Municipal Property Assessment Corporation v. Fiera Axium Solar Limited, 2019 CanLII 42125

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: May 08, 2019

FILE NO.: DM 159842

Moving Party(ies): Municipal Property Assessment Corporation (“MPAC”), Region 16

Respondent(s): Fiera Axium Solar Limited

Respondent(s): Oro-Medonte Township

Property Location(s): 1500 Line 13 N

Municipality(ies): Oro-Medonte Township

Roll Number(s): 4346-010-005-18100-0000

Appeal Number(s): 3247984, 3308336, and 3362304

Taxation Year(s): 2017, 2018, and 2019

Hearing Event No.: 713569

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

Heard: April 15, 2019 by written submission

Parties	Representative	Submissions
MPAC	Makael Nur	Moving Party
Fiera Axium Solar Limited		Not Received
Oro-Medonte Township		Not Received

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1MPAC seeks an order from this Assessment Review Board (this “Board”) dismissing Fiera Axium Solar Limited’s (“Fiera’s”) appeal of the assessment of 1500 Line 13 N in Oro-Medonte Township for the 2017, 2018, and 2019 taxation years. MPAC argues that the appeals should be dismissed because Fiera has not served a Statement of Issues as required by the Board’s Rules of Practice and Procedure (the “Rules”).

2Neither Fiera nor Oro-Medonte Township filed any material in response to MPAC’s motion, despite being properly served.

3For the reasons that follow, the appeals are dismissed for non-compliance with the Rules.

Background

4Fiera is the tenant of the solar power generating facility at 1500 Line 13 N in Oro-Medonte Township. It filed an appeal of the 2017 taxation year assessment of the property with the Board, and was deemed to file appeals of the 2018 and 2019 taxation year assessments because the appeal has not yet been finally disposed of.

5The Board assigned a commencement date of April 16, 2018 to the appeals pursuant to Rule 33. MPAC sent its initial disclosure Fiera on May 11, 2018, in compliance with the schedule of events set by the Rules. The next major step in the schedule of events was for Fiera to provide MPAC and Oro-Medonte Township its Statement of Issues on or before September 10, 2018. It did not do so.

6Fiera’s representative contacted MPAC on September 17, 2018 to say that they would no longer be representing Fiera and that future correspondence should be sent to Fiera directly. MPAC requested Fiera’s Statement of Issues on October 2, 2018. Fiera did not respond to that correspondence. MPAC filed this motion for dismissal on February 27, 2019.

Dismissal

7MPAC argues that Fiera has not complied with the Rules, and that the appeals should be dismissed on that basis. I find that Fiera 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). Fiera has not provided a Statement of Issues to the other parties, and has not taken any steps to remedy that breach. That failure to serve a Statement of Issues by September 10, 2018 is a breach of the Rules that is entirely attributable to Fiera. 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 Fiera’s breach of the Rules in how much more difficult it is to meet its other obligations when appellants fail to comply. MPAC 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 Fiera did not provide his 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 MPAC’s deadline to serve a response has now passed. MPAC must also take some steps to see if a Statement of Issues is likely. I accept that there is prejudice to MPAC flowing from Fiera’s failure to provide a Statement of Issues.

CONCLUSION

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