Municipal Property Assessment Corporation Region 13 v. 155 Main St. Real Estate Inc., 2019 CanLII 29138

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: April 05, 2019

FILE NO.: DM 159492

Moving Party(ies): Municipal Property Assessment Corporation (“MPAC”) Region 13

Respondent(s): 155 Main St. Real Estate Inc.

Respondent(s): Town of Thessalon

Property Location(s): 155 Main Street

Municipality(ies): Town of Thessalon

Roll Number(s): 5728-000-002-21900-0000

Appeal Number(s): 3141930 and 3160603

Taxation Year(s): 2015 and 2016

Hearing Event No.: 711766

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

Heard: March 29, 2019 by written submission

Parties

Representative

Submission

MPAC

Brittany Kee

Moving Party

155 Main St. Real Estate Inc.

Not received

Town of Thessalon

Not received

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON

1MPAC requests the dismissal of these appeals because 155 Main St. Real Estate Inc. (the “Appellant”) did not serve a Statement of Issues (an “SOI”) on or before the date specified by the Assessment Review Board (the “Board”). The Appellant did not make any submissions on this motion despite having been served with notice.

2The Town of Thessalon, also a party to the appeals, indicated that it intended to actively participate in the proceedings but made no submissions on the motion.

3For the reasons that follow, the appeals are dismissed for non-compliance with the Board’s Rules of Practice and Procedure (the “Rules”).

Background

4The Appellant is the owner of 155 Main Street (the “property”) in the Town of Thessalon. Its representative, Mehran Bagheri, filed an appeal with the Board for the 2015 taxation year assessment of the property. The Appellant was deemed to have brought the same appeal in respect of the property for 2016 pursuant to subsection 40(26) of the Assessment Act, R.S.O. 1990, c. A.31.

5The Board assigned a commencement date of April 16, 2018 for the appeals pursuant to Rule 33. MPAC sent its initial disclosure to the Appellant on May 14, 2018 in compliance with the Schedule of Events set out in the Rules. The next significant event in the Schedule of Events was that the Appellant would serve MPAC and the Town of Thessalon with its documentary disclosure and an SOI on or before September 10, 2018. This was not done.

6In support of its motion, MPAC filed the affidavit of Justin Johnstone, a Case Management Analyst employed by MPAC, sworn on January 24, 2019. In it, Mr. Johnstone stated that on December 7, 2018, MPAC emailed the Appellant to indicate three things: that its failure to provide an SOI was a breach of the Board’s Rules, that the breach had prejudiced MPAC, and that MPAC was unable to deliver any response as a result. Mr. Bagheri replied to the email on December 10, 2018, making reference to an attachment that was neither attached, nor explained in Mr. Johnstone’s affidavit, other than to say that Mr. Bagheri’s issue with the assessment was that the property could not be sold. However, Mr. Johnstone’s reply email of the same date suggests that the attachment did not contain any SOI, because his email included an explanation of why an SOI was necessary and it reproduced Rule 38 on SOIs for the Appellant’s reference. In his affidavit, Mr. Johnstone says that the Appellant remains in breach of the Rules and has failed to serve an SOI.

7MPAC also noted in its notice of motion that these appeals have been outstanding for two years and ten months.

Dismissal

8MPAC argues in this motion that the Appellant has not complied with the Rules. It submits that the appeal should therefore be dismissed.

9Rule 24(e) provides the authority for the Board to dismiss an appeal without holding a hearing if “the appellant has not complied with statutory requirements or these Rules.” In Municipal Property Assessment Corporation, Region No. 9 v 234900 Ontario Ltd., 2018 CanLII 248 (ON ARB), 2017 CanLII 74719 (ON ARB), the Board determined that “dismissal is an extreme remedy and should only be granted in the clearest of cases.” In Municipal Property Assessment Corporation, Region No 7 v Cherry, 2018 CanLII 60392 (ON ARB), the Board specified that the “clearest of cases are those where there are wilful breaches of the Board’s orders or Rules that are entirely attributable to the taxpayer.”

10A party’s failure to provide an SOI when required can form a valid basis for dismissal, as was the case in Municipal Property Assessment Corporation, Region 19 v Wentworth Property Management Inc., 2018 CanLII 89428 (ON ARB). However, the Board also determined in Municipal Property Assessment Corporation, Region 14 v Upper Keele Inc., 2018 CanLII 126632 (ON ARB), 2018 CanLII 248 (ON ARB) that “the prejudice to each party will always be the primary consideration on a dismissal motion.”

11MPAC provided evidence of prejudice. It argues that it is prejudiced by the breach of the Rules, both in the expenses it has incurred in pursuing this motion, and in how much more difficult it is to meet its other obligations when appellants fail to comply. MPAC had to take additional procedural steps when the Appellant failed to serve an SOI.

12The Board accepts MPAC’s submission that a failure of an appellant to serve a timely SOI makes its overall case management more difficult. MPAC cannot provide a response in the absence of an SOI. The Board finds there is prejudice to MPAC flowing from a failure to provide an SOI.

13The Appellant is in breach of the Rules in a clear, egregious and unilateral way, and that this breach has caused prejudice to MPAC. The appeals are therefore dismissed.

CONCLUSION

14MPAC’s motion to dismiss the Appellant’s appeals is granted. The Appellant is in breach of the Rules, the breach is entirely attributable to the Appellant, and MPAC has been prejudiced as a result. The Board therefore dismisses 155 Main St. Real Estate Inc.’s 2015 and 2016 appeals.