Talon International Development Inc. v. Municipal Property Assessment Corporation Region 09, 2018 CanLII 55827

Assessment Review Board

Commission de révision de l'évaluation foncière

ISSUE DATE: June 14, 2018

FILE NO.: RR 2018M03

Assessed Person(s): Talon International Development Inc.

Appellant(s): Talon International Development Inc.

Respondent(s): Municipal Property Assessment Corporation ("MPAC") Region 09

Respondent(s): City of Toronto

Property Location(s): 325 Bay Street

Municipality(ies): City of Toronto

Roll Number(s): See Schedule "A"

Appeal Number(s): See Schedule "A"

Taxation Year(s): 2014, 2015 and 2016

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 Decision RR 2018 M01 issued on February 22, 2018

Heard: By written submission

Parties

Counsel

Submissions

Talon International Development Inc.

Jamie Walker

Requester

DECISION DELIVERED BY JERRY V. DEMARCO AND ORDER OF THE BOARD

BACKGROUND

1This decision relates to a request for guidance on the interpretation of Rules 120 and 122 of the Assessment Review Board's ("Board") Rules of Practice and Procedure ("Rules") in the context of a request to review an earlier decision of the Board.

2Talon International Development Inc. ("Talon") submitted a request to reinstate appeals that had been previously dismissed by a member of the Board because no one appeared for Talon at a second prehearing. The appeals are in respect of a number of units in the hotel and condominium development located at 325 Bay Street, Toronto.

3On February 22, 2018, Associate Chair Paul Muldoon issued a decision dismissing Talon's request to reinstate the appeals under Rule 122 (see: Talon International Development Inc. v Toronto (City), 2018 CanLII 8115) ("Rule 122 Decision"). On March 22, 2018, in conjunction with a request to review the Rule 122 Decision, Talon submitted an Expedited Board Directions Form to the Board requesting guidance on whether Rule 122 decisions can be subject to further review under Rule 120 ("Guidance Request").

4In the Guidance Request, Talon takes the position that a decision regarding a reinstatement request made under Rule 122 can be reviewed under Rule 120. The Guidance Request is accompanied by Talon's submissions on its review request under Rule 120 ("Request for Review") in the event that the Board determines that Rule 122 decisions can be reviewed under Rule 120. The Guidance Request includes submissions on why Talon believes that Rule 120 can be used to review a Rule 122 decision. The accompanying Request for Review includes submissions on why Talon believes that the Rule 122 Decision should be overturned, thereby reinstating the appeals. Those Request for Review submissions address the relevant criteria listed in Rule 121.

5The Board has reviewed the Guidance Request and the Request for Review and finds that the issues raised by Talon can be addressed without further submissions from Talon or the other parties. For the reasons that follow, the Board concludes that a decision made under Rule 122 is not subject to review under Rule 120. As well, even if Rule 120 were to apply here, Talon's submissions on the Request for Review do not demonstrate that any of the relevant criteria in Rule 121 are present such that a review would be granted.

RELEVANT RULES

6The Rules provide:

Interpretation

4. These Rules shall be liberally interpreted to ensure the just, most expeditious and least expensive determination of every proceeding.

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.

Reinstatement by Request for Review

122. Notwithstanding Rule 120, a party to a former proceeding may seek an order from the Board to reinstate an appeal by filing an affidavit with the Board, copied to all parties, no more than 30 days after the appeal was dismissed or withdrawn by the Board setting out that:

(a) the appeal was withdrawn, removed or dismissed in error;

(b) a party failed to appear at a hearing event through no fault of their own; or

(c) natural justice or procedural fairness require that the appeal be reinstated.

Review Order

123. 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.

ISSUES

7The main issue is whether a decision which disposes of a request for reinstatement made under Rule 122 is subject to the review process set out in Rule 120. If so, then a secondary issue arises as to whether a Rule 120 review should be granted in the circumstances of this case because one or more of the criteria in Rule 121 have been made out.

