Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: April 24, 2018

FILE NO.: DM 2018M05

Moving Party(ies): 2397146 Ontario Inc.

Respondent(s): City of Brampton

Property Location(s): 90 Biscayne Crescent

Municipality(ies): City of Brampton

Roll Number(s): 2110-140-118-00252-0000

Taxation Year(s): 2015

Hearing Event No.: 692368

Legislative Authority: Section 357 of the Municipal Act, 2001, S.O. 2001, c. 25, as amended

Heard: January 10, 2018 in Toronto, Ontario

APPEARANCES:

Parties 2397146 Ontario Inc. City of Brampton

Counsel David Fleet John O’Kane

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH, JOSEPH JEBREEN, AND SUBUOLA AWOLERI

DISPOSITION OF MOTION

12397146 Ontario Inc., carrying on business as the Courtyard Marriot Brampton (the “Company”), brings this motion seeking an order permitting late filing of its appeal pursuant to subsection 357(7) of the Municipal Act, 2001, SO 2001, c. 25. The City of Brampton (the “City”) argues that the Legislature did not intend to grant the Assessment Review Board (“Board”) the power to permit the late filing of this appeal and that the appeal must therefore be dismissed.

2We agree with the City that the Legislature did not intend to confer on this Board the power to alter the timelines set out in subsection 357(7). This appeal was filed out of time and must be dismissed.

REASONS FOR DISPOSITION OF MOTION

3The Company applied to the City on June 24, 2015 for a refund of taxes due to repairs or renovations, pursuant to clause 357(1)(g) of the Municipal Act, 2001. The City issued a partial tax refund of $7,365.45 at a Council meeting held on March 2, 2016, which triggered the 35 day appeal period set out in subsection 357(7). The Company’s agent, AEC Paralegal Professional Corporation, intended to file an appeal with this Board before the April 6, 2016 filing deadline, but there is no evidence that they actually did so. That oversight was discovered on November 8, 2016 and this application for permission to file a late appeal was filed with the Board on November 25, 2016.

4The Board twice notified the Company that it cannot accept late appeals, first on March 8, 2017, and again on September 18, 2017. The Company objected each time that the decision lacked transparency and did not permit it to make submissions on the dismissal of the application, in contravention of section 8.2 of the Assessment Review Board Act, RSO 1990, c A.32. The Associate Chair of the Board convened this panel to provide a fulsome opportunity for submissions, and reasons for the Board’s disposition. These are those reasons.

5The Company and the City agree that this Board is a creature of statute, and derives its legal authority from statute. The Company argues that the Legislature intended for this Board to have the power to extend the filing deadline for two broad reasons: (1) the legislative purpose of the tax refund provisions of the Municipal Act, 2001 can be best served if late filing is permitted; and (2) the Assessment Review Board Rules of Practice and Procedure (the “Rules”) are only coherent if late filing of this appeal is permitted. We do not agree that the Legislature indented to grant this Board the power to extend the time set out in subsection 357(7) under either theory.

6However, before addressing these arguments, we first examine whether we have the jurisdiction to extend the timeline in subsection 357(7).

Jurisdiction

7At the hearing of this motion, the City originally argued that the Board lacked the jurisdiction to even consider an extension of time. However, after the hearing, we asked the parties to make further submissions on whether the Board’s power to extend the deadline in subsection 357(7) is a true question of jurisdiction or, instead, a question of statutory interpretation. We provided the parties with an opportunity to comment on Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2011] 3 SCR 654, [2011] SCJ No 61 (“Alberta Teachers”) and MacNeil v British Columbia (Superintendent of Motor Vehicles), 2012 BCCA 360, [2012] BCJ No 1795 (“MacNeil”).

8Both parties submitted that determining whether a deadline in subsection 357(7) may be extended is not a true question of jurisdiction. We agree.

9The interpretation of statutory time limits, like any other exercise of statutory interpretation, is not a true question of jurisdiction. In Alberta Teachers at paragraph 33, the Supreme Court of Canada held that a “timelines question does not fall within the category of a ‘true question of jurisdiction or vires.’”

