Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: May 07, 2019

FILE NO.: DM 159992

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

Respondent(s): 4552199 Canada Inc.

Respondent(s): City of Oshawa

Property Location(s): 843 King Street West

Municipality(ies): City of Oshawa

Roll Number(s): 1813-020-025-01900-0000

Appeal Number(s): 3240979, 3300570 and 3355614

Taxation Year(s): 2017, 2018 and 2019

Hearing Event No.: 712906

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

Heard: April 23, 2019 by written submission

Parties	Representative	Submissions
MPAC	Makael Nur	Moving Party
4552199 Canada Inc.	Burke Borowets	Not Received
City of Oshawa	Craig McCullagh	Not Received

DISPOSITION OF THE BOARD DELIVERED BY SUBUOLA AWOLERI

INTRODUCTION

1MPAC seeks an order dismissing the appeals of the assessment of the subject property, located at 843 King Street West filed by 4552199 Canada Inc. (the “Company”) for the 2017, 2018 and 2019 taxation years. MPAC argues that the appeals should be dismissed because the Company failed to provide its Statement of Issues on the date specified by the Assessment Review Board (the “Board”), in accordance to the Board’s Rules of Practice and Procedure (the “Rules”).

2The Company was served with this motion for dismissal but it did not provide any responding materials. The City of Oshawa consents to this motion but did not file any submissions.

DISPOSITION OF MOTION

3The Board grants MPAC’s motion to dismiss the appeals. The Company is in breach of the Rules and MPAC is prejudiced by this breach. Accordingly, the Board dismisses the Company’s appeals for the 2017, 2018 and 2019 taxation years.

REASONS FOR DISPOSITION OF MOTION

4The subject property is a neighbourhood shopping centre with more than two stores attached, under one ownership without anchor, generally less than 150,000 square feet (“sq. ft.”). The Company filed its appeal of the assessment of the subject property for the 2017 taxation year. This appeal was not resolved in 2018 and was also not resolved before March 31, 2019; consequently the Company was deemed to appeal the assessment for the 2018 and 2019 taxation years.

5In accordance to Rule 33, the Board assigned a commencement date of April 16, 2018 to the Company’s appeals. MPAC delivered its initial disclosure to the Company on May 9, 2018. As set out in the Schedule of Events in the Rules, the Company was to provide its Statement of Issues to MPAC and the City of Oshawa by September 10, 2018. MPAC did not receive a Statement of Issues from the Company.

6On December 11, 2018, MPAC contacted the Company advising the Company that it had not received the Company’s Statement of Issues and MPAC has suffered prejudice and is unable to deliver a response. MPAC further advised the Company that if its letter of withdrawal is not received in seven days, MPAC will proceed to have its appeals dismissed by the Board. The Company still failed to provide a response to MPAC’s correspondence or a letter withdrawing its appeals. MPAC then filed this motion seeking dismissal of the appeals.

7I find that the Company is in breach of the Rules in a way that is completely attributable to it. In Municipal Property Assessment Corporation, Region 19 v Wentworth Property Management Inc., 2018 CanLII 89428 (ON ARB), at paragraph 11, the Board determined that failure to provide a Statement of Issues, a breach completely attributable to the appellant and not cured by it, was not enough ground for dismissing the company’s appeal. As the Board held in Municipal Property Assessment Corporation, Region 14 v Upper Keele Inc., 2018 CanLII 126632 (ON ARB), 2018 CanLII 248 (ON ARB), at paragraph 11, there must be evidence of prejudice to the requesting party to justify a dismissal order. Specifically, the Board held that “dismissal is an extreme remedy and requires clear evidence before it will be granted.”

Prejudice to MPAC

8MPAC argues that the Company’s breach is prejudicial to MPAC and that it will continue to suffer prejudice if the Board allows these appeals to proceed and, furthermore, the prejudice cannot be compensated by an award of costs. In line with this, MPAC states that it has committed significant resources to its case management by increased staffing and increased information technology resources. This was done in order to comply with the Board’s goal of completing appeals within its assessment cycle, pursuant to the Rules. MPAC emphasizes that its management and staff have developed a plan allocating its resources to comply with the Rules and it has to carefully manage its resources to meet these deadlines. In order to carry this out, MPAC states that this pushes its resources to capacity.

9According to MPAC, if appellants do not comply with the Rules, as in this appeal, MPAC is unable to file a statement of response to comply with the Rules and this puts MPAC’s ability to manage its own resources at risk. Consequently, non-compliance with the Rules creates more workload on MPAC and puts a strain on its resources as it has had to incur additional expenses in providing initial disclosure, tracking and correspondence to the Company, and the expense of this motion.

10I find that the Company’s breach of the Rules has caused prejudice to MPAC. Its failure to provide its Statement of Issues makes it more difficult for MPAC to meet its appeal management obligations. This uncertainty puts a strain on MPAC’s resources. MPAC also had to incur additional expenses in providing initial disclosure materials, tracking and sending correspondence to the Company, and the cost of this motion. This breach of the Rules, which was not cured, is prejudicial to MPAC.

CONCLUSION

11I find that MPAC is prejudiced by the Company’s non-compliance with the Rules, a breach that is entirely attributable to the Company. The Board grants MPAC’s motion and dismisses the Company’s appeals for the 2017, 2018 and 2019 taxation years.