J. K. Dental Hygiene Inc. v. Municipal Property Assessment Corporation, 2019 CanLII 109525

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: November 15, 2019

FILE NO.: DM 2019M58

Moving Party(ies): J. K. Dental Hygiene Inc. c/o Kathleen Philip

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 16

Respondent(s): City of Orillia

Property Location(s): 18 Wyandotte Street

Municipality(ies): City of Orillia

Roll Number(s): 4352-020-201-21900-0000

Taxation Year(s): 2017, 2018 and 2019

Hearing Event No.: 724289

Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c.A31, as amended and Rule 26(b) of the Assessment Review Board Rules of Practice and Procedure

Heard: October 1, 2019 by written submission

Parties	Representative	Submissions
J. K. Dental Hygiene Inc.	Kathleen Philip	Moving Party
MPAC	Shelby Roper	Received
City of Orillia		Not Received

DISPOSITION OF THE BOARD DELIVERED BY JOANNE LAWS

DISPOSITION OF MOTION

1Kathleen Philip represents the Moving Party, J. K. Dental Hygiene Inc. which owns 18 Wyandotte Street (the “Property”), located in the City of Orillia.

2Ms. Philip seeks permission from the Assessment Review Board (the “Board”) to file late appeals for the 2017, 2018 and 2019 taxation years because she did not file appeals prior to the deadline for those taxation years as set out in the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”).

3Related to this motion is the fact that Ms. Philip initially filed a request to extend the time to file a Request for Reconsideration (“RfR”) for the 2017, 2018 and 2019 taxation years. The Board converted that request to a Late Appeal motion.

4Shelby Roper represents MPAC. She opposes the motion to file a late appeal but not the extension of time to file an RfR. The City of Orillia would be a party to any appeal but filed no submissions on the motion.

5In support of her motion, Ms. Philip filed an affidavit, correspondence and evidence. MPAC relies on the affidavit of Darren Carter along with written submissions.

6For the reasons set out below, the motion is denied.

REASONS FOR DISPOSITION OF MOTION

Legislation

7Section 39.1 of the Act provides, in part:

39.1 (1) Reconsideration of assessment – For 2009 and subsequent taxation years, the owner of a property or a person who has received or would be entitled to receive a notice of assessment under this Act may request the assessment corporation to reconsider the following matters no later than March 31 of the taxation year in respect of which the request is made:

1. Any matter that could form the basis of an appeal under subsection 40 (1).

2. Any matter that could form the basis of an application under section 46.

39.1 (1.1) Deadline to request reconsideration – A request for reconsideration under subsection (1) must be made no later than March 31, of the taxation year in respect of which the request is made.

39.1 (3) Omitted or supplementary assessment – Despite subsections (1.1), (1.2) and (2), for the 2017 and subsequent taxation years, a person who has received a notice of assessment under subsection 35(1) may request the assessment corporation to reconsider the assessment no later than 12 days after the issuance date printed on the notice of assessment.

8Section 40.(3) of the Act provides:

40. (3) Precondition of appeal. – For 2009 and subsequent taxation years, if a property is in the residential, farm or managed forests property class, or in such other circumstances as the Minister may prescribe, no appeal may be brought to the Assessment Review Board under subsection (1) by a person who is entitled to make a request for reconsideration under section 39.1 in respect of the property, if the person has not made the request within the time required under that section.

9Section 40.(4) of the Act provides:

40. (4) Extenuating circumstances. – If, in the Board’s opinion, there are extenuating circumstances explaining why a request for reconsideration in respect of a property was not made within the time required under section 39.1 by a person who was required to do so as a precondition of appeal under subsection (3), the Board may, on an application by the person during the taxation year, extend the deadline for making a request under that section.

10Rule 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.

Background

11For the 2016 taxation year, the Property was assessed wholly in the commercial tax class. At that time, the Moving Party filed an RfR with MPAC and then an appeal with the Board challenging the assessed value and the classification for 2016. It wasn’t until July 19, 2019 that the Board released a decision which was based on Minutes of Settlement received from the Parties reducing the assessed value from $443,000 in the commercial tax class to $422,000 with $369,000 in the commercial class and creating a residential portion, the value of which was $53,000.

