Domenico Chiocchio v. City of Belleville, 2018 CanLII 58332

Assessment Review Board / Commission de révision de l’évaluation foncière

ISSUE DATE: June 26, 2018 FILE NO.: DM 2018M10

Moving Party: Domenico Chiocchio Respondent: City of Belleville Respondent: Municipal Property Assessment Corporation (“MPAC”)

Property Location: 49 Campbell Street Municipality: City of Belleville Roll Number: 1208-020-045-09600-0000 Appeal Number(s): 3195893 and 3195894 Taxation Years: 2014 and 2015 Hearing Event No.: 698866 Legislative Authority: Rule 27 of the Assessment Review Board Rules of Practice and Procedure

Heard: June 11, 2018 by telephone conference call

APPEARANCES:

Parties	Representative
Domenico Chiocchio	Self-represented
City of Belleville	No one appeared
MPAC	No one appeared

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1Domenico Chiocchio brings this application to permit the late filing of an appeal of a tax refund application he made to the City of Belleville (the “City”). He applied for a refund due to the building he owns being unusable. That application was made several months after the filing deadline set in the Municipal Act, 2001, SO 2001, c 25 (the “Act”). The City of Belleville rejected the application as being filed out of time. Mr. Chiocchio then attempted to file an appeal with this Assessment Review Board (the “Board”) after the time for filing an appeal to this Board had passed. He brings this motion asking that I issue an order accepting the appeal after the timelines set out in the Act.

2This Board recently held that “the Legislature did not intend to confer on this Board the power to alter the timelines” in the relevant portion of the Act, see 2397146 Ontario Inc. v Brampton (City), 2018 CanLII 37737 (“Brampton”) at paragraph 2. Mr. Chiocchio argues that that decision is not binding because his application was filed before the Board’s Rules of Practice and Procedure (the “Rules”) were changed on April 1, 2017. For the reasons that follow, I do not find that the application of the old Rules changes the analysis set out in Brampton. Mr. Chiocchio’s application is dismissed.

Background

3Mr. Chiocchio owns the property located at 49 Campbell Street in the City of Belleville. It was in a state of disrepair when he purchased it in 2003. A storm in 2014 caused some damage to a balcony railing on the property and Mr. Chiocchio’s replacement of that banister caught the attention of the Building Inspectors. He was advised that he required a building permit for the bannister he had installed and other construction he was undertaking on the property. On October 10, 2014 he was advised that drawings and other information was required for the building permit, and he was also informed that his planned use of the building may require a zoning bylaw amendment.

4Mr. Chiocchio then attempted to withdraw his application for a building permit. He was told that he could not withdraw the application and was required to comply with the Building Code. It is unclear exactly what transpired at the property in late 2014 and early 2015, but the electricity to the property was shut off by the City on May 28, 2015, apparently due to concerns about compliance with the applicable codes.

5Mr. Chiocchio approached MPAC sometime after that and was told that he was out of time for historic Assessment Act appeals, but that he could file a request for reconsideration for the 2016 taxation year. MPAC also informed Mr. Chiocchio of the tax refund provisions of the Act, and that applications could be made to the City.

6Mr. Chiocchio filed an application for a tax refund on July 26, 2016 pursuant to clause 357(1)(d)(ii) of the Act, which states that “Upon application….the local municipality may cancel, reduce or refund all or part of taxes levied on land in the year in respect of which the application is made if… during the year or during the preceding year after the return of the assessment roll, a building on the land…was damaged by fire, demolition or otherwise so as to render it substantially unusable for the purposes for which it was used immediately prior to the damage.”

7The City responded to his application by letter on August 22, 2016. The City informed him that subsection 357(3) of the Act states that an application “must be filed with the treasurer on or before the last day of February of the year following the year in respect of which the application is made.” The City rejected the application that Mr. Chiocchio filed on July 26, 2016 for the 2014 and 2015 taxation year because it was received many months after the statutory timeline.

8In response to the City’s rejection of his application, Mr. Chiocchio attempted to file an appeal with this Board on October 14, 2016. Subsection 357(7) of the Act 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.” That section made Mr. Chiocchio’s filing deadline 35 days after August 22, 2016, which would be September 26, 2016. Mr. Chiocchio attempted to file over two weeks after that deadline.

9Mr. Chiocchio was informed that his appeal was late and he brought this motion seeking permission to file his appeal late on February 9, 2017.

Brampton

10This Board recently issued its decision in Brampton, which dealt with the interpretation of the deadline set out in subsection 357(7) of the Act. The Board was clear that nothing in the Act indicates that the Legislature intended to grant this Board a power to extend that 35 day timeline. I put that decision to Mr. Chiocchio at the hearing and he argued that it did not apply because his motion is brought under the late appeal Rule in force at time, Rule 27. That Rule stated, in relevant part, that this Board “may accept an appeal received after the time set out in any statute or regulation provided that…the appellant provides the Board with an affidavit satisfying the Board that… in the case of an appeal under the Municipal Act, 2001… the applicant did not receive the required notice of the decision of council or the Minister and filed the appeal with the Board within 30 days after the applicant became aware of council’s or the Minister’s decision.”

11While it is true that Brampton did not address old Rule 27 that does not change the conclusion reached by that panel of the Board. I agree with the Brampton panel that the Legislature did not intend to grant this Board the ability to extend the 35 day timeline set out in subsection 357(7) of the Act. This Board cannot enact Rules that are inconsistent with provincial statute, see subsection 25.1(3) of the Statutory Powers Procedure Act, RSO 1990, c S.22. Old Rule 27 was likely invalid in that it purported to confer on this Board a power to take steps that the Legislature did not intend to grant.

12Even if I am wrong in my determination that old Rule 27 was invalid with respect to the Act, Mr. Chiocchio does not fall within the confines of the Rule. There is nothing in the evidence that indicates that Mr. Chiocchio did not receive the August 22, 2016 rejection letter from the City. Nor did he file within 30 days of becoming aware of that letter. Those are both essential elements of old Rule 27. Therefore, Mr. Chiocchio does not fall within the confines of old Rule 27.

CONCLUSION

13Mr. Chiocchio’s application is out of time and the Legislature has not given this Board the power to extend his time to appeal. Nothing in the Rules alters that lack of legislative authority. Mr. Chiocchio’s motion is denied.