The City of Toronto v. Municipal Property Assessment Corporation, 2018 CanLII 45241

Assessment Review Board

Issue Date: May 15, 2018 File No.: RR 2018M02 Assessed Person(s): Allegra Homes Sheppard Inc. Appellant(s): The City of Toronto ("City") Respondent(s): Municipal Property Assessment Corporation ("MPAC") Region 09 Respondent(s): Allegra Homes Sheppard Inc. Property Location(s): 724 Sheppard Avenue West Municipality(ies): City of Toronto Roll Number(s): 1908-054-130-01800-0000 Appeal Number(s): 2901012 Taxation Year(s): 2012 Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31, as amended Request for: A review of the Board's Decision WR 125730 issued on June 30, 2014 Heard: By written submission

Parties	Counsel⁺/Representative	Submissions
Allegra Homes Sheppard Inc.	David Barr	Requester
MPAC	Melissa VanBerkum⁺	Received
City of Toronto	Sara Baxter	Received

DECISION DELIVERED BY PAUL MULDOON AND ORDER OF THE BOARD

INTRODUCTION

1David Barr, on behalf of Allegra Homes Sheppard Inc. (the "Requester"), seeks a review of the decision of the Assessment Review Board (the "Board"), WR 125730 (the "Decision"), delivered by Member Morris (the "Presiding Member") on June 30, 2014. This request for review was filed with the Board in December, 2017.

2The issue before the Board at the hearing was the correct current value of the property at 724 Sheppard Avenue West (the "subject property") for the 2012 taxation year. The Presiding Member confirmed the subject property's assessment at $1,645,000 for the 2012 taxation year.

3On October 20, 2016 and November 27, 2017, the City made submissions in response to the Request for Review by the Requester. On October 18, 2016, Melissa VanBerkum, on behalf of MPAC, interpreted the submission of the Requester as a challenge to the taxes to the decision and assumed that the City would respond to the Requests.

ISSUES AND ORDER SOUGHT

4The Requester seeks a review of the Decision pursuant to Rule 120(b) of the Board's Rules of Practice and Procedure (the "Rules"). The Requester submits that the Presiding Member made material errors of fact. The Requester seeks the cancellation of the Decision and a new hearing before a different Board Member.

5The Requester identifies one ground for review, outlined in paragraph 1 below, while the City raises an additional procedural issue, outlined in paragraphs 2. The procedural issue raised by the City will be addressed first:

1. Whether the Presiding Member made an error of fact and or law by incorrectly finding that the classification of the subject property was commercial for the 2012 taxation year and that the current value assessment was too high.

2. Whether the Board should refuse the Request for Review because it was filed after 30 days after the release of the Board's decision and it is not meet other procedural requirements under the Board's Rules.

6In addition to the two issues identified above, a preliminary matter pertains to whether the Board's old or new Rules apply. The decision under review was issued at a time when the previous Rules were place while the Request for Review was filed after April 1, 2017, the time of which when the new Rules become effective. The Board will assume that the new Rules apply, although as outlined below, the reasons for the disposition would have been the same irrespective if the new or the old Rules were applicable.

DECISION

7The Board should not consider the Requester's Request for Review because the Request was filed more than 30 days after the release of the written decision, contrary to the Rules. The Requester did not provide an adequate explanation so as to convince the Board to exercise its discretion to extend the 30 time limit for filing a Request for Review.

8Even if the Board were to consider and grant a request to extent time, and thus consider the Request for Review, the Board would not have granted the Request. The Board is not satisfied that the Board acted outside its jurisdiction or violated the rules of natural justice or procedural fairness.

9The Request for Review is denied and the current value is confirmed at $1,645,000 for the 2012 taxation year in the commercial property class.

RELEVANT RULES

10Rules 120 to 123 of the Rules set out the process whereby the Board may review a decision.

Request for Review

120. 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, including:

(a) a copy of the decision to be reviewed;

(b) the written reasons for the decision, as set out in Rule 112;

(c) the reasons for the request, addressing the factors set out in Rule 121;

(d) notice of any appeals or applications for judicial review that have been filed in relation to the decision;

(e) proof of service on all other parties to the proceeding;

(f) the remedy or relief sought; and

(g) the fee specified by the Board.

Grounds for Review

121. A request for review will not be granted unless the Board is satisfied that:

a. the Board acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

b. the Board made a significant error of law or fact such that the Board would likely have reached a different decision;

c. the Board heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result;

d. there is new evidence that could not have reasonably been obtained earlier and would have affected the result; or

e. any of the situations in Rule 122 exist.

11A request for review is received pursuant to Rule 123 which grants the Board with the following authority:

Review Order

122. Upon consideration of a request for review, or on its own initiative, the Board may:

a. dismiss the request;

b. reinstate the appeal, with or without conditions; or

c. after providing all parties an opportunity to make submissions,

i. confirm, vary, or cancel the decision,

ii. order a rehearing on all or part of the matter, or

iii. order a motion to decide the review.

REASONS FOR THE DECISION

Issue No. 1: Whether the Board should refuse the Request for Review because it was filed after 30 days after the release of the Board's decision and it is not meet other procedural requirements under the Board's Rules

12The City submits that the Board should refuse to consider the Requester's Request for Review because the Request was not filed within 30 days of the receipt of written reasons as required by Rule 120(a).

