Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE:
March 27, 2018
FILE NO.:
RRD 2018M03A
AMENDED DECISION ISSUED ON: March 27, 2018
Assessed Person(s):
Canadian Tire Corporation Limited, Canadian Tire Properties Inc., and Canadian Tire Real Estate Limited
Appellant(s):
Canadian Tire Corporation Limited, Canadian Tire Properties Inc., and Canadian Tire Real Estate Limited
Respondent(s):
Municipal Property Assessment Corporation (“MPAC”)
Respondent(s):
See Schedule “A”
Property Location(s):
See Schedule “A”
Municipality(ies):
See Schedule “A”
Roll Number(s):
See Schedule “A”
Appeal Number(s):
See Schedule “A”
Taxation Year(s):
2017
Legislative Authority:
Rule 120 of the Assessment Review Board’s Rules of Practice and Procedure, as amended
Request for:
A review of the Board’s Disposition DM 2017M10 issued on December 22, 2017
Heard:
By written submission
Parties
Counsel
Submissions
Canadian Tire Corporation Limited
Belinda Schubert
Requester
MPAC
Carl Davis
Received
DECISION DELIVERED BY JERRY V. DEMARCO AND B. W. KRUSHELNICKI
AND ORDER OF THE BOARD
Amended pursuant to Rule 114 of the Assessment Review Board’s Rules of Practice and Procedure, effective April 1, 2017
BACKGROUND
1On January 22, 2018, the Appellant, Canadian Tire Corporation, filed a request under Rule 120 of the Assessment Review Board’s (“Board”) Rules of Practice and Procedure (“Rules”) seeking the review of a Board disposition dated December 22, 2017.
2The disposition sought to be reviewed is a ruling by two Board Vice-Chairs that relates to a determination of the “Commencement Day” for a number of assessment appeals for properties across Ontario. The Appellant had sought a change in the Commencement Day that had been previously assigned by the Board but the Board’s disposition did not grant the Appellant all of the relief sought. The disposition considered a number of relevant factors in deciding only to change the Commencement Day for those appeals for which there was all-party consent. For further details, see: Canadian Tire Corporation v. Municipal Property Assessment Corporation, 2017 CanLII 87111.
3Under the Rules, a Commencement Day triggers the start of the timelines for various stages in a proceeding as set out in the schedules to the Rules. The Board’s Practice Direction for Appeals Management sets out the importance of setting the Commencement Day, given the cyclical nature of assessment appeals:
The Board receives a high volume of appeals at the beginning of the first year of the cycle, making it difficult for the parties to complete the procedural steps for each appeal at the same time. To address this resource constraint, the Board will assign a Commencement Day for each appeal, and will evenly distribute these Commencement Days over the four-year assessment cycle.
4Following receipt of the Request for Review, the Board wrote to the Appellant and the Respondent and requested written submissions on the following preliminary question: does the Board’s disposition dated December 22, 2017 fall within the class of Board rulings that can be the subject of a request for review under Rule 120, which refers to a “final decision”?
5Rule 120 states:
Request for Review
- A party may request a review of any final decision of the Board, other than a decision pursuant to Rule 122, by filing a request in writing no more than 30 days after the decision was issued…
6For the reasons set out below, the Board determines that the December 22, 2017 disposition is not a ruling that can be reviewed under Rule 120.
SUBMISSIONS
7In its submissions, the Appellant cites Rules 4, 6, and 120 of the Rules, the Board’s Practice Direction for Appeals Management, and s. 21.2 of the Statutory Powers Procedure Act (“SPPA”) to support its position that the December 22, 2017 disposition is subject to the review Rule.
8The Appellant submits that the disposition of the Board setting the Commencement Day was “final” and can be reviewed under Rule 120. The Appellant points to the use of the word “final” in the Practice Direction for Appeals Management, which states that the Board will consider the parties’ preferences when assigning a Commencement Day, but “ultimately the Board will make the final determination.” The Appellant submits that, in the interests of justice, the term “final” in Rule 120 should be interpreted broadly in accordance with Rule 4, such that the December 22, 2017 disposition qualifies as a “final decision”.
