Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: August 24, 2018

FILE NO.: DM 152592

Moving Party(ies): Municipal Property Assessment Corporation (“MPAC”) Region 09

Respondent(s): Lisa Kristina Abe-Oldenburg

Respondent(s): City of Toronto

Property Location(s): 311 Bay Street Unit 3904

Municipality(ies): City of Toronto

Roll Number(s): 1904-063-010-00249-0000

Appeal Number(s): 3068841, 3074859 and 3149922

Taxation Year(s): 2014, 2015 and 2016

Hearing Event No.: 697281

Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Heard: In writing on April 10, 2018

APPEARANCES:

Parties	Counsel/Representative
Lisa Kristina Abe-Oldenburg	Self-represented
MPAC	Katelyn Morrow
City of Toronto	No one appeared

DISPOSITION OF THE BOARD DELIVERED BY LESLIE FLEMMING

DISPOSITION OF MOTION

1This motion is brought by MPAC following a scheduled hearing of the appeals filed by Lisa Abe-Oldenburg (“Appellant”) in connection with Unit 3904 - 311 Bay Street (“Trump Tower”), pursuant to s. 40 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act“). The appeals for 2014, 2015 and 2016 had been scheduled to be heard by the Assessment Review Board (“Board”) on March 14, 2018. The appeal hearing was conducted by means of telephone conference. Katelyn Morrow attended on behalf of Municipal Property Assessment Corporation (“MPAC”), and the Appellant attended on her own behalf.

2The Appellant had, up to that date, not availed herself of any of the procedural steps involved in a s. 40 appeal before the Board. The procedural steps and the dates for the completion of same are assigned by the Board staff at the outset of the hearing process in a document entitled “Summary Stream Schedule of Events.” In this case, the Appellant, by her own admission, had not completed an exchange of disclosure with MPAC by October 31, 2017, nor had she scheduled and participated in a mandatory settlement meeting on or before January 2, 2018. The matter was then set for hearing by the Board, and the Schedule of Events required that all documents and written submissions for use by the parties at the hearing were to be filed with the Board on or before January 16, 2018. The Appellant filed no documentary evidence nor written submissions by the required date.

3MPAC moves for dismissal of the appeals in accordance with Rule 24(e) of the Board’s Rules of Practice and Procedure (“Rules”). She submits that MPAC has filed the motion to protect the public’s interest as well as its own interests, based on the Appellant’s non-compliance and undue delay of the proceeding. The Appellant contested the motion and the matter was adjourned to allow the parties to prepare and file written submissions.

4The Appellant asks the Board to dismiss MPAC’s motion, on the grounds that she has not occupied the subject premises since October 31, 2016, and that she did not “receive directly” any of the couriered packages sent to the subject property. The Appellant asserts that she did not receive mail sent from the Board including the Schedule of Events mailed on August 21, 2017. She seeks dismissal of MPAC’s motion because she was never served with the various documents giving her notice of her obligations or notice of disclosure by MPAC.

5For the reasons set out below, the motion is denied, with further directions respecting the disposition of these appeals.

RELEVANT RULES

6Rules of Practice and Procedure:

Interpretation

1. These Rules shall be liberally interpreted to ensure the just, most expeditious and least expensive determination of every proceeding.

Failure to Comply With Rules and Orders

1. The Board will determine the appropriate consequences of non-compliance with these Rules.

Dismissal of Appeals

2. A Board Member may dismiss an appeal without holding a hearing event, or after a hearing event, if:

(a) the Board is satisfied that it is without jurisdiction to hear the appeal;

(b) the Board is of the opinion that the proceeding is frivolous or vexatious, is commenced in bad faith or only for the purpose of delay;

(c) the Board is of the opinion that the reasons set out in the appeal do not disclose any apparent statutory ground on which the Board can make a decision;

(d) the appellant has not responded to a request by the Board for further information within the time specified by the Board; or

(e) the appellant has not complied with statutory requirements or these Rules.

Form of Service

1. Documents must be served on any person in one of the following ways:

(a) personal delivery;

(b) regular or registered mail to the last known address of the person or their representative;

(c) fax, but only if the document is less than 30 pages in length or with consent of the person being served;

(d) courier;

(e) email; or

(f) any other way agreed upon by the parties or directed by the Board.

No New Documents

1. A document, including an expert report, will only be admitted into evidence at a hearing event if it has been disclosed, and filed with the Board, in accordance with these Rules, unless the Board determines that there are exceptional circumstances.

