1837639 Ontario Inc. v. Municipal Property Assessment Corporation, 2019 CanLII 120216

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

December 12, 2019

FILE NO.:

DM 2019M63

Moving Party(ies):

1837639 Ontario Inc.

Respondent(s):

Municipal Property Assessment Corporation (“MPAC”)

Region 19

Respondent(s):

City of Hamilton

Property Location(s):

178 Queen Street South

Municipality(ies):

City of Hamilton

Roll Number(s):

2518-010-095-00700-0000

Taxation Year(s):

2019

Hearing Event No.:

725168

Legislative Authority:

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

Heard:

October 30, 2019 by written submission

Parties

Representative

Submissions

1837639 Ontario Inc.

Pocrnic Realty Advisors Professional Corporation

Moving Party

MPAC

Michael Radan

Received

City of Hamilton

Not Received

DISPOSITION OF THE BOARD DELIVERED BY JOANNE LAWS

DISPOSITION OF MOTION

1Hussein Ghaddar is the President of 1837639 Ontario Inc. (the “Moving Party”) which is the owner of 178 Queen Street South (the “Property”) in the City of Hamilton. The Moving Party has filed a motion to the Assessment Review Board (the “Board”) to accept a late appeal pursuant to Rule 26 of the Board’s Rules of Practice and Procedure for the 2019 taxation year.

2MPAC is represented in the motion by Michael Radan. MPAC’s position is that the motion is not timely and should be dismissed.

3The City of Hamilton (the “Municipality”), which would be a party to the appeal if it is allowed, filed no submissions in the motion.

4For the reasons that follow, the Moving Party’s motion is denied.

Issue Regarding Reply Evidence

5On October 25, 2019 this Board issued a letter to the parties setting out the following dates for a written motion hearing:

a. The Moving Party must file and serve all of its motion material, inclusive of any evidence, on or before October 7, 2019;

b. MPAC and the Municipality must file and serve all of their response material, inclusive of any evidence on or before October 18, 2019; and

c. The Moving Party may file and serve a reply, if required, on or before October 23, 2019.

6In reply to MPAC’s response material, the Moving Party’s representative, Pocrnic Realty Advisors Professional Corporation (“PRA”), filed a letter along with Mr. Ghaddar’s revised affidavit, sworn on October 23, 2019, specifying the date the Moving Party first became aware of MPAC’s assessment.

7MPAC objected to the reply affidavit arguing that a Reply is not an opportunity to provide new evidence and, therefore, it is not properly before the Board. I have reviewed the contents of the October 23, 2019 affidavit. The information contained in that document does not alter my decision on this Motion. Therefore, there is no need to address MPAC’s objection to the late filing of evidence.

Background

8Rule 26(b) of the Board’s 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.

9In support of his motion, Mr. Ghaddar filed a copy of the October 24, 2016 Property Assessment Notice along with his affidavit sworn on August 26, 2019. MPAC relied on written submissions explaining MPAC’s opposition to the motion.

10Mr. Ghaddar affirms that he did not receive MPAC’s October 24, 2016 Property Assessment Notice (“PAN”) for the 2017-2020 taxation years because it was mailed to an incorrect address. He affirms that the property owner did not receive the PAN, was unaware of the deadline to file an appeal and, consequently, no appeal was filed. The PAN includes deadlines to file both Requests for Reconsideration with MPAC and Appeals with this Board for each of the four taxation years.

11Mr. Ghaddar affirms that the PAN increased “the 2016 Current Value Assessment from $805,000 to $2,131,000 which “has resulted in a significant increase in taxes for tax years 2017-2020”.

12MPAC does not challenge that the Moving Party was entitled to receive a notice or that the Moving Party did not receive that Notice.

13However, MPAC is challenging the timeliness of the Motion because Mr. Ghaddar’s affidavit does not state when he or 1837639 Ontario Inc. first became aware of the assessment. MPAC argues that because Mr. Ghaddar affirms that the unreceived PAN resulted in a significant increase in taxes for the 2017 through 2020 tax years that Mr. Ghaddar was aware of the increase set out in the PAN as early as 2017.

Late Appeal

14The first requirement set out in Rule 26(b) is that the prospective Appellant be entitled to receive a notice of assessment. This was not disputed. I find that the Moving Party was entitled to receive the notice of assessment for the Property.

15The second requirement is that the Moving Party did not receive a notice of assessment. This, too, was not disputed by MPAC. I find that the Moving Party meets the second requirement because it did not receive the PAN that MPAC mailed on October 24, 2016 due to an incorrect address.

16The third requirement set out in Rule 26(b) is that the Moving Party filed an appeal “within 30 days of becoming aware of the assessment or classification that is the subject of the appeal”. Mr. Ghaddar is silent on when he first received a 2017 property tax invoice or what occurred between receiving it and when this motion was filed with this Board in August 2019. However, he affirmed that he incurred an increase in property taxes beginning in 2017. Therefore, based on the evidence, I conclude that the Moving Party was aware of the assessment or classification that would be the subject of an appeal sometime in 2017. This means that at least two years passed before this motion was filed.

17Consequently, I find that the Moving Party cannot qualify for a timely application as contemplated in Rule 26(b) because it did not file its motion “within 30 days of becoming aware of the assessment or classification that is the subject of the appeal”.

CONCLUSION

18The Moving Party meets only two of the three mandatory requirements of Rule 26(b). Therefore, it cannot file a 2019 taxation year appeal late because one of the mandatory requirements of Rule 26(b) has not been met. For this reason, this motion is denied.