Assessment Review Board
Commission de révision de l'évaluation foncière
ISSUE DATE: March 21, 2019
Moving Party(ies): Emblem Logistics Inc.
Respondent(s): Municipal Property Assessment Corporation ("MPAC") Region 15
Respondent(s): Chiefton Investments Limited
Respondent(s): City of Brampton
Property Location(s): 7825 Winston Churchill Boulevard
Municipality(ies): City of Brampton
Roll Number(s): 2110-140-099-00220-0000
Taxation Year(s): 2018
Hearing Event No.: 710465
Legislative Authority: Rule 26(b) of the Assessment Review Board Rules of Practice and Procedure
Heard: March 4, 2019 by written submission
APPEARANCES:
| Parties | Counsel/Representative |
|---|---|
| Emblem Logistics Inc. | Jack A. Walker, Q.C. and Jamie G. Walker |
| Chiefton Investments Limited | No one appeared |
| MPAC | Marissa Cheddi |
| City of Brampton | No one appeared |
DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH
1Emblem Logistics Inc. ("Emblem") is the tenant of the warehouse property at 7825 Winston Churchill Boulevard in the City of Brampton. It leases the property from Chiefton Investments Limited ("Chiefton") and Emblem is responsible for paying the property taxes levied against the property. In late 2018 Emblem was informed that an amended property notice had been sent to Chiefton earlier that year. It did not receive that assessment notice until January 8, 2019, which informed it of the October 1, 2018 filing deadline. Emblem seeks permission from this Assessment Review Board (this "Board") to file an appeal of the amended property assessment late, pursuant to Rule 26(b) of the Board's Rules of Practice and Procedure (the "Rules").
2MPAC opposes Emblem's motion. It says that Emblem was not legally entitled to a notice of assessment and that it did not file this application in a timely way. None of the other parties filed any material with the Board.
3I find that Emblem has met the requirements of Rule 26(b) and that this is an appropriate case in which to permit late filing. I accept Emblem's appeal of the 2018 assessment of the property, filed on January 3, 2019.
Law
4This Board has set out the conditions under which appeals may be filed late in Rule 26(b), 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.
5Emblem notes the common law basis of this Rule, flowing specifically from the decision of the Ontario Superior Court in Fleming and Smith Ltd. and Regional Assessment Commissioner Region No. 31 et al., 1979 CanLII 1870 (ON SC). But also flowing from the general legal principle "that that no one should be condemned or deprived of his rights without being heard, and above all without having received notice that his rights would be put at stake," Alliance des Professeurs Catholiques de Montréal v. Quebec Labour Relations Board, [1953] 2 SCR 140, 1953 CanLII 45 (SCC).
6Rule 26(b) requires that three things be proven by affidavit evidence: (1) that the person was entitled to receive a notice of assessment; (2) that the person did not receive that notice; and (3) that the person applied within 30 days of becoming aware of the assessment.
Entitled to Notice
7Emblem argues that it was entitled to the notice assessment, as tenant, pursuant to subsection 35(2) of the Assessment Act, R.S.O. 1990, c. A.31 (the "Act"). That subsection states that a person who receives a corrected assessment "shall, within 14 days after receiving the notice, give a copy of the notice to each tenant who, under the tenant's lease, is required to pay or reimburse the landlord for all or part of the taxes on the land." Emblem notes that this Board held, in Sabl Corp v Municipal Property Assessment Corporation, Region 9, 2018 CanLII 67821 (ON ARB), at paragraph 10, that a tenant who met the requirements of subsection 35(2) of the Act was a person entitle to notice, pursuant to Rule 26(b). There is no dispute that Emblem is a tenant that is required to pay taxes and was therefore entitled to receive a copy of the notice of assessment from Chiefton within 14 days of Chiefton receiving the notice.
