China Evangelical Seminary (Canada) v. Municipal Property Assessment Corporation, Region 9, 2019 CanLII 126974

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: December 13, 2019

FILE NO.: DM 2019M56A

AMENDED DECISION ISSUED ON: January 07, 2020

Moving Party(ies): China Evangelical Seminary (Canada)

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 9

Respondent(s): City of Toronto

Property Location(s): 1029 McNicoll Avenue

Municipality(ies): City of Toronto

Roll Number(s): 1901-104-380-00010-0000

Taxation Year(s): 2019

Hearing Event No.: 725066

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

Heard: October 16, 2019 by written submission

Parties	Representative	Submissions
China Evangelical Seminary (Canada)	Roland Lam	Moving Party
MPAC	Katelyn Morrow	Received
City of Toronto		Not Received

DISPOSITION OF THE BOARD DELIVERED BY JOANNE LAWS

AMENDED DECISION

In accordance with Rule 114 of the Assessment Review Board’s Rules of Practice and Procedure, as amended May 2019, relating to the correction of minor errors and in accordance with Rule 21.1 of the Statutory Powers and Procedure Act regarding the correction of errors, this order is issued to correct typographical errors in the order regarding MPAC’s representative and a word in paragraph 2. The amendments have been underlined for ease of reference. There are no other changes in this decision.

1China Evangelical Seminary (Canada) (“C.E.S.C.”) is the registered owner of 1029 McNicoll Avenue, Scarborough in the City of Toronto (the “Property”). Roland Lam a Director of C.E.S.C. seeks permission from the Assessment Review Board (the “Board”) to file an appeal under s. 40 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”) for the 2019 taxation year because an appeal was not filed by the deadline set out in the Act. MPAC’s representative, Katelyn Morrow, takes the position that the motion should not be allowed.

2C.E.S.C.’s initial application was for an extension of time to file a request for reconsideration. However, for the reasons given in this disposition, the Board does not have jurisdiction to grant the extension in this case. Therefore, in order to address the merits of C.E.S.C’s application the Board allowed its appeal to proceed and the Board has further considered the application as a request to file a late appeal.

3I find that C.E.S.C. has not met the requirements of Rule 26(b) and, therefore, the application to file a late appeal for the 2019 taxation year is denied.

REASONS FOR DISPOSITION OF MOTION

4Section 40 of the Act provides:

Appeal to Assessment Review Board

40 (1) Any person, including a municipality, a school board or, in the case of land in non-municipal territory, the Minister, may appeal in writing to the Assessment Review Board,

(a) on the basis that,

(i) the current value of the person’s land or another person’s land is incorrect,

(ii) the person or another person was wrongly placed on or omitted from the assessment roll,

(iii) the person or another person was wrongly placed on or omitted from the roll in respect of school support,

(iv) the classification of the person’s land or another person’s land is incorrect, or

(v) for land, portions of which are in different classes of real property, the determination of the share of the value of the land that is attributable to each class is incorrect; or

(b) on such other basis as the Minister may prescribe.

5Section 46 of the Act provides:

46 (1) Subject to subsection (1.1), any of the following persons may apply to the Superior Court of Justice for the determination of any matter relating to an assessment:

1. Any person against whom the land is assessed.

2. The assessment corporation.

3. The municipality in which the land is located or, if the land is located in non-municipal territory, the Minister. 2006, c. 33, Sched. A, s. 36 (1).

Exception

(1.1) No application to court may be made for the determination of a matter that could be the subject of an appeal under subsection 40 (1) or for a determination that lands are conservation lands for the purposes of paragraph 25 of subsection 3 (1).

6The evidence before me consists of Mr. Lam’s affidavits sworn on July 7 and September 18, 2019, and supporting evidence and arguments, MPAC’s affidavit sworn October 7, 2019 and supporting evidence and arguments, and, Mr. Lam’s reply affidavit sworn on October 9, 2019.

