Piggott v. Municipal Property Assessment Corporation, 2019 CanLII 109527

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

November 15, 2019

FILE NO.:

RD 2019M27

Assessed Person(s):

Shirley Ruth Anne Piggott

Appellant(s):

Shirley Ruth Anne Piggott

Respondent(s):

Municipal Property Assessment Corporation (“MPAC”) Region 28

Respondent(s):

Municipality of Callander

Property Location(s):

Con 20, Lot 15 PCL 5754

Municipality(ies):

Municipality of Callander

Roll Number(s):

4966-000-002-02900-0000

Appeal Number(s):

3340366, 3340370, 3340371, 3340367, 3340372, 3340373, 3340374, 3340369, 3340375, 3340376 and 3340377

Taxation Year(s):

2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015 and 2016

Hearing Event No.:

701975

Legislative Authority:

Rule 123 of the Assessment Review Board’s Rules of Practice and Procedure, as amended

Request for:

A review of the Board’s Decision DM 2018M23 issued on November 14, 2018

Heard:

By written submission

Parties

Counsel⁺/Representative

Submissions

MPAC

Calvin Ho⁺

Requester

Shirley Ruth Anne Piggott

Received

Municipality of Callander

Not Received

DECISION DELIVERED BY PAUL MULDOON AND ORDER OF THE BOARD

INTRODUCTION

1The Municipal Property Assessment Corporation (“MPAC”) filed a written Request for Review with the Assessment Review Board (“Board”) respecting the Decision of Vice-Chair Scott McAnsh (“Presiding Member”) issued on November 14, 2018, DM 2018M23 (“Decision”).

2The background to this Request for Review is as follows. Shirley Ruth Anne Piggott is the owner of a 99 acres vacant lot in the Municipality of Callander (“Subject Property”). The Subject Property is land-locked, meaning it is not accessible by road. The assessment of the Subject Property doubled between 2002 and 2007, and continued to increase over time. In 2016, Ms. Piggott attempted to sell the Subject Property for its assessed value of $102,000, however, an appraisal of the Subject Property revealed an estimated value of only $42,000. She then sought a Request for Reconsideration for the 2017 valuation of the Subject Property, which MPAC agreed to reduce from $97,000 to $48,500.

3Following this reduction, Ms. Piggott applied to extend the time to have appeals created to correct the error for the 2006 to 2016 tax years pursuant to s. 40.1 of the Assessment Act, R.S.O., 1990, c. A. 31 (the “Act”). Section 40.1 of the Act reads:

Correction of errors

40.1 If it appears that there are palpable errors in the assessment roll,

(a) if no alteration of assessed values or classification of land is involved, the Board may correct the roll; and

(b) if alteration of assessed values or classification of land is involved, the Board may extend the time for bringing appeals and direct the assessment corporation to be the appellant.

4The main issue to be reviewed is whether the Presiding Member should have created new appeals from 2006 to 2016 once it was found that there was a palpable error on the roll. MPAC acknowledged that the Subject Property was erroneously assessed as if it had road access and that a correction of that error reduced the assessment by half. Ms. Piggott asked the Board to infer that MPAC added road access in its assessment of the Subject Property starting in 2006. The Decision held that a reasonable inference could be drawn from the evidence that the assessment data was erroneous starting in 2006. The Presiding Member further held that this error met the legal framework for palpable error, and that leaving such a large error on the roll would be unreasonable and unfair to the assessed person and highly prejudicial to Ms. Piggott to let the assessment roll stand while containing these palpable errors. The Decision held that this was an appropriate case for the Board to exercise its discretion and grant Ms. Piggott’s application. The Decision therefore granted the extension of time for bringing appeals for the assessment of the Subject Property for the 2006 to 2016 tax years.

5On December 13, 2018, MPAC filed a Request for Review with the Board on the ground that the Decision contains significant errors in its analysis of “unreasonableness, unfairness, and prejudice” in considering whether to grant the application and extend the appeal timeline MPAC disagrees with the Board’s determination that there was a palpable error, however, it is not challenging that determination in this review request. MPAC is solely challenging the Decision with respect to the Presiding Member’s exercise of his discretion to grant the late appeals. Therefore, the scope of this review is limited to considering the exercise of discretion to grant the late appeals. MPAC requests that the Board cancel the Decision and dismiss the Ms. Piggott’s application to extend the time to have the appeals created.