DISCUSSION, ANALYSIS AND FINDINGS

The Guidance Request

8Talon acknowledges that one possible interpretation of the wording of Rule 120 is that decisions respecting reinstatement requests under Rule 122 are not reviewable under Rule 120. However, Talon submits that the Board should accept an alternate interpretation "that reinstatements by request for review [in] the first instance can only be made under Rule 122" and that "relief can be sought under Rule 120" once a written decision on the Rule 122 request has been issued. In other words, Talon submits that a decision dismissing an appeal can effectively be reviewed by the Board up to two times – once under Rule 122 in respect of the initial decision dismissing the appeals and then again under Rule 120 via a review of the of the decision issued under Rule 122.

9Talon asserts that the rationale for this alternate interpretation, described as two-step process, is:

... more in keeping with the Rule 4 which provides that the rules shall be "liberally interpreted to ensure the just, most expeditious and least expensive determination of every proceeding." Seeking a review of a Rule 122 decision under Rule 120 as opposed to filing a motion for leave or application for judicial review is the just, most, [expeditious] and least expensive mechanism for determining such a request."

10The Board accepts Talon's submission that Rule 4 should be considered when interpreting Rules 120 and 122. However, in a case involving the interpretation of a different aspect of Rule 120, Canadian Tire Corporation Limited v Municipal Property Assessment Corporation, 2018 CanLII 26986, at para. 17, the Board noted.

...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".

11The interpretation sought by Talon is not one that the words of Rule 120 can reasonably bear, even in light of Rule 4. The Board finds that the wording of Rule 120 is clear and plain. It states that "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 ..." [emphasis added]. The clear intent of this Rule is to exclude review decisions made under Rule 122 from a further review under Rule 120. Rule 122 provides a complete process for requesting a reinstatement of an appeal. There is no possible second step under Rule 120. This is the clear reason for the inclusion of the words "other than" in Rule 120.

12The Board adds that Talon's submission that allowing a review of Rule 122 decisions under Rule 120 instead of resorting to the Courts is the "just, most expeditious and least expensive mechanism" is unconvincing. The Board recognizes that there is one scenario where it may be more efficient but there are other scenarios where it would not. For example, if a Rule 122 decision were upheld under Rule 120 and then brought to the Courts, then Talon's interpretation would simply add a step in the litigation. Also, even if a Rule 122 decision were overturned under Rule 120 (as sought by Talon here), that may not end the litigation. A responding party may bring the matter to the Courts instead of the Rule 120 requester. Again, a step would be added. In an overall sense, Talon's interpretation would not lead to a more just, expeditious and least expensive mechanism for addressing matters such as these. Consequently, even if Rule 120 were to be considered ambiguous, Rule 4 would not lead the Board to the interpretation favoured by Talon.

13To conclude on the Guidance Request, the Board finds that a decision that disposes of a request for reinstatement made under Rule 122 is not reviewable under Rule 120.

The Request for Review

14In light of the above findings, it is not necessary to address Talon's Request for Review in detail. Suffice it to say that an appellant is responsible for prosecuting appeals. If it fails to provide the Board with up to date contact information for the purposes of notice and fails to appear at prehearings, it was the appellant's error - not the Board's - that led to the dismissal of the appeals. The Rule 122 Decision reached that conclusion and the Board finds that no error or circumstance listed under Rule 121 is present here such that a review of that Rule 122 Decision would be appropriate.

Overall Conclusion

15With respect to the Guidance Request, the Board finds that Rule 120 does not permit the review of a Rule 122 decision. In any event, under Rule 120, the Board finds that a review of the Rule 122 Decision is not warranted in the circumstances of this case, having regard to the criteria of Rule 121.

16The Board denies Talon's request for a further review of the Rule 122 Decision under Rule 120.

ORDER

17For the reasons set out above, the request is dismissed.