Auto World Imports Network v. Municipal Property Assessment Corporation, 2019 CanLII 44274

Assessment Review Board / Commission de révision de l’évaluation foncière

ISSUE DATE: May 16, 2019

FILE NO.: DM 2019M19

Moving Party(ies): Auto World Imports Network (operating as 1938388 Ontario Limited)

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 14

Respondent(s): City of Vaughan

Property Location(s): 230 Sweetriver Boulevard

Municipality(ies): City of Vaughan

Roll Number(s): 1928-000-233-92028-0000

Taxation Year(s): 2017 and 2018

Hearing Event No.: 712070

Legislative Authority: Rule 26(b) of the Assessment Review Board Rules of Practice and Procedure

Heard: April 5, 2019 in writing

Parties	Representative	Submissions
Auto World Imports Network	Colin Francis	Moving Party
MPAC	Drew Samuels	Received
City of Vaughan	Jaroslaw Wowk	Received

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON

DISPOSITION OF MOTION

1Colin Francis, on behalf of Auto World Imports Network (operating as 1938388 Ontario Limited), tenant of 230 Sweetriver Boulevard in the City of Vaughan (the “Moving Party”), requests leave of the Assessment Review Board (the “Board”) to file late 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”).

2A total of three affidavits were filed with each party’s motion materials. In support of the motion, Mr. Francis filed the Affidavit of Michelle Tomascik, sworn on March 7, 2019. MPAC opposed the motion and relied on the Affidavit of Christopher Wright, sworn on March 19, 2019. The City of Vaughan (the “Municipality”) also opposed the motion and relied on the Affidavit of Jaroslaw Wowk, sworn on March 22, 2019. The Moving Party filed its reply on March 27, 2019.

3For the reasons that follow, the Board determines that the motion should be denied.

REASONS FOR DISPOSITION OF MOTION

4There were four omitted assessments relating to the property in the 2017 and 2018 taxation years. In her Affidavit, Ms. Tomascik says that the landlord of the property was required to give the tenant (who is the Moving Party in this matter) notices of assessment, but that it did not. She says that supplementary tax bills issued by the Municipality were provided by the landlord to the Moving Party on November 23, 2018. These were then given to the Moving Party’s representatives by the Moving Party on November 26, 2018.

5The Affidavit goes on to say that on December 20, 2018, the Moving Party’s representatives “requested consent from MPAC and the Municipality to ensure the late appeal request would be less expeditious (sic) and contentious, and to ensure a complete Expedited Board Direction Form (“EBDF”) when submitted.” The Municipality objected to the late appeal request the same day they were told of it, and on January 9, 2019, MPAC indicated they would take no position on the request. On January 14, 2019, the EBDF was filed.

6MPAC does not dispute any of the Moving Party’s allegations. The only clarification in the Affidavit of Mr. Wright, Manager of Valuation and Customer Relations employed by MPAC, is that MPAC sent its Property Assessment Change Notice outlining the omitted assessments to the Moving Party’s landlord on May 11, 2018. Mr. Wowk, an employee of the Municipality, added in his Affidavit that supplementary tax bills arising from the omitted assessments were sent to all affected parties on or around October 25, 2018, and that the Municipality would be prejudiced if the Moving Party was allowed to file its appeals late.

Late Appeals

7The omitted assessment notices were issued by MPAC to the Moving Party’s landlord on May 11, 2018, and, pursuant to subsection 40(8) of the Act, the last day for filing an appeal for taxation years after 2016 was 120 days later, or September 10, 2018. The EBDF was filed on January 14, 2019 and the Notice of Motion requesting an extension of time was dated March 7, 2019.

8Rule 26(b) of the Board’s Rules of Practice and Procedure (the “Rules”) 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.”

9The first question to be determined then is whether the Moving Party was entitled to receive notices of assessment. No one contested that the landlord was required to provide the Moving Party with a copy of the notice of omitted assessments, whether under the tenancy agreement between the landlord and the Moving Party, or pursuant to subsection 35(2) of the Act.