6The Board requested that the Ms. Piggott and the Municipality of Callander (“Municipality”) provide response submissions, however only Ms. Piggott filed submissions. MPAC provided a reply beyond the deadline set out by the Board but requests that the Board consider its reply submissions asserting that there will be no prejudice to Ms. Piggott if the Board does so.

7For the reasons that follow, the Request for Review is denied and the Board confirms the Decision.

RELEVANT RULES

8Rules 120, 121, and 123 of the Board’s Rules of Practice and Procedure (the “Rules”) state:

Request for Review

120. A party may request a review of any final decision of the Board, other than a decision pursuant to Rule 122, by filing a request in writing no more than 30 days after the decision was issued, including:

(a) a copy of the decision to be reviewed;

(b) the written reasons for the decision, as set out in Rule 112;

(c) the reasons for the request, addressing the factors set out in Rule 121;

(d) notice of any appeals or applications for judicial review that have been filed in relation to the decision;

(e) proof of service on all other parties to the proceeding;

(f) the remedy or relief sought; and

(g) the fee specified by the Board.

Grounds for Review

121. A request for review will not be granted unless the Board is satisfied that:

(a) the Board acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

(b) the Board made a significant error of law or fact such that the Board would likely have reached a different decision;

(c) the Board heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result;

(d) there is new evidence that could not have reasonably been obtained earlier and would have affected the result; or

(e) any of the situations in Rule 122 exist.

Review Order

123. Upon consideration of a request for review, or on its own initiative, the Board may:

(a) dismiss the request;

(b) reinstate the appeal, with or without conditions; or

(c) after providing all parties an opportunity to make submissions,

i. confirm, vary, or cancel the decision,

ii. order a rehearing on all or part of the matter, or

iii. order a motion to decide the review.

ISSUES

9The Requester relies on the grounds set out in Rule 121 (b). The specific issue is whether the Presiding Member error in exercising discretion once a palpable error was found to create appeals from 2006 to 2016.

DISCUSSION, ANALYIS AND FINDINGS

The Requester’s Submissions

10MPAC submits that the Presiding Member made significant errors in the Decision when the Board found that there was palpable error and that the Board should exercise its discretion to create appeals once it has found a palpable error on the roll. Although MPAC states that it disagrees with the Presiding Member with respect to the finding of palpable error, it is only challenging the exercise of the Board’s discretion to create the new appeals.

11MPAC submits that the application and interpretation of s. 40.1 of the Act in the Decision is inconsistent with the scheme of the Act, the intent of the Legislature, and the framework for analysis established by the Board. MPAC argues that had the errors of law not been made, the Board likely would not have granted the extension for bringing the appeals for the 2006-2016 taxation years.

12MPAC argues the Presiding Member’s decision to extend the timelines for bringing appeals for the 2006-2016 taxation years is a significant error of law that subverts the legislative scheme with respect to finality and undermines the strict limitation period for filing appeals. The crux of MPAC’s argument is that s. 40.1 is an extraordinary remedy that cannot be relied on by parties to extend the timelines appeals where they did not pursue their appropriate remedies in a timely fashion. In support of this submission, MPAC cites Municipal Property Assessment Corp. v. Conservation Authority Grand River, [2018] O.A.R.B.D. No. 2, at para. 11 (“Conservation Authority Grand River”), Scott v. Municipal Property Assessment Corp., Region No. 15 [2015] O.A.R.B.D. No. 64 (“Scott”) at paras. 35-38.

13MPAC further submits that the Court held that taxpayers cannot rely on their own carelessness in not reviewing or availing themselves of their appeal rights if they properly received their notice of assessments. In support of this submission MPAC relies on 217-225 Richmond Street West Ltd. v. Ontario (Assessment Review Board), 1997 CanLII 26465 (ON CTGD), [1998] O.J. No. 35 at para. 1. While MPAC acknowledges that it has a statutory duty to assess properties correctly, it contends that, once the roll is returned, the responsibility to correct errors rests with the assessed. In support of this submission MPAC relies on Scott at para. 38.

14Finally, MPAC submits the Presiding Member erred by finding that Ms. Piggott suffered prejudice due to the significant increase in her property taxes due to the palpable error, and that serious prejudice to the Municipality of Callander could not be demonstrated by the evidence. MPAC argues the Presiding Member was required to weigh the prejudice to Ms. Piggott against her own statutory obligation to file appeals within the legislated timeline. MPAC submits this is a significant error of law. MPAC further argues that it is not necessary to present evidence to show there is prejudice to the municipality and other taxpayers since it is self-evident that reopening the appeals for a 10 years period is prejudicial.

