City of Brampton v. Excelsior Finance Group Ltd., 2019 CanLII 29137

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: April 5, 2019

FILE NO.: DM 158645

Moving Party(ies): City of Brampton

Respondent(s): Excelsior Finance Group Ltd.

Property Location(s): 50 Lacoste Boulevard Unit 115

Municipality(ies): City of Brampton

Roll Number(s): 2110-120-003-52317-0000

Appeal Number(s): 3323220

Taxation Year(s): 2017

Hearing Event No.: 710266

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

Heard: February 12, 2019 by written submission

Parties

Counsel+/Representative

Submissions

City of Brampton

James Lee

Moving Party

Excelsior Finance Group Ltd.

Not Received

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1The City of Brampton (the “City”) seeks to have this appeal dismissed because Excelsior Finance Group Ltd. (“Excelsior”) did not serve any documents on the City on or before the disclosure deadline. Excelsior 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 Assessment Review Board’s (the “Board’s”) Rules of Practice and Procedure (the “Rules”).

Background

3Excelsior owns the property at 50 Lacoste Boulevard, Unit 115, and applied for a vacant unit rebate from the City for the 2017 taxation year. The City informed Excelsior on July 3, 2018 that its application was denied due to insufficient information. Excelsior appealed to this Board on August 20, 2018.

4The Board assigned a commencement date of October 1, 2018 to the appeal, pursuant to Rule 33. This was a summary proceeding, so the parties were required to exchange documents by October 29, 2018 and hold a mandatory settlement meeting by December 24, 2018. The City says that it did not receive any documents from Excelsior and that it was unable to schedule a meeting because Excelsior was unresponsive to its requests for a meeting. This motion to dismiss was set on January 10, 2019.

Dismissal

5The City argues that the Company has not complied with the Rules, and seems to have abandoned this appeal. The City says that the appeal should be dismissed on that basis. I find that Excelsior is in breach of the Rules in a clear, egregious, and unilateral way. I therefore dismiss the appeals.

6Rule 24(e) 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.”

7A party’s failure to provide a Statement of Issues when required can be a valid basis for dismissal, see Municipal Property Assessment Corporation, Region 19 v Wentworth Property Management Inc., 2018 CanLII 89428 (ON ARB). Disclosure in a summary proceeding serves the same purpose as a Statement of Issues does in a general proceeding. The failure of Excelsior to serve any documents, or respond to the City’s meeting requests, was a breach that is entirely attributable to Excelsior. It has not cured that breach. However, that is not enough to ground a dismissal.

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 has not provided any direct evidence that it is prejudiced by the appeal proceeding. Excelsior has not provided any material to the Board. I find that the failure of Excelsior to defend itself in this dismissal motion is some evidence that it will not be greatly prejudiced if the appeal is dismissed. If it were prejudiced by the dismissal, it would likely have taken some steps to pursue the appeal and to save it from dismissal. It has not done so. In those circumstances I am willing to infer that the balance of prejudice favours dismissal.

CONCLUSION

9The City’s motion to dismiss Excelsior’s appeal is granted. Excelsior did not serve any documents on the City and could not be reached for a mandatory settlement meeting. It also failed to file any material in this motion to dismiss. I find that Excelsior is in breach of the Rules and that this is an appropriate case to dismiss this appeal. Excelsior’s appeal is dismissed.