Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: November 27, 2019

FILE NO.: DM 2019M66

Moving Party(ies): 2356746 Ontario Inc.

Respondent(s): Municipal Property Assessment Corporation (“MPAC”), Region 13

Respondent(s): City of Oshawa

Property Location(s): 426 Niagara Drive

Municipality(ies): City of Oshawa

Roll Number(s): 1813-070-003-10000-0000

Taxation Year(s): 2019

Hearing Event No.: 725580

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

Heard: November 1, 2019 by written submission

Parties	Representative	Submissions
2356746 Ontario Inc.	Daniel Attard	Moving Party
MPAC	Ashtyn Rank	Received
City of Oshawa	Robert J. Heil	Received

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON

DISPOSITION OF MOTION

12356746 Ontario Inc. (the “Moving Party”) is the owner of 426 Niagara Drive in the City of Oshawa and brings this motion to file a late appeal for the 2019 taxation year.

2MPAC and the City of Oshawa (the “Municipality”), who would be parties to any appeal filed late, opposed the motion.

3For the reasons that follow, the Assessment Review Board (the “Board”) grants the Moving Party’s motion.

Background

4Caixia (Nancy) Bi is the director of the Moving Party. Her initial submission on the motion was her statutory declaration declared on August 15, 2019.

5In that brief document, Ms. Bi wrote that on June 30, 2019 she received a tax bill from the Municipality that was ten times higher than the year prior and that she “did not receive and (had) no knowledge of a Notice of Assessment regarding the proposed changes of the property taxes of the subject property.” Ms. Bi concluded her statutory declaration with a statement that she became aware that she had the right to appeal the assessment after a communication with the Board on or around July 23, 2019.

6MPAC relied on the affidavit of its Case Management Analyst Assistant Ryan O’Leary sworn on October 17, 2019. In that document, Mr. O’Leary confirmed that a notice of assessment was sent to the Moving Party for the 2019 and 2020 taxation years on November 27, 2018 and that the deadline to appeal was April 1, 2019.

7The Municipality filed no evidence on the motion.

8On reply, the Moving Party filed the affidavit of Andrew Attard (not its representative Daniel Attard) sworn on October 29, 2019. In that document, Mr. Attard reviewed the change in assessed values and confirmed Ms. Bi’s statement that she contacted the Board on July 23, 2019, 23 days after becoming aware of the assessment. He also noted that the Board’s Request for Reconsideration (“RfR”) team had replied to Ms. Bi by email on August 9, 2019 indicating that it had received her correspondence and that her RfR was being treated as a request to file a late appeal with the Board.

Submissions

9Three issues arose in the course of submissions in the motion.

10The first issue was that the Municipality indicated in its submission that it had not been served with all of the Moving Party’s motion material and needed further time to respond.

11The second issue was that the Moving Party filed its reply several days late and requested an extension of time. In addition, that submission filed by the Moving Party’s newly retained representative was more in the nature of an initial submission rather than a reply to submissions already made.

12The third issue had to do with an exhibit to Ms. Bi’s statutory declaration of an acknowledgment of receipt of an RfR when the RfR was not before the Board in any party’s motion material. It was only after the Board received all of the parties’ submissions that Ms. Bi’s RfR form filed on July 24, 2019 was located by the Board. In the “Reasons for Extension Request” box of the pre-printed form, Ms. Bi wrote only the following: “Request for re-assessment” and “current tax is 10 times than last year (sic).”

13To address all three issues, the Board granted the short extension of time requested by the Moving Party and allowed all parties additional time to file further submissions and reply if necessary, enclosing with its direction a copy of Ms. Bi’s RfR dated July 24, 2019. Neither MPAC, nor the Municipality added to their submissions, and therefore no further reply was necessary.

Law

14Rule 26(b) of the Board’s Rules of Practice and Procedure (the “Rules”) provides that:

26. The Board may accept an appeal received after the time set out in the Assessment Act 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.

15In Cherry Beach Sailing Clubs v Municipal Property Assessment Corporation, 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 Receive Notice

16The first part of Rule 26(b) requires a determination as to whether the appellant is a person entitled to receive notice of assessment.

