Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: November 12, 2019

FILE NO.: DM 2019M57

Moving Party(ies): 2604696 Ontario Inc.

Respondent(s): Municipal Property Assessment Corporation, Region 09

Respondent(s): City of Toronto

Property Location(s): 1680 Midland Avenue, Unit 3

Municipality(ies): City of Toronto

Roll Number(s): 1901-043-670-04322-0000

Taxation Year(s): 2018 and 2019

Hearing Event No.: 725365

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

Heard: October 29, 2019 by written submission

Parties	Representative	Submissions
2604696 Ontario Inc.	Nurhan Dulgeryan	Moving Party
Municipal Property Assessment Corporation	Ashtyn Rank	Received
City of Toronto		Not Received

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON

DISPOSITION OF MOTION

12604696 Ontario Inc. (the “Moving Party”) was a tenant of 1680 Midland Avenue, Unit 3 (the “Subject Property”) until May 23, 2018 when it purchased the Subject Property.

2Nurhan Dulgeryan is the owner of the corporate Moving Party and brings this motion to file appeals for the 2018 and 2019 taxation years.

3MPAC, represented by Ashtyn Rank, opposes the motion. The City of Toronto, which would be a party to any appeals allowed in the motion, made no submissions on the motion.

4For the reasons that follow, the Moving Party’s motion to file late appeals is granted for the 2019 taxation year but denied for the 2018 taxation year.

Background

5This motion was supported by Mr. Dulgeryan’s statutory declaration dated July 24, 2019. In it, Mr. Dulgeryan wrote that he did not receive a notice of assessment in May 2018 and that “on June 7, 2019, (he) requested the Board to extend the time to file a request for reconsideration for 2018 and 2019 within 30 days of becoming aware of not receiving (his) Notice of Assessment.” A copy of that written request was not included with the statutory declaration.

6MPAC filed the affidavit of Katelyn Morrow sworn on October 3, 2019. In it, she wrote that the Subject Property is an industrial condominium unit in an industrial mall that was purchased by the Moving Party on May 23, 2018 following its tenancy in the same unit. In its accompanying submission, MPAC noted that the Moving Party could not have said it did not receive a notice of assessment for the 2019 taxation year when a copy was included with the Moving Party’s submission.

7Mr. Dulgeryan replied to MPAC’s submission by email on October 10, 2019. In that document, he wrote that the notice of assessment for the 2019 taxation year was obtained online after he had a conversation with the owner of a neighbouring unit on June 5, 2019, and that it was not received by mail from MPAC.

Rule 26(b)

8Rule 26(b) provides that a late appeal can be accepted by the Board “only if 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 that is the subject of the appeal.”

9In Cherry Beach Sailing Clubs v. Municipal Property Assessment Corp., Region 09, 2018 CanLII 107727 (ON ARB) at para. 8, the Board determined that a late appeal could only be granted if all three conditions are met.

Analysis

Entitled to Notice: 2018 Taxation Year

10The first question to be determined is whether the Moving Party was entitled to receive notices of assessment. In its submission, MPAC argued that because the Moving Party was not the owner of the Subject Property at the time of the return of the roll for the 2018 taxation year, it was not entitled to receive the notice of assessment for that taxation year.

11Section 35(2) of the Assessment Act, R.S.O. 1990, c. A. 31 (the “Act”) provides the date for the return of the roll as “not later than the second Tuesday following December 1 in the year in which the assessment was made.” This date would have been in December 2017 for the 2018 taxation year. The Moving Party was not the owner on the roll return date for the 2018 taxation year because the sale transaction occurred on May 23, 2018. The Moving Party was not, therefore, entitled to notice on that basis.

12Section 35(2) of the Act does provide however that tenants are entitled to notice in certain situations. Specifically, it says that where “a person who receives a notice shall, within 14 days after receiving the notice, give a copy of the notice to each tenant who, under the tenant’s lease, is required to pay or reimburse the landlord for all or part of the taxes on the land (emphasis added).”

13The Moving Party did not submit any evidence to prove that it was required to pay or reimburse the landlord for all or part of the taxes in 2018, and, without that evidence, the Board cannot determine that the Moving Party was entitled to receive notice. Moreover, had it been the case that the Moving Party was liable for taxes on the land in 2018, that evidence could have been submitted on reply but was not.

14As a result, the Board finds that the Moving Party has not met the first requirement of Rule 26(b) for the 2018 taxation year.

