Municipal Property Assessment Corporation, Region No 7 v. Stephen Cherry and Anneke Cherry, 2018 CanLII 99118

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: October 19, 2018

FILE NO.: DM 2018M27

Moving Party: Municipal Property Assessment Corporation (“MPAC”) Region No 7

Respondents: Stephen Cherry and Anneke Cherry

Respondent: City of Kawartha Lakes

Property Location: 31527 Simcoe Street

Municipality: City of Kawartha Lakes

Roll Number: 1651-160-050-00100-0000

Appeal Numbers: 3233323 and 3293040

Taxation Years: 2017 and 2018

Hearing Event No.: 703578

Legislative Authority: Rule 24 of the Assessment Review Board Rules of Practice and Procedure

Heard: In writing

APPEARANCES:

Parties

Representative

MPAC

Pamela Hawkins

Stephen Cherry and Anneke Cherry

Stephen Cherry

City of Kawartha Lakes

No one appeared

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1MPAC brings this second motion seeking to dismiss the 2017 and 2018 appeals of the property at 31527 Simcoe Street in the City of Kawartha Lakes filed by Stephen and Anneke Cherry (the “Cherrys”). This Assessment Review Board (this “Board”) dismissed MPAC’s last motion to dismiss these appeals in Municipal Property Assessment Corporation, Region No 7 v Cherry, 2018 CanLII 60392 (ON ARB) (“Cherry”), issued on June 29, 2018. In that decision the Board ordered the Cherrys to permit an inspection of the property on or before July 23, 2018, and set a hearing date of August 16, 2018. The Board also opined that costs were the best remedy for most breaches of Board orders, and encouraged the parties to bring any cost arguments to the panel hearing the appeals.

2When MPAC made efforts to comply with the Board’s order, Mr. Cherry indicated that he would not permit an inspection because his dog had puppies on June 21, 2018 and would be disturbed by visitors. Mr. Cherry maintains that position in this motion: that an inspection of the home cannot take place until the puppies are more mature, likely in September. MPAC filed this second motion to dismiss the appeals on July 23, 2018.

3For the reasons set out below, MPAC’s motion is granted. The Cherrys’ appeals for the 2017 and 2018 taxation years are dismissed.

Background

4MPAC has attempted to schedule an inspection of the Cherry’s property many times. They made three requests through the request for reconsideration and schedule of events process, none of which were granted. They also made two requests in order to try to comply with the last order of the Board that an inspection take place on or before July 23, 2018. Mr. Cherry has not yet provided MPAC with an opportunity to inspect the property.

5MPAC contacted Mr. Cherry July 3, 2018, the first business day after the Board’s order, and offered to inspect the property on any weekday between then and the compliance deadline of July 23, 2018. Mr. Cherry did not respond until July 13, 2018, 10 days later, saying that his dog had puppies several weeks before and that an inspection would be hard on the puppies. He denied the inspection request on that basis, suggesting dates well after the hearing date that had been set by the Board. MPAC reached out again on July 17, 2018 reminding Mr. Cherry of the Board imposed deadlines. Mr. Cherry responded the next day, July 18, 2018, saying that an inspection would be too disruptive to the dogs. MPAC responded that same day, offering to conduct the inspection in the least disruptive way possible. Mr. Cherry never replied to that offer.

Dismissal

6This Board held, in Municipal Property Assessment Corporation, Region No. 9 v 234900 Ontario Ltd., 2018 CanLII 248 (ON ARB), 2017 CanLII 74719 (ON ARB) at para 8, that dismissal “is an extreme remedy and should only be granted in the clearest of cases.” The Board stated, in Cherry at paragraph 10, that the “clearest of cases are those where there are willful breaches of the Board’s orders or Rules that are entirely attributable to the taxpayer.”

7Mr. Cherry’s correspondence with MPAC, and his submissions to this Board, both show a willful breach of two clear Board orders, the second of which is only attributable to the Cherrys. MPAC offered very reasonable terms for an inspection and was willing to take steps to address the concerns raised by Mr. Cherry. It seems clear from the pattern of correspondence that Mr. Cherry has no intention to have the property inspected by MPAC. His only offer of a date was after MPAC had filed its last dismissal application, which he should have known would not be accepted, given the pending dismissal motion. At no other time has Mr. Cherry offered MPAC access to the property, even though he has been ordered to do so on two separate occasions. That is a willful breach of Board orders and valid grounds for dismissal.

Costs

8I agree with the panel in Cherry that many breaches of the Rules will be best addressed through a cost award. However, Cherry states, at para 14, that there “will be clear cases of significant taxpayer non-compliance that may justify a dismissal order.” This is one of those cases. The Cherrys’ non-compliance is significant, ongoing, and prevents MPAC from being able to prepare a case for the Board. This is one of the few cases that cannot be fairly addressed through a cost award.

CONCLUSION

9The Cherrys are in breach of two orders of the Board to permit an inspection of their property. That is a willful and significant breach of the Board’s process and this is, therefore, an appropriate case in which to exercise the Board’s extreme power of dismissal. I dismiss the 2017 and 2018 assessment appeals filed by the Cherrys for this property.