Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: April 26, 2019

FILE NO.: DM 159693

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

Respondent(s): 1652557 Ontario Inc.

Respondent(s): City of Kingston

Property Location(s): 834-854 Gardiners Road

Municipality(ies): City of Kingston

Roll Number(s): 1011-080-180-06100-0000

Appeal Number(s): 3274368

Taxation Year(s): 2016

Hearing Event No.: 712965

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

Heard: April 5, 2019 by written submission

Parties	Representative	Submissions
MPAC	Makael Nur	Moving Party
1652557 Ontario Inc.	Robert Paz-Provizor	Not Received
City of Kingston	No one appeared	Not Received

DISPOSITION OF THE BOARD DELIVERED BY SUBUOLA AWOLERI

INTRODUCTION

1MPAC filed a motion to dismiss the appeal filed by 1652557 Ontario Inc. (the “Company”) of the assessment of the property located at 834-854 Gardiners Road (the “subject property”) for the 2016 taxation year. MPAC argues that this appeal should be dismissed since the Company has contravened 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 Board.

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

DISPOSITION OF MOTION

3The Board grants MPAC’s motion to dismiss the appeal.

4The Company is in breach of the Rules and MPAC is prejudiced by this breach. Accordingly, the Board dismisses the Company’s appeal for the 2016 taxation year.

REASONS FOR DISPOSITION OF MOTION

5The subject property is a neighbourhood shopping centre with more than two stores attached, under one ownership without an anchor, generally less than 150,000 square feet (“sq. ft.”). The Company filed its appeal of the assessment of the subject property for the 2016 taxation year. The commencement day assigned by the Board to the Company’s appeal was March 15, 2018. MPAC delivered its initial disclosure to the Company on April 9, 2018. In accordance to the Rules, as set out in the Schedule of Events, the Company was to provide its Statement of Issues to MPAC and the City of Kingston by August 9, 2018.

6MPAC did not receive a Statement of Issues from the Company. MPAC contacted the Company on August 17, 2018, advising the Company that it had not received the Company’s Statement of Issues and further extending a grace period until August 22, 2018, for the Company to provide its Statement of Issues. The Company did not respond.

7MPAC contacted the Company again, on December 7, 2018, stating that the Company is in breach of the Rules by its failure to provide its Statement of Issues and its actions have caused prejudice to MPAC, since MPAC is unable to deliver a response. MPAC further advised the Company that if its letter of withdrawal is not received in seven days, MPAC will proceed to have its appeal dismissed by the Board. The Company still failed to provide its Statement of Issues or a letter withdrawing its appeal. MPAC then filed this motion seeking dismissal of the appeal.

8The 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

9MPAC 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. In line with this, MPAC states that it has committed significant resources to its case management by increased staffing and increased information technology resources. This was done in order to comply with the Board’s goal of completing appeals within its assessment cycle, pursuant to the Rules. MPAC emphasizes that its management and staff have developed a plan allocating its resources to comply with the Rules and it has to carefully manage its resources to meet these deadlines. In order to carry this out, MPAC states that this pushes its resources to capacity.

10According to MPAC, if appellants do not comply with the Rules, as in this appeal, MPAC 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.

11I find that the Company’s breach of the Rules has caused prejudice to MPAC. Its 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 sending correspondence to the Company, and the cost of this motion. This breach of the Rules, which was not cured, is prejudicial to MPAC.

CONCLUSION

12I find that MPAC is prejudiced by the Company’s non-compliance with the Rules, a breach that is entirely attributable to the Company. The Board grants MPAC’s motion and dismisses the Company’s appeal for the 2016 taxation year.