3242795 Nova Scotia Limited et al. v. Municipal Property Assessment Corporation et al., 2019 CanLII 25954

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

March 29, 2019

FILE NO.:

RD 2019M10

Assessed Person(s):

3242795 Nova Scotia Limited and 9273-2775 Quebec Inc

Appellant(s):

3242795 Nova Scotia Limited and 9273-2775 Quebec Inc

Respondent(s):

Municipal Property Assessment Corporation (“MPAC”) Region 22

Respondent(s):

City of Guelph

Property Location(s):

390 Woodlawn Road West

Municipality(ies):

City of Guelph

Roll Number(s):

2308-040-017-18900-0000

Appeal Number(s):

2964493, 3026599, 3090730, and 3157736

Taxation Year(s):

2013, 2014, 2015, and 2016

Legislative Authority:

Rule 123 of the Assessment Review Board Rules of Practice and Procedure

Request for:

A Review of Board’s Decision Nos. 2964493, 3026599, 3090730 and 3157736 issued on July 21, 2017

Heard:

January 30, 2019 by written submission

Parties

Counsel⁺/Representative

Submissions

City of Guelph

Christopher Cooper⁺

Requester

3242795 Nova Scotia Limited and 9273-2775 Quebec Inc

Claude Bumstead

Received

MPAC

Tony Pileggi

Received

DECISION DELIVERED BY PAUL MULDOON AND ORDER OF THE BOARD

INTRODUCTION

1The City of Guelph (the “City”) seeks a review of Decision Nos. 2964493, 3026599, 3090730 and 3157736 (the “Decision”), issued by this Assessment Review Board (this “Board”) on July 21, 2017. The Decision was issued without reasons based on partially executed minutes of settlement submitted to the Board. The City did not agree to the settlement set out in those minutes of settlement. It says that there was, therefore, no settlement because it was a party to the appeals that were purportedly settled. The City request to review was filed with the Board on August 21, 2017.

ISSUES AND ORDER SOUGHT

2The City argues that the Board acted outside of its jurisdiction in issuing a decision without having either the consent of the parties or holding a hearing. The City also says that issuing a consent decision without all of the party’s consent violates the rules of natural justice or procedural fairness. Finally, the City argues that the Decision contains and error of law or fact, such that the Board would likely have reached a different decision.

3The City asks that the Decision be cancelled and a Schedule of Events be assigned to these appeals.

RELEVANT RULES

4Review requests must meet the procedural requirements of Rule 120 before they are considered. Rule 120 Board’s Rules of Practice and Procedure (the “Rules”) states:

120 A party may request a review of any final decision of the Board, other than a decision pursuant to Rule 122, by filing a request in writing no more than 30 days after the decision was issued, including:

(a) a copy of the decision to be reviewed;

(b) the written reasons for the decision, as set out in Rule 112;

(c) the reasons for the request, addressing the factors set out in Rule 121;

(d) notice of any appeals or applications for judicial review that have been filed in relation to the decision;

(e) proof of service on all other parties to the proceeding;

(f) the remedy or relief sought; and

(g) the fee specified by the Board.

5Reviews can only be granted if the provisions of Rule 121 are met: That Rule states:

121 A request for review will not be granted unless the Board is satisfied that:

(a) the Board acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

(b) the Board made a significant error of law or fact such that the Board would likely have reached a different decision;

(c) the Board heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result;

(d) there is new evidence that could not have reasonably been obtained earlier and would have affected the result; or

(e) any of the situations in Rule 122 exist.

6If the Board is satisfied that a provision of Rule 121 is met, the remedies available are set out in Rule 123, which states:

123 Upon consideration of a request for review, or on its own initiative, the Board may:

(a) dismiss the request;

(b) reinstate the appeal, with or without conditions; or

(c) after providing all parties an opportunity to make submissions,

i. confirm, vary, or cancel the decision,

ii. order a rehearing on all or part of the matter, or

iii. order a motion to decide the review.

Procedural Issue

7Rule 120(b) requires that reasons for the decision be submitted with a Request for Review but the City did not do so. This is because there are no reasons for the Decision. The Board finds that, in this case, the reasons can be inferred. The Decision was issued administratively based on minutes of settlement, so there is no Member of this Board that could give reasons. But it is clear that the Decision was issued in accordance with Rule 70, which states:

70 The Board may issue a decision in accordance with minutes of settlement that are not fully executed if:

(a) the minutes of settlement are executed by all parties but one;

(b) the time set in Rule 69 for executing minutes has passed; and

(c) a party has requested that the Board issue the decision.