Entitled to Notice: 2019 Taxation Year

15The Moving Party was, however, the owner on the date that the roll was returned for the 2019 taxation year. It was therefore entitled to receive a notice of assessment in the 2019 taxation year and meets the first requirement of the rule for that taxation year.

Did Not Receive Notice

16In his statutory declaration, Mr. Dulgeryan wrote only that he did not receive a notice of assessment and did not say whether he was referring to one or both of the taxation years in question. For the 2018 taxation year, his not receiving the notice of assessment was most likely because the Moving Party was a tenant and not an owner of the Subject Property. There was no information as to why the Moving Party would not have received the notice of assessment for the 2019 taxation year and MPAC noted in its material that there was no dispute as to the Moving Party’s address.

17The statement in the statutory declaration is sufficient for the Board to determine that the Moving Party did not receive notice of assessment for either taxation year. It therefore meets the second part of the test in Rule 26(b).

Filed Within 30 Days

18Mr. Dulgeryan stated in the statutory declaration that a request to extend the time to file a Request for Reconsideration (RfR) was submitted to the Board on June 7, 2019. This was not provided with his submissions and MPAC noted that the Board acknowledged receipt of the Moving Party’s request to extend time to file an appeal on July 24, 2019.

19The Board did, however, receive a copy of an RfR from Mr. Dulgeryan on June 7, 2019. The Board replied on June 25, 2019 saying it did not have jurisdiction to consider RfRs for properties not in the residential, farm, managed forests and conservation land tax classes and the Subject Property was not in any of these property tax classes. It was not until July 24, 2019 that the Moving Party filed the motion to extend time to file an appeal.

20Rule 26(b) requires an appellant to file an appeal within 30 days of becoming aware of the assessment that is the subject of the appeal. Mr. Dulgeryan became aware of the assessments on June 7, 2019 when he retrieved the notice of assessment online but did not file the request to extend time until July 24, 2019, more than 30 days later. He did, however, file the RfR within 30 days of becoming aware of the assessment, in fact submitting it on the same day he became aware of the assessments on June 7, 2019. The issue for the Board to consider then is whether that filing was sufficient to meet the third requirement of Rule 26(b).

21The first potential impediment to finding the Moving Party met the third part of the test is where a statutory declaration (which is similar enough to the requirement of an affidavit in Rule 26(b)) was not filed until July 24, 2019 with this motion. It is notable, however, that the Rule does not require that the affidavit be filed at the time of filing the appeal. It only requires its filing in support of the motion to which the Board assigns timelines which were met by the Moving Party in this case.

22The next issue is whether the completed RfR form filed by Mr. Dulgeryan on June 7, 2019 could be characterized as the “appeal” in the third requirement of Rule 26(b). Most often these “appeals” take the form of affidavits that are also relied upon to support the request to extend time in the motion. There is no reason that an RfR could not also be considered as an “appeal” in Rule 26(b) providing that it contains some sort of an explanation that would place it within one of the bases of appeal in section 40(1) of the Act.

23In the RfR dated June 7, 2019, Mr. Dulgeryan stated that he wanted a reconsideration of the assessment even though he acknowledged having missed the deadline. Section 40(1)(a)(i) of the Act contains similar meaning in that it provides that “any person…may appeal in writing to the Assessment Review Board…on the basis that…the current value of the person’s land or another person’s land is incorrect.”

24The Board finds there to be a sufficient nexus between the statement that the Moving Party wants a reconsideration of the assessment in the RfR and the head of appeal in the Act that the assessment is incorrect for the RfR to be considered an “appeal” pursuant to Rule 26(b) in these circumstances. Such an interpretation of Rule 26(b) would be consistent with Rule 4, which provides that the Rules are to be interpreted liberally and is the fair result in the circumstances.

25The Board therefore finds that, where the Moving Party became aware of the assessment on June 7, 2019 and filed the RfR contesting the assessment the same day, it met the third requirement of Rule 26(b).

Late Appeal

26The Moving Party only met the second and third requirements of Rule 26(b) for the 2018 taxation year because it did not prove on a balance of probabilities that it was entitled to receive notice of assessment for that year. As a result, its motion to extend time for that taxation year is denied.

27However, the Moving Party met all three requirements of Rule 26(b) for the 2019 taxation year because it was entitled to receive notice of assessment, did not receive that notice until it retrieved it and filed an appeal within 30 days of the notice of assessment coming to its notice.

CONCLUSION

282604696 Ontario Inc.’s motion to extend time to file an appeal for the 2018 taxation year is denied and its motion to extend time to file an appeal for the 2019 taxation year is granted.