Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: August 16, 2018 FILE NO.: DM 2018M13

Moving Party(ies): Henry Messina, Mary Messina Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 09 Respondent(s): City of Toronto

Property Location(s): 98 Lankin Boulevard and 7 Milton Road Municipality(ies): City of Toronto Roll Number(s): 1906-024-260-01600-0000 and 1906-024-280-00400-0000 Taxation Year(s): 2015, 2016 and 2017 Hearing Event No.: 700975

Legislative Authority: Rule 26(b) of the Assessment Review Board Rules of Practice and Procedure Heard: May 14, 2018 in Toronto, Ontario

APPEARANCES:

Parties Henry Messina, Mary Messina

Counsel Lia Boritz

Parties MPAC

Counsel No one appeared

Parties City of Toronto

Counsel No one appeared

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1Henry and Mary Messina are the owners of the properties at 98 Lankin Boulevard and 7 Milton Road in the City of Toronto. They did not receive assessment notices for either property for the 2015 and 2016 taxation years. They only became aware of the assessed value of the properties in May 2016 when they received their tax invoices from the City of Toronto. They filed a request for reconsideration for both the 2015 and 2016 taxation years with the Municipal Property Assessment Corporation (“MPAC”) on June 29, 2016.

2MPAC accepted those requests as requests to reconsider the 2017 taxation year. MPAC did not explain why it was processing the request as being for the 2017 taxation year. MPAC did not address the 2015 or 2016 taxation years at all, either in its acknowledgement letter, or its ultimate determination letter. MPAC also failed to provide notice of its decisions in a timely way. The Messinas only received the decision letters for each property, both for the 2017 taxation year, well after the time to appeal to this Assessment Review Board (“Board”) for the 2015 and 2016 taxation years had passed.

3The Messinas bring this motion seeking permission to file late appeals of the 2015, 2016, and 2017 taxation years. For the reasons that follow, I find that the legislation does not permit me to extend the time for filling appeals for the 2015 or 2016 taxation years. The 2017 appeals were filed in time and will be processed by the Board. The Board will also create deemed appeals for the 2018 taxation year.

Requests for Reconsideration Are a Statutory Precondition

4Subsection 40(3) of the Assessment Act (“Act”), RSO 1990, c A-25 makes a request for reconsideration with MPAC a mandatory precondition for an appeal to this Board for residential property. That subsection prohibits an appeal of residential property “by a person who is entitled to make a request for reconsideration…if the person has not made the request within the time required…”

5The Messinas argue that they have not yet received a response to the requests for reconsideration that they filed for the 2015 and 2016 taxation years. MPAC responded to a 2017 request which was never filed. They say that the appeal deadline for the 2015 and 2016 taxation years, set out in subsection 40(5.1), has not yet begun to run. That is true, but that timeline will never begin to run because the requirement in subsection 40(3) can never be met. Without the statutory perquisite of a timely request for reconsideration, there is no right to appeal those tax years.

6Rule 26(b) of the Board’s Rules of Practice and Procedure states that this Board may accept a late if the assessed person has not received a notice of assessment and requests permission from the Board to file a late appeal in a timely way. But, for residential appeals, the Legislature has removed the right to appeal to this Board if a person does not file a timely request for reconsideration. The Board’s late appeal process, set out in Rule 26(b), cannot alter that legislated requirement. The requests for reconsideration made by the Messinas for the 2015 and 2016 taxation years were not filed in time so that statutory precondition was not met. The Board can only alter the filing deadline for requests for reconsideration in the limited circumstances set out in the Act, circumstances that do not exist here.

7There are two possible deadlines for the Messinas’ 2015 and 2016 requests for reconsideration. Subsection 39.1(3.1) sets a deadline of “no later than 90 days after the mailing date of the notice of assessment or March 31 of the taxation year, whichever is later.” That only applies to “a person who has received a notice of assessment.” The Messinas’ evidence is that they did not receive such a notice. Instead, they relied on their municipal tax invoice for their assessed value. The general deadline for requests for reconsideration is March 31 of the tax year, as outlined in subsection 39.1(1.1).

