Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: August 9, 2018

FILE NO.: RR 2018M07

Assessed Person(s): Loblaw Properties Limited

Appellant(s): Loblaw Properties Limited

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 28

Respondent(s): City of North Bay

Property Location(s): 2161 Trout Lake Road

Municipality(ies): City of North Bay

Roll Number(s): 4844-030-045-01600-0000

Appeal Number(s): 2477957

Taxation Year(s): 2009

Hearing Event No.: N/A

Legislative Authority: Rule 122(a) of the Assessment Review Board’s Rules of Practice and Procedure, as amended

Request for: Reinstatement of appeal 2477957

Heard: By written submission

Parties	Counsel+/Representative	Submissions
Loblaw Properties Limited	Lorrie Frankland	Requester
MPAC	Peter Buffett	Not Requested
City of North Bay	Lisa Beaulieu	Not Requested

DECISION DELIVERED BY SCOTT McANSH AND ORDER OF THE BOARD

INTRODUCTION

1Loblaw Properties Limited (“Loblaw”) requests that this Assessment Review Board (“Board”) to reinstate the appeal 2477957 by way of a request for reinstatement pursuant to Rule 122(a) of the Board’s Rules of Practice and Procedure (“Rules”). This request for reinstatement was filed with the Board on May 9, 2018.

2Loblaw withdrew the appeal inadvertently as part of a larger settlement of various appeals of the assessments of their property at 2161 Trout Lake Road in the City of North Bay. The assessment at issue in the appeal Loblaw withdrew is included in another appeal, which was resolved by the parties. The effect of Loblaw withdrawing the appeal is that they are assessed twice for that portion of property. Fairness requires that the appeal be reinstated.

Reinstatement

3Rule 122 sets out the circumstances in which the Board will reinstate appeals that were withdrawn. The relevant provision of the Rule for this application is in clause 122(a), which states, in relevant part, that “a party to a former proceeding may seek an order… to reinstate an appeal by filing an affidavit with the Board… no more than 30 days after the appeal was… withdrawn… setting out that… the appeal was withdrawn… in error.”

4There are three essential components to Rule 122(a). First, it is only open to parties to the appeal that was withdrawn. Secondly, the order must be sought within 30 days after the appeal was dismissed or withdrawn, or there must be a reasonable explanation for any delay in filing. Finally, the Board must be satisfied that the appeal was withdrawn in error. All three conditions must be met before an appeal will be reinstated. Loblaw’s application meets all of the essential requirements of Rule 122(a) and there is no reason to deny them a reinstatement. Appeal 2477957 is reinstated.

Party

5Loblaw was both the assessed person and the appellant in the withdrawn appeal. They therefore meet the first requirement of Rule 122(a).

Timely Application

6This appeal was withdrawn on January 26, 2018. Loblaw did not file this application with the Board until May 9, 2018, 103 days later. That is well outside of the 30 day filing deadline in Rule 122. However, Rule 17 states that “any time period set out in these Rules can be altered by the Board.” Time periods should only be altered when adhering to a time period specified by the Rules would create an unfairness.

7Loblaw withdrew the appeal when a settlement of a number of appeals related to the property. This appeal was an appeal of a supplementary assessment, pursuant to section 34 of the Assessment Act, with an effective date of May 1, 2009. That is, the value was added to the assessment roll for the property from that date. The settlement included the entire assessment of the property for the 2009 taxation year, which is why Loblaw withdrew its appeal of this added amount.

8On April 27, 2018 MPAC sent an email to Loblaw and the City of North Bay stating that it was looking to make corrections to the 2009 supplementary assessment and noticed that the Board’s website showed that the appeal was withdrawn. MPAC stated that the appeal of the 2009 assessment included the value of the supplementary assessment and that the supplementary assessment should be reduced to $0 to implement the settlement that had been reached. MAPC stated that “otherwise Loblaw will be double billed for that amount.” Loblaw filed this application with the Board 12 days after receiving MPAC’s email.

9I view Loblaw’s actions as reasonable. It is unclear how a supplementary assessment, effective on May 1 of the tax year, is included in the assessment for the tax year. It is certainly possible that the revised value of the 2009 assessment includes the supplementary value, but that is not obvious on its face. Loblaw’s efforts in taking reasonable steps to reduce its appeal backlog should not be penalized. Loblaw filed a timely application to reinstate the appeal once it was aware of the issue. I therefore find that the application is timely, notwithstanding that it was made 103 days after the appeal was withdrawn.

Withdrawn in Error

10The final requirement of Rule 122(a) is that the appeal was withdrawn in error. Loblaw withdrew the appeal because it mistakenly believed that the value of the supplementary assessment was not included in the general assessment for 2009. The result of withdrawing the appeal is that Loblaw is double assessed for that amount: it is assessed in the general assessment and supplementary assessment. Loblaw clearly would not have intentionally placed itself in that position. I find that the withdrawal was a good faith error by Loblaw.

Discretion

11It is not enough that all of the conditions in Rule 122 are met. Reinstatement is discretionary, see Rule 123. The Board is not required to reinstate appeals just because the requirements in Rule 122 are met. However, there must be compelling reasons not to reinstate if Rule 122 is satisfied. Prejudice to other parties will often be a relevant consideration in the discretionary aspect of any reinstatement order. All of the parties to this application consent to the reinstatement. There is no reason to deny the Loblaw’s reinstatement request.

CONCLUSION

12Loblaw meets all of the requirements for reinstatement. Loblaw was a party to the withdrawn appeals, it filed this application in a timely way, and I am satisfied that the error here was a good faith error. I therefore reinstate appeal 2477957.