Municipal Property Assessment Corporation v. Children’s Hospital of Eastern Ontario, 2019 CanLII 32430

Assessment Review Board / Commission de révision de l’évaluation foncière

ISSUE DATE: April 9, 2019

FILE NO.: DM 158993

Moving Party(ies): Municipal Property Assessment Corporation (“MPAC”) Region 3

Respondent(s): Children’s Hospital of Eastern Ontario

Respondent(s): Bullion Development Inc.

Respondent(s): City of Ottawa

Property Location(s): 2141 Thurston Drive

Municipality(ies): City of Ottawa

Roll Number(s): 0614-116-506-00982-0000

Appeal Number(s): 3217370, 3289646, and 3347114

Taxation Year(s): 2017, 2018 and 2019

Hearing Event No.: 711169

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

Heard: March 7, 2019 by written submission

Parties	Counsel+/Representative	Submissions
MPAC	Makael Nur	Moving Party
Children’s Hospital of Eastern Ontario	Not Received
Bullion Development Inc.	Not Received
City of Ottawa	Not Received

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1MPAC seeks to have these appeals dismissed because the Children’s Hospital of Eastern Ontario (“CHEO”) did not serve a Statement of Issues on or before the date specified by the Assessment Review Board (the “Board”). CHEO did not file any material in this motion, despite being properly served. The City of Ottawa also failed to provide any submissions.

2For the reasons that follow, the appeals are dismissed for non-compliance with the Board’s Rules of Practice and Procedure (the “Rules”).

Background

3CHEO is the tenant of the office tower at 2141 Thurston Drive in the City of Ottawa. It leases the property from Bullion Development Inc. It filed an appeal of the 2017 taxation year assessment of the property with the Board. An appeal was deemed for the 2018 and 2019 taxation years because the 2017 appeal has not yet been resolved.

4The Board assigned a commencement date of February 15, 2018 to the appeals pursuant to Rule 33. MPAC sent its initial disclosure to the Taxpayers on March 6, 2018, in compliance with the schedule of events set by the Rules. The next major step in the schedule of events was for CHEO to provide MPAC and the City of Ottawa with its Statement of Issues on or before July 12, 2018. It did not do so.

5MPAC contacted CHEO on July 23, 2018 and requested its Statement of Issues. CHEO responded and asked if MPAC would consent to accepting a Statement of Issues on August 3, 2018. MPAC agreed. CHEO requested more time on August 13, 2018 and MPAC agreed to accept a Statement of Issues by the end of August “or very early September.” CHEO did not comply with that deadline.

6MPAC sent CHEO a letter on December 5, 2018 asking CHEO to withdraw the appeals. The letter also stated that if the appeals were not withdrawn within seven days MPAC would bring a motion to dismiss the appeals. MPAC filed this motion, including its affidavit evidence, on January 31, 2019. The Board then set filing deadlines for the other parties. No other material was received.

Dismissal

7MPAC argues that CHEO has not complied with the Rules, and that the appeals should be dismissed on that basis. I find that CHEO is in breach of the Rules in a clear, egregious, and unilateral way. I therefore dismiss the appeals.

8Rule 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.”

9A 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). The failure of CHEO to serve a Statement of Issues on the other parties by July 12, 2018 was a breach that is entirely attributable to CHEO. It has not cured that breach. However, that is not enough to ground a dismissal.

10The “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. MPAC argues that it is prejudiced by CHEO’s breach of the Rules in how much more difficult it is to meet its other obligations when appellants fail to comply. It argues that the prejudice cannot be cured by an award of costs.

11MPAC provided evidence of prejudice. It had to take additional procedural steps when CHEO did not provide their Statement of Issues. I accept MPAC’s claim that a failure of an appellant to provide a timely Statement of Issues makes its overall case management more difficult. It cannot provide a response when there is no Statement of Issues, and must take some steps to see if a Statement of Issues is likely. I accept that there is prejudice to MPAC flowing from CHEO’s failure to provide a Statement of Issues.

CONCLUSION

12MPAC’s motion to dismiss CHEO’s appeals is granted. It is in breach of the Rules and that breach is entirely attributable to CHEO. MPAC is prejudiced by CHEO’s breach. I therefore dismiss the 2017, 2018, and 2019 appeals filed by CHEO.