exceptional circumstances. The party seeking an extension must show exceptional circumstances before the relief can be considered. I agree with the City that any prejudice to the parties must be considered before granting an extension of time. But before prejudice is considered the Board must be satisfied that an exceptional circumstance exists.

Exceptional Circumstance

9The City argues that it missed its deadline due to a retirement of a staff member during a time that the staff member’s manager was away. This was also its first summary proceeding schedule of events. The City also says that it retained external counsel after being served with Mr. Michalakos’ materials due to issues he raised in his disclosure.

10I find that these are exceptional circumstances. Exceptional means, among other things, something that does not occur regularly, something unusual, or something atypical. The City having its first summary proceeding assigned and having a staff member retire while their material was to be prepared are both circumstances that will not regularly occur. The City will never again have a first summary proceeding assigned. That alone is not exceptional. It is the combination of a first attempt with a poorly timed staff loss and manager vacation that is exceptional here.

11Once I have determined that there are exceptional circumstances, I must determine if the balance of prejudice favours an extension of time.

Prejudice

12The City argues that Mr. Michalakos is not prejudiced by the extension of time because he has had the City’s material for months and a hearing date has not yet been set. It relies on Upper Keele, where the Board held, at a paragraph 11, that “the harm… of the late disclosure is minimal, given that there is no impending hearing date for these appeals.” The City points out that Mr. Michalakos cannot claim to be caught off guard by the City’s materials. He has ample time to prepare for the hearing.

13The City also rightly notes that Mr. Michalakos has not provided any evidence of prejudice. Prejudice must be proven with evidence, see Upper Keele at paragraph 11.

14The City claims it would be prejudiced if this motion is denied because it will then be unable to make full answer to Mr. Michalakos’ claims. It also argues that denying an extension of time here would undermine procedural fairness, citing Toronto (City) v Philmor (Bloor Walk) Development Corp., 2016 CanLII 624 (ON ARB). In that case, the Board held, at paragraph 52, that denying a party’s right to present argument is a denial of natural justice.

15It would clearly prejudice the City to deny this motion. Without an extension of time, the City will have no evidence to rely upon at the hearing. The balance of prejudice favours granting the City’s request.

CONCLUSION

16I find that exceptional circumstances exist here, justifying an extension of the time set out in the schedule of events for this appeal. The balance of prejudice favours extending the time. I therefore grant the City until August 3, 2018 to serve its disclosure on Mr. Michalakos. The parties must hold a mandatory meeting within 30 days of the release of these reasons and file all material to be relied on at a hearing must be filed with the Board within 45 days of the release of these reasons.