9The Appellant also argues that, although the Rules previously prevented the Board from reviewing interim or interlocutory orders, the new 2017 Rules no longer expressly prohibit reviews of those types of rulings. The Appellant submits that the removal of this restriction must have been deliberate.
10The Appellant also relies on Rule 6, which allows the Board to make whatever procedural orders or directions are required to effectively and efficiently adjudicate a proceeding where the Rules are silent on any issue. The Appellant submits that Rule 6 provides the Board with the discretion to review the December 22, 2017 disposition. According to the Appellant, the Board should exercise its discretion to review the disposition because the Appellant was denied its right to be heard when the disposition was initially made.
11In the alternative, if the Board deems that the impugned disposition is not a final decision and declines to conduct a review under Rule 120, the Appellant requests that the Board consider the Request for Review under Rule 114. Rule 114 states that the Board may, on its own initiative or at the request of a party, correct a minor error in a decision or order and clarify misstatements, ambiguities, or other similar issues.
12The Appellant cites three Board decisions in support of its request. Chestnut Park Hospitality Inc. v. Municipal Property Assessment Corporation Region 9, 2016 CanLII 15606 (“Chestnut Park”) is cited because the Board held that where the Board makes an administrative decision without notice, that decision is reviewable. Crate v. Municipal Property Assessment Corporation Region 16, 2017 CanLII 31051 (“Crate”) is cited because the Board granted a request for review of an interlocutory decision. The Appellant submits that, because the Board decided to change the Commencement Day without notifying the parties, the Board’s disposition is reviewable pursuant to Chestnut Park. The Appellant submits that, if the Board determines the disposition is interlocutory, the Board retains discretion to review the disposition pursuant to Rule 6 and Crate.
13Finally, the Appellant submits that case law from the Ontario Superior Court cited in HLS York Developments Ltd. v. Municipal Property Assessment Corporation Region 09, 2016 CanLII 76506 (“HLS York”), regarding the distinction between a final and interlocutory order under the Rules of Civil Procedure, should not be determinative in this case because the words interim and interlocutory were removed from the Rules and the Rules no longer reference the Rules of Civil Procedure.
14The Respondent, Municipal Property Assessment Corporation, takes the position that the December 22, 2017 disposition is not a “final decision”. It bases its position on a “plain reading” of Rule 120.
ANALYSIS AND FINDINGS
15With the specific exception of reinstatement orders under Rule 122, which does not apply here, review requests are dealt with under Rule 120. The analysis that follows focuses on the “final decision” aspect of Rule 120.
16The Appellant interprets the change in the wording of the review rule from the previous version to the current (2017) Rule as supporting its position. The new rule is much shorter and indicates what can be reviewed (i.e., final decisions) but does not list what cannot be reviewed. The old version of the rule noted what can be reviewed and also noted what types of rulings the Board “will not review” (which included “interim and interlocutory orders”). Did this change signal that “interim and interlocutory orders” can now be reviewed? No, it did not. The 2017 rule revisions were part of an effort, among other things, to simplify and shorten the Board’s Rules. If the intent of the revised rule had actually been to enlarge the scope of reviewable decisions, then alternative wording would have been employed, such as “a party may request a review of any order or decision” or the rules could simply have followed the wording of s. 21.2 of the SPPA.
17The current Rule clearly allows for reviews only of final decisions. Moreover, using the liberal interpretation approach mentioned in Rule 4 (which has been endorsed by the Appellant) does not allow the Board to ignore the clear and plain wording of Rule 120. As well, interpreting Rule 120 so as to make a wider range of rulings subject to review requests will not necessarily assist in ensuring the “just, most expeditious and least expensive determination of every proceeding”. On the contrary, allowing Board dispositions on scheduling matters to stand without further time being spent on requests to review may more often accomplish the objectives of Rule 4. For similar reasons, the Board concludes that interim and interlocutory orders cannot be reviewed under the current Rules, just as they could not be reviewed under the previous version without resorting to former Rule 3 (see Crate).
