Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: June 20, 2018

FILE NO.: DM 2018M09

Moving Party(ies): Sabl Corp

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 9

Respondent(s): City of Toronto

Property Location(s): 4750 Yonge Street, Units 101, 102, 103 and 104

Municipality(ies): City of Toronto

Roll Number(s): 1908-071-280-01101-0000, 1908-071-280-01102-0000, 1908-071-280-01103-0000 and 1908-071-280-01104-0000

Appeal Number(s): 3279560, 3279864, 3279863 and 3279861

Taxation Year(s): 2017

Legislative Authority: Rule 26(b) of the Assessment Review Board Rules of Practice and Procedure

Heard: By written submissions

APPEARANCES:

Parties	Counsel
Sabl Corp	Jack Walker, Jamie Walker
MPAC	No submissions received
City of Toronto	No submissions received

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1Sabl Corp (the “Company”) is the tenant of four commercial units in the building located at 4750 Yonge Street in the City of Toronto. They lease those units from 2244947 Ontario Inc. and 9288619 Canada Inc. (collectively the “Landlords”). Those leases require the Company to pay the taxes levied against the properties and also grant the Company the right to contest taxation issues. The Company did not receive the assessment notices for the 2017 taxation year until many months after the March 31, 2017 filing deadline. The Company therefore seeks an order, pursuant to Rule 26(b) of the Assessment Review Board’s (the “Board’s”) Rules of Practice and Procedure (the “Rules”) that these appeals be accepted after the filing deadline set in the Assessment Act, RSO 1990, c A.31 (the “Act”).

2For the reasons that follow I order that these appeals be received by the Board and that a commencement day be assigned to the appeals pursuant to Rule 33. The parties may make submissions on any preferred commencement day within 30 days of the release of these reasons.

The Assessment Notice

3MPAC issued amended property assessment notices against the properties, pursuant to s. 32(1.1) of the Act, on November 28, 2016. Those were issued to the Landlords as owners of the land, pursuant to s. 17(1) of the Act.

4The Company was under the impression that the Landlords would include municipal taxes in other fees known as Common Area Maintenance (“CAM”) charges. The Company requested a balance of the CAM charges from the Landlords on December 27, 2016. The Company followed up on that request on April 12, 2017 and received an invoice for the CAM charges at that time. It was only in June of 2017 that the Company was made aware that the CAM charges did not include property taxes. The Company then requested a copy of the tax invoices from the Landlords on June 28, 2017. Those tax invoices were provided to the Company in late August 2017.

5In an attempt to preserve its right to appeal the assessments of the properties to this Board, the Company applied on October 20, 2017, pursuant to s. 40(4) of the Act, for an extension of time to file a request for reconsideration for the 2017 taxation year. The Board advised the Company on November 3, 2017 that s. 40(4) only applied to property in the residential, managed forest, or farm property classes. At that time the Company determined that it required the notices of assessment of the properties in order to complete an appeal to this Board.

6The Company requested the assessment notices from the Landlords on November 16, 2017 and was advised by the Landlords that they never received those notices but would help the Company find them. The Landlords sent copies of the amended assessment notices to the Company on November 25, 2017. These appeals were filed with the Board two days later on November 27, 2017. This application pursuant to Rule 26(b) was filed the following day, November 28, 2017.

Late Appeals

7Rule 26(b) sets out when this Board will accept appeals that do not comply with the Act. That Rule states that the Board “may accept an appeal received after the time set in the Assessment Act only if the appellant satisfies the Board… that… the appellant is a person entitle to receive a notice of assessment who did not receive notice, and filed the appeal with the Board within 30 days of becoming aware of the assessment…”

8Rule 26(b) is based on the legal principle, set out in Fleming and Smith Ltd. and Regional Assessment Commissioner Region No. 31 et al., (1979), 1979 CanLII 1870 (ON SC), 26 O.R. (2d) 691, that “the time for appeals from the assessment runs from the date that the person assessed has knowledge of the assessment.” The Company rightly points out that this common law principle is based on the natural justice audi atleram partem principle that parties be given adequate notice of actions that interfere with a person’s rights. The Federal Court of Appeal held in Canadian Transit Co v Canada (Public Service Staff Relations Board) (C.A.), 1989 CanLII 9429 (FCA), [1989] 3 FC 611, [1989] FCJ No 527 at paragraph 9 that there is probably no principle “more fundamental to administrative law at common law.” The Supreme Court of Canada expressed a similar view in Alliance des Professeurs Catholiques de Montréal v Quebec Labour Relations Board, 1953 CanLII 45 (SCC), [1953] 2 SCR 140.

9Rule 26(b) codifies the common law notice requirement and sets reasonable limits on when it should be applied. The Board can do so pursuant to its power to control its own process, set out in s. 25.0.1 of the Statutory Powers Procedure Act, RSO 1990, c S.22. The Rule has three main requirements: (1) that the person was entitled to receive notice; (2) that they did not receive notice; and (3) that they filed the appeal within 30 days of becoming aware of the assessment. I am satisfied that the Company meets all three requirements of Rule 26(b).

Entitled to Receive Notice

10The Company was a person entitled to receive the notice of assessment. Section 35(2) of the Act requires that a “person who receives notice… shall, within 14 days after receiving the notice, give a copy of the notice to each tenant who, under the tenant’s lease, is required to pay or reimburse the landlord for all of part of the taxes on the land.” The Company held such a lease with the Landlords for all four properties. The Landlords were therefore required to provide the Company with a copy of the assessment notices within two weeks of receiving them.

11The Company had a statutory entitlement to receive a copy of the notice from the Landlords. The first aspect of Rule 26(b) is therefore met.

Did Not Receive Notice

12The Company provided affidavit evidence of its efforts to obtain assessment information from the Landlords. Despite requests around the matter starting in late 2016, the Company did not receive a copy of the notice until late 2017, nearly a year later.

13The Company did not receive the assessment notice when they were required to pursuant to s. 35(2) of the Act. The second aspect of Rule 26(b) is therefore met.

Filed Within 30 Days

14The Company received a copy of the assessment notices on November 25, 2017 and filed these appeals a mere two days later. That is well within the 30 day filing deadline.

15The Company falls squarely within the confines of Rule 26(b).

Discretion

16It is not strictly enough, however, that a party meet the three requirements of Rule 26(b). The Rule is permissive, using the operative word “may.” This means that the Board can refuse to accept a late appeal even if all of the requirements of the Rule are met. It may be appropriate to decline to accept late appeals if too much time has passed, or if there is some bad faith on the part of the applicant. There is no reason to deny the Company’s application for a late appeal.

17There is nothing in the evidence before me that indicates that the Company should be denied these appeals. I therefore order that the Board receive these late appeals pursuant to Rule 26(b). The parties may make submissions on the appropriate commencement day within 30 days of the release of these reasons.