Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: December 20, 2019

FILE NO.: DM162592

Moving Party: The Corporation of the City of Pickering

Respondent(s): Municipal Property Assessment Corporation (“MPAC”), Region 13; 2531751 Ontario Inc.

Property Location: Liverpool Road

Municipality: City of Pickering

Roll Number: 1801-020-017-30400-0000

Appeal Number(s): 3316885 and 3355304

Taxation Years: 2018 and 2019

Hearing Event No.: 725573

Legislative Authority: Rule 82 of the Assessment Review Board Rules of Practice and Procedure

Heard: October 28, 2019 by written submission

Parties	Representative	Submissions
The Corporation of the City of Pickering	Mike Jones	Moving Party
MPAC	Drew Samuels	Received
2531751 Ontario Inc.	Colin Francis	Received

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON

DISPOSITION OF MOTION

1The Corporation of the City of Pickering (the “Municipality”) brings this motion to alter the timeline set out in the Schedule of Events (“SOE”) that arose from the Assessment Review Board’s (the “Board’) assignment of a Commencement Date of May 15, 2018 in these appeals. In particular, the Municipality now wants to file its Statement of Response (“RSOI”) that was due on April 2, 2019, which it emailed to the other parties and the Board on August 13, 2019.

2MPAC and 2531751 Ontario Inc. (the “Appellant”) oppose the motion. They argue that there are no exceptional circumstances justifying the alteration of the SOE, and that a party that does not serve its RSOI in accordance with the SOE is deemed not to oppose any future settlement in the proceeding. MPAC and the Appellant came to an agreement to settle the appeals on the same date that the Municipality produced its RSOI, August 13, 2019.

3For the reasons that follow, this motion is denied.

REASONS FOR DISPOSITION OF MOTION

Rule 14

4The first issue to be determined is one raised by the Appellant in its motion material where it says that Mr. Jones, the representative of the Municipality, “is acting as both an advocate and witness which is prohibited by Rule 14 (of the Board’s Rules of Practice and Procedure (the “Rules”)) without leave of the Board.”

5Rule 14 only applies to representatives licensed by the Law Society of Ontario (“LSO”). It prohibits those licensees from acting as both a witness and an advocate in a general proceeding (such as this one) without leave of the Board.

6There is no evidence before the Board that Mike Jones, the Municipality’s Supervisor of Taxation whose affidavit was filed in support of the motion, is an LSO licensee. There were also no formal submissions from the Municipality beyond Mr. Jones’ affidavit. Based on this lack of evidence before the Board, the Appellant has not proven that Mr. Jones is an LSO licensee. Therefore, the Board finds that Rule 14 does not apply.

Chronology

7Mr. Jones’ affidavit sworn on October 1, 2019 sets out the chronology of events leading to this motion.

8As noted in the introduction above, the Board assigned a May 15, 2018 Commencement Date to the appeals pursuant to Rule 33, and the SOE generated pursuant to Rule 34 flowed from that date.

9On October 9, 2018, the Appellant served its Statement of Issues (“SOI”) to the Municipality and MPAC in accordance with the SOE.

10The Municipality was copied on the email correspondence between MPAC and the Appellant which followed, and on March 7, 2019, MPAC made a without prejudice offer to settle the appeals to the other parties. Following that, on the same date, the Appellant’s representative requested further information from MPAC by email.

11On April 2, 2019, the responding parties in the appeals were to have served and filed their RSOIs pursuant to the SOE. The Municipality did not serve and file an RSOI at that time as required by the SOE and subsequently the Appellant and MPAC continued corresponding with each other, not copying the Municipality.

12The next time the Municipality was copied on emails between the other parties was on July 15, 2019 when a further revised offer was made by MPAC. That offer was accepted by the Appellant on July 23, 2019. On August 13, 2019, the same day the Municipality attempted to file its RSOI, minutes of settlement executed by MPAC and the Appellant were sent to the Municipality.

