Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: September 18, 2018

FILE NO.: DM 2018M21

Moving Party: Gregory Marsh

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

Respondent: City of Toronto

Property Location: 31 Fallingbrook Crescent

Municipality: City of Toronto

Roll Number: 1901-011-100-04100-0000

Taxation Years: 2014, 2015, 2016, 2017, and 2018

Hearing Event No.: 698264

Legislative Authority: Rule 26(b) of the Assessment Review Board Rules of Practice and Procedure

Heard: In writing

APPEARANCES:

Parties

Counsel

Gregory Marsh

Marc Kemerer

MPAC

No submissions received

City of Toronto

No submissions received

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1Gregory Marsh is seeking the permission of this Assessment Review Board (the “Board”) to file appeals after the time set in the Assessment Act, RSO 1990, c A.31 (the “Act”). Mr. Marsh is an owner of the property located at 31 Fallingbrook Crescent in the City of Toronto. He purchased that property in 2010 and moved into it in 2012. MPAC continued to send notices of assessment to Mr. Marsh’s former address and they were not forwarded to him. He only discovered the assessments of the property when he sought refinancing sometime in 2016. He argues that, if he had known the assessments, he would have appealed them and he seeks the opportunity to appeal those assessments now.

2The Legislature has removed any authority this Board had to extend the time for appealing residential property. As result, Mr. Marsh’s motion to file late appeals must be denied.

Background

3Mr. Marsh and his wife, Kyla Moore-Marsh, purchased the property in April 2010. They then spent two and a half years renovating the property. While that renovation was taking place, they continued to reside at their former address, and assessment notices for the property were sent to their former address, presumably at their request. They moved into the property in July 2012, but it does not appear that they updated their contact information with MPAC.

4MPAC issued a series of assessment notices for the property over the following years. On October 12, 2012 MPAC sent the 2013 annual assessment which assessed the property at $2,084,000 as vacant land. On August 16, 2013 MPAC issued an omitted assessment notice with an effective date of November 1, 2012, pursuant to section 33 of the Act. The notice states that it was issued because a structure had been built on the property on that date. That notice added $1,232,000 to the assessed value for the 2012 taxation year and $1,947,000 for the 2013 taxation year. The 2014 annual assessment was sent on October 13, 2013 and assessed the property at $3,260,000. On October 11, 2014 MPAC sent the 2015 annual assessment which assessed the property at $4,047,000. A property change notice was sent on October 31, 2014, with a July 1, 2014 effective date, that added $13,000 to the 2014 assessment of the property. On May 27, 2016 MPAC issued the 2017 taxation year assessment notice for the property. The assessed value for 2017 was $6,696,000.

5All of those notices were sent to Mr. Marsh’s former address. Mr. Marsh says that he had asked the people that moved into his former house to forward mail, but that they did not do so. He does not indicate what attempts, if any, were made to update his contact information with MPAC. He swears that he was not aware of the assessments of the property until he requested copies of the assessment for refinancing purposes, though he does not say when that was. Mr. Marsh submitted this application for late filing of appeals of the assessment of the property on June 5, 2017.

Filing Deadlines

6Mr. Marsh would like to appeal the 2014, 2015, 2016, 2017, and 2018 assessments of the property. For each of those taxation years, subsection 40(3) of the Act prohibited the filing of appeals for residential assessments unless a request for reconsideration had been filed with MPAC “within the time required.” The time for submitting a request for reconsideration is governed by section 39.1 of the Act. The general submission deadline is March 31 of the taxation year, see subsection 39.1(1.1).

7The Legislature has set out the limited circumstances in which this Board can extend the time for submitting a request for reconsideration in subsection 40(3) of the Act. That subsection is clear that the Board can only do so “on an application by the person during the taxation year.” As noted in Messina v Municipal Property Assessment Corporation (“MPAC”) Region 09, 2018 CanLII 78265 (ON ARB at paragraph 9: “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.”

8Appeals of residential property have been circumscribed by the Legislature and must submit a timely request for reconsideration to MPAC, or promptly seek the permission of this Board to do so late. Mr. Marsh did not do so for any of the tax years at issue. This Board can only do what it is permitted to do by the Legislature. I cannot, therefore, grant any relief for those taxation years.

Late Appeals

9Rule 26(b) of the Board’s Rules of Practice and Procedure (the “Rules”) sets out a limited set of circumstances in which this Board will extend the time for filing appeals under the Act. Rule 26(b) has limited application to residential appeals because it only addresses appeals to this Board, and there is no right to appeal to this Board without a timely request for reconsideration. Rule 26(b) therefore has no application here. However, even if that were not the case, Mr. Marsh has not proven that he falls within the confines of Rule 26(b).

10The Rule has three main components: (1) a person must be entitled to a notice of assessment; (2) the person must not have received notice; and (3) the person must have filed the application within 30 days of becoming aware of the issues in dispute. Mr. Marsh is entitled to notice as the owner of the property, but that is the only component of the Rule that he has proven.

11Mr. Marsh says he did not receive the notices, but a party cannot reap the benefits of late filing if they have not taken reasonable steps to ensure that they receive notice. Associate Chair Muldoon held in Talon International Development Inc. v. Toronto (City), 2018 CanLII 8115 (ON ARB) at paragraph 13, that there is “an implied obligation to update MPAC on changes in address.” This flows from subsection 31(3) of the Act permitting MPAC to send notice to a person’s last known address, and subsection 31(4) permitting a person to change their address, which then stands as the address for notice until it is revoked. Mr. Marsh must have advised MPAC to send notices to his former address while renovations were ongoing, and did not revoke that address. Subsection 31(4) states that former address “stands” until it is revoked. That is, Mr. Marsh had an obligation to update his address and only failed to receive notice because he did not take steps to see that he received notice.

12The final component of Rule 26(b) is that the application be brought within 30 days of the person becoming aware of the assessment. That does not require receipt of the actual notice of assessment, and can be imputed from municipal tax invoices, which include assessment information, see 217-225 Richmond Street West Ltd. v. Ontario (Assessment Review Board), 1997 CanLII 26465 (ON CTGD), [1998] O.J. No 35 at paragraph 1. Mr. Marsh indicates the amount of tax he paid to the municipality, which implies that he received those invoices. This application came long after the municipal tax notice for each taxation year.

13Even if the municipal tax notice was not sufficient to bring the assessment to Mr. Marsh’s attention, he has not indicated that he filed this application within 30 days of becoming aware. He states that he first saw the assessment notices when he sought refinancing. He does not say when that was so there is no way to determine if this application was filed within 30 days. I cannot speculate on when components of Rule 26(b) are met. As noted in DePalma v Municipal Property Assessment Corporation, 2019 CanLII 18792 (ON ARB), 2018 CanLII 60394 (ON ARB) at paragraph 7: “The burden of proof in a late appeal application is squarely on the person seeking late filing. Only they have access to the information required for the application.”

CONCLUSION

14The Legislature has removed this Board’s ability to grant late filing of residential assessment appeals. Even if that were not the case, Mr. Marsh has not proven that he meets the requirements of the late filing rule. His application for late filing is denied.