Assessment Review Board / Commission de révision de l’évaluation foncière

ISSUE DATE: December 17, 2019 FILE NO.: RR 2019M09

Assessed Person(s): 857529 Ontario Inc. Appellant(s): Magna International Inc. Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 15 Respondent(s): City of Brampton

Property Location(s): 2550 Steeles Avenue East Municipality(ies): City of Brampton Roll Number(s): 2110-100-025-02200-0000 Appeal Number(s): 3250923, 3307941 and 3361440 Taxation Year(s): 2017, 2018 and 2019

Hearing Event No.: N/A Legislative Authority: Rule 122 of the Assessment Review Board’s Rules of Practice and Procedure, as amended Request for: Reinstatement of appeals 3250923, 3307941 and 3361440 Heard: By written submission

Adjudicator: Maureen Helt, Acting Associate Chair

Parties and Counsel/Representative

• Magna International Inc.: Belinda Schubert+
• MPAC: Joseph Fantetti
• City of Brampton: Yvonne Kwiecien

DECISION AND ORDER

INTRODUCTION

1Magna International Inc. (“Magna”) is requesting the Assessment Review Board (the “Board”) reinstate the appeals numbered 3250923, 3307941and 3361440 with respect to 2550 Steeles Avenue East, in the City of Brampton (“2550 Steeles appeals”) by way of a request for reinstatement pursuant to Rule 122 of the Board’s Rules of Practice and Procedure (the “Rules”). This request for reinstatement was filed with the Board on June 28, 2019.

2These appeals fall under the general proceedings, pursuant to Rule 32 of the Board’s Rules with commencement dates assigned and a corresponding timeline to serve a Statement of Issues to the parties to the appeal.

3On April 10, 2019 MPAC provided Magna with notice that it had not received a Statement of Issues with respect to the 2550 Steeles appeals.

4MPAC filed a Board generated form entitled “Request to Dismiss a General Proceedings Appeal for Failure to Serve a Statement of Issues” (the “Form”) on May 1, 2019 for the 2550 Steeles appeals.

5On May 31, 2019, the Board dismissed the 2550 Steeles appeals in decision number 2792307.

ISSUE

6Did the Board violate the rules of natural justice and procedural fairness and act outside its jurisdiction in dismissing the 2550 Steeles appeals?

DECISION

7Magna’s request for reinstatement is denied. Magna has failed to satisfy the Board that the rules of natural justice and procedural fairness were breached in dismissing the appeals. Further, the Board did not act outside its jurisdiction in dismissing the appeals.

ANALYSIS

8Magna puts forward three main grounds for to support its position that the dismissal of the 2550 Steeles appeals should be set aside. Each of these grounds is set out below.

Improper Notice

9Magna claims that the dismissal provisions at s. 8.2(1) of the Assessment Act (“Act”) are not engaged by the facts at hand, and further that the Board did not provide notice in accordance with s. 8(2) and 8(3) of the Act. Magna argues that the notice provided to it, namely the receipt of a Board form entitled Request to Dismiss a General Proceedings Appeal for Failure to Serve a Statement of Issues (the “Form”) which was served on Magna by another party to the appeal does not constitute the Board giving notice of an impending dismissal. The appellant argues that the notice ought to have been provided from the Board directly.

10Section 8 of the Act provides as follows:

Dismissal

8.2 (1) The Board, on its own motion or on the motion of any party, may dismiss a complaint or appeal brought before it if,

(a) the Board is of the opinion that the proceeding is frivolous or vexatious, is commenced in bad faith or is commenced only for the purpose of delay;

(b) the Board is of the opinion that the reasons set out in the complaint or appeal do not disclose any apparent statutory ground on which the Board can make a decision; or

(c) the complainant or appellant has not responded to a request by the Board for further information within the time specified by the Board. 2008, c. 7, Sched. A, s. 17 (1).

Opportunity to respond

(2) Before dismissing a complaint or an appeal under clause (1) (a) or (b), the Board shall notify the complainant or appellant and give the complainant or appellant an opportunity to make representations in respect of the proposed dismissal. 2008, c. 7, Sched. A, s. 17

Same

(3) Before dismissing a complaint or appeal under clause (1) (c), the Board shall notify the complainant or appellant and give the complainant or appellant an opportunity to respond to the request for further information. 2008, c. 7, Sched. A, s. 17 (1).

No hearing required

(4) Despite the Statutory Powers Procedure Act, the Board may dismiss a complaint or appeal in accordance with this section after holding a hearing or without holding a hearing, as the Board considers appropriate. 2008, c. 7, Sched. A, s. 17 (1).

11In reviewing the language of the statutory provisions above, I do not find Magna’s argument persuasive as it is clear that Magna was given notice, failed to respond, and after having been given notice of dismissal for failure to respond, Magna failed to respond.

12The dismissal provisions at s. 8.2(c) of the Act are engaged in this case. The Board’s Rules, effective April 1, 2017, includes a Schedule of Events for General Proceedings for appeals such as Magna’s appeals. This Schedule of Events constitutes a formal procedural request/direction by the Board to all appeal parties to provide information related to their appeal within a specified time frame, including the timeline in which Magna, as an appellant, was required to serve its Statement of Issues on the other parties to the appeal.

