Municipal Property Assessment Corporation v. Conservation Authority Grand River, 2018 CanLII 263

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: January 04, 2018

FILE NO.: DM 2017M08

Moving Party: Municipal Property Assessment Corporation (“MPAC”)

Respondent: Conservation Authority Grand River

Respondents: Guelph Eramosa Township and City of Guelph

Property Location: Guelph Lake Conservation Area

Municipalities: Guelph Eramosa Township and City of Guelph

Roll Numbers: 2311-000-011-00300, 2308-030-023-06891, and 2308-030-023-08801

Taxation Years: 2013, 2014, 2015, and 2016

Legislative Authority: Section 40.1 of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Heard: By written submission

APPEARANCES:

Parties

Counsel+/Representative

MPAC

Calvin Ho+

Conservation Authority Grand River

Keith Murch

Guelph Eramosa Township

Laura Smith

City of Guelph

James Krauter

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

DISPOSITION OF MOTION

1MPAC brings this motion asking me to create appeals for the three roll numbers that comprise the Guelph Lake Conservation Area for the 2013, 2014, 2015, and 2016 taxation years. MPAC argues that the error in MPAC’s description of the size of each parcel is a palpable error in the assessment roll. They further argue that this is a case where I should exercise my discretionary power to create appeals that would otherwise be statute barred. The Conservation Authority Grand River and Guelph Eramosa Township did not file any submissions or evidence. They appear to consent to MPAC’s motion. The City of Guelph responded to the motion, agreeing that new appeals should be created, but disagreeing with MPAC on how those appeals should be resolved.

2I find that errors in describing the size of the parcels of land here would be obvious to any casual observer. They are therefore palpable errors in the assessment roll. However, I do not find this to be a case in which I should exercise my discretion to create appeals. MPAC’s motion is denied.

REASONS FOR DISPOSITION OF MOTION

3The three roll numbers before me form a conservation area that straddles the border between the City of Guelph and the Guelph Eramosa Township. The parties appear to agree that:

a. roll number 2308-030-023-06891-0000 is described as having 1,389.80 acres, when it in fact has 9.49 acres;

b. roll number 2308-030-023-08801-0000 is described as having 9.49 acres, when it in fact has 230.00 acres; and

c. roll number 2311-000-011-00300-0000 is described as having 740.96 acres, when it in fact has 2,393.06 acres.

These errors indicate that the total area was described as 2,140.25 acres, when in fact it was 2,632.55 acres.

4MPAC argues that this error in land description is of a type covered by s. 40.1 of the Assessment Act, R.S.O. 1990, c. A.31, (“Act”) which states:

Correction of Errors

40.1 If it appears that there are palpable errors in the assessment roll…(b) if alteration of assessed values or classification of land is involved, the Board may extend the time for bringing appeals and direct the assessment corporation to be the appellant.

5MPAC relies on my decision in Canadian Tire Corp v. Municipal Property Assessment Corp., Region 15, [2017] O.A.R.B.D. No. 10. In that decision I stated, at paragraph 10, that “an incongruity between the assessment roll and the legal description of land is a common basis for a finding that there is a palpable error.” The legal description in that case did not reflect the fact that the three parcels could only be legally conveyed as one parcel of land. This is similar to the error found by Member Wyger in Whitby (Town) v. Municipal Property Assessment Corp., Region No. 13, [2004] O.A.R.B.D. No. 218 (“Whitby”), at paragraph 7: the “property no longer existed as a single vacant parcel but was legally subdivided into numerous, individually marketable building lots.” Those cases both involve a mismatch between MPAC’s records and the description at the land registry office. That is what is meant by an error in the legal description of land.

6I do not view an error in MPAC’s factual description of the size of a property to be the same type of error. The types of errors that could be palpable was canvassed by Member Stabile in Scott v. Municipal Property Assessment Corp., Region No. 15, [2015] O.A.R.B.D. No. 64. (“Scott”) He held, at paragraph 41, that he was “not satisfied that the errors complained of in this matter with respect to the size of the lot and/or the size of the garage can be seen as palpable errors.” MPAC argues that Scott does not set out clear categories of errors that cannot fall under s. 40.1. MPAC also argues that Scott can be distinguished due to the magnitude of the errors at issue here. I agree with both of those propositions.

7There is nothing in the statute that supports removing certain types of errors from s. 40.1. The only limit on the type of errors is that they must be “palpable errors in the assessment roll.” This Board has often found that a palpable error is one that is “plain and obvious,” see Whitby, supra.

8The errors in lot size here are significant and plain and obvious on any cursory review of the facts. While there were acknowledged errors in measurement in Scott, the magnitude of the lot size error was small. The recorded measurement was 9,251.96 square feet, while the actual lot size was 8,946.96 square feet, see paragraph 21. That is, the lot was recorded as being only 3.4% larger than it actually was. In contrast, the errors here are one parcel being recorded as over 146 times larger than it actually is, another being described as over 24 times smaller than its actual size, and the least significant error being a recorded size over three times smaller than its actual size. Those errors are different in kind than the error in Scott.

