Werzberger v. Municipal Property Assessment Corporation, 2018 CanLII 73665

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: July 30, 2018

FILE NO.: DM 2018M20

Moving Party: Clare Werzberger

Respondent: Municipal Property Assessment Corporation (“MPAC”), Region 09

Respondent: City of Toronto

Property Location: 877 Queen Street West

Municipality: City of Toronto

Roll Number: 1904-041-560-03300-0000

Appeal Number(s): 3275978

Taxation Year(s): 2017

Hearing Event No.: 701064

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

Heard: July 6, 2018 in Toronto, Ontario

APPEARANCES:

Parties

Representative

Clare Werzberger

David Markovic and Keith Mills

MPAC

No one appeared

City of Toronto

No one appeared

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1Clare Werzberger seeks permission to file a late appeal of the 2017 assessment of 877 Queen Street West in the City of Toronto. A timely request for reconsideration of the assessment was filed with MPAC, but MPAC mailed its response to the wrong address. Ms. Werzberger did not receive MPAC’s response until several months after the filing deadline to this Assessment Review Board (the “Board”) had passed. She promptly attempted to appeal MPAC’s response, but was out of time to do so.

2This Board can accept appeals filed after the statutory filing deadline in a limited number of circumstances. For the reasons that follow, I find that Ms. Werzberger’s appeal does not fall within the limited set of cases under which this Board may grant late appeals. Her motion to file the 2017 appeal late is denied.

Filing Deadlines

3The Assessment Act, RSO 1900, c A-31 (the “Act”) provides for idiosyncratic filing deadlines for nearly each property in Ontario. While there is a general filing deadline of March 31 of the tax year, set out in subsection 40(6), that only applies if a taxpayer has not filed a request for reconsideration with MPAC. A request for reconsideration is a mandatory prerequisite to filing an appeal with this Board for certain classes of property; see subsection 40(3). One of those classes is the residential property class and Ms. Werzberger’s property is partly in that property class. So she was required to file a request for reconsideration with MPAC before she could file an appeal with this Board.

4The request for reconsideration process is governed by section 39.1 of the Act. For the 2017 taxation year, taxpayers were required to file a request for reconsideration “no later than 120 days after the issuance date printed on the notice of assessment,” subsection 39.1(1.2). Ms. Werzberger filed a request for reconsideration of the property’s assessment on January 13, 2017, which was within the filling deadline.

5MPAC had 180 days to respond to that request for reconsideration, pursuant to subsection 39.1(7). That meant that MPAC had to send Ms. Werzberger a response on or before July 12, 2017. MPAC sent a response dated July 4, 2017, but sent it to the wrong address. Ms. Werzberger had indicated a mailing address on the request for reconsideration that was filed, but MPAC mailed its response to an entirely different address. MPAC knew, or ought to have known, that mailing the response where it did was not likely to come to Ms. Werzberger’s attention. It would be unfair to consider the notice to have been “mailed” when MPAC sent it to an address it ought to have known was wrong.

6For the 2017 taxation year, subsection 40(5) sets two alternative filing deadlines for appeals to this Board. The first applies when MPAC “has mailed a notice of reconsideration” within the required time, and is “90 days after the issuance date printed on the notice.” The second applies when MPAC has not mailed a notice and is “90 days after the notice should have been mailed.”

7MPAC did not mail its response to an address where Ms. Werzberger was likely to receive it before MPAC’s July 12, 2017 deadline. The second filing deadline then applied and Ms. Werzberger was therefore required to file her appeal of the property’s assessment on or before October 10, 2017. She did not do so.

Late Appeals

8Ms. Werzberger did not become aware of MPAC’s response to her request for reconsideration until over a month after her filing deadline, November 17, 2017. That is when follow up attempts were made with MPAC. She attempted to file an appeal with this Board three days later, on November 20, 2017, but was unable to do so. This application was filed a short time later.

9This Board has set out the limited situations in which it can grant late appeals in Rule 26(b) of the Board’s Rules of Practice and Procedure (the “Rules”). That Rule is based on the legal principle, set out in Fleming and Smith Ltd. and Regional Assessment Commissioner Region No. 31 et al., 1979 CanLII 1870 (ON SC), 26 OR (2d) 691 (“Fleming”), that “the time for appeals from the assessment runs from the date that the person assessed has knowledge of the assessment.” The Board has codified that common law principle in Rule 26(b) through its power to control its process set out in section 25.0.1 of the Statutory Powers Procedure Act, RSO 1990, c S.22.

10Rule 26(b) has three main components: (1) it only applies to people entitled to receive a notice of assessment; (2) the person must not have received notice; and (3) the person must have filed an application with the Board within 30 days of becoming aware of the issue under appeal. Ms. Werzberger is the owner of the property so was entitled to receive the notice of assessment, pursuant to s. 31 of the Act, and did receive that notice. The document that Ms. Werzberger did not receive from MPAC was their response to her request for reconsideration. That is not a notice of assessment, as contemplated in Rule 26(b), therefore the relief in Rule 26(b) is not available to Ms. Werzberger.

