Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: February 25, 2019

FILE NO.: DM 158442

Moving Party(ies): Municipal Property Assessment Corporation ("MPAC") Region 14

Respondent(s): Costaway Holdings Ltd.

Respondent(s): City of Vaughan

Property Location(s): 46 Freshway Drive

Municipality(ies): City of Vaughan

Roll Number(s): 1928-000-232-00540-0000

Appeal Number(s): 3206759, 3247920 and 3302823

Taxation Year(s): 2016, 2017 and 2018

Hearing Event No.: 709778

Legislative Authority: Rule 24(e) of the Assessment Review Board Rules of Practice and Procedure

Heard: February 6, 2019 by written submission

APPEARANCES:

Parties

Representative

MPAC

Jaime Shevchuk

Costaway Holdings Ltd.

No one appeared

City of Vaughan

No one appeared

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1MPAC seeks to have these appeals dismissed because Costaway Holdings Ltd (the "Company") did not serve a Statement of Issues on or before the date specified by the Assessment Review Board (the "Board"). The Company did not make any submissions on this motion, despite being served with notice. The City of Vaughan also failed to provide any submissions.

2For the reasons that follow, the appeals are dismissed for non-compliance with the Board’s Rules of Practice and Procedure (the "Rules").

Background

3The Company is the owner of the industrial property at 46 Freshway Drive in the City of Vaughan. The Company filed an appeal of both the 2016 and 2017 taxation year assessments of the property with the Board. An appeal was deemed for the 2018 taxation year because the 2017 appeal has not yet been resolved.

4The Board assigned a commencement date of January 15, 2018 to the appeals pursuant to Rule 33. MPAC sent its initial disclosure to the Company on December 4, 2017, in compliance with the schedule of events set by the Rules. The next major step in the schedule of events was for the Company to provide MPAC and the City of Vaughan with its Statement of Issues on or before June 11, 2018. It did not do so.

5MPAC requested the Company’s Statement of Issues on November 12, 2018. The Company never responded to that request. MPAC requested dismissal of these appeals and this motion was set on December 18, 2018.

Dismissal

6MPAC argues that the Company has not complied with the Rules, and that the appeals should be dismissed on that basis. I find that the Company is in breach of the Rules in a clear, egregious, and unilateral way. I therefore dismiss the appeals.

7Rule 24(e) permits dismissal without a hearing if "the appellant has not complied with statutory requirements or these Rules." This Board held, in Municipal Property Assessment Corporation, Region No. 9 v 234900 Ontario Ltd., 2018 CanLII 248 (ON ARB), 2017 CanLII 74719 (ON ARB) at paragraph 8, that dismissal "is an extreme remedy and should only be granted in the clearest of cases." The Board stated, in Municipal Property Assessment Corporation, Region No 7 v Cherry, 2018 CanLII 60392 (ON ARB), at paragraph 10, that the "clearest of cases are those where there are willful breaches of the Board’s orders or Rules that are entirely attributable to the taxpayer."

8A party’s failure to provide a Statement of Issues when required can be valid basis for dismissal, see Municipal Property Assessment Corporation, Region 19 v Wentworth Property Management Inc., 2018 CanLII 89428 (ON ARB). The failure of the Company to serve a Statement of Issues on the other parties by June 11, 2018 was a breach that is entirely attributable to the Company. The Company has not cured that breach. However, that is not enough to ground a dismissal.

9The "prejudice to each party will always be the primary consideration on a dismissal motion," Municipal Property Assessment Corporation, Region 14 v Upper Keele Inc., 2018 CanLII 126632 (ON ARB), 2018 CanLII 248 (ON ARB) at paragraph 10. MPAC argues that it is prejudiced by the Company’s breach of the Rules in how much more difficult it is to meet its other obligations when appellants fail to comply. It argues that the prejudice cannot be cured by an award of costs.

10MPAC provided evidence of prejudice. It had to take additional procedural steps when the Company did not provide its Statement of Issues. I accept MPAC’s claim that a failure of an appellant to provide a timely Statement of Issues makes its overall case management more difficult. It cannot provide a response when there is no Statement of Issues, and must take some steps to see if a Statement of Issues is likely. I accept that there is prejudice to MPAC flowing from the Company’s failure to provide a Statement of Issues.

CONCLUSION

11MPAC’s motion to dismiss the Company’s appeals is granted. The Company is in breach of the Rules and that breach is entirely attributable to the Company. MPAC is prejudiced by the Company’s breach. I therefore dismiss the 2016, 2017, and 2018 appeals filed by the Company.