The Municipality’s Position

13In his affidavit, Mr. Jones acknowledged that the Municipality did not comply with the SOE and that “the city did not know that MPAC’s offer met the RSOI requirements.” He argued that the settlement discussions between the other parties and the documents exchanged should also have been sent to the Municipality, which had the impression with no emails received that negotiations had simply “stalled.” Mr. Jones also acknowledged that “not understanding the Rules does not exempt the (Municipality) from them, and the (Municipality) was guilty of not submitting an RSOI by the deadline.”

Analysis

14The first explanation provided by the Municipality seemed to blame MPAC for the Municipality’s failure to serve and file an RSOI. While it does appear that MPAC also did not file an RSOI, that further failure did not waive the Municipality’s obligation to comply with the Rules to serve and file an RSOI if it had continued interest in the appeals.

15The Municipality then argued it should have been copied the correspondence from which it was excluded and that the process was unfair. Mr. Jones wrote in his affidavit that “relevant information and documents were exchanged before the RSOI was due, when the (Municipality) was undoubtedly a party to the appeal.”

16The responses of the other parties in the motion do not explain why Municipality was not copied, but it might have had to do with the fact that the Municipality had not provided them with an RSOI. The Municipality should have known of the importance of RSOIs in the Board’s process, because Rule 39 provides that “a party that does not serve a statement of response in a general proceeding on or before the day set out in the schedule of events is deemed not to oppose any further settlement in that proceeding.” In fact, that is the ultimate position taken by the respondents to the motion, that because no RSOI was filed, they considered the matter settled with the minutes of settlement that did not need the consent of the Municipality as the Municipality was deemed not to oppose any settlement pursuant to Rule 39.

17Mr. Jones was candid in his affidavit about the Municipality’s error in not serving and filing an RSOI. However, Rule 82 provides that “after the day set in Rule 33 as the start of a proceeding the Board will not alter any timeline set out in the schedule of events, other than exceptional circumstances.”

18In Mississauga (City) v Michalakos, 2018 CanLII 126632 (ON ARB) at para. 10, the Board determined that “exceptional means, among other things, something that does not occur regularly, something unusual, or something atypical.” Here, beyond the indication that the Rules were not understood, the Municipality’s affidavit lacks any explanation of circumstances, let alone exceptional ones.

19As a result, the Board finds that the motion should be dismissed. Therefore, the next question, whether the Board should exercise its discretion to grant the relief requested, need not be considered. The minutes of settlement executed by the Appellant and MPAC should be resubmitted and processed by the Board where, pursuant to Rule 39, the Municipality will be deemed not to oppose the settlement.

Costs Requested

20Finally, the Appellant argued very briefly at the conclusion of its written submission that costs should be ordered pursuant to Rule 116. It did so without putting forward any quantum of costs requested, any jurisprudence to support such an order, or any reason other than suggesting the Municipality took a frivolous position that was a waste of time and resources.

21The motion was not frivolous and costs will not be ordered. The Municipality acknowledged that it did not understand the Rules and realized the consequences of that lack of understanding when it received executed minutes of settlement from the parties. That is when it produced its RSOI. The Appellant’s representative will know the rarity of costs orders at the Board, which is perhaps why not a single case was cited to support its submission for costs.

22The Board’s perspective on these circumstances is different, because even though the motion was denied, it would not have been necessary at all had the Appellant and MPAC thought to copy its correspondence to the Municipality notwithstanding its failure to serve and file an RSOI.

CONCLUSION

23The Corporation of the City of Pickering’s motion to alter the timeline set out in the Schedule of Events pursuant to Rule 82 is denied.

24Within 30 days of the date of this decision, MPAC and 2531751 Ontario Inc. shall provide to the Board their minutes of settlement in these appeals which The Corporation of the City of Pickering shall be deemed not to oppose pursuant to Rule 39.

25There shall be no costs in the motion.