8MPAC argues that Emblem was not entitled to a notice of assessment because subsection 35(4) states that "a notice given to a tenant under subsection (2) is not a notice of assessment and the tenant may not make a request for reconsideration under section 39.1." Rule 26(b) is expressly limited to people "entitled to receive a notice of assessment." MPAC says that, while a tenant may be entitled to a copy of the notice, what it is entitled to is not a notice of assessment.
9In reply, Emblem relies on the purpose underlying subsections 35(2) and 35(4). It notes that both provisions were added in the 1998 reforms to the Act, which removed the business occupancy tax that was formerly levied against tenants. The Hansard shows that the government was "going to make sure that every business in Ontario is protected against high tax increases." Emblem argues that subsection 35(4) should be read as a mere clarification of which party can file a request for reconsideration.
10Subsection 39.1(1) limits requests for reconsideration to the "owner of a property or a person who has received or would be entitled to receive a notice of assessment." I agree with Emblem that a fair reading of subsection 35(4) is that it was only aimed at making it clear that tenants cannot file a request for reconsideration. The appeal provision in subsection 40(1) is much broader than the request for reconsideration provisions. The requirement that a landlord provide impacted tenants with a timely copy of the notice only meets the government's promise that business be protected from tax increases if they can rely on the notice to appeal.
11This Board has held that a response to a request for reconsideration is not a "notice of assessment" under Rule 26(b), see Werzberger v Municipal Property Assessment Corporation, Region 09, 2018 CanLII 107717 (ON ARB), 2018 CanLII 73665 (ON ARB), at paragraph 14. The Board notes, at paragraph 15, that the "policy of Rule 26(b) is to provide taxpayers with a reasonable period of time to appeal an assessment from when they actually become aware of the assessment." A person who files a timely request for reconsideration is aware of the assessment and could calculate their filing deadlines with this Board from the moment they file the request for reconsideration. That is not the case with tenants who receive a copy of a notice of assessment in subsection 35(2).
12A tenant, like Emblem, is not aware of the assessment increase until its landlord complies with subsection 35(2). It is difficult to say that a person entitled to a copy of a notice of assessment is not entitled to a notice of assessment under Rule 26(b). I find that subsection 35(4) is only a limitation on a tenant's ability to file a request for reconsideration and its wording is aimed at closing off section 39.1 to tenants. It does not change the fact that tenants are entitled to a copy of notice of assessment.
13I also note that Emblem is only seeking a late appeal here because Chiefton did not comply with subsection 35(2). Chiefton was sent the notice of corrected assessment come time in July 2018. Chiefton did not send a copy of the notice to Emblem until January 8, 2019. That is nearly six months later, which is well over the 14 days required in subsection 35(2). It would be unfair to punish the tenant for the landlord's failure.
14I find that Emblem is a person entitled to receive a notice of assessment. The first requirement of Rule 26(b) is therefore met.
Did Not Receive Notice
15The evidence is clear that Emblem did not receive the copy of the notice of assessment, that it was legally entitled to receive, until January 8, 2019, nearly six months late. It filed this application on January 3, 2019, at which point it had not received the notice of assessment. MPAC has not disputed that the second requirement of Rule 26(b) is met.
Timely Application
16The final requirement in Rule 26(b) is that the application for a late appeal be brought to "the Board within 30 days of becoming aware of the assessment or classification that is the subject of the appeal." There is no dispute that this application was filed on January 3, 2019. The parties disagree about when Emblem became aware of the assessment.
17Emblem received a letter from Chiefton on November 29, 2018 that enclosed a revised tax reconciliation. That letter states that "MPAC issued a new amended assessment removing a 20% valuation adjustment." MPAC argues that this is enough information to make Emblem aware of the assessment. Emblem responds that it was not fully aware of the assessment until it received the copy of the notice of assessment on January 8, 2019.
18I do not accept Emblem's argument that it was not aware of the assessment until five days after it filed this application. It has not explained why it felt it necessary to file this application if it was unaware of the assessment it wanted to appeal. The initial question is when Emblem became aware. 30 days before January 3, 2019 is December 4, 2018. If Emblem was aware before that date its application is late.