Ms. Piggott’s Submissions

15Ms. Piggott submits that there are 11 years of palpable errors on the assessment roll, and since those errors are palpable, the Board should uphold the Decision of the Presiding Member.

16Ms. Piggott submits that is not fair that she has to pay double the taxes for 11 years when neighbouring property owners pays half of the rate she had to pay. She submits that she has been prejudiced by the actions of the MPAC.

17In Bleau v Municipal Property Assessment Corporation, Region 1, 2019 CanLII 11625 (ON ARB) (“Bleau”), she states that the palpable error in that case was a “true unintentional error” as in her case, yet MPAC did not oppose that matter.

18Moreover, in Bleau, she states that the assessed waited 13 years to bring her palpable error of MPAC, yet such a delay was not challenged in the manner it is being challenged in the present case. In fact, she states that MPAC did not appear in matter.

19Ms. Piggott also states that her case is similar to Municipal Property Assessment Corporation, Region 05 v Scrymgeour, 2018 CanLII 102695 (ON ARB); Municipal Property Assessment Corporation v Tait, 2018 CanLII 107725 (ON ARB) (“Tait”) and states that she does not understand, what she characterizes as the discriminatory practice of opposing her request for late appeals but not opposing the taxpayers’ appeals in Scrymgeour and Tait. In particular, MPAC did not raise the argument concerning fairness to other taxpayers and the municipality in those cases while it was raised in the present proceeding.

20Ms. Piggott states that while MPAC alleges there is an “error of law,” MPAC fails to specifically state “a specific law” in its submissions. In the end, she submits that MPAC has not demonstrated sufficient grounds for a Request for Review.

MPAC Reply Submissions

21The Board will accept MPAC’s Reply submissions although they were submitted late as they are helpful to the Board and are brief in nature.

22MPAC submits that the MPAC’s non-appearance in Bleau was unintentional and should not be taken as a position in support of the taxpayer’s claim. MPAC states that the Bleau case can be distinguished from the present case in that the taxpayer did take immediate steps to correct the inaccurate assessment but the delay was attributable to the municipality.

23In both Tait and Scrymgeour, MPAC states that the taxpayer took action in a timely way to correct the errors and that there were other circumstances that prevented the errors from being fixed. In the present matter, MPAC submits that the taxpayer in this case accepted her assessment and did not identify an error and hence, can be distinguished from Bleau, Tait and Scrymgeour. Finally, MPAC submits that it has identified “errors of law,” namely, common law precedents set by the Board and the Courts. Hence, decisions that are contrary to common law precedents should be considered errors of law.

Findings

Clarifying the Test in the Exercise of the Board’s Discretion

24All parties agree that section 40.1 is discretionary remedy. The first step is to consider whether there is a palpable error and if there is, whether the Board should exercise its discretion to create new appeals. Although it disagrees with the Presiding Member’s finding that there is a palpable error, MPAC is not challenging that finding.

25Instead, MPAC submits that the Presiding Member either misconstrued or misapplied the test as to the use of the Board’s discretion in assessing whether to create the late appeals. Hence, what is in question is the appropriate test that should be applied in the exercise of the Board’s discretion and whether that discretion was applied appropriately in the present case.

26MPAC disagrees with the Board’s finding that the taxpayer “reasonably managed” her assessment by waiting 10 years and then seeking a correction through a palpable error motion. MPAC submits that this is a reviewable error.

27MPAC submits that its understanding of the test is, where a palpable error been found, the Board’s exercise of discretion should be, as outlined in the Conservation Authority Grand River case, based upon whether it would be “whether it would be unreasonable, unfair and highly prejudicial to penalize parties who failed to meet their statutory obligation to file in a timely manner.” MPAC submits that “reasonableness” and “fairness” flow from the prejudice to the parties given the parties’ actions, or lack thereof, to correct the error(s) using their right to appeal assessments under the Act.

28MPAC states however, that the Presiding Member misconstrued or applied the wrong test. The Decision outlines the test used by the Presiding Member:

15. The relief in section 40.1 is discretionary. This means that I am not required to create appeals if I find there is a palpable error on the roll. Once I have found a palpable error I must consider if leaving the assessment closed would be “unreasonable, unfair, and highly prejudicial,” see Conservation Authority Grand River at paragraph 16.

