Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: April 23, 2019

FILE NO.: RD 2019M08

Assessed Person(s): Sylvia Vienna Veres and Gordon Veres

Appellant(s): Gordon Veres

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 14

Respondent(s): Township of King

Property Location(s): 123 Carrying Place Trail

Municipality(ies): Township of King

Roll Number(s): 1949-000-114-35628-0000

Appeal Number(s): 3260215

Taxation Year(s): 2017

Hearing Event No.: 696067

Legislative Authority: Rule 123 of the Assessment Review Board Rules of Practice and Procedure

Request for: A review of the Board’s Decision WR 152642 issued on November 30, 2018

Heard: By written submission

Parties

Representative

Submissions

Sylvia Vienna Veres and Gordon Veres

Andrew Attard

Requester

MPAC

No one appeared

Requested

Township of King

No one appeared

Requested

DECISION DELIVERED BY PAUL MULDOON AND ORDER OF THE BOARD

INTRODUCTION

1Sylvia and Gordon Veres seek a review of the decision of this Assessment Review Board (this “Board”) in Veres v Municipal Property Assessment Corporation, Region 14, 2018 CanLII 116160 (ON ARB) (the “Decision”). They argue that the Decision erred in finding that the Board had no jurisdiction to extend the time for them to apply to have the property 123 Carrying Place in the Township of King classified as Conservation Lands. This Request for Review was filed with the Board on December 11, 2018.

2The Board is satisfied that the Decision contains an error of fact or law such that the Board would likely have reached a different decision. Sylvia Vienna Veres and Gordon Veres (the “Veres’”) Request for Review is granted. The Veres are granted an extension of time to file a request for reconsideration of the property’s assessment for the 2017 taxation year with the Ontario Ministry of Natural Resources – Conservation Land Incentive Program (the “Ministry”). That request for reconsideration must be filed within 30 days of the date of the issuance of these reasons.

ISSUES AND ORDER SOUGHT

3The Veres seek a review of the Decision on the basis that the Board erred in finding that it could not address the late application for the Conservation Lands program.

RELEVANT RULES

4Review requests must meet the procedural requirements of the Board’s Rules of Practice and Procedure (“Rule”) Rule 120 before they are considered. There are no procedural concerns with the Veres’ request. Reviews can only be granted if the provisions of Rule 121 are met: That Rule states:

121 A request for review will not be granted unless the Board is satisfied that:

(a) the Board acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

(b) the Board made a significant error of law or fact such that the Board would likely have reached a different decision;

(c) the Board heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result;

(d) there is new evidence that could not have reasonably been obtained earlier and would have affected the result; or

(e) any of the situations in Rule 122 exist.

5If the Board is satisfied that a provision of Rule 121 is met, the remedies available are set out in Rule 123, which states:

123 Upon consideration of a request for review, or on its own initiative, the Board may:

(a) dismiss the request;

(b) reinstate the appeal, with or without conditions; or

(c) after providing all parties an opportunity to make submissions,

i. confirm, vary, or cancel the decision,

ii. order a rehearing on all or part of the matter, or

iii. order a motion to decide the review.

BACKGROUND

6The Veres are the owners of the property, which has been in the Conservation Lands property class from 2006 through 2016, and again in 2018. For the 2017 taxation year they missed the July 31, 2016 application deadline because Canada Post had altered their postal code, resulting in missed mail. The Veres did not realize that they had missed the application deadline until they received their 2017 tax bill from the Township of King, which they received on July 5, 2017.

7The Veres contacted the Ministry the next day. They were advised, on July 7, 2017, that the Ministry could not accept request for reconsideration applications after March 31, 2017. The Ministry stated that this Board could extend the request for reconsideration deadline and provided information on how to contact the Board.

8That same day, July 7, 2017, the Veres applied to the Board to extend the time to file a request for reconsideration, including the information they had been provided by the Ministry. The Board replied to their request on July 31, 2017 informing them that they already had an active 2017 appeal before the Board and could raise any concerns at the hearing.

9The hearing was held before Member Weagant on April 11, 2018. The Decision, denying the Veres request to extend the time for a 2017 request for reconsideration, was issued on November 30, 2018.

ERROR OF FACT OR LAW

10Decisions of this Board can only be successfully reviewed if the Board is satisfied that one of the grounds set out in Rule 121 are met. The Veres say that clause 121(b) is made out because, they argue, “the Board made a significant error of law or fact such that the Board would likely have reached a different decision.” It is important to understand the legal framework before considering if the Decision is in error.