10The second question is whether the Moving Party did not receive the notices of assessment and neither MPAC, nor the Municipality suggested otherwise.

11The third and pivotal question is whether the Moving Party “filed the appeal with the Board within 30 days of becoming aware of the assessment that is the subject of the appeal.”

12The Moving Party received supplementary tax bills on November 23, 2018, but did not file an EBDF for the Board to accept the late appeals until January 14, 2019, more than 30 days later. The reason, as set out in the Moving Party’s material, was that it was waiting for the consent of the other two parties, as it “believed the late appeal request would have been declined by the Board due to unconfirmed consent or objection from the parties, which has been the case in prior administrative requests to the Board...” The Moving Party’s position is that “the late appeal was filed with a completed EBDF form within 30 days of the Moving Party becoming aware that they were entitled to receive notice and eligible to file a late appeal under Rule 26(b) and to date has never received an assessment notice relating to the omitted assessments.”

13There is no explanation in the Moving Party’s materials as to why it should have been unclear that it was entitled to receive the notices, or why it took time for that fact to be discovered. The Moving Party’s submission indicates that it retained its representative on November 26, 2018, three days after becoming aware of the tax bill, and that the Moving Party was advised by its representative on December 14, 2018 that the appeal deadline had passed. The representative received a copy of the lease on December 21, 2018, which includes clauses entitling the Moving Party to a copy of a notice of assessment. The Board notes that all of this occurred within 30 days of the Moving Party receiving the tax bills resulting from the notices of assessment, which is when the Board finds the Moving Party became aware of the omitted assessments. Moreover, subsection 35(2) of the Act, in force at all material times, provides that a tenant is entitled to such notices.

14Citing a Board decision in Sabl Corp., v. Municipal Property Assessment Corp., Region 9, [2018] O.A.R.B.D. No. 94 (“Sabl”), the Moving Party argues that the 30-day period had not started running because, as of the date of filing the notice of motion, the Moving Party had not received the notices of assessment. This Board Member finds that this cannot be what was intended by the Rule.

15In Sabl, the appellant, also a commercial tenant, became aware of its obligation to pay property taxes in invoices that were provided to it in late August 2017. After requesting an extension of time to file a request for reconsideration with MPAC was denied because the property did not fall in the classes in which such a request would be allowed, the appellant requested assessment notices from its landlord on November 16, 2017 and received them on November 27, 2017. Its motion was filed the next day.

16The Board determined in that decision that the appellant was entitled to receive a copy of the notice from the landlord pursuant to subsection 35(2) of the Act. The Board found that the appellant did not receive the notice of assessment “when they were required to pursuant to s. 35(2) of the Act” and determined that the second question was met. On the third question, the Board wrote that the appellant “received a copy of the assessment notices of November 25, 2017 and filed these appeals a mere two days later…well within the 30 days filing deadline.” The decision concludes that the appellant “falls squarely within the confines of Rule 26(b).” With respect, this Member is of the view that decision incorrectly applies Rule 26(b) in determining the receipt of a notice of assessment is the same as becoming aware of an assessment described by the Rule.

17Paragraph 8 of Sabl correctly interprets the second part of the Rule and refers to the common law principle of notice, “that parties be given adequate notice of actions that interfere with a person’s rights.” This is the reason the Rule provides a party 30 days from the date of becoming aware of the assessment to file an appeal. The Board agrees with this interpretation. However, the Board does not agree with the Board’s application of the Rule in Sabl, where the Board applied the Rule to mean that the 30 days begins from the date that the person entitled to receive notice of assessment actually receives a notice of assessment.

18Rule 26(b) says specifically that time begins to run within 30 days of that person “becoming aware of the assessment”, not when they actually receive notice. If the Rule had been drafted with the intention that time should begin to run when a notice of assessment was actually received, it would have said this. But it did not. The Rule should be interpreted as it is written, as in that time starts to run when there is knowledge of an assessment or classification that is the subject of the appeal and not upon the actual receipt of notice.