19The affidavit evidence filed by Emblem shows that Emblem first responded to the November 29, 2018 letter on December 7, 2018, just over a week later. It expressed its surprise and disappointment in that response. Nothing in the affidavit indicates when Emblem first reviewed the letter dated November 29, 2018. There is an email in evidence that indicates that the letter was emailed to Emblem, with corrections, on November 30, 2018. The December 7, 2018 email is the first clear evidence that Emblem was aware. But MPAC says that Emblem ought to have known of the assessment when it received Chiefton's letter, which seems to be on November 30, 2018.
20Rule 16 sets out how time is to be computed. Clause 16(c) notes that "when there is reference to two events, the time between the two events is counted by excluding the first day and including the last day." Applying that to 30 days from November 29, 2018 leads to a due date of Saturday, December 29, 2018. Rule 16(b) states that "when the time for doing anything under these Rules falls on a holiday the time is extended to include the next day the Board is open for business." Saturdays and Sundays are holidays pursuant to Rule 3. So, if November 29, 2018 was the day Emblem became aware of the assessment it was required to file by Monday, December 31, 2018. It did not file until Thursday, January 3, 2019, three days later.
21The evidence is silent on exactly when Emblem became aware of the assessment. I can only say with certainly that it was sometime between November 29, 2018 and December 7, 2018. If the true date is December 4, 2018, or later, then this is a timely application. The onus in any late appeal application is on the party seeking to file a late appeal to prove each requirement of Rule 26(b). Only Emblem knows when it first became aware and it has not clearly conveyed that information in its evidence. I am not satisfied that this application was filed within 30 days of Emblem becoming aware. However, that does not end the enquiry.
22Rule 17 confers on me the power to alter any timeline set out in the Rules, including the 30 day timeline set in Rule 26(b). This Board held, in Block 9A Developments Ltd v Municipal Property Assessment Corporation Region 09, 2015 CanLII 37189 (ON ARB) ("Block 9A"), at paragraph 13, that any extension of time should weigh the principles of fairness, prejudice, and finality.
23Fairness favours extending the time here. Emblem was deprived of the copy of the notice of assessment that it was entitled to and did not sit on its hands. The time involved here is only three days, not a significant period of time. The 30 days period also included the Christmas holidays, when many businesses are shut down. It is fair to accept Emblem's application slightly late.
24The prejudice to MAPC is unclear. This application was brought three days late, just after the Christmas season. MPAC was permitted to, and did, make submissions on the merits of the application, which I have addressed above. MPAC did not provide any evidence that accepting this application slightly late would result in prejudice. The prejudice to Emblem in denying this application, on the other hand, is significant. I have found that the other two requirements of Rule 26(b) are met. If I deny the application for being three days late I remove Emblem's ability to address the 2018 assessment at all. An assessment that it must pay taxes on. The balance of prejudice favours accepting Emblem's application as timely.
25The final consideration is finality. The standing situation here is that Emblem missed its time to appeal because Chiefton breached the Act. It is not clear that any party has relied on that situation to their detriment. It is also significant that this application was only three days late. A sense of finality rarely develops that quickly.
26Considering the Block 9A factors, I am satisfied that this is an appropriate case in which to alter the time set out in Rule 26(b). I accept Emblem's January 3, 2019 application as a timely application.
Conclusion
27Emblem was entitled to receive a copy of the notice of assessment in July of 2018 and was not provided that notice until nearly six months later. It filed this application for permission to file late in a timely way. I therefore find that the requirements of Rule 26(b) are met and accept Emblem's appeal of the 2018 assessment of the property, filed on January 3, 2019.
"Scott McAnsh"
SCOTT McANSH VICE-CHAIR Assessment Review Board A constituent tribunal of Tribunals Ontario - Environment and Land Division Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248```