348166 Ontario Ltd v. Municipal Property Assessment Corporation, 2019 CanLII 14332

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: February 19, 2019

FILE NO.: DM 2019M06

Moving Party(ies): 348166 Ontario Ltd

Respondent(s): Municipal Property Assessment Corporation (“MPAC”), Region 19

Respondent(s): City of Hamilton

Property Location(s): 7 Portside Street

Municipality: City of Hamilton

Roll Number(s): 2518-901-130-06080-0000

Appeal Number(s): 3318660

Taxation Year(s): 2017

Hearing Event No.: 709665

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

Heard: January 23, 2019 by written submission

APPEARANCES:

Parties

Representative

348166 Ontario Ltd

Tina Silvestri

MPAC

Kyle Duncan

City of Hamilton

No one appeared

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1348166 Ontario Ltd (the “Company”) applies for permission to file an appeal of the 2017 assessment of its property after the time set in the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”). It is the owner of the property located at 7 Portside Street in the City of Hamilton, where it process cooking oil to make it usable as fuel. It now seeks permission to file an appeal of the 2017 and 2018 assessment late.

2Late appeals are only permitted in very narrow circumstances. A person seeking permission to file a late appeal must prove, through affidavit evidence, three things: (1) that they were entitled to the notice of assessment; (2) that they did not receive that notice; and (3) that they made this application within 30 days of becoming aware of the issue in dispute. All three things must be proven before this Assessment Review Board (this “Board”) can effectively waive the statutory appeal filing deadline.

3The Company provided clear evidence that it meets the first two requirements of the Rule. While its application was not filed within 30 days of it becoming aware of the assessment issues, this is an appropriate application to extend the time for applying. The Company’s application for permission to file a 2017 appeal of the property’s assessment is granted and its appeal will be processed. It is also deemed to have filed a 2018 appeal of the property because the 2017 appeal was not finally disposed of before March 31, 2018.

Background

4The Company was contacted by the City of Hamilton sometime in late 2017 about arrears on its tax account. The Company was informed that the property had been assessed at a higher value for the 2017 taxation year and that it should contact MPAC to address the higher assessment. The Company then contacted the local MPAC office by phone, and explained that it did not receive its notice of assessment. It was told by MPAC that the matter would be looked into and MPAC would then get back to the Company.

5The Company did not hear back from MPAC, so it phoned the local MPAC office again a few weeks later and spoke to a different representative. That person also indicated that MPAC would look into the matter and get back to the Company. That person from MPAC phoned the Company approximately one week later advising that the matter was still being investigated.

6When the Company did not hear back from that person, it again phoned the local MPAC office in December of 2017. The representative it spoke to on that occasion said that MPAC would send someone to inspect the property. That did not occur.

7The Company expressed its concerns with MPAC to the City, but was told that the City could not help with those concerns. In February of 2018 the Company contacted the Toronto office of MPAC by phone. The Company was told to submit a request for an extension of time of the 2017 request for reconsideration filing deadline from this Board. The filing deadline for a request for reconsideration for the 2017 taxation year was set in subsection 39.1(1.1) as “no later than 120 days after the issuance date printed on the notice of assessment.” The date printed on the notice for this property was October 19, 2016 so the Company’s request for reconsideration filing deadline was February 15, 2017.

8The Company applied to extend that deadline on February 26, 2018. The Board denied that request on March 2, 2018 because the Board did not have the legal authority to extend the deadline. Subsection 40(4) of the Act sets out the Board’s power to extend the request for reconsideration deadline. The power is limited to “a person who was required to do so as a precondition of appeal under subsection (3).” Subsection 40(3) makes a request for reconsideration mandatory for “the residential, farm or managed forests property class.” This property is in the industrial property class, so the Board had no authority to extend the request for reconsideration deadline.

9The Company did not receive the Board’s decision on its request for reconsideration extension application until April 5, 2018, when it phoned the Board. It was then informed of Rule 26(b), and the requirement for affidavit evidence. It sent an affidavit to the Board the next day, on April 6, 2018. The Board sent an acknowledgment letter of the late appeal application on May 2, 2018. Over the summer of 2018 the Board worked with the Company on its late appeal application. This motion was set on December 14, 2018.

