Municipal Property Assessment Corporation v. Jawan Properties Inc., 2019 CanLII 39628

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: April 29, 2019

FILE NO.: DM 159692

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

Respondent(s): Jawan Properties Inc.

Respondent(s): City of Ottawa

Property Location(s): 637 Cummings Avenue

Municipality(ies): City of Ottawa

Roll Number(s): 0614-010-502-47800-0000

Appeal Number(s): 2959889, 3006296, 3071145 and 3145442

Taxation Year(s): 2013, 2014, 2015 and 2016

Hearing Event No.: 713068

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

Heard: April 8, 2019 by written submission

Parties	Counsel+/Representative	Submissions
MPAC	Makael Nur	Moving Party
Jawan Properties Inc.	Not Received
City of Ottawa	Not Received

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON

1MPAC requests the dismissal of these appeals because the appellant, Jawan Properties Inc. (“Jawan Properties”), did not serve a Statement of Issues (an “SOI”) on or before the date specified by the Assessment Review Board (the “Board”). Jawan Properties did not make any submissions on this motion despite having been served with notice.

2The City of Ottawa, also a party to the appeals, made no submissions on the motion.

3For the reasons that follow, the appeals for the 2014, 2015 and 2016 taxation years are dismissed for non-compliance with the Board’s Rules of Practice and Procedure (the “Rules”). MPAC’s motion to dismiss the appeal for the 2013 taxation year is denied.

Background

4Viner Assets Inc. (“Viner Assets”), a previous owner of the property in question at 637 Cummings Avenue in the City of Ottawa, filed an appeal with the Board for the 2013 taxation year assessment of the property. MPAC says the property sold to Jawan Properties in January, 2014, and Jawan Properties was deemed to have brought the same appeal in respect of the property for the 2014 to 2016 taxation years pursuant to subsection 40(26) of the Assessment Act, R.S.O. 1990, c. A.31 (“Act”).

5The Board assigned a commencement date of March 15, 2018 for the appeals pursuant to Rule 33. MPAC then sent its initial disclosure to what it thought was Jawan Properties’ representative on April 3, 2018, in compliance with the Schedule of Events set out in the Rules. The next significant event in the Schedule of Events was that Jawan Properties would serve MPAC and the City of Ottawa with its documentary disclosure and an SOI on or before August 9, 2018. This was not done.

6In support of its motion, MPAC filed the affidavit of Mohammed El Dali, a Senior Case Management Analyst employed by MPAC, sworn on February 20, 2019. Mr. El Dali stated in his affidavit that MPAC was advised that the representative to which disclosure was sent no longer represented Jawan Properties. MPAC then emailed Jawan Properties directly on September 10, 2018 to ask whether a different representative had been retained, to advise that no SOI had been received and to say that the deadline for Jawan Properties’ SOI had been August 9, 2018.

7MPAC also noted in its notice of motion that these appeals have been outstanding for six years.

8The City of Ottawa has not filed any response.

Dismissal

9MPAC argues in this motion that Jawan Properties has not complied with the Rules. It submits that the appeal should therefore be dismissed.

10There was no indication that MPAC included its initial disclosure with its correspondence to Jawan Properties directly after being informed that its former representative had withdrawn. On the other hand, Jawan Properties, had it chosen to participate in the motion, would not likely have succeeded in an argument that MPAC was not in compliance with the Rules, where it had the onus of changing its particulars with the Board. As was noted by Associate Chair Muldoon in Talon International Development Inc. v Toronto (City), 2018 CanLII 8115 (ON ARB), “natural justice cannot be engaged when a party is at fault for its failure to receive notice.” Jawan Properties had notice that MPAC had not received an SOI and it also had notice of the motion.

11Rule 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, 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, 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.”

12A 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. However, the Board also determined in Municipal Property Assessment Corporation, Region 14 v Upper Keele Inc., 2018 CanLII 126632 (ON ARB), 2018 CanLII 248 that “the prejudice to each party will always be the primary consideration on a dismissal motion.”

13MPAC 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.

14The 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.

15Jawan Properties is in breach of the Rules in a clear, egregious and unilateral way, and that this breach has caused prejudice to MPAC. The appeals to which it was a party for the 2014, 2015 and 2016 taxation years are therefore dismissed.

16The appeal for the 2013 taxation year is not, however, dismissed. This is because Viner Assets remained a party to that appeal pursuant to subsection 40(28) of the Act. This subsection says that if ownership of a property changes before an appeal is disposed of, “the reference to the appellant…shall be deemed to be a reference to the owner of the property at the relevant time.” Viner Assets remained the appellant for the 2013 taxation year and it was not provided with notice of this motion.

CONCLUSION

17MPAC’s motion to dismiss the 2014, 2015 and 2016 appeals is granted. Jawan Properties is in breach of the Rules and the breach is entirely attributable to it, and MPAC has been prejudiced as a result. The Board therefore dismisses Jawan Properties’ 2014, 2015 and 2016 appeals.

18MPAC’s motion to dismiss the 2013 appeal is denied because the motion was not on notice to the former owner of the property, Viner Assets.