10On the issue of interpreting the extension of statutory timelines, the British Columbia Court of Appeal in MacNeil held, at paragraph 26, that the Supreme Court of Canada in Alberta Teachers “was unanimous that the failure to comply with timelines should not be viewed as an issue of jurisdiction.” We find that the question before us is purely a question of statutory interpretation.

Essential Justice

11The Supreme Court of Canada’s guidance on the interpretation of taxation legislation, set out in Québec (Communauté urbaine) v. Notre-Dame de BonSecours, 1994 CanLII 58 (SCC), [1994] 3 SCR 3, [1994] SCJ No 78 (“BonSecours“), guides this interpretive exercise. In that case Justice Gauthier set out five rules for the interpretation of taxation legislation:

(a) The ordinary rules of interpretation apply;

(b) The purpose of the legislation will determine if a strict or liberal interpretation should be applied. The purpose is determined in light of the context of the statute, its objective and the legislative intent;

(c) There are no predetermined presumptions guiding the interpretation;

(d) Substance should be given precedence over form to the extent that this is consistent with the wording and objective of the statute;

(e) Only if the ordinary rules of interpretation leave doubt should the residual presumption in favour of the taxpayer be engaged.

12The ordinary rule of statutory interpretation is that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament,” Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42, [2002] 2 SCR 559, [2002] SCJ No 43 at paragraph 26. We must determine the intention of the Legislature in order to guide our reading of the Municipal Act, 2001.

13The Supreme Court of Canada has held that the tax refund provisions that are now part of the Municipal Act, 2001 are remedial and exist to provide “essential justice” to taxpayers, see Wilkes v Interlake Tissue Mills Co, 1969 CanLII 9 (SCC), [1970] SCR 441, [1969] SCJ No 90, at paragraph 10. That purpose guides the interpretation of subsection 357(7), but does not change the words of the provision. As the Ontario Court of Appeal stated in Re Wilkes and Interlake Tissue Mills Co Ltd, 1968 CanLII 40 (ON CA), [1968] 2 OR 589, [1968] OJ No 1201, at paragraph 2: the purpose of provisions like this is “to do what justice and equity may require in cases falling within the purview…” of the section. The purpose of doing essential justice to taxpayers requires a liberal interpretation of subsection 357(7).

14The Company argues that subsection 357(7) can be read as being silent on the timing of appeals. Subsection 357(7) states: “within 35 days after council makes its decision, an applicant may appeal the decision of council to the Assessment Review Board by filing a notice of appeal with the registrar of the board.” The Company suggests that nothing in that wording indicates that the 35 day limitation period is final. Or, put another way, the Legislature did not intend to remove the right to appeal to this Board after the 35 day period has expired.

15We agree with the British Columbia Court of Appeal’s dismissal of this same argument in MacNeil at paragraph 41: “Since the Superintendent may only exercise powers granted to him by statute, it is no answer to say that the Superintendent has a power to extend time because nothing in the statute expressly excludes that authority.”

16The Company argues that a liberal interpretation of subsection 357(7) must include an analysis of the significance of the 35 day limit to the overall scheme. The Company relies on Neamsby Investments Inc. v. Markham (Town), (2008) 2008 CanLII 44114 (ON SCDC), 241 OAC 275, [2008] OJ No 3440, where the Divisional Court found that the word “shall” in subsection 331(9) of the Municipal Act, 2001 was not mandatory. That provision requires the municipality to mail a notice to the taxpayer within 60 days of the municipality receiving certain information. The Court held that the substance of the section, which aimed to tax property at the same level, would be removed if “shall” was read as mandatory, and that BonSecours was clear that substance should be put over form. That reasoning has no application to this case.

17The purpose of section 357 is to provide “essential justice” to taxpayers. The 35 day filing deadline in subsection 357(7) does not undermine that purpose. Essential justice must be accomplished within the confines set out in the legislation. There is no broad power to make taxpayers whole. Rather, the legislation sets out how that objective is to be achieved. Subsection 357(1) sets out the grounds of relief, which are broad, but the legislation also sets clear deadlines for applications and appeals. The remedial purpose of the tax refund provisions does not rewrite the legislation.

