Winners Merchants International LP v. Municipal Property Assessment Corporation, 2018 CanLII 78260

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

August 15, 2018

FILE NO.:

RR 2018M08

Assessed Person:

Durham Holdings Limited

Appellant:

Winners Merchants International LP

Respondent:

Municipal Property Assessment Corporation (“MPAC”) Region 13

Respondent:

Town of Ajax

Property Location:

40-60 Kingston Road East

Municipality:

Town of Ajax

Roll Number:

1805-020-015-31620-0000

Appeal Numbers:

3150517 and 3150452

Taxation Year:

2016

Legislative Authority:

Rule 122 of the Assessment Review Board Rules of Practice of Procedure

Request for:

Reinstatement of appeals 3150517 and 3150452

Heard:

By written submission

Parties

Counsel

Submissions

Winners Merchants International LP

Jack Walker QC

Requester

MPAC

No one appeared

Not Requested

Town of Ajax

No one appeared

Not Requested

DECISION DELIVERED BY SCOTT McANSH AND ORDER OF THE BOARD

Introduction

1Winners Merchants International LP (“Winners”) seeks to have the Assessment Review Board (“Board”) reinstate appeals 3150517 and 3150452 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 8, 2017.

2Winners states that it had an agreement with MPAC on the assessed value of the property located at 40-60 Kingston Road East in the Town of Ajax for the 2013, 2014, 2015, and 2016 taxation years. On the basis of that agreement they withdrew all four appeals that had been filed before this Board on July 14, 2016. Durham Holdings Limited (the “Landlord”) withdrew its appeals of the same property for the same taxation years in November 2016 on the understanding that agreement had been reached between Winners and MPAC.

3Over eight months after the appeals had been withdrawn, on March 29, 2017, Winners claims that it first discovered that the 2016 assessment was higher than the 2013, 2014, and 2015 assessments of the property. It was informed by MPAC that changes to the property for that taxation year had led to the higher assessment in 2016. Winners states that it was surprised by that news, because its understanding was that an agreement had been reached for all four taxations years. It seeks to reinstate both their 2016 appeal and the Landlord’s 2016 appeal in order to have their agreement implemented.

4For the reasons set out below, Winners’ application is denied both because it was filed outside of the timeline in Rule 122 without explanation and because Winners’ error is not the type of error contemplated in Rule 122. Rule 122(a) permits reinstatement of appeals that were withdrawn in error, but that does not include all forms of error. Winners’ error appears to be not reviewing the assessed value under appeal before withdrawing the appeal. That is not a good faith error, which is the only type of error contemplated in Rule 122(a). Winners’ application to reinstate appeals 3150517 and 3150452 is denied.

The Reinstatement Rule

5Rule 122 sets out the circumstances in which the Board will reinstate appeals that were dismissed by the Board or 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.”

6There are three essential components to the Rule. 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. Winners’ application only meets the first of those three requirements and must, therefore, be denied.

Party

7Winners’ was a party to the withdrawn appeal, and therefore satisfies the first condition of Rule 122.

Timing

8Winners’ appeal was withdrawn in a letter dated July 13, 2016 and the Board acknowledged that withdrawal on August 26, 2016. The Landlord’s appeal was withdrawn sometime in November 2016 and the Board acknowledged that withdrawal on November 18, 2016. Winners did not file this application until May 8, 2017. That is 255 days after the Board’s acknowledgement of Winner’s withdrawal, and 171 days after the Board’s acknowledgement of the Landlord’s withdrawal. That is significantly more than the 30 days set out in Rule 122.

9Rule 17 does permit me to alter any time period set out in the Rules, but timelines should not be altered without valid reasons to do so. This Board has held that a consideration of when to extend a timeline in the Rules should consider the “principles of fairness, lack of prejudice to the other parties and the need for certainty in final decisions,” Block 9A Developments Ltd v Municipal Property Assessment Corporation, 2015 CanLII 37189 (ON ARB) at paragraph 13. I have considered those principles and find that none of them favour extending the time for filing here.

10Winners’ evidence is that it did not know that the assessment was higher for the 2016 taxation year until March 2017, but they do not explain why that information did not come to their attention earlier. The assessment of the property was returned at $55,749,000 for the 2013, 2014 and 2015 taxation years, and was returned at $62,738,000 for the 2016 taxation year. That higher assessment was the assessment that Winners had appealed for the 2016 taxation year and the amount at issue in the appeal that Winners withdrew on July 13, 2016. They do not explain how they were unaware of what value they were withdrawing, or how that difference in value came to their attention many months later.

