Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: April 03, 2019

FILE NO.: DM 158942

Moving Party(ies): Municipal Property Assessment Corporation (“MPAC”) Region 05

Respondent(s): BMW Kingston

Respondent(s): City of Kingston

Property Location(s): 1412 Bath Road

Municipality(ies): City of Kingston

Roll Number(s): 1011-080-180-01200-0000

Appeal Number(s): 3233733, 3233732, 3233735, 3233734, 3236882 and 3292363

Taxation Year(s): 2015, 2016, 2017 and 2018

Hearing Event No.: 711077

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

Heard: March 6, 2019 by written submission

APPEARANCES:

Parties

Representative

MPAC

Makael Nur

BMW Kingston

Brian Merkel

City of Kingston

No one appeared

DISPOSITION OF THE BOARD DELIVERED BY SUBUOLA AWOLERI

INTRODUCTION

1MPAC seeks to dismiss the appeals filed by BMW Kingston (the “Company”) for the taxation years 2015, 2016, 2017, and 2018 for its lack of compliance with the Assessment Review Board’s (the “Board’s”) Rules of Practice and Procedure (the “Rules”) by not providing its Statement of Issues on the date specified by the Assessment Review Board.

2The Company and the City of Kingston have not provided a response to this motion despite being served with the notice.

DISPOSITION OF MOTION

3For the following reasons, the Board grants MPAC’s motion to dismiss the appeals. The Company is in breach of the Board’s Rules and MPAC is prejudiced by this breach. The Board dismisses the Company’s appeals for the 2015, 2016, 2017, and 2018 taxation years.

REASONS FOR DISPOSITION OF MOTION

4The subject property is an automobile dealership owned by the Company. The Company filed its appeal of the assessment of the subject property for the 2015, 2016, 2017, and 2018 taxation years. The Board assigned a commencement day of February 15, 2018 to its appeals. In accordance with the Rules as set out in the schedule of events, MPAC delivered its initial disclosure to the Company on March 9, 2018 and the Company was to provide its Statement of Issues to MPAC and the City of Kingston by July 12, 2018. The Company did not do so.

5On July 25, 2018, MPAC requested that the Company provide its Statement of Issues. Brian Merkel, of AEC Paralegal Professional Corporation (“AEC”), representing the Company responded on the same day stating that they had recommended a withdrawal of the appeals to their client and they are yet to receive a response from them. On July 31, 2018, MPAC inquired from Mr. Merkel, regarding the status of the withdrawal and AEC advised that they are still waiting for their client’s response. On August 22, 2018, MPAC contacted Mr. Merkel again for an update on the withdrawal and it did not receive any response.

6On December 5, 2018, MPAC contacted AEC advising it of the Company’s default and further stating that if MPAC does not receive the Company’s withdrawal of the appeals in seven days, MPAC will proceed to have the appeals dismissed by the Board. MPAC did not receive a response. MPAC then filed this motion seeking dismissal of the appeals.

7The 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

8MPAC 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. According to MPAC, this prejudice includes the significant amount of resources it has invested in its case management. MPAC further argues that if appellants do not comply with the Rules, as in this appeal, it 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.

9I accept MPAC argument that the Company’s breach of the Rules has caused prejudice to MPAC. The Company’s 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.

CONCLUSION

10I 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 2015, 2016, 2017, and 2018 taxation years.