Solar Ship Inc. v. Municipal Property Assessment Corporation, Region 20, 2019 CanLII 44275

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: May 17, 2019

FILE NO.: DM 2019M20

Moving Party(ies): Solar Ship Inc.

Respondent(s): Municipal Property Assessment Corporation (“MPAC”), Region 20

Respondent(s): County of Brant

Property Location(s): 45 Airport Road

Municipality(ies): County of Brant

Roll Number(s): 2920-004-010-48700-0000

Appeal Number(s): 3340393

Taxation Year(s): 2018

Hearing Event No.: 712368

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

Heard: April 5, 2019 by written submission

Parties	Counsel+/Representative	Submissions
Solar Ship Inc.	Jack A. Walker, Q.C.+ Jamie G. Walker+	Moving Party
MPAC	Douglas Keyes	Received
County of Brant	Robert Heil	Received

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1Solar Ship Inc. (“Solar Ship”) seeks permission from this Assessment Review Board (this “Board”) to file an appeal of the 2018 assessment of the property it leases at Hanger 140, located at 45 Airport Road in the County of Brant (“Brant”). It argues that it meets the three requirements for late filing set out in Rule 26(b) of the Board’s Rules of Practice and Procedure (the “Rules”). Specifically, Solar Ship says that it was entitled to receive a copy of the notice of assessment, that it did not receive the Notice of Assessment, and that it applied in a timely way.

2MPAC does not dispute that Solar Ship was entitled to receive a copy of the notice of assessment that it did not receive. However, MPAC argues that Solar Ship’s application should be denied because it brought this application too late.

3Brant indicated that it takes no position on Solar Ship’s application.

4For the reasons that follow, I find that Solar Ship did not bring this application in a timely way. It does not, therefore, meet all of the requirements of Rule 26(b) and its application for late fling is denied.

Background

5Solar Ship designs, constructs, and operates novel cargo aircraft from Hanger 140 at the Brantford Municipal Airport. It leases the land from the City of Brantford (“Brantford”) and the lease stipulates that Solar Ship is responsible for the payment of all municipal taxes levied against the land.

6Solar Ship received supplementary tax bills from Brant on July 24, 2018. Those bills had been issued on July 5, 2018 and were for the 2016, 2017, and 2018 taxation years. It does not appear that the taxes were paid at that time.

7Brantford sent a letter to Solar Ship on December 3, 2018 advising it that there was unpaid rent and demanding payment in full of the rent and municipal taxes by January 2, 2019.

8Solar Ship retained counsel on December 19, 2018 and was advised of its right to receive a copy of the notice of assessment, pursuant to subsection 35(2) of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”). Solar Ship immediately requested those notices from Brantford, but was instead sent the tax bills once again. Solar Ship continued to follow up, and was not sent the assessment notices by Brantford until January 2, 2019. Those assessment notices were dated May 11, 2018, and had an appeal filing deadline of September 10, 2018. Solar Ship filed this application for a late appeal 20 days after it received the notices of assessment, on January 22, 2019.

Law

9This Board has a limited, common law, power to extend the filing deadlines set in the Act. That power was set out by the Ontario Superior Court in Fleming and Smith Ltd. and Regional Assessment Commissioner Region No. 31 et al., 1979 CanLII 1870 (ON SC) and has been codified in Rule 26(b). That Rule states:

26 The Board may accept an appeal received after the time set in the Assessment Act only if the appellant satisfies the Board, by way of affidavit evidence, that: …

(b) 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 or classification that is the subject of the appeal.

10Appeals can only be accepted late if three conditions are met: (1) the person was entitled to receive a notice of assessment; (2) that person did not receive notice; and (3) the person attempted to file the appeal within 30 days of becoming aware of the assessment that is the subject of the appeal.

Entitled to Notice

11There is no dispute that Solar Ship was entitled to receive a copy of the notice of assessment from Brantford. Solar Ship is a tenant that has a lease requiring it to pay the municipal taxes levied on the land. Subsection 35(2) of the Act is explicit that a person who receives an omitted assessment, such as this one, “shall, within 14 days after receiving the notice, give a copy of the notice to each tenant” that must pay taxes. This Board recently held that such a tenant meets the first requirement of Rule 26(b) in Emblem Logistics Inc. v Municipal Property Assessment Corporation, Region 15, 2019 CanLII 22918 (ON ARB). The first requirement is met.

Did not Receive Notice

12There is also no dispute that Brantford did not comply with subsection 35(2). It was required to provide Solar Ship with a copy of the notice of assessment 14 days after it received the notice, which would have been by May 25, 2018. It did not send a copy of the notice to Solar Ship until January 2, 2019, over seven months late. Solar Ship did not receive the notice of assessment when it was legally entitled to, meeting the second requirement of Rule 26(b).

Timely Application

13The only real dispute between the parties is if this is a timely application. Solar Ship argues that it brought this application 20 days after it received the notice of assessment, well within the 30 day limitation period. MPAC argues that Solar Ship was made aware of the assessments when it received the tax bills on July 24, 2018 and that makes its January 22, 2019 application nearly five months late.

