Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: March 05, 2019

FILE NO.: DM 158642

Moving Party(ies): City of Mississauga

Respondent(s): Target Canada

Property Location(s): 1151 Dundas Street West

Municipality: City of Mississauga

Roll Number(s): 2105-060-141-17100-0000

Appeal Number(s): 3041580

Taxation Year(s): 2012

Hearing Event No.: 710265

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

Heard: February 12, 2019 by written submission

APPEARANCES:

Parties	Representative
City of Mississauga	Gary Leung
Target Canada	No one appeared

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1The City of Mississauga (the “City”) seeks to have this appeal dismissed because Target Canada (“Target”) did not comply with the filing requirements set by the City. Target did not make any submissions on this motion, despite being served with notice.

2For the reasons that follow, the appeal is dismissed for non-compliance with the Municipal Act, 2001, S.O. 2001, c. 25 (the “Act”).

Background

3Target leased retail space at 1151 Dundas Street West in the City of Mississauga and made extensive renovations to that property between August 3, 2012 and March 1, 2013. On February 26, 2013 it applied to the City for a refund of taxes pursuant to clause 357(1)(g) of the Act, which allows for tax refunds if “repairs or renovations to the land prevented the normal use of the land for a period of at three months duein the year.” The City responded on April 2, 2013, informing Target that the City had passed a By-law that required that applications pursuant to section 357(1) pay a $10 filing fee for each taxation year. The City requested $20 in filing fees because Target was seeking a refund of both the 2012 and 2013 taxation years. The City received nothing further from Target. But Target appealed the City’s failure to decide their application to this Board, pursuant to subsection 357(8).

Dismissal

4The City says that Target’s appeal is invalid and can therefore be dismissed pursuant to Rule 24(e). That Rule 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.”

5The City’s argument is that Target was required to pay the $10 filing fee in order to perfect its application. The City relies on its General Fees and Charges By-law No. 429-08 for the legal authority to require the fee. That By-law relies, in part, on section 391 of the Act. That section permits municipalities to impose fees for a broad array of reasons, including “for services or activities provided or done by or on behalf of it,” in clause 391(1)(a). Importantly, subsection 391(5) states that “in the event of a conflict between a fee or charge by-law and this Act… the bylaw prevails.”

6There is nothing in section 357 that speaks to fees. Subsection 357(1) requires an “application to the treasurer of a local municipality made in accordance with this section.” Subsection 357(2) sets out who can apply, and subsection 357(3) sets the filing deadline. The addition of fees changes the application, but subsection 391(5) is clear that the fees By-law prevails over the changes to the tax refund application.

7I agree with the City that its fee, imposed by By-law, was a statutory requirement to filing an application. Target did not meet that requirement and was informed of that shortcoming nearly seven years ago. It has not cured that defect in its application. I therefore find that Target is in breach of the Act in a unilateral way. That is not enough, however, to ground a dismissal application.

8The “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. The City did not provide any evidence of prejudice, but that is not fatal to its application.

9This appeal was filed pursuant to subsection 357(8), which permits an appeal “if council fails to make its decision by September 30 of the year following the year in respect of which the application is made.” However, the meeting council is required to hold, pursuant to subsection 357(5), is triggered when “the application is made.” An application that is missing a statutory requirement has not been made.

10That is, Target did not complete its application to the City, so the City was not required to hold a meeting. No appeal lies from a council meeting that was not held that was never required to be held because the application was never made. This appeal is not valid because an application to the City was never completed. The appeal must be dismissed.

CONCLUSION

11The City’s motion to dismiss Target’s appeal is granted. Target did not complete its application to the City because it failed to pay the required fee. No appeal can be filed to this Board until an application has been made to the City. Target’s appeal is invalid and must, therefore, be dismissed.