13A brief chronology of this matter is as follows:

• June 30, 2014 – the Decision is issued;
• October 23, 2014 - the Requester writes to the Board outlining its desire to "appeal" the decision and commits to contacting the Board's Registrar;
• November 13, 2014 - the Requester informs that Board that it is working with a law firm to formally request a Request for Review;
• October 18, 2016 - submissions from the Requester are forwarded to the Board;
• October 18, 2016 - MPAC files a response to the Request;
• October 20, 2018 - the City files a reply to the Request;
• July 18, 2017 through November 23, 2017 - various correspondence is exchanged between the City, the Requester and the Board;
• November 23, 2017 - the Board writes to the Requester acknowledging the receipt of the Request for Review and requesting the appropriate filing fee;
• November 27, 2017 - the City filed further submissions; and
• December 6, 2017 - the Board acknowledged receipt of the filing fee.

14The City states that the Request was not completed for 1,124 days, between the issue date of the Decision and the request for a review dated July 28, 2017. The City submits that the Board is without jurisdiction to consider a request for review in this matter, even if the Requester submits the filing fee. The City submits that the long delays are prejudicial to the City in light of the long outstanding property tax arrears.

15Both the former and new Rules retained the same basic requirement that a Request for a Review must be filed within 30 days of receipt of the written reasons. The wording of the relevant Rule changed on April 1, 2017. Old Rule 144(a) stated that the Request for Review must be filed within 30 days of the Board's decision, "unless the Board determines that there is good reason to extend the time." New Rule 120 does not contain that phrase.

16The fact that the phrase in the former Rule 142(a) was removed should not be interpreted that the Board intends to remove its discretion to grant extensions to the 30 day time limit. Rule 17 is explicit that "any time period in these Rules can be altered by the Board." That discretionary power should only be exercised when the facts indicate that it would be fair and proper to grant more time.

17In this matter, the Requester waited many months to complete the requirements in the filing of a Request for Review. The requirement in Rule 120 that Requests for Review be filed no more than 30 days after the decision is issued is intended to ensure the efficient and timely challenges to the Board decisions. If the Board did make an error of law, for example, the expectation would be that the Board acknowledge the error and provide some relief in a timely fashion. This goal becomes more challenging the longer a party takes to file a Request for Review. In this matter, there was an extra-ordinary delay without an adequate explanation by the Requester. While the Board acknowledges that there was various correspondence between the Requester and the Board concerning this matter, the onus rests with the Requester to ensure that requirements of the Rules are met, or to provide a full explanation as why relief from the Rules should be granted. Moreover, the Board accepts the City's submissions that the delay could cause prejudice to the City with respect to outstanding tax arrears.

18The City also submits that the Requester has failed to meet other procedural requirements as set out in the Board's Rules. More specifically, the City states that the Requester failed to file an affidavit stating the facts relied upon in support of the request and to pay the filing fee. Affidavits were required under old Rule 143 (i), but are no longer required by the Rules for Requests for Review. The Requester did eventually remit a filing fee for the Request. Hence, these two procedural objections do not provide an impediment to review the Request.

19The Requester did not meet the requirement in Rule 120(a) so the Board it need not consider the Request for Review. However, because this matter involves interpreting the new Rules, the Board will consider the merits of the Request.

Issue No. 2: Whether the Presiding Member made an error of fact and or law by incorrectly finding that the classification of the subject property was commercial for the 2012 taxation year and that the current value assessment was found to be too high.

20Under the Rules, the Board must be satisfied that one of the grounds set out in Rule 121 have been met. In this matter, the Requester is submitting that the Board made a significant error of law or fact such that the Board would likely have reached a different conclusion.

21The Requester submits that the Member was incorrect in finding that the classification of the subject property was commercial for the 2012 taxation year rather residential. The Requester states that the property was approved multi-residential site and was not a commercial property (that is, used as a sales office). The City states that the Board's finding that the property should be classified as commercial for the 2012 taxation year is well supported by the evidence.

22In paragraph 15 of the Decision, the Presiding Member made an explicit finding that the property classification for the subject project for the 2012 tax year is the commercial property class. This finding is based on the Presiding Member's weighing of the evidence presented at the hearing, and in particular, the testimony of the witness called by the City who presented a photograph of the property showing a structure with the words "Sales Centre." The City submitted that, on the basis of the sales office located on the property, the proper classification is commercial. In paragraph 15, the Presiding Member expressly makes a finding that the property should be classified as commercial and noted in paragraph 14 that the property owner "did not dispute the classification of the property as commercial and presented no evidence to support any other classification."

23There is no basis to suggest the Presiding Member made any error in law or fact. The Requester is either repeating the submissions made at the hearing or offering new submissions on the same point based on the same evidence. The Request for Review Rules should not be used as a process for a party to simply re-argue their case. Instead, a requester must present submissions sufficient to satisfy the Board the matter should be reviewed because a ground under Rule 121 has been met. In this matter, the Request repeated or reframed the same submissions offered at the hearing.

24The Requester also raises the issue that the assessed value was too high. Again, the Presiding Member, in paragraphs 16 to 23, provide a thorough review of the evidence and made an express finding that the current value assessment of the property for the 2012 taxation year to be $1,645,000. The Requester made no submissions that challenges the factual or legal findings made by the Presiding Member, other than the Requester disagrees with it.

25The Board is not, therefore, satisfied that the Presiding Member made a significant error of law or fact such that the Board would likely have reached a different decision.

ORDER

26The Board finds that the Requester has not satisfied the Board that the Presiding Members made a significant error of law or fact such that it would have likely reached a different decision. The request for review is denied and the Decision is confirmed.