12The results of the 2016 taxation year appeal occurred after the 2017, 2018 and 2019 taxation year assessments were returned and, therefore, those assessments did not reflect any change in value or classification for the Property.

13On July 26, 2019, in response to the Moving Party’s request to extend time to file an RfR for the 2017, 2018 and 2019 taxation years, this Board advised the Moving Party that it does not have the authority to extend time to file RfR’s for properties that are not in the residential, farm, managed forest or conservation lands. This is because the assessment roll showed the Property was wholly in the commercial tax class. Accordingly, the Board converted the request to extend the time to file RfRs to a request to file late appeals.

14The Moving Party followed this Board’s directions which were completed on August 7, 2019.

15In her affidavit, Ms. Philip affirmed that she is entitled to receive a notice of assessment for the Property, that she did not receive notice and that she filed the appeal with the Board within 30 days of becoming aware of the classification that is the subject of the appeal. In her submissions Ms. Philip states that she did receive a property assessment notice for the 2017, 2018 and 2019 tax years but the content was incorrect because it did not reflect the residential portion of the property. She submitted copies of the Property’s tax bills for 2017, 2018 and 2019 from the City of Orillia which show that the Property was wholly assessed in the Commercial tax class for those years. She did not indicate that the property assessment notices or tax bills were not received in a timely fashion.

16Ms. Philip submitted a July 9, 2019 email from Justin Johnstone, Senior Case Management Analyst (A) for MPAC, in which he acknowledges that the resolution of the 2016 appeal created a classification change for the Property and the Moving Party should be afforded the opportunity to file an RfR to meet the legislative requirements under the Act to file an appeal.

17Ms. Philip submits that she assumed any correction affecting the 2016 taxation year would “automatically effect change in the subsequent years.” She also argues that it is unreasonable for the moving party to make an appeal for subsequent taxation years without knowing the 2016 appeal results.

18In his affidavit, MPAC’s Darren Carter affirms that:

a. The Property Assessment Notice for the 2017-2019 taxation years was mailed to the Moving Party on or about October 18, 2016.

b. The mailing address is the same address on correspondence sent from the Moving Party and that listed on the municipal tax bills submitted by the Moving Party to the Board.

c. The Moving Party has not indicated that the mailing address is incorrect.

d. MPAC has no record of receiving an RfR which is a prerequisite to filing an appeal with the Board.

19Ms. Roper of MPAC submits that the Moving Party first became aware of the assessment or classification that is the subject of this motion on or about November 15, 2015 when it filed an RfR for the 2016 taxation year. She argues that the Moving Party’s motion for late appeal, received on August 7, 2019, exceeds the 30 day requirement of set out in Rule 26(b).

20Ms. Roper submits that while the Moving Party did not file RfRs in a timely manner, she echoed Mr. Johnston’s email that MPAC would not object to the Moving Party being granted an extension of time for filing RfRs.

Decision

Late Appeal

21Rule 26(b) sets out the Board’s authority to accept a late appeal. The use of the word “and” in the Rule indicates that all three elements of the Rule must be satisfied for a prospective Appellant to be successful: the Appellant is a person entitled to receive a notice of assessment, the Appellant did not receive that notice and the appellant filed an appeal within 30 days of becoming aware of the assessment or classification that is the subject of the appeal.

22The first requirement is that Ms. Philip is a person entitled to receive a notice of assessment. This was not disputed. I find that Ms. Philip is a person who was entitled to receive the notice of assessment for the Property.

23The second requirement is that Ms. Philip did not receive a notice of assessment. Although Ms. Philp affirmed that she did not receive a notice of assessment, her submissions are that she did receive a notice of assessment for the years in question but that the data in the notice was incorrect.

