Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: May 15, 2019

FILE NO.: DM 160242

Moving Party(ies): Municipal Property Assessment Corporation ("MPAC") Region 32

Respondent(s): Nelson Stewart Taddeo

Respondent(s): Township of Ignace

Property Location(s): 501-503 Main Street

Municipality(ies): Township of Ignace

Roll Number(s): 6001-000-001-41500-0000

Appeal Number(s): 3260254, 3315059 and 3368178

Taxation Year(s): 2017, 2018 and 2019

Hearing Event No.: 713872

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

Heard: May 8, 2019 by written submission

Parties	Representative	Submissions
MPAC	Brittany Kee	Moving Party
Nelson Stewart Taddeo	Self-represented	Received
Township of Ignace		Not Received

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON

DISPOSITION OF MOTION

1MPAC requests the dismissal of these appeals because the appellant, Nelson Stewart Taddeo, did not serve a Statement of Issues (an "SOI") on or before the date specified by the Assessment Review Board (the "Board").

2Mr. Taddeo opposes the motion in a letter dated April 19, 2019 which also outlines issues he has with the assessment.

3Ignace Township, also a party to the appeals, made no submissions on the motion.

4For the reasons that follow, MPAC's motion is denied. Mr. Taddeo's appeals for the 2017, 2018 and 2019 taxation years are not dismissed but will proceed in accordance with a revised Schedule of Events and an order communication with Mr. Taddeo not be by way of email.

Background

5Mr. Taddeo is the owner of a property identified in MPAC's material as an automotive fuel station with or without service facilities at 501-503 Main Street, Ignace Township. Mr. Taddeo filed an appeal with the Board of the 2017 taxation year assessment of the property and was deemed to have brought the same appeal in respect of the property for the 2018 and 2019 taxation years pursuant to subsection 40(26) of the Assessment Act, R.S.O. 1990, c. A.31 ("Act").

6The Board assigned a commencement date of December 15, 2017 for the appeals pursuant to Rule 33. MPAC then sent its initial disclosure to Mr. Taddeo at the property on January 12, 2018 in compliance with the Schedule of Events set out in the Board's Rules of Practice and Procedure ("Rules"). The next significant event in the Schedule of Events was that Mr. Taddeo would serve MPAC and Ignace Township with its documentary disclosure and an SOI on or before May 11, 2018. This was not done.

7In support of its motion, MPAC filed the affidavit of Justin Johnstone, a Case Management Analyst employed by MPAC, sworn on March 13, 2019. In that affidavit, Mr. Johnstone confirmed MPAC's initial disclosure was sent to Mr. Taddeo on January 12, 2018 by email. He said further correspondence was sent to Mr. Taddeo by email on June 21, 2018 indicating that no SOI had been received and requested that one be provided. The affidavit went on to say that on November 5, 2018 MPAC again emailed Mr. Taddeo saying that his failure to provide an SOI was in breach of the Board's Rules, that the breach prejudiced MPAC and that MPAC could not deliver any response as a result. The affidavit then said Mr. Taddeo remained in breach of the Rules and failed to file an SOI.

8Mr. Taddeo responded to the motion by letter on April 19, 2019 which included an attachment primarily addressing issues he had with his assessment. His letter included two points relevant to this motion. First, Mr. Taddeo implied that he might not have been in receipt of MPAC's documentation sent by email. He did not specifically say in his letter that he did not receive the emails sent to him by MPAC, but he did say that he is not computer literate, in his words "not of the computer generation - or effectively of the email generation that appears to permeate the provision of many services - such as the MPAC process." Second, Mr. Taddeo said that MPAC's allegation that he took no interest in the appeals was incorrect. He also wrote that "simply put I need their information - presented in a structured environment where they are compelled to provide reasonable answers and information disclosure" in the appeals.

Analysis

9MPAC argues in this motion that Mr. Taddeo has not complied with the Rules and that the appeals should therefore be dismissed. Mr. Taddeo, who submitted no affidavit evidence, does not specifically dispute that allegation, but suggests he did not receive MPAC's communications because he is not computer literate. MPAC might have raised an objection to the form or the content of Mr. Taddeo's submissions to the Board in reply, but it did not.

10Rule 24(e) provides the authority for the Board to dismiss an appeal without holding a hearing if "the appellant has not complied with statutory requirements or these Rules." Specifically, a party's failure to provide an SOI when required can form a valid basis for dismissal, as was the case in Municipal Property Assessment Corporation, Region 19 v Wentworth Property Management Inc., 2018 CanLII 89428.

