Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE:
November 14, 2019
DM 162644
Moving Party(ies):
Alignvest Management Corporation; CA/CS Ottawa General Partner
Respondent(s):
Municipal Property Assessment Corporation (“MPAC”) Region 03
Respondent(s):
City of Ottawa
Property Location(s):
111 Cooper Street
Municipality(ies):
City of Ottawa
Roll Number(s):
0614-041-901-05400-0000
Appeal Number(s):
3269759 and 3289873
Taxation Year(s):
2017 and 2018
Hearing Event No.:
725464
Legislative Authority:
Rules 11, 122 and 123 of the Assessment Review Board Rules of Practice and Procedure
Heard:
September 13, 2019 by written submission
Parties
Representative
Submissions
Alignvest Management Corporation; CA/CS Ottawa General Partner
George Cameron-Caluori
Moving Parties
MPAC
Ashtyn Rank
Received
City of Ottawa
Not Received
DISPOSITION OF THE BOARD DELIVERED BY PAUL MULDOON AND JEAN-PAUL PILON
DISPOSITION OF MOTIONS
1CA/CS Ottawa General Partner (“Partner”) filed appeals for the 2017 and 2018 taxation years for the property at 111 Cooper Street in Ottawa that were withdrawn in error. Previously, Alignvest Management Corporation (“Alignvest”) brought a motion (the “Original Motion”) to reinstate those appeals, but that motion was denied because Alignvest was not a party to those appeals, Partner was.
2Alignvest and Partner have the same representative who now brings three motions requesting the reinstatement of the appeals. MPAC, represented by Ashtyn Rank, filed a written submission dated September 9, 2019 indicating that MPAC takes no position in the motions. The City of Ottawa, which would be a party to any appeals reinstated, made no submissions in the motions.
3The first motion (the “First Motion”) was filed by Alignvest on July 5, 2019 to be added as a party so that it would have standing to request the reinstatement of the withdrawn appeals. The Assessment Review Board (the “Board”) finds that Alignvest cannot be added to withdrawn appeals, and Board staff communicated that result to its representative on July 12, 2019. The reasons for that decision follow.
4The second motion (the “Second Motion”) was filed by Partner on July 17, 2019. It is, in essence, the same as the motion brought on by Alignvest in the Original Motion, but with Partner as the moving party. The cover letter to the motions indicates that Board staff told Partner’s representative that the Second Motion had been dealt with and denied, but this was not correct. For the reasons that follow, the Board grants the Second Motion.
5Partner filed the third motion (the “Third Motion”) on August 23, 2019 which basically argues that the Board should exercise its discretion and reinstate the appeals. The Board is granting the same relief as requested in the Second Motion, therefore the Third Motion is moot.
REASONS FOR DISPOSITION OF THE MOTIONS
Background
6In CA/CS Ottawa General Partner v Municipal Property Assessment Corporation, Region 03, 2019 CanLII 59507 (ON ARB) (“CA/CS”), which is the decision resulting from the Original Motion, the Board denied Alignvest’s request to reinstate appeals for the 2017 and 2018 taxation years.
7The request for reinstatement was filed pursuant to Rule 122 of the Board’s Rules of Practice and Procedure (the “Rules”). The relevant part of that Rule was summarized at para. 5 of CA/CS as stating 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.”
8The Board’s decision in CA/CS then quoted Winners Merchants International LP v. Municipal Property Assessment Corporation, Region 13, 2018 CanLII 78260 (ON ARB) (“Winners”) at para. 6:
There are three essential components to the Rule. 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. 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.
9The Board in CA/CS determined that the Moving Party had met the second and third requirements set out in Winners because the request for reinstatement had been filed on time and the appeals had been withdrawn in error. The motion was denied, however, because Alignvest was not a party to the appeals that had been withdrawn.
The First Motion: Adding a Party to a Proceeding
10The First Motion is brought by Alignvest for it to be added as a party so that it can then do what Partner attempted to in the Original Motion and request the reinstatement of the appeals. In its cover email enclosing the First Motion, the representative of Alignvest and Partner correctly noted that Rule 120 does not permit a party to request a review of a decision made pursuant to Rule 122. Instead, it brought the First Motion pursuant to Rule 11, which provides that “any person may seek an order from the Board, by motion, to be added to any proceeding either as a party or a participant.”