11The weighing of prejudice is difficult to do here. Winners did not provide any details of its agreement with MPAC, so I cannot say if it included the 2016 appeal. Winners’ does not say when the agreement was reached, but the timing of its withdrawal letter indicates that it was after the 2016 appeal had been returned to the roll. That is, everyone would have been notified that the assessment was higher in 2016 when the agreement was reached. If the agreement was to have the same value for all taxation years, that would require minutes of settlement for the 2016 appeal. Winners’ does not indicate that those were ever contemplated. Given the parties’ presumed knowledge at the time of settlement, I find it unlikely that the agreement included the 2016 taxation year. Winners’ evidence does not indicate that MPAC agrees that the 2016 appeal should be reduced. Therefore the prejudice to the taxpayer is minimal.

12The prejudice to the other parties is not in evidence. It can be presumed that the Town of Ajax would be prejudiced by having these appeals reopened long after they safely assumed that tax revenue was secure. On balance, prejudice does not favour extending the time for filing.

13The finality of decisions is an important policy function served by the 30 day time limit in Rule 122, and is closely related to prejudice. There are a minimum of three parties to any assessment appeal and those parties must plan their affairs around the potential outcomes of any appeal to this Board. Parties should be entitled to rely on the closure of appeals in arranging their finances. If appeals can be reopened months or years after they were withdrawn there is no longer any certainty to the litigation.

14This Board will not extend the Rule 122 timelines unless there is evidence that the principles of fairness, the balance of prejudice, and finality all favour an extension of time. Winners’ evidence does not indicate that an extension of time is appropriate here. A party is presumed to know what it is withdrawing and other parties should be able to rely on that presumption. Winners did not provide any explanation for why this application was filed 225 days late. The 30 day filing deadline has not been met and I decline to extend it. Timely filing is an essential element of Rule 122.

Error

15This application fails due to the unexplained late filing. However, even if this were a timely application, this is also not the type of error contemplated in Rule 122(a).

16Rule 122(a) permits this Board to reinstate appeals that were withdrawn in error. Winners’ says that it withdrew its appeal in error because it would not have withdrawn it if it knew what it was withdrawing. Winners’ appears to be saying that it did not know the assessed value of the property for the 2016 appeal it withdrew. The assessed value was the only issue in dispute in that appeal. That is, Winners’ error was a failure to inform itself of the only issue in dispute in an appeal before withdrawing that appeal. That is not the type of error contemplated in Rule 122(a).

17Rule 122(a) has been used to reinstate appeals based on clerical errors, as in 1015687 Ontario Limited v Municipal Property Assessment Corporation, Region 22, 2017 CanLII 76274 (ON ARB) at paragraph 7, actions contrary to the Rules, as in Pickering (City) v Municipal Property Assessment Corporation , Region 13, 2017 CanLII 85698 (ON ARB) at paragraph 7, and “bona fide” errors, as in S-K Sportswear Limited v Municipal Property Assessment Corporation Region 09, 2017 CanLII 34413 (ON ARB) at paragraph 7. Winners’ error here was not a clerical error, a breach of the Rules, or a good faith error.

18Limiting the types of errors covered by Rule 122(a) accords with the policy rationale underlying Rule 122. That policy rationale can be seen in the scope of the other clauses of the Rule. Clause (b) permits reinstatement where “a party failed to appear at a hearing event through no fault of their own,” while clause (c) permits a reinstatement when “natural justice or procedural fairness require” it. The theme of those provisions is that they protect the interests of innocent parties. Clause (b) excludes reinstatement of appeals where a party is at fault for their failed appearance. Similarly, parties must take reasonable steps in order for natural justice and procedural fairness to aid them. There is generally no breach of natural justice if the party harmed by the process is at fault for that harm.

19The errors in Rule 122(a) must be good faith errors. Winners’ failure to look at the amount in dispute before withdrawing its appeal is not the type of error covered by Rule 122(a).

Conclusion

20Winners’ application to reinstate appeals 3150517 and 3150452 is denied. The application was not filed in time and the error that Winners is relying on is not of the type contemplated in Rule 122.