Talon International Development Inc. v. Municipal Property Assessment Corporation, 2018 CanLII 8115

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: February 22, 2018

FILE NO.: RR 2018M01

Assessed Person: Talon International Development Inc.

Appellant: Talon International Development Inc.

Respondent: Municipal Property Assessment Corporation (“MPAC”) Region 09

Respondent: City of Toronto

Property Location: 325 Bay Street

Municipality: City of Toronto

Roll Numbers: See Schedule “A”

Appeal Numbers: See Schedule “A”

Taxation Years: 2014, 2015, and 2016

Hearing Event No.: 602240

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

Request for: Reinstatement of appeals set out in Schedule “A”

Heard: By written submission

Parties	Counsel	Submissions
Talon International Development Inc.	Peter A. Milligan	Requester

DECISION DELIVERED BY PAUL MULDOON AND ORDER OF THE BOARD

INTRODUCTION

1Talon International Development Inc. (the “Requester”) is requesting this Assessment Review Board (“Board”) to reinstate the appeals set out in Schedule “A” by way of a request for reinstatement pursuant to Rule 122 of the Board’s Rules of Practice and Procedure (“Rules”). This request for review was filed with the Board on July 24, 2017.

2The Requester is the owner of a number of units in the hotel and condominium development located at 325 Bay Street in the City of Toronto (the “Tower”). It failed to appear at two prehearings before the Board, which resulted in its appeals being dismissed.

ISSUES AND ORDER SOUGHT

3The Requester seeks the reinstatement of appeals set out in Schedule “A”.

RELEVANT RULES

4Reinstatement requests are governed by Rule 122, which states:

122 Notwithstanding Rule 120, a party to a former proceeding may seek an order from the Board to reinstate an appeal by filing an affidavit with the Board, copied to all parties, no more than 30 days after the appeal was dismissed or withdrawn by the Board setting out that:

(a) the appeal was withdrawn, removed or dismissed in error;

(b) a party failed to appear at a hearing event through no fault of their own; or

(c) natural justice or procedural fairness require that the appeal be reinstated.

DISCUSSION AND REASONS

5The Associate Chair considers requests for review as a delegate of the Executive Chair of the Environment and Land Tribunals Ontario. Appeals will be reinstated if any of the three grounds set out in Rule 122 are met. I find that none of the grounds are met here.

6The appeals were dismissed by Member Walker at prehearing 657967, held on January 12, 2017. She noted that this was the second prehearing at which no one appeared for the Requester. The Requester had retained Altus to deal with other units the Tower, but did not retain Altus with respect to these appeals until June 2017, six months after the appeals had been dismissed. The Requester, through Altus, was informed that these appeals had been dismissed on June 19, 2017 and sought this reinstatement a short time later.

7The Requester states that it never received notice of prehearing 657967, and that is why it failed to attend the prehearing. A failure to receive notice of a hearing event is a circumstance in which appeals can be reinstated because it is difficult to fault a party for failing to appear an event it did not know was taking place. The question here is why the Requester failed to receive notice.

8The Requester has determined that the reason it did not receive notice is that the Board was mailing notices to an out of date address. The Requester moved to its current location in 2012, but it does not appear that the Requester notified the Board at all of that change in address. It notified MPAC, a party to these appeals, four years later, on July 15, 2016. The Requester never notified the Board of their new address, mistakenly believing that MPAC would forward that information to the Board. MPAC did not do so.

9The Requester argues that the appeals should be reinstated pursuant to all three clauses of Rule 122. Clause 122(a) permits reinstatement when appeals are dismissed in error. There was no error here in dismissing the appeals. When an appellant fails to appear to prosecute an appeal it is entirely appropriate for the Board to dismiss the appeal. Therefore clause 122(a) does not apply.

10Clause 122(b) permits reinstatement if no fault can be attributed to the party that failed to appear. The fault of the Requester must therefore be assessed. Clause 122(c) permits reinstatement if natural justice or procedural fairness requires reinstatement. Notice is a core component of procedural fairness and notice was not received here, so the reasons for the failure of notice must be assessed.

11The true issue that must be decided is if there an obligation to advise the Board of where to send notice. If there is such an obligation, and the Requester failed to take any steps, then fault can be ascribed to the Requester and Rule 122(b) would not be engaged. Such an obligation would also make the failure of notice compliant with natural justice, for the Requester would have brought the failure to receive notice upon itself. In that case Rule 122(c) would not be engaged. Therefore, this application turns on whether a party has an obligation to notify the Board when its address for service changes.

12The Requester argues that there is no explicit requirement to provide the Board with up to date contact information in the Assessment Act or the Rules. The current Rules may not have an explicit requirement to keep a mailing address current, but they provide a strong incentive to do so. Rule 29(b) deems service of documents sent by the Board by regular mail on the fifth day after the postmark date. Rule 27(b) permits mail to the “last known address of the person.” That is, a person is deemed to have received notice mailed by the Board to the last address the Board has on file. If a party wants to actually receive that notice, they must ensure that the last address the Board has on file is the correct one. Those Rules were not in force when the notice of prehearing 657967 was sent, so receipt of the notice was 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.

13The Assessment Act has a similar structure around notices sent by MPAC. Subsection 31(3) permits notice to a person’s last known address, and subsection 31(5) permits a person to change their address and makes that change stand until revoked. That is an implied obligation to update MPAC on changes in address. That principle has broad application: an authority can only send meaningful notice when it knows where to send it. The only way an authority can get that information is from the party. Parties must have an obligation to keep their address for service up to date.

14The Requester appears to implicitly acknowledge this by arguing that notice to MPAC, years after moving, was sufficient. It is not clear how notifying one of the respondents to the appeal could inform the Board of the Requester’s change in address. The Board is, and must be, distinct from MPAC so notifying MPAC could not inform the Board. The minimum reasonable step to take when an address changes is to notify the Board.

15The evidence indicates that the Requester took no steps to notify the Board of its new address. The Requester knew it had appeals filed with the Board, and had years after it moved in which to notify the Board. It would have been prudent and reasonable for the Requester to notify the Board when it changed addresses.

16Rule 122(b) permits reinstatement only when a party fails to appear “through no fault of their own.” The Requester did not appear because it did not receive notice. But it also did not take the minimal, obvious, and reasonable step of notifying the Board of where to send notice. The Requester is at fault for its failure to receive notice, which led to its failure to appear. It is the duty of each party to provide up to date information to the Board on where to send notice. There is no other reasonable way for the Board to have accurate records. Rule 122(b) does not apply.

17Rule 122(c) permits reinstatement if natural justice or procedural fairness requires reinstatement. Natural justice cannot be engaged when a party is at fault for its failure to receive notice. There is nothing unfair about a party bearing the foreseeable consequences of its failure to act. Rule 122(c) does not apply.

18The Requester is at fault for its failure to appear before Member Walker at prehearing 657967, which is what properly resulted in the dismissal of these appeals. The appeals set out in Schedule “A” will not be reinstated because no clause of Rule 122 is engaged.

ORDER

19The Requester’s reinstatement request is denied.