No New Issues

2. An issue can only be raised at a hearing event if it has been set out in the statements of issue and response which have been served, and filed with the Board in accordance with these Rules, unless the Board determines that there are exceptional circumstances.

REASONS FOR DISPOSITION OF MOTION

7MPAC relies primarily on the following factors in urging the Board to deny the Appellant’s request that she be given “the opportunity to have a fair settlement meeting or hearing of the s. 40 assessment appeals for taxation years 2014, 2015 and 2016…” in respect of the subject property:

(a) That the Appellant is herself a practicing lawyer and a member of the Law Society of Ontario;

(b) That the Appellant took no steps to keep the Board or MPAC apprised of her address for service despite having moved from the subject property in October, 2016, sometime after the appeals had been filed;

(c) That MPAC is prejudiced by the fact “that its time to prepare a fulsome response to the new issues brought forward has been eroded by the Appellant’s inability to meet all deadlines, which MPAC committed to and met”; and

(d) That a failure to dismiss the appeals is contrary to the Board’s mandate that all matters are to be heard in the most just, expeditious and least expensive determination (Rule 4).

8The Appellant relies on the following facts in refuting the motion:

(a) That circumstances in connection with the management of the subject property, the insolvency and receivership proceedings of the developer, the subsequent court-ordered sale of the building, the public demonstrations and picketing in front of the building, and many other operational, structural and financial problems associated with the building, made it a undesirable place to live and a difficult property to access, sell or mortgage in the normal course of events. As such, she vacated the subject property in October, 2016;

(b) That her failure to receive documents sent by courier to the building and accepted by concierge staff but not subsequently delivered to her is no fault of her own;

(c) That she was not served with the documents in question because she did not receive them.

9The first real issue at the heart of this matter is what obligation, if any, the Respondent had to provide the Board with an up-to-date address for notice. Further, does the Respondent’s legal training and membership in the Law Society of Ontario cause her to have any higher duty in her relationship with the Board than would be the case were she not a practicing lawyer?

10The initial step in any assessment dispute is the service of the Notice of Assessment itself. Section 31(2) of the Act sets out that, where the assessed person is a resident in the municipality or non-municipal territory where the land is located, notices of assessment may be delivered by leaving it at the person’s place of residence or place of business, or by mailing it to one of those addresses. Where an assessed person furnishes MPAC with a notice in writing setting out the address to which the notice of assessment is to be sent, MPAC is to use such address “until revoked in writing.”

11An Appellant’s first contact with the Board in respect of a s. 40 appeal is the filing of the appeal in a form specified by the Board. The particulars of the contents of the form are set out in s. 18(b) of the Rules: “provide the appellant`s name, telephone, fax and e-mail address, number and street address, and postal code.”

12The Appellant clearly commenced the appeals in question. She has not at any time indicated she did not wish to commence proceedings before the Board involving the subject property or that she sought to discontinue them.

13The Appellant’s affidavit and Exhibits indicate that she vacated the building in October, 2016, for reasons set out in the affidavit. The affidavit is silent as to the occupancy of the building between October, 2016, and the commencement of a tenancy agreement signed by “John A.” on June 23, 2017. During those months, the Appellant continued to be the owner of the subject property. She has provided no other information about the arrangements she made for the forwarding of her mail, nor has she provided information about whether or not she attended the building regularly to pick up mail.

14The Appellant states at paragraph 11 of her affidavit dated April 2, 2018, that she did not receive notice of the telephone conference hearing “which was forwarded to me by the then-current Subject Property building concierge in a plain brown sealed envelope along with an envelope containing the Valuation Reports which did not appear to be anything urgent to open or review [emphasis added].”

15There are many unanswered questions raised by the Appellant’s affidavit evidence, including what arrangements she made for the forwarding of her personal mail both before and after the tenancy commenced. Also of relevance is the Appellant’s seeming disinterest in her own affairs as evidenced in the phrase emphasized above.

16When the Appellant filed her original appeal with the Board, the previous Rules were in effect. The matters came before the Board on August 4, 2016, and again on November 9, 2016. The Appellant failed to attend either of these telephone conferences, although, according to her own admission, she continued to occupy the subject premises at the time of the first hearing in August, 2016.

