Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: March 01, 2019

FILE NO.: DM 158496

Moving Party(ies): Municipal Property Assessment Corporation (“MPAC”), Region 30

Respondent(s): Northern Waste Transfer Services

Respondent(s): City of Sudbury

Property Location(s): 0 Magill Street

Municipality: City of Sudbury

Roll Number(s): 5307-110-002-08606-0000

Appeal Number(s): 2959446, 3029960, 3093430 and 3160360

Taxation Year(s): 2013, 2014, 2105 and 2016

Hearing Event No.: 709970

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

Heard: February 8, 2019 by written submission

APPEARANCES:

Parties

Representative

MPAC

Justin Johnstone

Northern Waste Transfer Services

No one appeared

City of Sudbury

No one appeared

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1MPAC seeks to have these appeals dismissed because Northern Waste Transfer Services (“Northern Waste”) did not serve a Statement of Issues on or before the date specified by the Assessment Review Board (the “Board”). Northern Waste did not make any submissions on this motion, despite being served with notice. The City of Sudbury 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

3Northern Waste is the owner of the vacant commercial land located on Magill Street in the City of Sudbury. It filed appeals of the 2013, 2014, 2015 and 2016 taxation year assessments of the property with the Board.

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

5MPAC requested a Statement of Issues from Northern Waste on May 23, 2018. Northern Waste did not respond. MPAC again reached out to Northern Waste on May 29, 2018 and November 5, 2018. Northern Waste did not respond either time. MPAC requested dismissal of these appeals and this motion was set by the Board on December 28, 2018.

Dismissal

6MPAC argues that Northern Waste has not complied with the Rules, and that the appeals should be dismissed on that basis. I find that Northern Waste 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 a valid basis for dismissal, see Municipal Property Assessment Corporation, Region 19 v Wentworth Property Management Inc., 2018 CanLII 89428 (ON ARB). Northern Waste’s failure to serve a Statement of Issues on the other parties by May 11, 2018 was a breach that is entirely attributable to Northern Waste. It 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 Northern Waste’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. 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 failure of Northern Waste to provide a Statement of Issues.

CONCLUSION

11MPAC’s motion to dismiss Northern Waste’s appeals is granted. Northern Waste is in breach of the Rules and that breach is entirely attributable to Northern Waste. MPAC is prejudiced by that breach. I therefore dismiss the 2013, 2014, 2015 and 2016 appeals filed by Northern Waste.