Notice of Assessment

11Rule 26(b) is premised on the non-delivery of a notice of assessment. The term “notice of assessment” is not defined in the Rules. The standard rules of statutory interpretation apply to discerning its meaning. Those rules were set out by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at paragraph 21: “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”

12The context of Rule 26(b) includes the common law reasons for its enactment and the provisions of the Act upon which it operates. The purpose, set out in Fleming, is that appeal rights depend on people knowing the issues that might be appealed. A taxpayer cannot meaningfully appeal an assessment that it is unaware of. There are two filing deadlines set in subsection 40(5) of the Act, and they each operate differently. The first filing deadline runs from the date of MPAC’s response to a request for reconsideration, while the second is effectively calculated from when a taxpayer files a request for reconsideration. That is, the first filing deadline turns on when MPAC responds to the request, while the second turns on when the taxpayer submits its request for reconsideration.

13At the hearing I requested specific submissions on the phrase “notice of assessment,” as it is used in Rule 26(b). Ms. Werzberger argued that it must include MPAC’s response to a request for reconsideration for residential property because submitting that request is mandatory and MPAC’s response can change the assessment. Subsection 40(3) of the Act makes a request for reconsideration mandatory for residential property and subsection (3.1) prohibits an appeal form being filed with this Board until a response to that request has been received, or the time for MPAC to respond as expired. Ms. Werzberger appears to suggest that Rule 26(b) must operate to extend the time when MPAC does not mail its response because the appeal depends on the response.

14I do not accept Ms. Werzberger’s position on what is meant by “notice of assessment.” The Act uses that term regularly to refer to the notice of annual assessment required by section 31. The term used for a response to a request for reconsideration is “notice of reconsideration” in both subsections 40(3.1) and 40(5). While I accept that notice of reconsideration can change an assessment, that alone does not transform it into a notice of assessment.

15The policy of Rule 26(b) is to provide taxpayers with a reasonable period of time to appeal an assessment from when they actually become aware of the assessment. A person who has filed a timely request for reconsideration is aware of the assessment and subsection 39.1(1) limits disputes under the request for reconsideration process to those that can be appealed to either this Board or the Superior Court of Justice. So taxpayers that have submitted a request for reconsideration know the issues in dispute at that time, which would start the 30 day timeline in Rule 26(b). Taxpayers can also calculate their ultimate filing deadline at that point.

16There is also no apparent unfairness to taxpayers in the 2017 or 2018 taxation year in adopting the plain meaning of the phrase “notice of assessment.” Taxpayers have two potential filing deadlines once they file a request for reconsideration with MPAC. One is dependent on MPAC’s response and the taxpayer will be notified of that filing deadline in that response. The second filing deadline is an ultimate filling deadline, it applies regardless of what MPAC does or does not do. That is 90 days after MPAC ought to have responded. Subsection 39.1(7) provides MPAC with 180 days to respond a request for reconsideration, which makes the taxpayers filing deadline 270 days after they file their request for reconsideration. MPAC can extend their time to respond to 240 days, which would extend the ultimate filing deadline to 330 days after the taxpayer files a request for reconsideration.

17Taxpayers can, and should, know their ultimate filing window from the moment they submit their request for reconsideration: between 180 and 270 days from when they submit their request for reconsideration. On January 13, 2018, when she submitted her request for reconsideration, Ms. Werzberger could have calculated that she needed to file an appeal with this Board between July 12, 2017 and October 10, 2017. A response from MPAC could have required an earlier filing, but that would only be triggered if MPAC sent its response to where Ms. Werzberger was likely to see it.

18Rule 26(b) operates form when MPAC sends, or fails to send, a notice of annual assessment to a person entitled to receive that notice. It does not apply to MPAC’s response to requests for reconsideration for the 2017 and 2018 taxation years. The Legislature set an ultimate filing deadline for when a request for reconsideration has been submitted, which removes the common law authority for Rule 26(b). The common law authority for Rule 26(b), set out in Fleming, is to preserve a reasonable filing deadline when taxpayers are unaware of the assessment in dispute. A taxpayer that files a request for reconsideration in the 2017 and 2018 taxation years knows the issues in dispute because subsection 39.1(1) limits the areas of dispute on a request for reconsideration to those that can be appealed to this Board or the Superior Court of Justice. That taxpayer also knows, or ought to know, when they need to file an appeal. There is nothing in the Act that grants me the authority to extend the time for filing an appeal, and none of the common law context supports stretching the meaning of “notice of assessment” beyond a notice sent by MPAC in accordance with the Act. It does not include a notice of reconsideration. Rule 26(b) does not generally apply when a request for reconsideration is made.

CONCLUSION

19The Legislature has set out a comprehensive filing regime for taxpayers that have submitted a request for reconsideration with MPAC. Rule 26(b) properly uses the term “notice of assessment” to address only those situations where there would be an unfairness in a failure to receive notice. For the 2017 and 2018 taxation years, once a request for reconsideration has been submitted, the person knows the issues in dispute and knows, or ought to know, when they need to file an appeal with this Board. Rule 26(b) has no application to Ms. Werzberger’s failure to receive MPAC’s response to her request for reconsideration. Her motion for a late appeal is denied.