996401 Ontario Limited v. Municipal Property Assessment Corporation, 2019 CanLII 42127

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: May 7, 2019

FILE NO.: DM 2019M25

Moving Party(ies): 996401 Ontario Limited

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 30

Respondent(s): City of Greater Sudbury

Property Location(s): Broder Con 6 Lot 6 PCL50214

Municipality(ies): City of Greater Sudbury

Roll Number(s): 5307-090-014-16000-0000

Taxation Year(s): 2017 and 2018

Hearing Event No.: 713566

Legislative Authority: Rule 26(b) of the Assessment Review Board Rules of Practice and Procedure and section 40.1 of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Heard: May 3, 2019 by written submission

Parties	Counsel/Representative	Submissions
996401 Ontario Limited	Ruby Hodgins	Moving Party
MPAC	Justin Johnstone	Received
City of Greater Sudbury		Not Received

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON

1Ruby Hodgins, on behalf of 996401 Ontario Limited, the owner of the property at Broder Con 6 Lot 6 PCL50214, Sudbury (the “Moving Party”), requests leave of the Assessment Review Board (the “Board”) to file appeals for the 2017 and 2018 taxation years because appeals were not filed prior to the deadline set out in the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”).

2The only document filed in support of the motion is what the Board believes to be the Affidavit of Ms. Hodgins, presumed because it fails to recite at its start the name of the affiant or the date it was sworn, as it is required to do. Making reference to other documentation in the file, the signature at the end appears to be that of Ms. Hodgins and the Commissioner who affirmed the Affidavit noted its date as March 6, 2019.

3Ms. Hodgins’ Affidavit consists of two paragraphs. Apart from capitalization and bolding, the first paragraph of the Affidavit reads exactly as follows: “late appeal for the tax years 2017, 2018 do to the fact that the previous appeal for 2014, 2015, 2016 was only settled in 2019…” The second paragraph from the unaltered form it was clearly taken from says exactly: “I make this affidavit in support of a motion for [REMEDY] and no other purpose.”

4MPAC opposes the motion and relies on the Affidavit of its Property Valuation Analyst Sally McInall sworn on April 3, 2019. No submission was received from the City of Greater Sudbury.

5Rule 61(b) of the Board’s Rules of Practice and Procedure (the “Rules”) provides that a party seeking relief in a motion is required to provide the grounds to be argued. The Moving Party did not do that and it is not the Board’s role to guess what the grounds might be or what facts could or should have been provided. Nevertheless, such motions are usually pleaded making reference to Rule 26(b) on allowing late appeals or section 40.1 of the Act on the correction of palpable errors on the roll. These possibilities are addressed below, followed by the Board’s conclusion that the motion should be denied.

Background

6Ms. McInall’s Affidavit sets out the background to the motion. In January, 2014, the Moving Party filed a Request for Reconsideration (“RfR”) on MPAC’s assessment for the 2014 taxation year. In February, 2014, MPAC confirmed its assessment and the Moving Party filed an appeal for the same taxation year in March, 2014.

7MPAC says it was informed by the municipality of a change of address for the Moving Party in April, 2015 and it directed subsequent correspondence to that new address, including its assessment notice for the property for 2015.

8MPAC then issued its Property Assessment Notice for the 2017 to 2020 taxation years and mailed it to the same address.

9In February, 2019, the Moving Party resolved the appeals for the 2014 to 2016 taxation years and filed this motion for leave to file appeals for the 2017 and 2018 taxation years in March, 2019.

10MPAC indicates in its material that on January 24, 2014 the property was inspected when it was being used for winter storage of recreational watercraft. MPAC also indicates that it was a vacant parcel of land. Whichever use, neither required the Moving Party to file an RfR for the taxation years in question pursuant to subsection 40(3) of the Act as a precondition of an appeal. Therefore, pursuant to subsection 40(6) of the Act, the last day for filing an appeal was March 31 of the same taxation year. As a result, for the 2017 taxation year, the last day to appeal was March 31, 2017 and for the 2018 taxation year, the last day to appeal was March 31, 2018. As noted above, this motion was filed in March, 2019.

11Subsection 40(26) of the Act also provides for the deeming of appeals if an appeal is not disposed of by March 31 “for a subsequent taxation year to which the same general reassessment applies.” The 2017 taxation year was not, however, a year to which the same general reassessment as the 2016 taxation year applied, and so there was no deeming of the appeal for the 2017 taxation year, even though the 2016 appeal was unresolved. In addition, with no outstanding appeal for the 2017 taxation year, there could not have been any deemed appeal for the 2018 taxation year.

Late Appeal

12Rule 26(b) provides that a late appeal can be accepted by the Board “only if the appellant is a person entitled to receive a notice of assessment who did not receive notice, and filed the appeal with the Board within 30 days of becoming aware of the assessment that is the subject of the appeal.”

13The first question is whether the Moving Party was entitled to receive a notice of assessment. MPAC indicates that the Moving Party is the owner of the property and the Moving Party’s entitlement to receive a notice of assessment was not disputed.

14On the second question, however, there is no evidence to suggest that the Moving Party did not receive the notice, and the use of the word “and” means that all three questions must be answered in the affirmative for a moving party to be successful on a motion to file an appeal late.

15Without any evidence that the Moving Party did not receive the notices of assessment for the 2017 or 2018 taxation years, late appeals cannot be accepted pursuant to Rule 26(b).

Palpable Error

16The Board has the authority to correct palpable errors on the assessment roll. The applicable statutory framework for the exercise of that power is set out in subsection 40.1(b) of the Act as follows:

40.1 If it appears that there are palpable errors in the assessment roll,

(b) if alteration of assessed values or classification of land is involved, the Board may extend the time for bringing the appeals and direct the assessment corporation to be the appellant.

17The legal test for palpable error is set out in the Board’s decision in Municipal Property Assessment Corporation, Region 28, v. Callander (Municipality), 2018 CanLII 110104 (ON ARB). This says that when determining whether a palpable error exists on the roll, the Board should first ask whether “it is a true inadvertent and unintentional error,” and second, whether the error is palpable and “an error of conspicuous magnitude: plain, evident and easy to understand.”

18Even if that analysis leads to a determination that there is a palpable error, the Board’s power to correct palpable errors after that analysis remains discretionary, only to be exercised in the clearest of circumstances. This is because the power to reopen the roll to correct a palpable error is the only part of the Act not to have a limitation period. Appeals are only to be created where it would be “unreasonable, unfair and highly prejudicial” to leave the assessment roll uncorrected.

19In this case, the material filed does not assert that the assessment roll contains any error. In the absence of any such submissions or evidence to show that the roll contains any error, the Board cannot find one. It is therefore determined that there is no palpable error on the roll.

CONCLUSION

20There are no grounds to allow for a late appeal to be filed, nor are there any palpable errors on the roll. Therefore, 996401 Ontario Limited’s motion to file appeals for the 2017 and 2018 taxation years is denied.