19Fleming and Smith Ltd. and Regional Assessment Commissioner Region No. 31 et al., (1979) CanLII 1870 (ON SC) is a case cited by MPAC, and although it concerns a party only becoming aware of an assessment through receipt of a notice of assessment, it contains the broader statement relied upon by MPAC that “where the parties concerned, as here, have knowledge of these circumstances, the time for appeals from the assessment runs from the date that the person assessed has knowledge of the assessment.”

20In this case, the Moving Party acquired knowledge of the omitted assessments when it received the consequential tax bill on September 23, 2018. That was the day that the 30 days began to run. Nothing in the Rule would postpone the start of the 30 days, such as the time during which the Moving Party sought consent of the other parties. In particular, it cannot be the case that the Rule should not apply because MPAC took too long to provide its consent, which it did not provide in any event. The same argument was before the Board in Cherry Beach Sailing Clubs v. Municipal Property Assessment Corp., Region 9 [2018] O.A.R.B.D. No. 291 (“Cherry Beach”), where an appellant said it needed more time to consult “volunteer board members, and make sense of the assessment notice, all of which took time.” The Board adopts the finding in that decision that “a general claim that bureaucracy slowed the application is not sufficient.”

21The Moving Party’s position that its request would have been denied without that consent was entirely speculative, especially as there is nothing in Rule 26(b) which indicates that consent is required for a party to seek to file an appeal late, and where the specific circumstances existing at that time could have been enumerated in its EBDF filed in a timely manner.

22It is therefore determined that the Moving Party did not file its appeals within 30 days of becoming aware of the assessment, and that its request to extend time pursuant to Rule 26(b) should be denied.

Alteration of Time

23The Moving Party then cites Rule 17 as an authority to extend time, where “any time period set out in these Rules can be altered by the Board.” In its request, the Moving Party refers to the Board’s decision in Cherry Beach. The Municipality cites 347428 Ontario Ltd. v. Municipal Property Assessment Corp., Region 27, [2004] O.A.R.B.D. No. 113 (“347428 Ontario”). Both cases determined that “fairness, prejudice, and finality” should be considered in such a request.

24In its motion material, the Moving Party says that the delay was incurred in good faith when it attempted to obtain the consent of the other parties. The Moving Party says it would be unfair not to extend time to allow for the appeals and that it would be prejudicial for relief to be denied because it would be the “harshest possible penalty to a taxpayer…outweigh(ing) prejudice to MPAC or the City.” It goes on to say that “the correctness to the assessment roll would outweigh the finality of the roll.”

25MPAC takes no position on the Rule 17 submission. The Municipality, however, correctly points out that the Moving Party submitted no evidence of prejudice, that it provided no evidence that it took reasonable steps to obtain the notices of assessment, and that no evidence was provided that the assessments were incorrect. It goes on to say that the Municipality will be prejudiced because the “integrity, predictability and stability of its assessment tax base will suffer”, that it would cause financial problems, that it impairs its ability to establish adequate reserves, and that parties should be held to the time limits set out in the Rules and the Act.

26It is determined that this submission has no merit because the Board has no authority to extend time to file an appeal pursuant to Rule 17. Rule 17 can only operate to extend time periods set out in the Rules, and the last day for filing an appeal appears in subsection 40(8) of the Act, as noted previously, and not the Rules.

27Therefore, the Moving Party’s further request to extend time pursuant to Rule 17 is denied for lack of jurisdiction.

CONCLUSION

28Auto World Imports Network (operating as 1938388 Ontario Limited) cannot file an appeal late for the 2017 and 2018 taxation years because it did not meet the three-part test set out in Rule 26(b). The Board has determined that Rule 17 does not apply to late appeals. The motion is therefore denied.