11In Municipal Property Assessment Corporation, Region No. 9 v 234900 Ontario Ltd., 2018 CanLII 248 (ON ARB), 2017 CanLII 74719, the Board determined that "dismissal is an extreme remedy and should only be granted in the clearest of cases." In Municipal Property Assessment Corporation, Region No. 7 v Cherry, 2018 CanLII 60392, the Board specified that the "clearest of cases are those where there are wilful breaches of the Board's orders or Rules that are entirely attributable to the taxpayer." The Board determined in Municipal Property Assessment Corporation, Region 14 v Upper Keele Inc., 2018 CanLII 126632 (ON ARB), 2018 CanLII 248 that "the prejudice to each party will always be the primary consideration on a dismissal motion."

12Before determining whether Mr. Taddeo did not comply with the Rules, Mr. Taddeo's argument in his letter that the Rules are not fair and that they somehow required him to "leap tall buildings and hire masked crusaders to intervene in support of my basic interests and rights" should be addressed. The reality is that the Rules exist to ensure the fair and timely resolution of appeals filed with the Board. Moreover, the Rules are to be "liberally interpreted to ensure the just, most expeditious and lease expensive determination of every proceeding" pursuant to Rule 4. They are not intended to impose insurmountable barriers to appellants as Mr. Taddeo argues, nor have they done so in this case.

13Appeals filed with the Board proceed according to a Schedule of Events pursuant to Rule 34 which includes the requirement that an appellant produce an SOI in accordance with that timeline. An SOI is an important early step in the process because it sets out the basis for the appeal. It ensures fairness both for appellants and for MPAC, whose constraints are accurately set out in its affidavit and referred to by Mr. Taddeo in his letter. There is no question that Mr. Taddeo did not comply with the Rules because he did not provide an SOI when he was required to.

14The next step is to determine if the request to dismiss the appeals meets the "clearest of cases" threshold, where dismissal of an appeal is an "extreme remedy." The reason given for Mr. Taddeo's non-compliance with the Rules is because he is not computer literate and that he presumably did not get MPAC's emails. In fact, there is enough information in Mr. Taddeo's letter to conclude that what he meant to say is that he did not receive MPAC's emails. The Board finds these circumstances are not the clearest of cases. Mr. Taddeo is correct in his statement that MPAC and the Board now do much of their business by email, but that cannot be at the expense of those parties who do not or cannot use email in the same way. The cases above also indicate that to be successful on a motion there must be wilful non-compliance with the Rules, and there is sufficient doubt in the circumstances here that there was any wilful intent to flout the Rules.

15MPAC provided evidence of prejudice, the other issue the cases say must be considered. MPAC argues that it is prejudiced by the breach of the Rules, both in the expenses it has incurred in pursuing this motion, and in how much more difficult it is to meet its other obligations when appellants fail to comply. MPAC had to take additional procedural steps when Mr. Taddeo failed to serve an SOI.

16The Board accepts MPAC's submission that the general failure of appellants to serve timely SOIs makes its overall case management more difficult. MPAC cannot provide a response in the absence of an SOI. The Board finds there is prejudice to MPAC flowing from a failure to provide an SOI.

17However, dismissing the appeals would also be prejudicial to Mr. Taddeo, who would then lose the right to challenge his assessments and be potentially required to pay more tax as a result. MPAC provided evidence as to its prejudice in a larger context but the prejudice to Mr. Taddeo in this case would outweigh the prejudice to MPAC. This is because in these circumstances, apart from having to bring this motion and send the emails described in its affidavit, MPAC's only specific prejudice is in the delay in the work they would have had to do in any event had Mr. Taddeo complied with the Rules at the outset.

18It is therefore determined that the motion should be denied and that the appeals should be allowed to continue but with a revised commencement date. In addition, Mr. Taddeo is to be served with documents by regular mail or courier and not email.

19Finally, it should be underlined that the Rules will govern the conduct of the appeals whether Mr. Taddeo agrees with them or not. Mr. Taddeo should understand that the Rules exist specifically to ensure that he gets what he wants: a "structured environment", "reasonable answers" and "information disclosure" in the conduct of his appeals.

CONCLUSION

20MPAC's motion to dismiss the 2017, 2018 and 2019 appeals is denied.

21The appeals should be assigned a revised Commencement Date of January 15, 2019.

22MPAC shall re-serve its initial disclosure on Mr. Taddeo by regular mail within seven days of the date of this decision.

23The new Commencement Date means that the next step is for Mr. Taddeo to provide his disclosure and SOI to all other parties, MPAC and Ignace Township, on or before June 11, 2019.

24Service of any documents on Mr. Taddeo by MPAC, the Board, or Ignace Township shall be by way of regular mail or courier and not email.