Assessment Review Board / Commission de révision de l’évaluation foncière

ISSUE DATE: January 03, 2018 FILE NO.: DM 149892 Roll Number: 1928-000-235-20500-0000 Appeal Numbers: 3035394, 3080764, and 3150723 Taxation Years: 2014, 2015, and 2016 Hearing Event No.: 692465

Property Location: 25 Doney Crescent Municipality: City of Vaughan

Moving Party: Municipal Property Assessment Corporation (“MPAC”) Region 14 Respondent: Upper Keele Inc. Respondent: City of Vaughan

Legislative Authority: Rule 24(e) of the Assessment Review Board’s Rules of Practice and Procedure, as amended Heard: By written submissions

APPEARANCES:

Parties	Representative
MPAC	Sal Ladak
Upper Keele Inc.	Claude Bumstead
City of Vaughan	No one appeared

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

DISPOSITION OF MOTION

1MPAC brings this motion to dismiss these appeals due to the failure of Upper Keele Inc. (the “Company”) to comply with an order of the Assessment Review Board (the “Board”). Specifically, MPAC claims that the Company failed to provide documents on or before April 20, 2017, as ordered by the Board on March 20, 2017.

2MPAC does not claim any prejudice from the Company’s actions, but argues that the appeals should be dismissed solely on the basis that the Company has failed to comply with the Board’s order. The Company argues that it would be unfair to dismiss the appeals on those facts.

3MPAC’s motion is denied, for the following reasons.

REASONS FOR DISPOSITION OF MOTION

4MPAC relies on rules 24, 38, and 8 of the Board’s Rules of Practice and Procedure (“Rules”). MPAC also relies on rules 93, 7, and 8 of the Rules in force at the time the Board issued its order. This motion was filed under the current Rules, so I do not see any merit in considering the Rules in force before April 1, 2017.

5The truly relevant statute here is s. 25.0.1 of the Statutory Powers Procedure Act, RSO 1990, c S.22. That section states, in relevant part, that the Board “has the power to determine its own procedures and practices and may for that purpose… make orders with respect to the procedures and practices that apply in any particular proceeding.” That control must include the power of dismissal for a failure to comply with Board orders.

6These appeals date from 2013. The Company filed its statement of issues on January 20, 2016. The property at issue was inspected on February 23, 2017. At that inspection MPAC requested a copy of the agreement of purchase and sale for the property, which sold in July 2013, and the square footage of the building on the property. A pre-hearing was held before Member Stabile of this Board on March 20, 2017. Member Stabile ordered the Company to provide those documents on or before April 20, 2017. He also ordered that MPAC serve a statement of response on or before June 15, 2017, and that a hearing be set in September 2017.

7The Company did not provide the documents MPAC had requested until June 15, 2017, six days after this motion was filed. MPAC has still not served a statement of response, and requests 30 days to do so if this motion is denied. The hearing in September never took place.

8The Rules currently in force have been enacted in order to alter the previous practice of parties being regularly in breach of the Rules. As I noted in Municipal Property Assessment Corporation, Region No 9 v 234900 Ontario Ltd., 2017 CanLII 74719, at para. 9:

It would be unfair to both parties to immediately enforce compliance through dismissal upon the new Rules coming into force. The Board will strictly enforce the new Rules, and expects compliance. But appeals that proceeded pursuant to the former Rules must be weighed on their own facts, carefully considering the prejudice to each party.

9Member Stabile’s March 20, 2017 order was made under the previous Rules, when practice before the Board was less rigorous. Rule 86(2), of the Rules in force at that time, required MPAC to provide initial disclosure, and all pleadings to be exchanged, within six months of filing. As was common at that time, neither party complied with that Rule. Rather, the parties took a relaxed approach to timelines, and looked to this Board to set specific procedural dates for each appeal.

10It is difficult to see how a plain breach, when that was the common practice at that time, can be the sole basis for a dismissal order. MPAC is not claiming that it is prejudiced by the breach, and has not taken any steps to cure any harm it may have suffered from the late disclosure. The prejudice to each party will always be the primary consideration on a dismissal motion. The harm to the Company from a dismissal is severe. On the other hand, the harm to MPAC of the late disclosure is minimal, given that there is no impending hearing date for these appeals.

11I cannot justify a dismissal order in the absence of evidence of prejudice to the requesting party. Dismissal is an extreme remedy and requires clear evidence before it will be granted. MPAC’s motion is denied.

12MPAC is seeking time to serve a statement of response if the motion is denied. The Rules now require that each appeal be assigned a commencement date in order to determine the due dates for all procedural steps. I assign these appeals a commencement date of November 15, 2017 because it appears that the disclosure and the statement of issues have been completed. If the parties can complete all of the steps set out in the schedule of events soon, they are encouraged to submit the mandatory meeting form as soon as that step has been completed. The Board will schedule a settlement conference once a completed mandatory meeting form is filed.