14The dispute turns on when Solar Ship became “aware of the assessment or classification.” Solar Ship notes that the Concise Oxford Dictionary defines “aware” as “well informed.” It argues that it was not well informed about the assessment and classification of the property by the supplementary tax bills because those tax bills did not set out the legislative authority for the assessment, the appeal filing deadline, or access to MPAC’s AboutMyProperty website. Solar Ship says that it was only aware of the assessment and classification issues when it received the notices of assessment on January 2, 2019.

15MPAC argues that requiring the actual notice of assessment to trigger the time in Rule 26(b) undermines the finality of the process and reads a requirement that a person receive the notice into the Rule. It argues that such a requirement will result in many more late appeal applications succeeding. Solar Ship counters that only special assessments, like the omitted assessments here, have idiosyncratic filing deadlines. Regular assessment notices all have a March 31 filing deadline. It argues that the filing deadline is an essential bit of information in being well informed about the assessment and that it could not know that until it received the notice of assessment.

16I do not accept Solar Ship’s argument that it was not aware of the assessment and classification that is the subject of the appeal until January 2, 2019. The supplementary tax bills clearly state which years they apply to and say things like “Prev Omitted Realty Assmt” or “Class Change.” A reasonable reader could make sense of those terms. The supplementary tax bills also state the value of the assessment. I do not accept that a statement of legislative authority or the filing deadline are required to make a person aware of the assessment or classification that they would like to appeal.

17Knowing the value of the assessment or the nature of the classification makes a person aware of it. This is consistent with the existing jurisprudence of this Board. In Marsh v Municipal Property Assessment Corporation, Region 09, 2018 CanLII 89425 (ON ARB), at paragraph 12, the Board held that the awareness requirement in Rule 26(b) “does not require receipt of the actual notice of assessment, and can be imputed from municipal tax invoices, which include assessment information.”

18Solar Ship also argues that it did not know about Rule 26(b) until December 19, 2018, when it met with counsel, and that date should be considered when it was aware. I do not accept that argument. Parties are presumed to know the law and the awareness requirement in Rule 26(b) is only in relation to the assessment or classification, not the law.

19Solar Ship was aware of the assessment and classification changes to the property when it received the supplementary tax bills on July 24, 2018. Rule 26(b) required it to bring this application within 30 days, or by August 23, 2018. It did not do so. However, Solar Ship correctly notes that this does not end the inquiry. Rule 17 permits me to alter any timeline set by the Rule, including the 30 day limit set by Rule 26(b). Block 9A Developments Ltd v Municipal Property Assessment Corporation Region 09, 2015 CanLII 37189 (ON ARB) (“Block 9A”), at paragraph 13, set out the principles that the Board should consider before altering timelines in the Rules: fairness, prejudice, and finality.

20It is unfair to Solar Ship that Brantford did not provide it with a copy of the notices of assessment by May 25, 2018, as it was required to pursuant to subsection 35(2) of the Act. But Solar Ship was aware of the assessment and classification issues on July 24, 2018 and it is not clear why it did not take any action for nearly five months. I cannot say that fairness requires granting Solar Ship an extra five months to file when it has not shown why it did not take any action for that period of time. There is nothing unfair in the application of the 30 day time limit here.

21Prejudice is an important factor and the only party clearly prejudiced by the 30 day limitation period is Solar Ship. Solar Ship may have an appeal with some merit and would be deprived of arguing that appeal if the time is not extended. There is no evidence of prejudice to any other party if the time is altered.

22Solar Ship argues that finality does not apply here because no party relied on its failure to appeal. I disagree. Brantford’s enforcement letter, dated December 3, 2018, relies on the taxes calculated from the changes in assessment and classification. That letter was sent just under three months after the appeal deadline for those assessments had passed. It seems likely that Brantford was relying on the amounts payable being final. Even if that were not the case, the extension of time here is significant and the longer after a filing deadline an appeal is filed, the more likely it is that finality has taken hold.

23Overall, the Block 9A principles do not favour extending time. The most significant fact is that Solar Ship took no steps to address the supplementary tax bills for five months. It has not explained that delay at all. The Board should be reluctant to alter the timelines in the Rules for a party that does not explain the delay. While Solar Ship will be negatively impacted by the 30 day deadline staying in place, it had ample opportunity to consult counsel, or pursue other remedies, in the summer of 2018. It will have to live with the consequences of its failure to take any steps at that time.

CONCLUSION

24Solar Ship did not receive the notice of assessment it was entitled to receive by May 25, 2018. However, it did not take timely steps to appeal the assessment and classification when it became aware of them two months later, on July 24, 2018. This application was brought nearly six months after that, on January 22, 2019. That is not a timely application and this is not appropriate case in which to extend the time for filing. A timely application is one of the essential requirements for late filing, set out in Rule 26(b). Solar Ship does not meet that requirement so its application is denied.