18The next question that arises is whether a scheduling disposition is a final decision. In one sense, some scheduling decisions constitute a final determination of when a matter will be heard or when certain steps in a proceeding will take place. From that perspective, they are the final word on such procedural items. The December 22, 2017 disposition is the final word on the Commencement Day for the appeals, for example. The Board finds that many or most procedural orders finally determine something (e.g., when a case will be heard, whether documents will be produced, whether an adjournment will be granted, etc.) but the words “final decision” in Rule 120 are clearly aimed at decisions that pertain to the main adjudicative act, which is to finally determine the merits of a case, such as the assessed value of land or the classification of land. Procedural rulings, dispositions, and orders that do not finally dispose of the merits are not caught by Rule 120 in its present form, just as they were not caught in the old, lengthier version of the rule (see also: HLS York).
19The Board now turns to whether Rules 4 and 6 can be used to depart from the clear wording of Rule 120. Rules 4 and 6 state:
Interpretation
- These Rules shall be liberally interpreted to ensure the just, most expeditious and least expensive determination of every proceeding.
Issues Not Dealt With in these Rules
- Where these Rules are silent on any issue the Board may make whatever procedural orders or directions are required to effectively and efficiently adjudicate a proceeding.
20Here, there is no silence on an issue such that current Rule 6 would apply. The new version allows the Board to fill in gaps where the Rules are silent but does not permit the Board to simply ignore the Rules in favour of a different approach sought by a party.
21The Board turned its mind to what types of rulings are eligible for review requests and made a decision to limit such requests to final decisions. Rule 6, therefore, cannot be used to create a new avenue for reviews of rulings other than final decisions. Also, Rule 4 simply guides interpretation of the Rules and has already been considered in the above interpretation of Rule 120. It is not an override rule like former Rule 3 (see Crate at para. 10) and cannot be used to create a new avenue for reviews. Also, Chestnut Park is of no assistance since the December 22, 2017 disposition is clearly an adjudicative ruling rendered by two Vice Chairs of the Board and was not a decision made by administrative staff.
22Notably, the Board, in its current Rules, eliminated the following old wording from Rule 3, which stated:
The Board may grant all necessary exceptions from these Rules or a Procedural Order, or other relief as it considers appropriate, to ensure that the real questions in issue are determined in a just manner.
23Even if the old Rule 3 did still apply, the Board is satisfied that real questions in issue in these appeals can be determined in a just manner even if the Commencement Days that have been established continue to apply. It is not necessary for the Board to adopt the Appellant’s preference for different Commencement Days in order for the merits of the case to be determined in a just manner.
24Also, while the Appellant makes reference to Rule 114 in its alternative submissions, that rule does not apply to substantive requests of this nature.
25To conclude, Rule 120 is limited to reviews of final decisions. The ruling at issue, whether one characterizes it as a procedural order or disposition, an interim or interlocutory order, or even a final determination of a particular scheduling matter, is not the type of “final decision” on the merits that can be reviewed.
Amended pursuant to Rule 114 of the Assessment Review Board’s Rules of Practice and Procedure, effective April 1, 2017
Finally, Rules 4 and 6 do not provide any residual authority to permit a review of the scheduling ruling at issue in this case.
26The preliminary question posed to the parties is, therefore, answered as follows: No, the Board’s disposition dated December 22, 2017 does not fall with the class of Board rulings that can be the subject of a request to review under Rule 120, which refers to a “final decision”.
ORDER
27For the reasons set out above, the request is dismissed.
“Jerry V. DeMarco”
JERRY V. DEMARCO
ALTERNATE EXECUTIVE CHAIR
“B. W. Krushelnicki”
B. W. KRUSHELNICKI
EXECUTIVE CHAIR
Amended pursuant to Rule 114 of the Assessment Review Board’s Rules of Practice and Procedure, effective April 1, 2017
Assessment Review Board
A constituent tribunal of Environment and Land Tribunals Ontario
Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
Schedule “A”