13The Board has ensured that Magna was notified by making it mandatory that MPAC, as the moving party, serve Magna with the official Board Form.

14The Form used was created by the Board, it offers an opportunity for a party to respond to the Board, and includes timelines established by the Board. More specifically the Form states as follows:

This form is for requesting to dismiss appeals heard by way of general proceeding because an Appellant has not served its Statement of Issues on the other Parties to the appeal(s) as required by the Board’s Rules of Practice and Procedure.

This request to dismiss for failure to serve a Statement of Issues may be filed with the Board no earlier than 30 days after the due date in the Schedule of Events for serving the Statement of Issues. The Requesting Party must serve this request on all Parties to the appeal at the same time as it files the request with the Board. Any Party who opposes the request must serve on all other Parties, and file with the Board, a written response no later than 14 days from the date this form was served and filed with the Board.

Where no response is filed, the Board will proceed to issue a decision on the request without providing further procedural directions to the Parties.

15I find that the language above is clearly in compliance with the requirements for notice as set out in s. 8(2) and 8(3) of the Act:

a. Magna had notice and knowledge of the deadline for filing its Statement of Issues set out in the Assessment Review Board Rules of Practice and Procedure (the “Rules”),

b. Magna received the Form indicating dismissal had been requested by the opposing party and that the Board would make a determination on the matter; and,

c. Magna was provided notice that failure to respond may result in dismissal of the proceeding.

16It is well established in administrative law that it is the content of a document, not the form that is important, and where a party has actual knowledge of a matter they cannot hide behind an alleged defect. In this case, Magna was aware of what was required of them, when it was due, and what the ramifications for not meeting these requirements were. This is the essence of notice.

17Indeed, it is critical to note that Magna does not dispute that:

a. It is required to adhere to the Board’s Rules.

b. That Magna did not comply with the timelines set out in the Schedule of Events to serve its Statement of Issues on the parties to the appeals.

c. That at least 30 days passed after this deadline was missed before MPAC brought this request to dismiss Magna’s appeals, yet Magna did not contact MPAC or the Board and provide their Statement of Issues.

d. Magna was in receipt of the Board’s Form, which provided them with notice.

e. Magna was provided with clear and specific information about that at least 14 days passed (exact timeline can be verified) which provided Magna with a reasonable opportunity to respond to MPAC’s request.

f. Magna did not respond to the Board or to any other party regarding this request within that 14-day period.

Lack of Affidavit Evidence

18Magna also alleges that affidavit evidence is required to prove service of the Form, and that the certification statement at the end of the Form is false because the phrase “I have copied all parties on this request.” is in the past tense. Again, Magna is attempting to apply [stringent-technical] argument to an administrative tribunal that is free to establish procedures that are less rigorous than courts so as to make the process more accessible to the public.

19The Board is a high-volume tribunal which has a right to control its own process. The method of service is not limited to direct service from the Board to a party, but rather a requirement on the Board to ensure that service of the Form is accomplished by parties, such as MPAC, who are seeking a dismissal.

20The Board is not bound by the strict rules of evidence, is allowed to do what it can to streamline procedures (including not requiring affidavits), and is compelled to make its forms easy to understand (e.g. plain language) for the general public. This is what the Board has done with creating this Form.

21If there is a dispute as to whether a party received the Form, that party is free to put that forth. As previously stated, Magna has not suggested that it was not in receipt of the Form.

Prejudice

22Magna submits that the Board failed to consider the severe prejudice on the appellant in losing its opportunity to have a hearing.

23Magna further argues that the Form is required to mention prejudice, but provides no rationale for its argument. I disagree that the Form is required to do so, or that by not using the Form, Magna is somehow prevented from responding and addressing the issue.

24Magna relies on a previous decision of the Board in Municipal Property Assessment Corporation, Region 14 v. Upper Keele Inc., 2018 CanLII 126632 (ON ARB), 2018 CanLII 248 at paragraph 11 for the position that in order to grant the dismissal there must be evidence of prejudice to the requesting party.

25I find that the case relied upon by Magna is distinguishable. As set out by the Board, in that decision it was found that a breach in timelines, when that was the common practice at that time, cannot be the sole basis for a dismissal order.

26The Board further goes on to state that “the prejudice to each party will always be the primary consideration on a dismissal motion. The harm to the Company from a dismissal is severe. On the other hand, the harm to MPAC of the late disclosure is minimal, given that there is no impending hearing date for these appeals.” For these reasons the Board did not grant the dismissal order.

27It is now 2019 and the Rules setting out the timelines have been in effect for over two years. Any expectations that parties could routinely miss timelines should be extinguished, and this is no longer common practice. Magna’s assertion that the Board’s dismissal practices changed suddenly is not tenable. Further, Magna was given several opportunities to respond and failed to do so.

28As previously stated, tribunals have a mandate to deal with matters in a just and expeditious manner, and it should be well understood by parties that failure to meet timelines both inherently impacts other parties to a proceeding who prepare and provide required information on time, and impacts the Board’s ability to manage and deal with its caseload.

ORDER

29Magna’s reinstatement request is denied.