17The corporate Moving Party is entitled to receive notice because it is the owner of the property. Ms. Bi, as the director of the Moving Party, would also be entitled to receive notice on the Moving Party’s behalf.

18The Moving Party therefore meets the first requirement of Rule 26(b).

Did Not Receive Notice

19The second part of Rule 26(b) requires a determination that the appellant, who is entitled to receive notice, did not receive notice.

20MPAC argued that the Moving Party did not meet this requirement because the notice of assessment was sent to the correct address. MPAC cited Greek Community of Metropolitan Toronto Inc. v Municipal Property Assessment Corporation, Region 09, 2019 CanLII 96142 (ON ARB) (“Greek Community”) where, at para. 10, the Board found that even though notice had been sent to the correct address, the office manager whose evidence was being relied on the motion did “not indicate whether or not it was received by the Greek Community of Metropolitan Toronto Inc., only that she did not receive the notice.” At para. 11 of that decision, the Board determined that because the only evidence before the Board was that the office manager had not received notice, the appellant community organization had. The Board found that the second requirement of Rule 26(b) had therefore been met.

21Without deciding the correctness of the Greek Community decision, the Board finds it to be distinguishable. This is because in that case it was the office manager who said she had not received the notice, and there was nothing explaining that employee’s duties: whether they included receiving and reviewing all mail, for example, or whether she might have had any decision-making authority with respect to assessments.

22Placed in that context, Greek Community is similar to another recent decision of the Board, Fontana v Municipal Property Assessment Corporation, Region No. 09, 2019 CanLII 96132 (ON ARB) (“Fontana”), where at para. 15 it determined that:

In this case, Ms. Fontana identifies herself as the property manager of the property but there is no provision in the Act entitling a property manager to receive a notice of assessment. As noted above, Ms. Fontana identifies herself as the person who receives and reviews all mail, but, beyond those limited functions, there is no indication of her authority, if any, including whether to initiate an appeal. A property manager who opens and reviews mail does not have the same rights and responsibilities as a property owner, and there is no evidence before the Board that Ms. Fontana was delegated any other authority over the property or its affairs.

23The fundamental difference between those cases and this case is in the individual who has acted on behalf of the corporation to bring the request to extend time. In Greek Community it was an office manager making the request, and in Fontana it was a property manager. In this case, however, the request was made by the single director of the Moving Party. Owners and directors are controlling minds of corporations, not office or property managers, especially absent any indication of delegated authority (as was mentioned in Fontana above). In this case, the single director of a corporation said she did not receive a copy of the notice of assessment and was not aware of it, and it is reasonable to assume no one else (if there was anyone else) controlling the corporation did either.

24As a result, and based on the evidence before it in this motion, the Board finds that the Moving Party met the second requirement of Rule 26(b).

Filed Within 30 Days

25The third part of Rule 26(b) requires a determination that the appellant filed an appeal within 30 days of becoming aware of the assessment.

26In her statutory declaration, Ms. Bi indicated that she became aware of the assessment on or around June 30, 2019 when she received a tax bill. Thirty days after that was July 30, 2019.

27MPAC argued that “the Moving Party’s communication to the Board on July 23, 2019 is not the day in which the Moving Party filed the appeal with the Board,” which is correct because that was when a mere communication with the Board occurred. Instead, the Board finds that the day Ms. Bi filed her appeal was on July 24, 2019 when she filed the RfR. On this point, the Board follows its recent decision 2604696 Ontario Inc. v Municipal Property Assessment Corporation, Region 09, 2019 CanLII 109526 (ON ARB) which determined at para. 24 that:

The 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.

28In the RfR, Ms. Bi clearly indicated disagreement with the assessment in requesting a new assessment, implying that it was too high by saying taxes had increased ten-fold. That, in the Board’s view, is sufficient to indicate an intention to appeal, even if it was on the incorrect form.

29The Board therefore finds that the Moving Party has met the requirements of Rule 26(b) and that its appeal for the 2019 taxation year should be accepted.

CONCLUSION

302356746 Ontario Inc.’s motion to extend time to file an appeal for the 2019 taxation year is granted.