10MPAC indicates that it only has records of interactions with the Company on October 26, 2017 and December 20, 2018. MPAC takes no position on this application.

LAW

11This Board has a limited power to alter the time for filing appeals set out in the Act. That authority was first confirmed by the Ontario Superior Court in Fleming and Smith Ltd. and Regional Assessment Commissioner Region No. 31 et al., 1979 CanLII 1870 (ON SC). The Board codified the conditions set by the Court in Rule 26(b) of the Board’s Rules of Practice and Procedure, which states:

26 The Board may accept an appeal received after the time set 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.

12As noted above, the Rule requires that three things be proven: (1) an entitlement to notice; (2) a lack of receipt of notice, and (3) a timely application.

Entitled to Notice

13The Company is the owner of the property. Owners are entitled to an annual notice of assessment. It therefore meets the first requirement of Rule 26(b).

Did not Receive Notice

14The Company’s evidence indicates that it did not receive the notice of assessment for the 2017 taxation year. MPAC notes that it received a request to update the address it had for the Company in late 2018. I am satisfied that the Company did not receive the 2017 notice of assessment for the property.

Timely Application

15The Company first brought this late appeal application to the Board on April 6, 2018. It was informed by the City that its taxation concerns were due to a high assessment in late 2017. That is well over the 30 day time limit set in Rule 26(b). However, this Board can alter timelines set in the Rules pursuant to Rule 17. This Board has held that time should only be extended after considering the principles of fairness, prejudice, and finality, see Block 9A Developments Ltd v Municipal Property Assessment Corporation, 2015 CanLII 37189 (ON ARB), at paragraph 13.

16The Company does not have professional representation. Its representative does not know assessment law and has had difficulty understanding the roles of the City, MPAC, and the Board, throughout this process. While it could have retained a more knowledgeable representative at any time, there are fairness concerns with strictly applying the 30 day limitation here. The Company repeatedly phoned the City, MPAC, and this Board to try and move this matter along. It cannot be said that the Company sat on its hands in this matter. It first contacted this Board on February 26, 2018, immediately after being instructed to do so by MPAC. It has responded to direct requests for information in a timely way. That information was often incomplete, but due to misunderstanding, not a failure to take steps. I find that fairness favours extending the time here.

17Prejudice will always be the most important factor to consider in any discretionary decision. Denying an extension of time here effectively denies the Company’s application because the other two requirements of Rule 26(b) are satisfied. If this application is denied the Company has no forum in which to contest the 2017 assessment of the property. That is a final and prejudicial impact on the Company that results from denying an extension. MPAC is not claiming any prejudice and has a statutory duty to correctly assess land, so there is no obvious prejudice to MPAC. The City is also not claiming any prejudice. The balance of prejudice favours extending the filling deadline.

18The final factor to consider is finality. This Board held in Hozalla Kabob Inc. v Municipal Property Assessment Corporation, Region 13, 2018 CanLII 86695 (ON ARB), at paragraph 10, that “finality is an important goal in any litigation process.” It is important that parties know when they can rely on matters being settled. The factor of finality favours denying an extension and leaving the 2017 taxation year closed.

19A final decision on any extension of time request must balance the factors of fairness, prejudice, and finality. Both fairness and prejudice favour extending the time here, while the factor of finality does not. I find that, overall, this is an appropriate case to extend the time for bringing this late appeal application.

Deeming

20I have found that all three requirements of Rule 26(b) are met for the 2017 taxation year. In Messina v Municipal Property Assessment Corporation, Region 09, 2018 CanLII 78265 (ON ARB) this Board held, at paragraph 16, that 2018 appeals were created when a 2017 appeal was granted late filing. The Board explained the deeming provision in clause 40(26)(b) of the Act and held that they were met because “2017appeals for these properties have not yet been created, so clearly have not yet been disposed of.” I find that the same reasoning applies here.

21The Company has applied for permission to file a 2017 appeal after the filing deadline. I have found that it meets the requirements set in Rule 26(b)and grant it permission to file a 2017 appeal. The Company will also have a 2018 appeal deemed because the 2017 appeal was not finally disposed of before March 31, 2018.

CONCLUSION

22The Company meets the requirements for a late appeal, set out in rule 26(b). I therefore grant it permission to file a 2017 appeal of the property. It is also deemed to have filed a 2018 appeal of the property.