Municipal Property Assessment Corporation, Region 18 v. Greengable Holding Ltd., 2019 CanLII 11624

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: February 14, 2019

FILE NO.: DM 158242

Moving Party(ies): Municipal Property Assessment Corporation (“MPAC”), Region 18

Respondent(s): Greengable Holding Ltd.

Respondent(s): City of St. Catharines

Property Location(s): 333 Ontario Street

Municipality: City of St. Catharines

Roll Number(s): 2629-040-038-00800-0000

Appeal Number(s): 2953953, 3023966, 3088409, and 3155835

Taxation Year(s): 2013, 2014, 2015, and 2016

Hearing Event No.: 709792

Legislative Authority: Rule 24(e) of the Assessment Review Board Rules of Practice and Procedure

Heard: January 28, 2019 by written submission

APPEARANCES:

Parties	Representative
MPAC	Kyle Duncan
Greengable Holding Ltd.	No one appeared
City of St. Catharines	No one appeared

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1MPAC seeks to have these appeals dismissed because Greengable Holding Inc. (the “Company”) did not serve a statement of issues on or before the date specified by the Assessment Review Board (the “Board”). The Company did not make any submissions on this motion, despite being served with notice. The City of St. Catharines also failed to provide any submissions.

2For the reasons that follow, the appeals are dismissed for non-compliance with the Board’s Rules of Practice and Procedure (the “Rules”).

Background

3The Company is the owner of the shopping centre at 333 Ontario Street in the City of St. Catharines. The Company filed an appeal of the 2013 taxation year assessment of the property with the Board. Appeals were deemed for the 2014, 2015, and 2016 taxation year because the 2013 appeal has not yet been resolved.

4The Board assigned a commencement date of April 16, 2018 to the appeals pursuant to Rule 33. MPAC sent its initial disclosure to the Company on May 10, 2018, in compliance with the schedule of events set by the Rules. The next major step in the schedule of events was for the Company to provide MPAC and the City of St. Catharines with its statement of issues on or before September 10, 2018. It did not do so.

5MPAC requested the Company’s statement of issues on December 10, 2018. The Company never responded to that request. MPAC requested dismissal of this appeal on December 18, 2018, and advised the Company of its request. This motion was set on December 20, 2018.

Dismissal

6MPAC argues that the Company has not complied with the Rules, and that the appeals should be dismissed on that basis. I find that the Company is in breach of the Rules in a clear, egregious, and unilateral way. I therefore dismiss the appeals.

7Rule 24(e) permits dismissal without a hearing if “the appellant has not complied with statutory requirements or these Rules.” This Board held, in Municipal Property Assessment Corporation, Region No. 9 v 234900 Ontario Ltd., 2018 CanLII 248 (ON ARB), 2017 CanLII 74719 (ON ARB) at paragraph 8, that dismissal “is an extreme remedy and should only be granted in the clearest of cases.” The Board stated, in Municipal Property Assessment Corporation, Region No 7 v Cherry, 2018 CanLII 60392 (ON ARB), at paragraph 10, that the “clearest of cases are those where there are willful breaches of the Board’s orders or Rules that are entirely attributable to the taxpayer.”

8A party’s failure to provide a statement of issues when required can be valid basis for dismissal, see Municipal Property Assessment Corporation, Region 19 v Wentworth Property Management Inc., 2018 CanLII 89428 (ON ARB). The failure of the Company to serve a statement of issues on the other parties by September 10, 2018 was a breach that is entirely attributable to the Company. The Company has not cured that breach. However, that is not enough to ground a dismissal.

9The “prejudice to each party will always be the primary consideration on a dismissal motion,” Municipal Property Assessment Corporation, Region 14 v Upper Keele Inc., 2018 CanLII 126632 (ON ARB), 2018 CanLII 248 (ON ARB) at paragraph 10. MPAC argues that it is prejudiced by the Company’s breach of the Rules in how much more difficult it is to meet its other obligations when appellants fail to comply. It argues that the prejudice cannot be cured by an award of costs.

10MPAC provided evidence of prejudice. It had to take additional procedural steps when the Company did not provide its statement of issues. I accept MPAC’s claim that a failure of an appellant to provide a timely statement of issues makes its overall case management more difficult. It cannot provide a response when there is no statement of issues, and must take some steps to see if a statement of issues is likely. I accept that there is prejudice to MPAC flowing from the Company’s failure to provide a statement of issues.

CONCLUSION

11MPAC’s motion to dismiss the Company’s appeals is granted. The Company is in breach of the Rules and that breach is entirely attributable to the Company. MPAC is prejudiced by the Company’s breach. I therefore dismiss the 2013, 2104, 2015, and 2016 appeals filed by the Company.