8That is a sufficient set of reasons to permit review.

Background

93242795 Nova Scotia Limited and 9273-2775 Quebec Inc (the “Companies”) appealed the assessment of the property located at 390 Woodland Road West, in the City of Guelph, for the 2013, 2014, 2015, and 2016 taxation year. On February 7, 2017 the Companies reached an agreement with MPAC on the proper assessment of the property for those taxation years. Those two parties executed minutes of settlement and sent them to the City for its approval. This was the first time the City was aware of any potential settlement.

10Three days later, on February 10, 2017, the appeals came before the Board. The City requested an adjournment in order to review the proposed settlement and the Board granted that request. The City asked for further information about the property on May 25, 2017. The Companies responded to the City on June 13, 2017 saying that it could not find the information that the City was seeking.

11On July 4, 2017 the Companies sent a request to the Board, pursuant to Rule 70, that a decision be issued on the minutes of settlement, notwithstanding that the minutes were not executed by the City. The City sent a letter to the Board two days later, on July 6, 2017, objecting to the Companies’ request and stating that Rule 70 does not apply. The Board issued the Decision’s on July 21, 2017.

Rule 70

12Rule 70 did not come into force until April 1, 2017. The City says that it should not, therefore, apply to minutes of settlement that were prepared on February 7, 2017. The Board does not accept that submission. The Rules apply from the time they come into force to all appeals. There are no provisions in the Rules that exempt existing appeals. Rule 70 applied to these appeals.

13The City also argues that the intent of Rule 70 could not have been to impose an outcome over the objections of one party. The Board agrees.

14Rule 70 is aimed at paperwork shortcomings only. There can be no resolution of any appeal without the agreement of all of the parties to the appeal. A dispute amongst three parties is not settled if two of the three agree. It is only partially resolved at that point. Rule 69 sets the maximum time for each party to sign minutes of settlement and counts from the parties “advising the Board that the appeal has been resolved.” An appeal is not resolved unless all parties to the appeal agree on the outcome. The only exception from the requirement for all parties’ consent is Rule 39, which deems consent to a future settlement if a party does not serve a Statement of Response. That Rule does not apply here.

15The Companies did not directly address the lack of consent in its settlement of the appeals. They argue that the City’s Request for Review should not be granted because the City has not properly objected to the minutes of settlement. They say that the City has not raised specific concerns, and raised them too late. The Board does not accept those arguments.

16The City served a Statement of Response on March 30, 2016, setting out its issues with the Companies’ appeals. The City advised the Board on February 10, 2017 that it did not consent to the settlement and need to time to investigate the matter. The City requested specific information form the Companies on May 25, 2017, indicating that it did not yet agree with the proposed settlement. Finally, the City sent a letter to the Board two days after the Companies requested a decision, making it clear that the City did not consent to the proposed settlement. It should have been clear to the other parties that the City had concerns.

17But even if the City had not made its concerns known, its consent was required before the appeals could be settled. The City was a party to these appeals. It did not need to explain why it did not consent. If the matter went to a hearing the City would want to have clear evidence and arguments on the outcome, but there was no hearing here. The City did not consent and, as a party, its consent was required before a consent decision could be issued.

18The Companies also make note of the City’s failure to meet timelines set by the Board and that the review should be denied because the City did not ask for more information until over 100 days after it was sent the minutes of settlement. That is a lengthy delay, but it is not relevant here. Consent is required for a decision to be issued without a hearing and the City did not consent. This is not a case where a balancing of interests is appropriate.

19MPAC filed some evidence in this review but did not make submissions on whether the Decision should be cancelled.

20The Board agrees with the City that the Decision was issued without jurisdiction. The Board cannot issue a consent decision when a party has not consented to the outcome. Issuing the Decision without consent was also an error of law and a violation of natural justice. Consent resolutions require the consent of all parties to a dispute. The City was a party to the appeals and did not consent to the resolution proposed by the other parties. The Board erred in issuing a consent decision without consent.

REMEDY

21Rule 123 sets out the remedies when a review is granted. The only appropriate remedy here is to cancel the Decision and prepare these appeals for a hearing. The Registrar will set a Commencement Date for these appeals, in consultation with the parties.