ORH Corporation v. Municipal Property Assessment Corporation, 2018 CanLII 65307

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

July 10, 2018

FILE NO.:

RD 2018M08

Assessed Person(s):

ORH Corporation

Appellant(s):

ORH Corporation

Respondent(s):

Municipal Property Assessment Corporation (“MPAC”) Region 13

Respondent(s):

City of Oshawa

Property Location(s):

72-78 Bond Street East

Municipality(ies):

City of Oshawa

Roll Number(s):

1813-030-006-04600-0000

Appeal Number(s):

2008098, 1848867, 1907357, 2008099, 1979614, 2040623, 2334146, 2677248 and 2910098

Taxation Year(s):

2006, 2007, 2008, 2009, 2010, 2011 and 2012

Hearing Event No.:

535786

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 to dismiss 7 appeals all dated January 09, 2013

Heard:

By written submission

Parties

Representative

Submissions

ORH Corporation

Dara Saunders

Requester

DECISION DELIVERED BY PAUL MULDOON AND ORDER OF THE BOARD

1ORH Corporation (the “Requester”) requests a review of the decision of the Assessment Review Board (the “Board”) by former Member Robert Butterworth (the “Presiding Member”) in Hearing 535786, issued on January 9, 2013 (the “Decision”), and a denial of a reinstatement motion on January 24, 2017. This request for review was submitted to the Board on April 26, 2017.

2The Requester’s property is a 96 bedroom retirement home located at 72-78 Bond Street East in the City of Oshawa (the “Subject Property”). The six storey building is situated on a 0.55 acre parcel of land and was completed in 2001.

3MPAC assessed the Subject Property at $646,000 for the 2002, 2003, and 2004 taxation years based on there being only six occupied units. MPAC failed to create supplementary assessments for the 2002, 2003, and 2004 taxation years as more units became occupied. In 2004, MPAC notified the City of Oshawa (the “City”) that the Subject Property had three omitted assessments under section 33(1) of the Assessment Act, R.S.O. 1990, c. A. 31 (the “Act”) for the 2002, 2003, and 2004 years. The City issued supplementary tax bills for those years. The Requester claimed it had not received notice of the omitted assessments until the tax bills arrived.

4The Requester brought a motion before the Board for summary judgment, with costs, to cancel the omitted assessments and for the return of the taxes collected. In addition, the Requester filed complaints (now called appeals) about the omitted assessments to the Board. The Board decided that it did not have jurisdiction to grant a summary judgment on the issues. The Board determined the question at issue was whether or not MPAC could issue omitted assessments under section 33 rather than supplementary assessments under section 34 of the Act. The Board found this was a question of law to be decided by the Superior Court by way of application under section 46 of the Act. The Board dismissed the motion and adjourned the appeals sine die until the matter was resolved by the Court or the Requester proceeded with a hearing of the complaints before the Board; see ORH Corp. v. Municipal Property Assessment Corp., Region No. 13, (May 26, 2006), Ontario DM 160 (ONARB).

5On March 23, 2007, rather than bring a section 46 application as directed by the Board, the Requester’s representative submitted a statement of claim in Superior Court and sued MPAC, the City of Oshawa, and the Province of Ontario for $900,000. The claim was dismissed administratively for delay on September 3, 2009. In 2014, the Requester’s lawyer filed a notice of motion to set aside the dismissal. The motion to reinstate the claim was dismissed on November 25, 2014 by Justice Byers.

6The complaints were brought back before the Board at a Pre-Hearing on September 6, 2012. The Board ordered the Requester’s paralegal to submit a Statement of Issues by October 12, 2012. It appears that a Statement of Issues was never filed with the Board. At a hearing event on November 14, 2012 the Board extended the time for serving and ordered a Statement of Issues to be served by January 7, 2013. The Board also scheduled a Telephone Conference Call for January 9, 2013. The Requester’s paralegal again failed to submit a Statement of Issues and failed to attend the Telephone Conference Call. The Presiding Member dismissed the appeals on January 9, 2013 in a series of decisions without written reasons released on February 1, 2013. The Requester’s representatives have never requested written reasons for those dismissals.

7On August 29, 2016, the Requester’s current representative sought a motion for reinstatement of the dismissed appeals from the Board. On January 24, 2017, the motion to reinstate the appeals was heard and dismissed by Vice Chair VanderBent. Vice Chair VanderBent found he did not have jurisdiction to overturn another Member’s decision when there had been no request for review. Vice Chair VanderBent delivered oral reasons and no written reasons were requested. The Requester’s current representative then submitted this request for review and asks the Board to review the January 9, 2013 decisions to dismiss the appeals. The Requester’s current paralegal submits that the four year delay was due to incompetence of previous representatives.