18The City argues that the Legislature knows how to extend statutory time limits and provided a number of examples where the Legislature had done so. Section 7 of the Licence Appeal Tribunal Act, 1999, SO 1999, c 12 states that the Tribunal “may extend the time for giving the notice either before or after the expiration of the limitation of time so limited.” Subsection 125(2) of the Workplace Safety and Insurance Act, 1997, SO 1997, c 16, states that a notice of appeal shall be filed “within six months after the decision or within such longer period as the tribunal may permit.” Finally, the City points to subsection 31(3) of the Expropriations Act, RSO 1990, c E.26, which states that a “judge of the Divisional Court may extend the time for appeal for such period as the judge considers proper.” All of that legislation uses clear language to permit an extension of filing deadlines. We find this to be a persuasive indicator of legislative intent and there is no similar language in section 357 of the Municipal Act, 2001.

19In MacNeil, the British Columbia Court of Appeal upheld an adjudicator’s finding that it was not the Legislature’s intent to confer a power on the tribunal to extend the seven day statutory deadline to request a review of a temporary driving prohibition in the absence of an express provision authorizing the extension. The Court held that “if the Legislature had intended to confer the power to extend time on the Superintendent, it would have done so expressly,” MacNeil at paragraph 40.

20The same can be said of this Board. If the Legislature had intended to grant this Board the power to extend the timeline set out in subsection 357(7) of the Municipal Act, 2001 it would have done so expressly, as it has in other contexts. The Legislature’s choice to omit that language here is an indication that it did not intend to make this deadline flexible.

21The Company argues that subsection 357(7) is different because it is an appeal provision, and that it should be interpreted more flexibly than filing deadlines at first instance. The Company presented Falus v Martap Developments 87 Limited, 2012 ONSC 5163, [2012] OJ No 4517 (“Falus”) and Mauldin v Cassels Brock & Blackwell LLP, 2011 ONCA 67, [2011] OJ No 263 (”Mauldin”) for the proposition that timelines are flexible on appeal. In Falus Justice Lax extended the time for filing a Notice of Appeal to Divisional Court, while in Mauldin Justice Weiler extended the time to perfect an appeal before the Court of Appeal. Both cases appear to deal with timelines set by the Rules of Civil Procedure, RRO 1990, Reg 194, and Rule 3.02(1) explicitly grants the Court the power to alter timelines set in those Rules. That is, those cases do not stand for the general proposition that timelines are more flexible on appeal, they again demonstrate that the Legislature can confer a power to extend timelines when it sees fit.

22We find that the Legislature did not intend to confer a power on this Board to extend the 35 day deadline in subsection 357(7) of the Municipal Act, 2001.

The Rules

23The Company argues that this Board can do what the Legislature has not, and permit the late filing of appeals. The Rules currently permit the late filing of some appeals, and the Company argues that those Rules are a valid exercise of the power to make rules set out in section 25.1 of the Statutory Powers Procedure Act, RSO 1990, c S.22. It also points out that the Rules are to be “liberally interpreted”, see Rule 4, and that the Board retains the power to address issues on which the Rules are silent, see Rule 6. The Company argues that the explicit power to extend the time to file appeals pursuant to the Assessment Act, RSO 1990, c. A.31, set out in Rule 26(b), shows that we have the legal power to alter statutory deadlines. It further argues that there is no logical reason to differentiate between statutory timelines in the Assessment Act and those in the Municipal Act, 2001.

24The vires of Rule 26(b) is not squarely before us, so we do not need to determine that issue. The confines of Rule 26(b) are clearly stated and it is only open to “a person entitled to receive a notice of assessment who did not receive notice” under the Assessment Act. The Company does not fall within the confines of the Rule. The Company seems to argue that Rule 6 allows the Board to create rules by analogy. We do not agree that legal authority for one action creates legal authority for all similar actions. The Legislature did not intend to grant us the power to extend the timeline set out in subsection 357(7) of the Municipal Act, 2001, and Rule 6 cannot be used to circumvent that intention.

CONCLUSION

25The Legislature did not intend to confer on us the power to extend the 35 day deadline for filing appeals pursuant to subsection 357(7) of the Municipal Act, 2001. The Legislature clearly knows how to do so, and did not do so in subsection 357(7) of the Municipal Act, 2001.

26This appeal was filed out of time and we cannot cure that defect. The appeal must be dismissed.