16. The exercise of discretion requires a consideration of the reasonableness of leaving the roll closed with errors, the fairness of leaving the roll closed, and balance of prejudice.

29In effect, MPAC is submitted that the Presiding Member misconstrued the considerations of “reasonableness,” “fairness”, and “prejudice”.

30The Board agrees with MPAC that test enunciated in Conservation Authority Grand River is the governing or applicable test. In that case, the Board stated in paragraph 11:

Section 40.1 is unique in the Act in that is not has no limitation period. Everything else in the Act favours finality after a specific period of time. The legislature must have intended that the section be rarely used. A frequent reliance on s. 40.1 would obviously undermine the limitation scheme that dominates the Act. That is likely why the legislature created some barrier in its use in making the appearance of a palpable error in the assessment role a statutory precondition to the exercise of my discretion. It also means it must carefully exercise my discretion, to limit the application of this powerful remedy only to cases truly deserving of relief.

The exercise of any discretion must be principled and should rely on clear factors. I agree with Member Wyger in Municipal Property Assessment Corporation v. Chew, 2015 CanLII 78969 (“Chew”) at paragraph 21, that the purpose of the section is to cure situations where it "would be unreasonable, unfair and highly prejudicial to penalize [parties] for not acting quickly enough.” That is, when there are valid reasons for missing the statutory filing deadline in other provisions of the Act, s. 40.1 acts as a release valve, to see that fairness is preserved.”

31All tests converge to suggest that the Board’s discretion to grant a palpable error motion should only be exercised when it is clear that it would be unreasonable, unfair and highly prejudicial to penalize the parties for not meeting their statutory obligation in a timely manner. Put in another way, it would unreasonable, unfair and highly prejudicial to enforce the statutory filing deadlines in light of the palpable error.

Reasonableness and Fairness

32MPAC states the Presiding Member misinterpreted the “reasonableness” and “fairness” factors. The Presiding Member interpreted “reasonableness” in paragraph 18, as “the reasonableness of the leaving the roll closed with these palpable errors.” He then concluded that a doubling of the assessed value is a large error on the roll would be unreasonable. MPAC submits that the issue is not whether leaving a large error on the roll is unreasonable, but rather the need to balance the consequences of the error with the prejudice on the parties.” MPAC cites the fact the Board did not exercise its discretion in Grand River Conservation Authority case when arguably the size of the error was more significant.

33MPAC states that the Presiding Member made an error in not taking into account the statutory obligation of the taxpayer “to file appeals on time, and therefore failed to account for the competing interests of finality and correctness” which are part the legislative scheme of the Act. MPAC submits that the governing test is cited in Richmond Street West. In that case, the assessed did not receive a notice of assessment but did eventually receive a tax notice. The assessed claimed that it did not review the tax notice as it was in the process of bringing its arrears up to date. The Board refused the assessed complaint to hear the appeal on the basis it did not file the complaint as soon as reasonably possible after it became aware of the assessment. Upon judicial review, the Court agreed with the Board on the basis that the complainant cannot rely on its “own carelessness.”

34Similarly, MPAC also submits that the Presiding misinterpreted the “fairness” factor. The Presiding Member states:

19. Next I must consider if it is fair to leave the roll closed. I find that Ms. Piggott was an innocent party here and that it would therefore be unfair to deprive her of appeal rights. The evidence before me is clear that Ms. Piggott did not think the assessed value of the land was too high until she had it appraised in anticipation of sale. She did not even believe her real estate agent’s opinion that the assessed value was unreasonably high, insisting on an appraisal first. That is not the action of a party that sat on its hands.

20. It is also not clear from the evidence that Ms. Piggott was willfully blind to the errors in the roll. Her uncontested evidence is that she owned other properties that also saw great increases in value in 2006. I do not find that Ms. Piggott acted unreasonably in managing her assessment. It would therefore be unfair to effectively punish her by leaving the assessment roll closed containing palpable errors.

35MPAC submits “this analysis does not account for the statutory obligation of the Owner to file appeals on time, and therefore failed to account for the competing interests of finality and correctness. This is a significant error of law that subverts the legislative scheme of the Act.”

36MPAC submits that unless the Decision is overturned, taxpayers are given “an extraordinary, non-time limited appeal right contrary to the legislature’s intention to limit the time for bringing appeals. The Owner was aware of and considered her appeal right within the appeal rights within the statutory timeframe but elected not exercise her rights.” MPAC disagrees with the Decision’s finding that the taxpayer “reasonably managed” her assessments in that she did not exercise her rights to appeal for 10 years and this is not reasonable.