11The issue to be determined is whether a party can be added to a proceeding that has been withdrawn.
12The term “proceeding” appearing in Rule 11 is defined in Rule 3 as “an appeal before the Board, including all hearing events related to that appeal.” There is, however, no appeal to which Alignvest can be added as a party because the appeals were withdrawn. They are not appeals “before the Board,” and are not therefore proceedings as defined by Rule 3. The Board is required by Rule 4 to interpret the Rules liberally, but even the most liberal interpretation would not support a conclusion that a party should be added to proceedings that do not effectively exist. In essence, the Board is functus in relation to these appeals.
13As a result, the First Motion to add Alignvest as a party is denied.
The Second Motion Brought by Partner
14The second motion is, in essence, an attempt to correct the error made by the representative of Partner and Alignvest in the Original Motion, with Partner, not Alignvest, as the moving party.
15Unlike in the Original Motion, the Second Motion meets the first part of the test in Winners because Partner is the party to the appeals erroneously withdrawn. There is also no question that it meets the third part of the test where the Board already determined in CA/CS that the appeals were withdrawn in error.
16The more significant issue in the Second Motion is compliance with the second test in Winners which requires that the request for reinstatement be filed within 30 days of the withdrawal. Here the appeals were withdrawn in error on January 28, 2019 but the Second Motion was not filed until July 17, 2019.
17The circumstances are unusual because Partner and Alignvest have the same representative. In addition, the Original Motion would have been granted but for the fact that Alignvest was the moving party.
18The decision in Winners provides that “the order must be sought within 30 days after the appeal was dismissed or withdrawn” and, on its face, this motion clearly does not meet that requirement. However, the motion material points out that the error in withdrawing the appeals was detected almost immediately and that the Original Motion was filed on time. In addition, it was essentially a clerical error, where the representative of both Partner and Alignvest named the incorrect party in the motion, not realizing that an error had been made until the CA/CS decision was issued on June 25, 2019. This motion was filed within 30 days of that date on July 17, 2019.
19It is also uncontested “that there would be real jeopardy” to Alignvest if the appeals were not allowed and that there is no evidence of any prejudice to other parties if the motion were to be granted. It is noted, however, that these circumstances are unusual because the errors were caused by the representative of both parties to a sale transaction, where Partner was the vendor and Alignvest the purchaser, who was then in a position to advocate for both in these motions.
20The Board also finds that the Second Motion is not an attempt to re-litigate the Original Motion. In Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, the Supreme Court of Canada reiterated the test for issue estoppel where, if all three preconditions were met, the Board would be required to deny the Second Motion. These preconditions are that (1) the same question was decided; (2) the decision was final; and (3) the parties are the same.
21Issue estoppel does not apply in the Second Motion because the parties were not the same in the Original Motion where Alignvest was the moving party, and where Partner is the new, and correct moving party. They have the same representative, and at para. 2 of CA/CS the Board found that “Alignvest has some interest in the appeals,” but they are different entities, which is the reason the Original Motion was denied. Issue estoppel does not therefore apply to bar the relief requested in the Second Motion.
22As a result, the Board finds that the Second Motion should be granted.
The Third Motion and the Board’s Discretion
23The Third Motion essentially argues that the relief requested should be granted pursuant to Rule 123 which allows the Board to reinstate appeals withdrawn in error on its own initiative. However, the Board need not consider whether that would be appropriate after having granted the relief requested in the Second Motion. The Board therefore denies the Third Motion as moot.
CONCLUSION
24The First Motion brought by Alignvest Management Corporation is denied because a party cannot be added to an appeal that has been withdrawn.
25The Second Motion brought by CA/CS Ottawa General Partner is granted because it meets the requirements set out in the Board’s jurisprudence for reinstatement. Its appeals for the 2017 and 2018 taxation years are reinstated.
26The Third Motion brought by CA/CS Ottawa General Partner is denied because it is moot.
“Paul Muldoon”
PAUL MULDOON
ASSOCIATE CHAIR
“Jean-Paul Pilon”
JEAN-PAUL PILON
MEMBER
Assessment Review Board
A constituent tribunal of Tribunals Ontario - Environment and Land Division
Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248```