Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: November 8, 2019

FILE NO.: DM 2019M61

Moving Party(ies): Difelfam Realty Corp.

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 19

Respondent(s): City of Hamilton

Property Location(s): 56 Dundas Street East

Municipality(ies): City of Hamilton

Roll Number(s): 2518-303-330-42300-0000

Taxation Year(s): 2019

Hearing Event No.: 725567

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

Heard: October 28, 2019 by written submission

Parties	Counsel+/Representative	Submissions
Difelfam Realty Corp	Steve Pocrnic	Moving Party
MPAC	Michael Radan	Received
City of Hamilton		Not Received

DISPOSITION OF THE BOARD DELIVERED BY JOANNE LAWS

DISPOSITION OF MOTION

1Max DiFelice is the president of Difelfam Realty Corporation (“Difelfam”) which is the registered owner of 56 Dundas Street East in the City of Hamilton. On August 8, 2019 Difelfam’s representative, Pocrnic Realty Advisors Professional Corporation (“Pocrnic”) filed a motion for the Assessment Review Board (the “Board”) to accept a late appeal for the 2019 taxation year.

2MPAC is represented in the motion by Michael Radan who, by written submission dated October 15, 2019, indicated that if the Board found that the Moving Party has met the requirements to file a late appeal that the motion should be allowed.

3The City of Hamilton (the “Municipality”), which would be a party to the appeal if accepted, filed no submission in the motion.

4For the reasons that follow, Difelfam’s motion is granted, and the appeal is accepted for the 2019 taxation year.

Background

5The agreed upon facts are that MPAC issued a Property Assessment Notice (“PAN”) on November 27, 2018 for the 2019 and 2020 taxation years and that it was mailed to an incorrect address.

6The deadline to file an appeal for the 2019 taxation year, as set out in the PAN, was April 1, 2019. Deadlines for the 2020 taxation year are not at issue because those dates have not yet passed.

7In his affidavit of August 24, 2019 Mr. DiFelice states that after contacting MPAC to enquire about a substantial increase property taxes, he received a copy of the PAN on July 11, 2019 and on July 26, 2019 he formally engaged Pocrnic to represent him.

8Mr. Radan of MPAC submits that the Property’s owner contacted MPAC on July 2, 2019 to enquire about the tax increase and MPAC mailed the PAN to the Property’s owner’s correct address on July 3, 2019. On July 4, 2019 MPAC began communications with Pocrnic and on August 8, 2019 Pocrnic contacted the Board to request an extension of time to file a Request for Reconsideration, which this Board converted to a request to file a late appeal. Despite the above dates, Mr. Radan takes the position that the appeal was filed within 30 days, relying on July 11, 2019 as the date Difelfam first became aware of the assessment or classification that is the subject of the appeal.

Late Appeal

9Rule 26(b) of the Board’s Rules of Practice and Procedure (“Rules”) sets out the Board’s authority to accept a late appeal. It provides that:

26. The Board may accept an appeal received after the time set out in the Assessment Act only if the appellant satisfies the Board, by way of affidavit evidence, that:

(b) the appellant is a person entitled to receive a notice of assessment who did not receive notice and filed the appeal with the Board within 30 days of becoming aware of the assessment or classification that is the subject of the appeal.

10The first requirement set out in Rule 26(b) is that the prospective appellant be entitled to receive a notice of assessment. This has not been disputed. Therefore, I find that Difelfam meets the first part of the test.

11The second requirement set out in Rule 26(b) is that Difelfam did not receive the notice of assessment in question. Again, this has not been disputed. The parties agree that the notice was mailed to an incorrect address. Therefore, I find that Difelfam meets the second requirement because it did not receive the notice of assessment MPAC mailed on November 27, 2018.

12The third requirement set out in Rule 26(b) is that Difelfam filed an appeal within “30 days of becoming aware of the assessment or classification that is the subject of the appeal.” Based on MPAC’s submission that Difelfam first contacted them on July 2, 2019, I find that this is date Difelfam became aware of the assessment or classification that is the subject of the appeal. Therefore, the deadline to file a late appeal pursuant to Rule 26(b) would be 30 days later or August 1, 2019.

13The parties agree that the on August 8, 2019 Pocrnic submitted a written request to this Board to file a late appeal. Accordingly, I find that the Moving Party did not bring its motion within the 30-day time limit.

14However, I find that this is an appropriate case to exercise my discretion under Rule 17 which provides: “Any time period set out in these Rules can be altered by the Board.”

15In Block 9A Developments Ltd v Municipal Property Assessment Corporation Region 09, 2015 CanLII 37189 (ON ARB) at paragraph 13 and 347428 Ontario Ltd. v. Municipal Property Assessment Corp., Region No. 27, [2004] O.A.R.B.D. No. 113 at paragraph 19 the Board held that a good reason for extending time “should be determined by the principles of fairness, lack of prejudice to the other parties and the need for certainty in final decisions.” I accept that those are relevant considerations in determining whether to grant the extension of time pursuant to Rule 17.

16Based on the evidence presented, I find that Moving Party acted in a timely way to ascertain its tax status. At paragraph 23 of Solar Ship Inc. v Municipal Property Assessment Corporation, Region 20, 2019 CanLII 44275 (ON ARB) the Board held that:

“The most significant fact is that Solar Ship took no steps to address the supplementary tax bills for five months. It has not explained that delay at all. The Board should be reluctant to alter the timelines in the Rules for a party that does not explain the delay. While Solar Ship will be negatively impacted by the 30-day deadline staying in place, it had ample opportunity to consult counsel, or pursue other remedies.

In this instance, the Moving Party has explained the delay with sufficient details to justify that it acted in a timely way.

17I do not consider fairness or prejudice as issues here because MPAC, the only party who provided a response, took the position that a late appeal should be granted.

18On the issue of finality of the roll, I find that the short extension of time is not significant.

19Given the circumstances and jurisprudence, I find that an extension of time to the 30-day time period to the August 8, 2019 filing date is fair and the motion is granted.

CONCLUSION

20Leave to appeal for the 2019 taxation year is granted.