Municipal Property Assessment Corporation v. Abacus Real Estate Investments Ltd., 2018 CanLII 99119

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: October 19, 2018

FILE NO.: DM 2018M029

Moving Party(ies): Municipal Property Assessment Corporation (“MPAC”) Region 21

Respondent(s): Abacus Real Estate Investments Ltd.

Respondent(s): City of Waterloo

Property Location(s): 405 Weber Street North

Municipality(ies): City of Waterloo

Roll Number(s): 3016-014-000-11100-0000

Appeal Number(s): 2964853, 3026210, 3090422 and 3157567

Taxation Year(s): 2013, 2014, 2015 and 2016

Hearing Event No.: 702669

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

Heard: In writing

APPEARANCES:

Parties

Representative

MPAC

Michael Radan

Abacus Real Estate Investments Ltd.

No one appeared

City of Waterloo

No one appeared

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1MPAC seeks to have these appeals dismissed because Abacus Real Estate Investments Ltd. (the “Company”) did not serve a statement of issues on or before the date specified by the Assessment Review Board (the “Board”). The Company did not make any submissions on this motion, despite being served with notice. The City of Waterloo did not participate in this motion either.

2For the reasons that follow, the appeals are dismissed for non-compliance with the Board’s Rules of Practice and Procedure (the “Rules”).

Background

3The Company is the property manager of the previous owner of the property located at 405 Weber Street North in the City of Waterloo. The property was sold in 2014. The Company has appealed the assessment in 2013 and was deemed to have filed appeals for the 2014, 2015, and 2016 taxation years, pursuant to subsection 40(26) of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”).

4The Board assigned a commencement date of December 15, 2017 to the appeals pursuant to Rule 33. MPAC sent its initial disclosure to the Company on January 8, 2018, in compliance with the schedule of events set by the Board. The next major step in the schedule of events was for the Company to provide MPAC and the City of Waterloo with its statement of issues on or before May 11, 2018. It did not do so.

5MPAC requested the Company’s statement of issues on June 15, 2018. John Weiler responded on June 18, 2016 saying that “CIRP Management no longer owns the property.” MPAC first sought dismissal of these appeals, by way of an Expedited Board Directions Form, on June 22, 2018. This motion was set, with notice to all parties, on July 13, 2018.

Dismissal

6MPAC puts forward two main theories on the legal basis for dismissing these appeals. First, they argue that the requirement to serve a statement of issues is a request by the Board for information, so the Company’s failure to comply is grounds for a dismissal. Their second argument is that Company has not complied with the Rules, and that the appeals should be dismissed on that basis. I do not accept that a statement of issues is a request for information. I do, however, find that the Company is in breach of the Rules in a clear, egregious, and unilateral way. I therefore dismiss the appeals.

Providing Information

7Rule 24(d) permits a Member of the Board to “dismiss an appeal without holding a hearing event… if… the appellant has not responded to a request by the Board for further information within the time specified by the Board.” MPAC argues that in setting the date on which the Company was to serve its statement of issues the Board was requesting information from the Company. I do not accept that assertion.

8The requirement in Schedule A of the Rules is that the Company provide “its disclosure and Statement of Issues to all other parties.” Those documents do not need to be provided to the Board until far later in the appeal process. It is difficult to see a requirement to send documents to other people as a request for information by the Board.

9This Board recently explained the policy rationale for Rule 24(d) in Municipal Property Assessment Corporation, Region No 7 v Cherry, 2018 CanLII 60392 (ON ARB) (“Cherry”). The Board held, at paragraph 8, that the Rule “is aimed at direct requests for information by the Board, such as contemplated in Rule 21.” That is, the Rule permits dismissal when the Board makes specific requests from specific parties. The schedule of events due dates are set by the Rules, and are properly addressed through Rule 24(e).

Failure to Comply

10Rule 24(e) permits dismissal without a hearing if “the appellant has not complied with statutory requirements or these Rules.” This 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 paragraph 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.”

11A party’s failure to provide a statement of issues when required can be a valid basis for dismissal, see 505896 Ontario Limited v Municipal Property Assessment Corporation, 2016 CanLII 2574 (ON ARB). The failure of the Company to provide a statement of issues by May 11, 2018 was a breach that is entirely attributable to the Company. The Company has not cured that breach. However, that is not enough to ground a dismissal. This Board held in Municipal Property Assessment Corporation, Region 14 v Upper Keele Inc., 2018 CanLII 126632 (ON ARB), 2018 CanLII 248 (ON ARB) at paragraph 10, that the “prejudice to each party will always be the primary consideration on a dismissal motion.”

12MPAC argues that it is prejudiced by the Company’s breach of the Rules both in the expense it has incurred in pursuing this motion and in how much more difficult it is to meet its other obligations when appellants fail to comply. MPAC provided evidence that it spent many hours on this motion, and its materials show that it spent some time in preparation. I also accept MPAC’s assertion that a failure of an appellant to provide a timely statement of issues makes its overall case management more difficult. It cannot provide a response when there is no statement of issues, and must take some steps to see if a statement of issues is likely. I accept that there is prejudice to MPAC flowing from the Company’s failure to provide a statement of issues.

13MPAC also argues that the City of Waterloo is prejudiced by the Company’s failure to provide a statement of issues. City of Waterloo was provided notice of this motion and did not file any material. I am not willing to infer prejudice without any direct evidence. I do not, therefore, find any prejudice to the City of Waterloo.

CONCLUSION

14MPAC’s motion to dismiss the Company’s appeals is granted. The Company is in breach of the Rules and that breach is entirely attributable to the Company. MPAC is prejudiced by the Company’s breach. I therefore dismiss the 2013, 2014, 2015, and 2016 appeals filed by the Company.