7In his affidavits, Mr. Lam affirms that:

a. C.E.S.C. has not received a property assessment notice for the 2017 through 2020 taxation years.

b. C.E.S.C. is a registered charity with the Government of Canada, operating an educational academy, and, therefore, the Property should be exempt from property taxation.

c. In May 2018 he received a final tax bill from the City for $26,942.60 for the 2018 taxation year.

d. “In or around April 2019” he received a rebate cheque from the City in the amount of $10,777.16 which reflects a 40% refund of the Property’s taxes.

e. The first time he became aware of the classification issue was on or around June 21, 2019 when he contacted this Board.

f. He received a Property Assessment Notice from MPAC “in or around 2016” which classified the Property as Commercial and that “[t]his is not an accurate classification and requires correction.” He also affirms that because C.E.S.C. “has not received” its Property Assessment Notice “since 2016/2017” it “cannot determine whether the Property is assessed at actual value, how the Property is classified, and whether the exemption has been property applied.

8C.E.S.C. submitted copies of:

a. C.E.S.C.’s registered charity status from a Government of Canada website.

b. Canada Revenue Agency documents in support of the business.

c. Land Registry documents.

d. The Property’s 2018 Final Tax Bill from the City indicating it was assessed as “Residual Commercial Band” 1 and 2 and the values for each Band

e. The City’s April 2, 2019 cheque in the amount of $10,777.16.

f. A Property Assessment Notice for the 2015 and 2016 taxation years which describes the Property as a small office building assessed in the commercial tax class.

g. The June 21, 2019 email to this Board from Rebekah Lam in which she states MPAC directed her to apply to this Board for a reconsideration of the classification, the exemption status and the tax rebate.

9Mr. Lam Argues that C.E.S.C. should be entitled to a 100% exemption from property taxes because it is a registered charitable organization operating as an educational academy. He asserts that C.E.S.C. is entitled to receive a notice of assessment but did not receive such a notice since 2016 or 2017. Mr. Lam argues that a change occurred in 2018 but C.E.S.C. did not receive notice of that change so he is seeking to appeal the 2019 taxation year to have all aspects of the Property’s assessment reviewed. He is asking the Board to reconsider the classification and the property exemption rebate amount C.E.S.C. is eligible for.

10MPAC’s Senior Case Management Analyst, Jonathan Langille, affirmed that:

a. MPAC issued a Property Assessment Notice (“PAN”) on October 2016 to C.E.S.C. for the 2017 through 2020 taxation years.

b. The PAN was mailed to the Property’s address.

c. The PAN sets out March 31, 2019 as the deadline to file an appeal for the 2019 taxation year.

11Ms. Morrow included a copy of the PAN dated October 18, 2016 for the 2017 -2020 taxation years. She argues that the motion to file a late appeal should be dismissed because C.E.S.C. did not file the motion within 30 days of becoming aware of the assessment or classification as required by Rule 26(b). Ms. Morrow argues that the first time the C.E.S.C. became aware of the assessment or classification was when it received the City’s tax refund cheque in April 2019 and that the deadline to file a motion for a late appeal was no later than May 30, 2019 which is 30 days after the last day in April.

Exemption from Taxes

12It appears that the Moving Party’s main concern is a tax exemption and, presumably, a change to that exemption which occurred in the 2018 taxation year. In North American Railway Hall of Fame v Municipal Property Assessment Corporation Region 23, 2016 CanLII 14708 (On ARB), at paragraph 15, the Board found that “questions of exemption from taxation are within the exclusive jurisdiction of the Superior Courts.” That is, only the Ontario Superior Court can determine if the Property should be exempt from taxation. This Board has no jurisdiction to make a determination of exemption from property taxes (see s.46 of the Act).

Request for Reconsideration

13Section 39.1(1.1) of the Act sets out a deadline of March 31, 2019 to make a Request for Reconsideration with MPAC for the 2019 taxation year. A Request for Reconsideration is not a precondition of filing an appeal with this Board for properties assessed in the commercial tax class and this property is assessed in that tax class (see s. 40(3)). As such, an appeal can be made with this Board without first making a Request for Reconsideration with MPAC.

14Section 39.1(1.1) of the Act provides:

39.1(1.1) An extension of time to file a Request for Reconsideration may be granted under 40(4) of the Act but only for those properties where a Request for Reconsideration is a prerequisite.