9The errors here would be plain and obvious to anyone that took even a cursory look at the properties. They are the kind of description errors that “jump out” at an observer as wrong. In contrast, the errors in Scott would only be apparent after a careful measurement. In that way the errors here are plain and obvious, while the errors in Scott were not. Errors in physical characteristics that can be palpable errors under section 40.1 are those that would be plain on a cursory examination of the issue. The errors here are palpable errors in the assessment roll.

10The finding of a palpable error is only first step in the relief set out in s. 40.1. The relief in s. 40.1 is discretionary, meaning that I am not required to create appeals, even if I am satisfied that there are palpable errors in the assessment roll.

11Section 40.1 is unique in the Act in that it has no limitation period. Everything else in the Act favours finality after a specified period of time. The legislature must have intended that the section be rarely used. A frequent reliance on s. 40.1 would obviously undermine the limitation scheme that dominates the Act. That is likely why the legislature created some barrier in its use in making the appearance of a palpable error in the assessment roll a statutory precondition to the exercise of my discretion. It also means that I must carefully exercise my discretion, to limit the application of this powerful remedy only to cases truly deserving of relief.

12The exercise of any discretion must be principled and should rely on clear factors. I agree with Member Wyger in Municipal Property Assessment Corporation v. Chew, 2015 CanLII 78969 (“Chew”), at paragraph 21, that the purpose of the section is to cure situations where it “would be unreasonable, unfair and highly prejudicial to penalize [parties] for not acting quickly enough.” That is, when there are valid reasons for missing the statutory filing deadline in other provisions of the Act, s. 40.1 acts as a release valve, to see that fairness is preserved.

13MPAC argues that s. 40 appeals are limited to “errors in the judgement of the assessor” so any issue that does not involve judgment should be entitled to relief under s. 40.1. MPAC is not correct on the scope of s. 40. Section 40.(1) lists a broad range of grounds for appeal, including “current value.” The construct of “current value” includes both aspects of judgment and the correction of factual errors. The Conservation Authority Grand River, the Guelph Eramosa Township, and the City of Guelph all had valid s. 40 appeals for the errors in property description here, if they had filed within the statutory timeframe.

14MPAC further argues that the Conservation Authority Grand River had no reason to file appeals because the “total assessed acreage was correct.” MPAC did not file any evidence to support that position, and the City of Guelph directly contradicts that position. I have already noted that the total area of these three parcels was described as 2,140.25 acres, when in fact it was 2,632.55 acres. That is, the total assessed acreage was 492.3 acres smaller than its actual size. That may not have incentivized an appeal by the taxpayer, but it cannot be said to be correct.

15MPAC’s final argument around the exercise of my discretion is that the motion should be allowed because “Municipalities cannot be expected to police the individual details of each assessment roll in their municipality.” There is no reason to give municipalities such wide access to s. 40.1. Municipalities cannot have blanket status file appeals years after the statutory filing deadline just because they have to police many parcels of land. To conclude that they should have that access would be inconsistent with municipalities being explicitly entitled to appeal under s. 40(1). That is a clear indication that the legislature intended municipalities to keep an eye on the entire assessment roll, and file within the statutory timelines. There is no reason to provide municipalities with privileged access to s. 40.1.

16Section 40.1 is an extraordinary remedy. That power should only be exercised by this Board when it is clear that it would be unreasonable, unfair and highly prejudicial to penalize parties for not meeting their statutory obligation to file in a timely manner. There is no evidence before me of why no party appealed the assessments within the time they were legally required to do so. There is no evidence of any unfairness in having the statutory filing deadline stand in this case.

17I am not exercising my discretion to create late appeals, but it is still important that any prejudice to the parties be weighed, see Chew, supra at paragraph 23. The outcome of denying MPAC’s motion is that the payments in lieu of taxes that have been made on incorrect data will stand. This means that the City of Guelph has received more from the Conservation Authority Grand River than it perhaps ought to have, and that the Guelph Eramosa Township has received less than it was potentially entitled to. But these are all public bodies that had statutory remedies that they did not pursue. They are left with the foreseeable consequences of their inaction. I do not find that any party to this motion is especially prejudiced by my failure to create these late appeals.

CONCLUSION

18I find that the errors in the physical description of land here are of a kind that amounts to a palpable error in the assessment roll. I also find that the discretionary power in s. 40.1 should only be exercised where it would be unreasonable, unfair and highly prejudicial to enforce the statutory filing deadlines. While there are palpable errors in the assessment roll, there is nothing in the record before that indicates that there would any unfairness in enforcing the statutory filing deadline here. Nor is there any prejudice that would flow from me declining to exercise my discretion. MPAC’s motion is denied.