8The Messinas sent these requests for reconsideration to MPAC, for the 2015 and 2016 taxation years, on June 29, 2016. That is outside of the time set in the statute to do so. The 2015 requests were required to be filed by March 31, 2015 and the 2016 requests needed to be filed by March 31, 2016. June 29, 2016 is well after either date.

9The Legislature set out the narrow circumstances in which the time for filing a request for reconsideration can be extended by this Board in subsection 40(4) of the Act. That subsection is clear that applications for an extension of time to file a request for reconsideration must be made “during the taxation year.” The Legislature set the requirement that extension applications be made in the taxation year. That is an indication that the Legislature did not intend to confer on this Board the power to extend the time in which applications can be made.

10The Messinas did not contact this Board about this matter until early 2017. The Legislature did not intend to permit an extension of time to file requests for reconsideration in later tax years. The appeals for 2015 and 2016 have not met the statutory precondition in subsection 40(3) and therefore cannot be legally filed with this Board.

MPAC’s 2017 Response

11MPAC inexplicably replied to the June 2016 filing of the 2015 and 2016 requests for reconsideration on August 5, 2016, saying that they had received the 2017 requests for reconsideration for the properties. No 2017 request for reconsideration had been filed for the properties, only 2015 and 2016 requests. MPAC then failed to provide its notice to decision to the Messinas. After many requests, MPAC faxed its decision letters on March 7, 2017. Both letters address the 2017 tax year. The rejection letter of the 2017 request for reconsideration of 98 Lankin Boulevard was dated November 7, 2016, while the rejection letter for 7 Milton Road was dated October 24, 2016.

12It is unfair and arbitrary for MPAC to unilaterally decide what has been filed by taxpayers. Taxpayers are entitled to frame their dispute. However, MPAC’s actions here preserved a right of appeal for the 2017 taxation year.

13The 2015 and 2016 requests for reconsideration were filed out of time, removing an appeal to this Board. The 2017 requests for reconsideration were completed by MPAC, even though they were not filed. That triggered the appeal period in subsection 40(5) of the Act. That subsection provides two appeal periods when a request for reconsideration has been filed for the 2017 taxation year. First there is a 90 day timeline from the “issuance date printed on the notice mailed by the assessment corporation.” The second timeline is triggered if “the assessment corporation has not mailed a notice of reconsideration within the time required.” That timeline is “90 days after the notice should have been mailed” and is the operative timeline here.

14The question then becomes when MPAC should have mailed the notice. Subsection 39.1(7) requires MPAC to mail its results to a 2017 request for reconsideration “no later than 180 days after the request is made.” This request was made on June 29, 2016. I calculate 180 days later to be December 26, 2016. The time for filing to this Board is 90 days from that date, which I calculate as March 26, 2017. That was the last day for the Messinas to file their 2017 appeals.

15The Messinas first contacted this Board about this matter on March 9, 2017. While there was some confusion around which tax years were at issue, it is clear that the intention was to appeal the assessments of these properties to the Board. That is before the March 26, 2017 filing deadline set out in subsection 40(5). Thus, the Board will accept and process the 2017 appeal for each property.

Deeming

16Clause 40(26)(b) of the Act creates deemed appeals if the same general reassessment applies and “the appeal is not finally disposed of before March 31 of the subsequent taxation year.” Both of those conditions are met here. The 2017 and 2018 taxation years are both premised on the January 1, 2016 valuation day and subsection 1(1) of the Act defines general reassessment as “the application of a new valuation day.” Additionally, the 2017 appeals for these properties have not yet been created, so clearly have not yet been disposed of. The Board will, therefore, create 2018 deemed appeals for each property.

CONCLUSION

17The 2015 and 2016 requests for reconsideration were filed outside of the timelines set in the Act and the Legislature has not conferred on this Board the power to remedy that defect at this late date. MPAC effectively created, and then completed, a 2017 request for reconsideration, which created a right of appeal for that tax year. The Messinas contacted the Board about those appeals within the statutory time period. Those 2017 appeals will be created and processed. Because those 2017 appeals were not disposed of before March 31, 2018, the Act created 2018 appeals of each property.

182017 and 2018 taxation appeals will be created and processed for both 98 Lankin Boulevard and 7 Milton Road in the City of Toronto.