15Section 40.(3) sets out the precondition of an appeal:

40.(3) If a property is in the residential, farm or managed forests property class, or in such other circumstances as the Minister may prescribe, no appeal may be brought to the Assessment Review Board under subsection (1) by a person who is entitled to make a request for reconsideration under section 39.1 in respect of the property, if the person has not made the request within the time required under that section.

16Section 40.(4) provides that extending the time to file a Request for Reconsideration is only permitted where the RfR is a precondition of the appeal:

40.(4) If, in the Board’s opinion, there are extenuating circumstances explaining why a request for reconsideration in respect of a property was not made within the time required under section 39.1 by a person who was required to do so as a precondition of appeal under subsection (3), the Board may, on an application by the person during the taxation year, extend the deadline for making a request under that section. 2008, c. 7, Sched. A, s. 11.

17The Moving Party sought an extension to make a Request for Reconsideration after the March 31, 2019 deadline. Because the Board does not have authority to extend the time to file a Request for Reconsideration for properties in the commercial tax class, and because a Request for Reconsideration is not a prerequisite to filing an appeal, the Board converted the motion to a request to file a late appeal.

Late Appeal

18The Moving Party expressed a concern about the Property’s commercial classification and correct current value. These are matters which can be addressed in a s. 40 appeal.

19Rule 26(b) of the Board’s Rules of Practice and Procedure (“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.

Entitled to Notice

20The first requirement is that C.E.S.C. be a person entitled to receive a notice of assessment. This was not disputed. I find that C.E.S.C. is entitled to receive a notice of assessment for the Property.

Did not Receive Notice

21The second requirement is that C.E.S.C. did not receive a notice of assessment.

22The Moving Party affirms that it did not receive the Notice of Assessment for the 2017 to 2020 taxation years. MPAC’s evidence is that it mailed that Notice to the Moving Party at the Property’s address on October 18, 2016 but is not challenging the Moving Party’s assertion that the notice was not received.

23Based on the evidence before me, I find that the Moving Party did not receive MPAC’s notice of assessment for the 2017 to 2020 taxation years.

Timely Application

24The third factor is whether the Moving Party filed this motion within 30 days of “becoming aware of the assessment or classification that is the subject of the appeal.”

25The Moving Party submitted a Notice of Assessment for the 2015 and 2016 taxation years showing that the Property was assessed in the commercial tax class. This Notice is undated but it is based on information “as of October 11, 2014.” The Moving Party also submitted the Property’s 2018 Tax Bill, dated May 4, 2018, showing an assessed value of $1,141,500 in the commercial tax class.

26MPAC’s notice of assessment for the 2017 to 2020 taxation years show a phased in assessed value of $1,141,500 for the 2018 taxation year, the same value and classification contained in the City’s Tax Bill.

27In Solar Ship Inc. v. Municipal Property Assessment Corporation, Region 20, 2019 CanLII 44275 (ON ARB), the Board states at paragraph 17:

Knowing the value of the assessment or the nature of the classification makes a person aware of it. This is consistent with the existing jurisprudence of this Board. In Marsh v Municipal Property Assessment Corporation, Region 09, 2018 CanLII 89425 (ON ARB), at paragraph 12, the Board held that the awareness requirement in Rule 26(b) “does not require receipt of the actual notice of assessment, and can be imputed from municipal tax invoices, which include assessment information.

28The Moving Party received the City’s Tax Bill and did not say it was not received in a timely fashion after the issuance date. Therefore, I find that the latest date the Moving Party became aware of the assessment and classification that is the subject of an appeal was on or shortly after May 4, 2018. This is because the City’s Property Tax Bill clearly indicates that the property was assessed in the commercial tax class and included the value. This motion to file a late appeal was not filed with the Board until July 22, 2019 which is more than the 30 day time period set out in Rule 26(b). Therefore, the request to file a late appeal is denied.

CONCLUSION

29The Moving Party cannot qualify for an extension of time to file a Request for Reconsideration pursuant to s. 40(4) of the Act.

30The Moving Party meets only two of the three requirements of Rule 26(b) to file a late appeal for the 2019 taxation year. Accordingly, the motion to file a late appeal is denied.