Municipal Property Assessment Corporation, Region 13 v. Toad Hall Construction Inc., 2019 CanLII 42129

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: May 08, 2019

FILE NO.: DM 159847

Moving Party(ies): Municipal Property Assessment Corporation (“MPAC”), Region 13

Respondent(s): Toad Hall Construction Inc.

Respondent(s): Municipality of Clarington

Property Location(s): 1828 Baseline Road

Municipality(ies): Municipality of Clarington

Roll Number(s): 1817-010-050-04500-0000

Appeal Number(s): 3259744, 3300932, and 3355867

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

Hearing Event No.: 712904

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

Heard: April 17, 2019 by written submission

Parties	Representative	Submissions
MPAC	Makael Nur	Moving Party
Toad Hall Construction Inc.		Not Received
Municipality of Clarington		Not Received

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1MPAC seeks an order from this Assessment Review Board (this “Board”) dismissing Toad Hall Construction Inc.’s (“Toad Hall’s”) appeal of the assessment of 1828 Baseline Road in Oro-Medonte Township for the 2017, 2018, and 2019 taxation years. MPAC argues that the appeals should be dismissed because Toad Hall has not served a Statement of Issues as required by the Board’s Rules of Practice and Procedure (the “Rules”).

2Neither Toad Hall nor the Municipality of Clarington 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

4Toad Hall is the owner of the vacant industrial land at 1828 Baseline Road in the Municipality of Clarington. 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 to Toad Hall on April 26, 2018, in compliance with the schedule of events set by the Rules. The next major step in the schedule of events was for Toad Hall to provide MPAC and the Municipality of Clarington with its Statement of Issues on or before September 10, 2018. It did not do so.

6MPAC sent an email to Toad Hall on December 10, 2018 noting that it had not been served with Toad Hall’s Statement of Issues. The email went on to say that if the appeals were not withdrawn within 7 days, MPAC would seek to have the appeals dismissed. MPAC filed this motion for dismissal on February 20, 2019.

Dismissal

7MPAC argues that Toad Hall has not complied with the Rules, and that the appeals should be dismissed on that basis. I find that Toad Hall 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). Toad Hall has not provided a Statement of Issues to the other parties, and has not taken any steps to remedy that breach. In fact, there is no evidence that it has taken any steps to advance its appeals at all. Its failure to serve a Statement of Issues by September 10, 2018 is a breach of the Rules that is entirely attributable to Toad Hall. 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 Toad Hall’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 Toad Hall 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 Toad Hall’s failure to provide a Statement of Issues.

CONCLUSION

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