ISSUES AND ORDER SOUGHT

8The Requester’s current paralegal submits that the Board should consider Rules 145(1) (b), (d), and (e). The request for review was received after April 1, 2017 so the Board’s current Rules of Practice and Procedure (the “Rules”) apply. The Board’s request for review Rules are now found in Rules 120 to 123. The equivalent grounds of review argued by the Requester are now found in Rule 121 (a), (c), and (d). The Requester’s current paralegal requests an order granting the request for review, an extension of time to file the request for review, an order granting a rehearing without a motion or, in the alternative, an order granting the motion to argue the question.

RELEVANT RULES

9A request for review is received pursuant to Rule 120 which grants the Board the following authority:

120 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, 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.

10The grounds for review are stated in Rule 121:

121 Grounds for Review

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.

11The grounds Board’s powers in a request for review are stated in Rule 123:

123 Review Order

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.

DISCUSSION AND REASONS

12The Board denies the request for review in this case. First, the dismissed decisions do not have written reasons for their dismissal, a prerequisite for a review under Rule 120. Second, the request for review is over four years late and there is no reasonable explanation for that delay. Third, the Board has not violated any rules of natural justice or procedural fairness. Fourth, there was no false or misleading evidence presented to the Board. Finally, the “new evidence” submitted by the Requester’s current paralegal does not assist the Board in the determination of this request for review.

Absence of Written Reasons

13Rule 120(b) states that a party may request a review of a decision by including the written reasons for the decision. This is a prerequisite to the granting of a review. There are no written reasons or disposition of motion for the dismissals in 2013 or 2017 and the Requester’s paralegals never requested written reasons. The Board cannot review a decision without written reasons for that decision.

The Request for Review is Four Years Late

14Rule 120 states that a party may request a review of any final decision of the Board by filing a request in writing no more than 30 days after the decision was issued. The Requester did not file their review request until more than four years had passed. While the Board may alter any time period in the Rules, pursuant to Rule 17, there is no reason to do so here. Four years is significantly longer than 30 days and the reason for that degree of delay is far from clear. There is no compelling reason to alter the 30 day time period here.

The Board has Not Violated any Rules of Natural Justice or Procedural Fairness

15The Requester’s current paralegal submits that the Requester

suffered substantial natural justice and procedural fairness [sic]. The representatives’ acts or omissions constituted incompetence and a miscarriage of justice resulted… The representatives’ performance resulted in the procedural unfairness and the reliability of the hearing’s result may have been compromised.

These alleged violations of the rules of natural justice and procedural fairness do not relate to the Board. These allegations relate to the incompetence of the representatives hired by the Requester. The Requester’s current paralegal has not provided any evidence that the Board breached the rules of natural justice or procedural fairness and therefore has not met the ground for review in Rule 121(a).

MPAC’s Evidence was Neither False Nor Misleading

16The Requester’s current paralegal alleges that the income, expenses, and vacancy rate used by MPAC were false or misleading evidence. The Requester’s current paralegal bases this argument on the fact that an Appraisal Report ordered by the Requester and completed in 2012 came to different conclusions about the income, expenses, and vacancy rate of the Subject Property. The differing income, expenses, and vacancy rate do not amount to false or misleading evidence but rather are simply different evidence submitted by another party.

The Appraisal Report as “New Evidence”

17Rule 121(d) states a review will be granted if there is new evidence that could not have reasonably been obtained earlier and would have affected the result. It is not clear why the 2012 Appraisal Report was not obtained when the matter was first before the Board in 2006. However, new evidence is only relevant on review if it would have affected the result. All of the decisions of this Board on these appeals have been procedural, the valuation question has never been considered by the Board. This 2012 Appraisal Report was not relevant to any of the issues before the Board, and hence, could not have affected the results of those decisions.

CONCLUSION

18This request for review is denied on the threshold issues that there are no reasons to review and the request is brought well after the filing deadline. Even considering the materials submitted, the Board is not satisfied that the grounds in Rule 121(a), (c), and (d) have been met. The Board is not satisfied that the Board violated the rules of natural justice or procedural fairness, heard false or misleading evidence, or that there is new evidence that would affect the result.

ORDER

19For all of these reasons, the Board orders that this request for review be denied and the decisions of this Board dismissing the appeals are confirmed.