24Ms. Philip also submitted copies of the final property tax invoices from the City of Orillia for the 2017, 2018 and 2019 taxation years. Each was dated in June of the respective taxation year and indicated that the Property was assessed in the commercial tax class.

25I find that Ms. Philip received the notice of assessment for the 2017, 2018 and 2019 taxation years and that through the notice of assessment and the Property’s tax invoices she was aware of the classification which is the subject of this motion.

26The third question is whether the Moving Party filed an appeal within 30 days of becoming aware of the assessment or classification that is the subject of the appeal. I find that the earliest date Ms. Philip became aware of the assessment or classification was November 15, 2015 when she filed her 2016 RfR with MPAC. The latest date she became aware was soon after October 18, 2016, the date the 2017-2019 notice of assessment was mailed by MPAC.

27Ms. Philip argues that she filed her motion for a late appeal on August 7, 2019 which is within 30 days of receiving the Board’s July 19, 2019 decision for the 2016 taxation year. She argues that that is the date when she became aware of the classification change. I do not find this argument is persuasive for two reasons. First, the Board’s decision reflects the terms of the Appellant and MPAC’s settlement agreement which occurred at some unknown date prior to the date the Board’s decision was issued. Second, Ms. Philip was aware of the error in the classification since October 18, 2016 at the latest.

28Based on the evidence before me I find that Ms. Philip cannot qualify for a timely application as contemplated in Rule 26(b) because she was in receipt of the relevant notice of assessment and the period between the knowing of the assessment or classification that is the subject of the appeal is more than the 30 days.

Extending Time to File a Request for Reconsideration

29MPAC submits that filing an RfR is a prerequisite to filing an appeal for the Property. In reading s. 40(3) and (4) of the Act, I find that this is not possible. The Property was assessed wholly in the commercial tax class for the 2017-2019 taxation years. Filing an RfR is not a prerequisite for properties in the Commercial tax class (see s. 40(3)) and s. 40(4) of the Act limits extending the time to file an RfR to persons who were required to file an RfR as a precondition of an appeal. Even if it were required, this does not assist Ms. Philips in respect of the 2017 and 2018 taxation years. Section 40(4) clearly states that the person requesting the extension must do so during the taxation year for which the extension is granted. In this case, Ms. Philip did not make an application in the 2017 to 2018 years. In light of the above analysis and findings, I conclude that I do not have jurisdiction to extend the time to file an RfR in this case.

30It is clear that the Ms. Philip was waiting for the resolution of the 2016 appeal and that she thought that the resolution of that appeal would carry forward and correct errors in future tax years. This is not the case here. It is important for the taxpayer to understand that properties have been assessed in four year cycles and that the valuation date for each cycle is different. The 2013 to 2016 taxation years’ valuation day is January 1, 2012 and the 2017 to 2020 taxation years’ valuation day is January 1, 2016. Dates to file RfRs and appeals flow from these cycles and are set out in the notices of assessment. A 2016 taxation year appeal does not create appeals for the 2017 to 2020 taxation years which is in the next cycle. More importantly, property classifications can change from year to year. Therefore, it cannot be assumed that the partial residential classification ultimately determined for the 2016 taxation year would automatically apply to the 2017 and following taxation years. In this case, as previously stated, MPAC's Notices of Assessment made it clear that assessment of the property for the 2017 and subsequent years was based on a 100% commercial classification. As Ms. Philips disputed this classification, it was incumbent on her to file appeals under s. 40 of the Act to challenge this classification.

31For clarification, the Board notes that, as none of the parties have raised the application of s. 40.1 of the Act, more specifically, the issue of whether there are palpable errors in the assessment roll for this property, the Board, in this motion, has not made any determination of this issue.

32For the reasons above, the motion to file late appeals is denied.

CONCLUSION

33Ms. Philip’s motion to file a late appeal is denied because she has not met the requirements of Rule 26(b). In addition, the Board does not have jurisdiction to extend the time to file RfRs for the 2017, 2018 and 2019 taxation years. That request is also denied.