Conservation Lands

11The statutory framework for the Conservation Lands property class is complex and is set out in the General Regulation, O. Reg. 282/98 (the “Regulation”). Part VII of the Regulation is entitled “Disputes Relating to Conservation Land.” Section 37 provides definitions making the term “Administrator” mean the Minister of Natural Resources or his delegate, and “Tribunal” mean the Mining and Lands Tribunal. Section 38 sets out the request for reconsideration process, by modifying the process set out in Section 39.1 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”). The important changes include paragraph 38(3)1 replacing any reference in the Act to the “assessment corporation” to be a reference to the “Administrator.”

12Section 39 of the Regulation sets out the process for an appeal where the issue is the Conservation Lands property class. Paragraph 0.1 makes a request for reconsideration a mandatory precondition of an appeal. Paragraph 1 requires this Board to refer Conservation Lands issues to the Tribunal.

13The provision really at issue in this case is section 40 of the Regulation. That section is entitled “Special Consideration if Deadline Missed.” Subsection 40(1) gives the Administrator the power to accept a settlement if three conditions are met: (a) every requirement for the Conservation Lands property class, except submitted the application on time, is met; (b) the land would be Conservation Land if the deadline had not been missed, and (c) the Administrator determines that “there are there are mitigating circumstances explaining why the deadline was missed.” Subsection 40(2) gives essentially the same powers to the Tribunal if there is an appeal.

The Decision

14The Decision reviewed the statutory framework and held, at paragraph 24, that because “the Veres’ did not file a [request for reconsideration] for the 2017 taxation year, there is no means for this appeal to reach the Board.” The Decision further held, at paragraph 25, that “the determination of the appeal where the deadline was missed is the responsibility of either the Administrator or the Tribunal, and not the Board.” It is those conclusions that the Veres challenge on review.

15The Veres concern largely flows from the July 7, 2017 email form the Ministry that stated that the Board could extend the time for filing a request for reconsideration. The Board is satisfied that the Decision erred in not properly considering subsection 40(4) of the Act.

16Subsection 40(4) of the Act permits this Board to extend the time for filing a request for reconsideration if the Board is of the opinion that “there are extenuating circumstances explaining why a request for reconsideration in respect of a property was not made within the time required under section 39.1.” Those requests must be made “by the person during the taxation year.”

17The Decision did not consider subsection 40(4) of the Act. Rather, its conclusion flowed from an interpretation of section 40 of the Regulation. What the Decision did not consider is the limited application of section 40 of the Regulation. Subsection 40(1) only applies “on a request described in subsection 38(1).” Subsection 38(1) is the request for reconsideration provision. That is, the Administrator only has those powers once a request for reconsideration is filed. The Veres main concern is that they missed the request for reconsideration deadline. Subsection 40(1) does not address how to remedy that situation, only subsection 40(4) of the Act does.

18Subsection 40(2) is limited to “an appeal described in section 39.” Section 39 outlines the appeal process, including making a request for reconsideration a mandatory precondition to an appeal. The Veres concern is that they missed the deadline to submit a request for reconsideration. Subsection 40(2) does not address how to remedy that situation, only subsection 40(4) of the Act does.

19It was an error of law for the Decision to not adequately consider the relevant provisions of the legislation. Subsection 40(4) was clearly relevant on the facts of this case. A failure to consider its application was an error.

REMEDY

20Having found that the Decision contains an error, the Board must consider the appropriate remedy. This is an appropriate case to cancel the Decision and decide the issue. There is no dispute on the facts and the error in the Decision is pure error of law. There is nothing to be gained from a re-hearing.

21The appropriate step here would have been for the Board to grant an extension of time for the Veres to file their 2017 request for reconsideration with the Ministry. Extensions of time can only be granted, pursuant to subsection 40(4), if t “there are extenuating circumstances explaining why a request for reconsideration in respect of a property was not made within the time required” and the request is made “by the person during the taxation year.”

22The extenuating circumstance faced by the Veres is the lack of notice that an application for the Conservation Lands program was required. This was due to the package being mailed to the wrong postal code. That was outside of the Veres control and they took steps quickly once they became aware of the issue, including a very timely application to this Board pursuant to subsection 40(4). The Board denied that extension request in error. The request was only denied because it interpreted it as a request to extend the time to file a request with MPAC. But the request clearly related to the Ministry. The Board is satisfied that extenuating circumstances exist and therefore extends the time for fling a request for reconsideration with the Ministry for the 2017 taxation year.

CONCLUSION

23The Decision erred in failing to consider the role of subsection 40(4) of the Act in the Conservation Lands statutory framework. The Board cancels the Decision and extends the time for the Veres to file a 2017 request for reconsideration of the property with the Ministry. That request must be made to the Ministry within 30 days of the date of these reasons.