17Under the new rules, effective since April 2017, the Board’s mandate has been to be diligent at moving matters forward, while balancing this with the need for fairness in its dealings with all matters. The Rules do not presently contain a specific requirement for parties to notify the Board any time there is a change in their contact information, but it is common sense to do so if one has voluntarily commenced an appeal with this Board. As set out in MPAC’s reply to the Respondent’s Response to the Notice of Motion, a recent decision of this Board in Talon International Development Inc. v. Toronto (City), 2018 CanLII 8115 (ON ARB) canvasses the issue under both the new rules and the immediately preceding Rules. As noted:

“Those Rules [the Current Rules] were not in force when the notice of prehearing 657967 was sent, so receipt of the notice was not deemed here. The former Rules were silent on the delivery of notices from the Board, but providing the Board with an address was required in former Rule 16(b). An address is meaningless if it is out of date, so even that requirement implies a duty to keep the address current”.

18The new Rule 29 permits deemed service by regular mail on the fifth day after the postmark date. Rule 30 provides that Rule 29 does not apply “if the person for whom the document was intended establishes that through absence, accident, illness or other cause beyond that person’s control, the document was not received until a later date or not at all [emphasis added].”

19The question therefore becomes whether or not the Appellant has satisfied the Board that the documents sent by the Board and by MPAC in respect of the forthcoming hearing were either late or not received at all due to a cause beyond the Appellant’s control. The Board appreciates the difficulty of proving a negative. However, the Board is mindful of the fact that for the two years during which the current appeals have been in progress, the Appellant’s failure to keep the Board apprised of her change of address was decidedly within her control and she neglected, for reasons that have not been satisfactorily explained, to contact the Board and/or MPAC.

20In addition, the Board finds that the Appellant’s membership to the Law Society of Ontario as a practicing lawyer gives her an added duty to ensure that her dealings with the justice system are respectful and responsible. Members of the Law Society of Ontario are subject to the following Rule 5.6-1 of the Rules of Professional Conduct of the Law Society of Ontario. The Rule states: “A lawyer shall encourage public respect for and try to improve the administration of justice.” The following excerpt from the commentary further defines and describes the requirement:

“[1] The obligation set out in the rule is not restricted to the lawyer’s professional activities but is a general responsibility resulting from the lawyer’s position in the community. A lawyer’s responsibilities are greater than those of a private citizen.”

21For the above reasons, the Board rejects the Appellant’s submission that MPAC’s motion should be denied, on the basis that the Appellant did not receive any communication from the Board.

22However, in determining whether to grant MPAC’s motion to dismiss the appeals, the Board must consider the impact of the Appellant’s failure to comply with the Schedule of Events. In this regard, the Board notes that an Appellant is not required to file documents in support of an appeal. In most cases, an Appellant will do so, but an Appellant may choose to file no documents, and rely on the evidence submitted by other parties, in order to make its case. Therefore, the only requirement in the Schedule of Events that the Appellant has failed to complete, is the requirement to participate in a mandatory meeting to attempt to negotiate a resolution of the appeals. Although, this is an important step in the appeal resolution process, it does not always result in a settlement. For this reason, the Board finds that the Appellant’s failure to participate in the mandatory settlement meeting, in and of itself, is not a sufficient reason to dismiss the Appellant’s appeals.

23As the Appellant has not provided any disclosure in accordance with the due date set in the Schedule of Events, pursuant to Rule 48, the Appellant may not adduce any documents at the hearing. Similarly, pursuant to Rule 49, the Appellant may not raise any new issues at the hearing. The Appellant, therefore, must consider whether she wishes to proceed with the hearing or withdraw her appeals. Consequently, the Board directs the Appellant to advise the Board, within 7 business days of the date the Board e-mails this decision to her, whether she will proceed with the hearing or withdraw her appeals. If she requests a hearing, the case co-ordinator is directed to confer with the parties to schedule a new date for the hearing, which should be scheduled within the next two months. A hearing, if requested, will proceed on a peremptory basis.

ORDER

24MPAC’s motion to dismiss the Appellant’s appeals is denied.

25The Appellant is directed to advise the Board, within 7 business days of the date the Board e-mails this decision to her, whether she will proceed with a hearing of her appeals or withdraw her appeals. If she requests a hearing, the Board’s case co-ordinator is directed to confer with the parties to schedule a new date for the hearing which should be scheduled within the next two months.

26A hearing, if required, will be heard either by telephone conference call or by in-person hearing as selected by the Appellant, and will be peremptory on the Appellant.