1329089 Ontario Limited v. Municipal Property Assessment Corporation, 2018 CanLII 130625

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

December 28, 2018

FILE NO.:

DM 2018M038A

AMENDED DECISION ISSUED ON: February 1, 2019

Moving Party(ies):

1329089 Ontario Limited

Respondent(s):

Municipal Property Assessment Corporation (“MPAC”) Region 9

Respondent(s):

City of Toronto

Property Location(s):

2050 Yonge Street

Municipality(ies):

City of Toronto

Roll Number(s):

1904-114-030-02400-0000

Appeal Number(s):

3334609

Taxation Year(s):

2017

Hearing Event No.:

708472

Legislative Authority:

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

Heard:

December 4, 2018 in writing

APPEARANCES:

Parties

Counsel⁺/Representative

1329089 Ontario Limited

Kimberly van Vliet

MPAC

Wellannie Ching

City of Toronto

Sara Baxter

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

11329089 Ontario Limited (the “Company”) seeks permission from this Assessment Review Board (this “Board”) to file an appeal of the 2017 assessment of

Amended pursuant to Rule 114 of the Assessment Review Board’s Rules of Practice and Procedure, effective April 1, 2017

the property it owns at 2050 Yonge Street, Toronto, after the time set in the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”).

1The Company filed a request for reconsideration with MPAC, pursuant to section 39.1 of the Act, on March 22, 2017. That was a timely application. It received an acknowledgement letter from MPAC dated April 11, 2017 and another letter from MPAC, dated September 12, 2017, extending MPAC’s time to respond to November 18, 2017. The Company did not receive the results of the request for reconsideration by that date.

2The Company did not make any further inquiries to MPAC until April 8, 2018. At that time it was provided with a letter, dated November 21, 2017, which denied the request for reconsideration and informed the Company that its deadline to appeal to this Board was February 19, 2018. The Company received that letter after the filing deadline. The Company sought permission from this Board to file the appeal late on July 27, 2018. Both MPAC and the City of Toronto take no position on this motion.

3For the reasons that follow, the Company’s request to file a 2017 after the time set in the Act is denied.

Law

4This Board has a limited jurisdiction to allow for the filing of late appeals, which was confirmed by the Ontario Superior Court in Fleming and Smith Ltd. and Regional Assessment Commissioner Region No. 31 et al., 1979 CanLII 1870 (ON SC). The Board has set out the confines of that extraordinary remedy in Rule 26(b), which states:

26 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:…

Amended pursuant to Rule 114 of the Assessment Review Board’s Rules of Practice and Procedure, effective April 1, 2017

(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.

5The Rule has three essential components that must be proven by affidavit evidence: (1) that the person was entitled to receive a notice of assessment; (2) that the person did not received that notice; and (3) that the person filed their application within 30 days of becoming aware of the issues under appeal. The Company has not proven that it meets the second or third essential requirements of the Rule.

Entitled to Notice

6The Company is the owner of the land and owners are entitled to notice pursuant to the Act, see subsection 17(1). The Company therefore meets the first requirement of Rule 26(b).

Did not Receive Notice

7The Company did not provide evidence that did not receive its 2017 notice of assessment. It filed a timely request for reconsideration, which is an indication that it did receive its notice of assessment. The Company’s complaint is that it did not receive MPAC’s response to its request for reconsideration. The Board has held that a response to a request for reconsideration does not fall within the term “notice of assessment” in Rule 26(b), see Werzberger v Municipal Property Assessment Corporation, Region 09, 2018 CanLII 107717 (ON ARB), 2018 CanLII 73665 (ON ARB).

8Further, the Company knew, or ought to have known, its filing deadline without the need for a letter from MPAC. For the 2017 taxation year, subsection 40(5) set two alternative filing deadlines for the Company to appeal to this Board. The first applies when MPAC “has mailed a notice of reconsideration” within the required time, and is “90 days after the issuance date printed on the notice.” The second applies when MPAC has not mailed a notice and is “90 days after the notice should have been mailed.”

Amended pursuant to Rule 114 of the Assessment Review Board’s Rules of Practice and Procedure, effective April 1, 2017

9MPAC was required to respond to the Company’s request for reconsideration by September 18, 2017, pursuant to subsection 39.1(7) of the Act. However, that subsection also permits MPAC to extend the time to 240 days after filing, or November 17, 2018, which MPAC did here. That is the date by which MPAC must “mail” the response. There is no evidence that it did so here, so the second, ultimate filing deadline, in subsection 40(5) would be triggered. That is 90 days after MPAC should have mailed the notice, which I calculate to be February 13, 2018.

10The Company could have calculated that deadline when it received MPAC’s request for an extension of time. Once the Company knew that MPAC had 240 days to respond, it could have calculated its filing deadline as 330 days from March 22, 2017, the day it filed its request for reconsideration. The Company did not explain why it did not take any steps until April 2018.

11The Company received its notice of assessment so does not satisfy the second requirement of Rule 26(b).

Filed with 30 Days

12The final requirement of Rule 26(b) is that the application be made “within 30 days of becoming aware of the assessment or classification that is the subject of the appeal.” The Company filed a request for reconsideration on March 22, 2017. It would need to be aware of the assessment or classification in dispute in order to file that request because subsection 39.1(1) of the Act is clear that a request can only be for matters that could be the basis of an appeal or an application to court.

13It did not submit this application until July 27, 2018, 492 days later. That is not a timely application. The third requirement of Rule 26(b) is not met.

Amended pursuant to Rule 114 of the Assessment Review Board’s Rules of Practice and Procedure, effective April 1, 2017

CONCLUSION

14The Company received its notice of assessment for the 2017 taxation year and did not file this application in a timely way. It does not meet all of the requirements of Rule 26(b). Its application to file a 2017 assessment appeal after the filing deadline set in the Act is denied.