Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: August 10, 2018 FILE NO.: RR 2018M06

Assessed Person(s): Paramount Overseas Investment Appellant(s): Metro Ontario Inc. Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 19 Respondent(s): City of Hamilton Property Location(s): 35-73 Wilson Street West Municipality(ies): City of Hamilton Roll Number(s): 2518-140-320-49800-0000 Appeal Number(s): 3238204 and 3310090 Taxation Year(s): 2017 and 2018 Hearing Event No.: N/A Legislative Authority: Rule 122 of the Assessment Review Board’s Rules of Practice and Procedure, as amended Request for: Reinstatement of appeals 3238204 and 3310090 Heard: By written submission

Parties	Representative	Submissions
Paramount Overseas Investment		Not Requested
Metro Ontario Inc.	James Brook	Requester
MPAC		Not Requested
City of Hamilton		Not Requested

DECISION DELIVERED BY SCOTT McANSH AND ORDER OF THE BOARD

1Metro Ontario Inc. (“Metro”) is requesting the Assessment Review Board (“Board”) to reinstate the appeals 3238204 and 3310090 by way of a request for reinstatement pursuant to Rule 122 of the Board’s Rules of Practice and Procedure (“Rules”). This request for reinstatement was filed with the Board on June 28, 2018.

2Metro is the tenant of the property located at 35-73 Wilson Street West in the City of Hamilton. Metro had 2017 and 2018 appeals before the Board. Metro’s representative for those appeals also acted for the owner of the property, Paramount Overseas Investment (“Paramount”). Metro’s representative received instructions from Paramount to withdraw their appeals of the property. That is, the instructions were to withdraw only the Paramount appeals of the property’s assessment. The representative’s letter to the Board inadvertently included Metro’s 2017 and 2018 appeals. The representative filed this application shortly after it became aware of the error.

3For the reasons that follow, I reinstate Metro’s 2017 and 2018 appeals.

The Reinstatement Rule

4Rule 122 sets out the circumstances in which the Board will reinstate appeals that were withdrawn.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seek an order… to reinstate an appeal by filing an affidavit with the Board… no more than 30 days after the appeal was… withdrawn… setting out that… the appeal was withdrawn… in error.”

5There 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. 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. Metro’s application meets all of the essential requirements of Rule 122(a) and there is no reason to deny Metro relief here. Appeals 3238204 and 3310090 are reinstated.

Party

6Metro was the appellant in both of the withdrawn appeals. They therefore meet the first part of the test set out in Rule 122(a).

Timely Application

7Metro’s representative sent the request to withdraw these appeals on May 30, 2018 and the Board issued its acknowledgement of withdrawal on June 15, 2018. This application was filed with the Board on June 28, 2018. That is, the reinstatement request was made 29 days after the withdrawal request and 13 days after the appeals were actually withdrawn. That is well within the 30 days set in Rule 122(a). Metro therefore meets the second requirement of Rule 122(a).

Error

8The final requirement in Rule 122(a) is that the appeals were withdrawn in error. The Rule is aimed at clerical errors and Metro’s evidence indicates that it the type of error it made. The third and final requirement of Rule 122(a) is therefore met.

9Metro’s representative received instructions from Paramount to withdraw nine appeals of the property that they had before this Board. The representative received those instructions on May 29, 2018 and sent a letter requesting to have those appeals withdrawn the next day.

10That letter listed 10 appeal numbers, leaving off one of Paramount’s appeals and adding the two Metro appeals. The letter clearly states that it is sent as “representative for the Appellant, Paramount…” That is an indication that the intent was not to withdraw the Metro appeals. It appears that there was a transcription error in copying the appeal numbers to the withdrawal letter. That is a clerical error, the very error Rule 122(a) is designed to address.

Discretion

11It is not strictly enough that all of the conditions in Rule 122(a) are met. Reinstatement is a discretionary remedy, see Rule 123. The Board may refuse to reinstate appeals even where the requirements of Rule 122 are met. There must, obviously, be good reasons to deny reinstatement if the conditions of reinstatement are met. Prejudice to other parties will often be a relevant consideration in the discretionary aspect of any reinstatement order. There is nothing in the record here that would indicate that reinstatement of Metro’s appeals would be inappropriate.

CONCLUSION

12Metro meets all of the requirements for reinstatement. They were a party to the withdrawn appeals, they filed this application in a timely way, and the error here was a good faith clerical error. I therefore reinstate appeals 3238204 and 3310090.