37When examining the test with respect to the exercise of the Board’s discretion, the Board agrees with the MPAC submissions that the “reasonableness” and “fairness” relates to conduct of the parties with respect to whether they acted appropriately or reasonably to correct the error. The consideration of what is reasonable and fair must always be considered in the context of the facts of the case, including the size or seriousness of the error, the actions or inactions of the assessed throughout the process of identifying the palpable error and the conduct of the other parties.

38The Presiding Member, at paragraphs 19 and 20, held that it was clear that Ms. Piggott was not aware of the error, and that she was not willfully blind to it. She presented uncontested evidence that she owned multiple properties that also saw significant increases over a similar period of time. The Presiding Member found that her assumption that the significant increase in the assessment of the Subject Property was based on market value increases rather than the error, was not unreasonable, and, therefore, she did not act unreasonably in managing her assessment.

39Although the test as articulated could have been made more clear, the Presiding Member did consider the key component of the test, namely, whether it was unreasonable and unfair to penalize the parties for not meeting their statutory obligation to file appeals to correct the errors. The Presiding Member considered the evidence and submissions of the parties and made a finding that in fact it was “unreasonable and unfair” to the assessed in this instance. As noted above, the Board prefers to frame the “reasonableness” and “fairness” contextually, examining all of the factors including the actions and inactions of the assessed (rather than framing the discretion as the Presiding Member in the context of whether it is unreasonable and unfair to leaving the roll closed.)

40However, when reviewing the Presiding Member’s analysis as a whole, it is apparent to the Board that the Presiding Member did in fact making a finding on whether it would be reasonably managed her assessments. When reviewing the evidence, the Board appreciates that MPAC disagrees with the Presiding Member’s findings and would have made contrary finding. The test in a review request is not whether another Member would have come to same finding, but whether exercise of the Presiding Member’s discretion was based on the evidence and submissions and therefore reasonable. As a general principle, it is not the role of a Request for Review process to replace the Board’s view of how to exercise discretion with that of sitting member unless the use of that discretion is so disconnected to the evidence and submissions that it amounts to an error of law. As noted, the Presiding Member considered the evidence and submissions and came to a finding. It cannot be concluded this the Presiding Member made an error of law

Prejudice

41The Presiding Member found that the taxpayer suffered prejudice due to the increase in her property tax while there was minimal prejudice to MPAC in correcting the date base and reassess the property. The Presiding Member found that prejudice could not be assessed with respect to the Municipality of Callander without more specific evidence. MPAC submits that the prejudice criteria must be weighed with respect to the taxpayers’ statutory obligation to file appeals on time. It submits that prejudice does not consider the amount of taxes paid by the taxpayer with the costs incurred by the Municipality in refunds or MPAC, instead, the "prejudice is weighed against the legislative intention for finality in the assessment roll.” There is prejudice to the Municipality and other taxpayers that need not be supported by any specific evidence of having to open the roll when it had been closed for such a long period of time. MPAC submits that the prejudice against the owner is negated where the taxpayer did not take the necessary actions to file an appeal where the errors were discoverable. MPAC submits that this is an error of law

42The Presiding Member noted that the test requires that he “balance the prejudice." The Board agrees there are a number of factors when considering prejudice, including the legislative intention for finality in the assessment roll, the prejudice to the municipality, the impact on other taxpayers and the consequences to the assessed. In this matter, the Board is not satisfied the Presiding Member exercised his discretion in a manner that is inconsistent with the scheme of the Act or the objective of the Legislature. It is implicit in the Decision that the Presiding Member was cognizant of the Legislature’s objectives of finality. The Board also finds that the Presiding Member applied the appropriate legal framework established in previous decisions of the Board, and provided thorough reasons in weighing the evidence before it to support its finding that this is an appropriate case to grant the extraordinary remedy.

43Finally, the Presiding Member weighed the prejudice in leaving the error on the assessment roll and found there was no evidence of significant prejudice to the municipality or MPAC, and significant prejudice to Ms. Piggott in terms of the financial consequences. The Board does not, however, that a Member can assume some prejudice to a municipality in such cases without the need for specific evidence. However, in the absence of any evidence, the Board can then weigh what evidence it has before it in the exercise of its discretion.

44Based on the reasons above, the Board finds MPAC has not established the Presiding Member made a significant error of law or fact such that the Board would likely have reached a different decision.

ORDER

45The Request for Review is denied.