Municipal Property Assessment Corporation v. Skymark Properties 1 Corporation, 2019 CanLII 22923

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: March 21, 2019

FILE NO.: DM 159042

Moving Party(ies): Municipal Property Assessment Corporation (“MPAC”) Region 09

Respondent(s): Skymark Properties 1 Corporation

Respondent(s): City of Toronto

Property Location(s): 1 William Morgan Drive

Municipality(ies): City of Toronto

Roll Number(s): 1906-041-131-00100-0000

Appeal Number(s): 3242623 and 3295255

Taxation Year(s): 2017 and 2018

Hearing Event No.: 710866

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

Heard: March 7, 2019 by written submission

APPEARANCES:

Parties

Counsel⁺/Representative

MPAC

Teresa Bufardeci

Skymark Properties 1 Corporation

No one appeared

City of Toronto

No one appeared

DISPOSITION OF THE BOARD DELIVERED BY SUBUOLA AWOLERI

INTRODUCTION

1MPAC seeks to dismiss the appeals filed by Skymark Properties 1 Corporation (the “Company”) because the Company did not provide its Statement of Issues on the date specified by the Assessment Review Board (the “Board”). MPAC argues that these appeals should be dismissed due to the Company’s contravention of the Board’s Rules of Practice and Procedure (the “Rules”). The Company did not make any submissions on this motion. The City of Toronto is also a statutory party to these appeals but has not provided submissions in this motion despite being served.

DISPOSITION OF MOTION

2The Board grants MPAC’s motion to dismiss the appeals. The Company is in breach of the Rules and MPAC is prejudiced by this breach. The Board dismisses the Company’s appeals for the 2017 and 2018 taxation years.

REASONS FOR DISPOSITION OF MOTION

3The subject property is an office building, owned by the Company. The Company filed its appeal of the assessment of the subject property for the 2017 taxation year. The 2017 appeal was not resolved, therefore an appeal was deemed for the 2018 taxation year.

4Pursuant to Rule 33 of the Rules, the Board assigned a commencement day of January 15, 2018 to these appeals. On February 7, 2018, MPAC delivered its initial disclosure to the Company. In accordance to the Board’s Rules as set out in the schedule of events, the Company was to provide its Statement of Issues to MPAC and the City of Toronto by June 11, 2018. The Company failed to do this.

5MPAC contacted the Company on June 21, 2018, stating that it has not received the Company’s Statement of Issues and further extending a grace period until June 22, 2018, for the Company to comply by providing its Statement of Issues. On the same day, MPAC was advised by Paul Grosman that Argil Property Tax Services was no longer retained on the Company’s appeals and the Board had been notified.

6MPAC contacted the Board and obtained the last known mailing address for the Company and on July 5, 2018, MPAC couriered its correspondence to this mailing address. In its correspondence, MPAC advised that it is yet to receive the Company’s Statement of Issues and if the Company still intends to provide it, the Company can provide it by July 13, 2018. Otherwise, the Company can provide its letter of withdrawal. MPAC further advised the Company that if its Statement of Issues is not received, MPAC will proceed to have the appeals dismissed by the Board.

7On July 17, 2018, MPAC’s couriered correspondence was returned undeliverable.

8MPAC filed this motion seeking dismissal of the appeals.

9The Board finds that the Company is in breach of the Rules in a way that is completely attributable to it. In Municipal Property Assessment Corporation, Region 19 v. Wentworth Property Management Inc., 2018 CanLII 89428 (ON ARB), at paragraph 11, the Board determined that failure to provide a Statement of Issues, a breach completely attributable to the appellant and not cured by it, was not enough ground for dismissing the company’s appeal. As the Board held in Municipal Property Assessment Corporation, Region 14 v Upper Keele Inc., 2018 CanLII 126632 (ON ARB), 2018 CanLII 248 (ON ARB), at paragraph 11, there must be evidence of prejudice to the requesting party to justify a dismissal order. Specifically, the Board held that “dismissal is an extreme remedy and requires clear evidence before it will be granted.”

Prejudice to MPAC

10MPAC argues that the Company’s breach is prejudicial to MPAC and that it will continue to suffer prejudice if the Board allows these appeals to proceed and furthermore, the prejudice cannot be compensated by an award of costs. In line with this, MPAC states that it has committed significant resources to its case management by increased staffing and increased information technology resources. This was done in order to comply with the Board’s goal of completing appeals within its assessment cycle, pursuant to the Rules. MPAC emphasizes that its management and staff has developed a plan allocating its resources to comply with the Rules and it has to carefully manage its resources to meet these deadlines. In order to carry this out, MPAC states that this pushes its resources to capacity.

11According to MPAC, if appellants do not comply with the Rules, as in this appeal, MPAC is unable to file a statement of response to comply with the Rules and this puts MPAC’s ability to manage its own resources at risk. Consequently, non-compliance with the Rules creates more workload on MPAC and puts a strain on its resources as it has had to incur additional expenses in providing initial disclosure, tracking and correspondence to the Company, and the expense of this motion.

12I find that the Company’s breach of the Rules has caused prejudice to MPAC. Its failure to provide its Statement of Issues makes it more difficult for MPAC to meet its appeal management obligations. This uncertainty puts a strain on MPAC’s resources. MPAC also had to incur additional expenses in providing initial disclosure materials, tracking and correspondence to the Company, and the cost of this motion. This breach of the Rules, which was not cured, is prejudicial to MPAC.

13The Company filed its appeal to the Board and it was incumbent on the Company to actively pursue its appeal and in this case notify the parties and the Board of a change to its contact address. MPAC has provided proof that it has unsuccessfully attempted to contact the Company by courier. Pursuant to Rule 29, receipt is deemed to have occurred.

CONCLUSION

14I find that MPAC is prejudiced by the Company’s non-compliance with the Rules. The Board grants MPAC’s motion and dismisses the Company’s appeals for the 2017 and 2018 taxation years.