Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: September 11, 2018

FILE NO.: RR 2018M10

Assessed Person(s): Hozalla Kabob Inc.

Appellant(s): Hozalla Kabob Inc.

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 13

Respondent(s): Township of Uxbridge

Property Location(s): 13029 Regional Road 39

Municipality(ies): Township of Uxbridge

Roll Number(s): 1829-020-003-31400-0000

Appeal Number(s): 3185358

Taxation Year(s): 2016

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

Request for: Reinstatement of appeal 3185358

Heard: By written submission

Parties	Counsel+/Representative	Submissions
Hozalla Kabob Inc.	Douglas Turner, QC	Requester
MPAC	No one appeared	Not Requested
Township of Uxbridge	No one appeared	Not Requested

DECISION DELIVERED BY SCOTT McANSH AND ORDER OF THE BOARD

1Hozalla Kabob Inc. (“Hozalla”) is seeking to have appeal 3185358 reinstated pursuant to Rule 122 of the Board’s Rules of Practice and Procedure (“Rules”). This request for reinstatement was filed with the Board on April 20, 2017.

2Hozalla owns and operates a small convenience store and gas bar in Uxbridge Township. It had appealed the assessment of the property for the 2016 taxation year to this Assessment Review Board (the “Board”). It indicates that it reached a settlement with MPAC for the assessment of the 2017 taxation year and inadvertently withdrew the 2016 appeal when it thought it was accepting the 2017 settlement.

The Reinstatement Rule

3Rule 122 sets out the circumstances in which the Board will reinstate appeals that were withdrawn. The relevant provision of the Rule for this application are 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seek an order… to reinstate an appeal by filing an affidavit with the Board… no more than 30 days after the appeal was… withdrawn… setting out that… the appeal was withdrawn… in error.”

4There 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 First, it is only open to parties to the appeal that was withdrawn. Secondly, the order must be sought within 30 days after the appeal was dismissed or withdrawn, or time must be extended. Finally, the Board must be satisfied that the appeal was withdrawn in error.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. Hozalla meets all of the requirements of the Rule, so appeal 3185358 will be reinstated.

Party

5Hozalla was the both the assessed person and the appellant in the withdrawn appeal. It therefore meets the first part of the test set out in Rule 122(a).

Timely Application

6Hozalla withdrew the appeal in January 2017 and the Board issued an acknowledgment of the withdrawal on January 20, 2017. Hozalla first wrote to the Board requesting reinstatement on April 20, 2017, 90 days later. Hozalla did not perfect its application until July 25, 2018. Rule 122 sets a 30 day limitation on reinstatement requests. Hozalla’s request was a minimum of 60 days late.

7This Board can alter any time period in the Rules, pursuant to Rule 17, but will only do so when fairness requires an extension of time. Any application to extend time should consider fairness, prejudice, and finality, see Block 9A Developments Ltd v Municipal Property Assessment Corporation, 2015 CanLII 37189 (ON ARB), at paragraph 13.

8Hozalla says that its owner, Tahi Mohammad Gholami, is not fluent in English and did not understand assessment law in Ontario. Hozalla appears to argue that fairness requires an extension of time due to those difficulties. There is some fairness in permitting this application to be filed slightly late. It is an application with merit that will have a meaningful impact on Hozalla. The filing was made in a reasonable time and barring it on timing alone could have unfair impacts.

9Prejudice is minimal here. The Township and MPAC both consent to the reinstatement, and there is some indication that there may be a consent amendment to the assessed value for 2016 if the appeal is reinstated. If that is so, the balance of prejudice would favour extending time because Hozalla will suffer increased, potentially improper, taxes if time is not extended.

10Finality is the third factor to consider. Finality is an important goal in any litigation process. This appeal was withdrawn more than a year ago. However, there was never a decision on this appeal and finality is not an overriding factor, but one amongst many.

11I find that these factors favour extending the time for filing this application. I accept Hozalla’s application filed on April 20, 2017. The second component of Rule 122(a) is therefore met.

Error

12The final requirement in Rule 122(a) is that the appeals were withdrawn in error. The Rule is aimed at clerical errors, but the error made by Hozalla is also caught. Hozalla says that it misunderstood the documents it had received from MPAC when discussing the assessment and did not intend to withdraw the appeal. That is a good faith error and one that Rule 122(a) covers. The third and final requirement of Rule 122(a) is therefore met.

Discretion

13It 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 this appeal would be inappropriate.

CONCLUSION

14Appeal 3185358 was withdrawn in error and Hozalla meets the requirements of Rule 122(a) to have that appeal reinstated. The appeal is therefore reinstated.