Municipal Property Assessment Corporation v. Fiera Axium Solar Limited Partnership, 2019 CanLII 50346

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

May 28, 2019

FILE NO.:

DM 160392

Moving Party(ies):

Municipal Property Assessment Corporation (“MPAC”)

Region 16

Respondent(s):

Fiera Axium Solar Limited Partnership

Respondent(s):

Township of Oro-Medonte

Property Location(s):

2491 Highway 11

Municipality(ies):

Township of Oro-Medonte

Roll Number(s):

4346-010-003-01301-0000

Appeal Number(s):

3247983, 3260154, 3308282, 3308192, 3362352 and 3362265

Taxation Year(s):

2017, 2018 and 2019

Hearing Event No.:

713775

Legislative Authority:

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

Heard:

April 25, 2019 by written submission

Parties

Counsel⁺/Representative

Submissions

MPAC

Makael Nur

Moving Party

Fiera Axium Solar Limited Partnership

Not Received

Township of Oro-Medonte

Not Received

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON

1MPAC requests the dismissal of these appeals because the appellant, Fiera Axium Solar Limited Partnership (“Fiera”), did not serve a Statement of Issues (an “SOI”) on or before the date specified by the Assessment Review Board (the “Board”). Fiera did not make any submissions on this motion despite having been served with notice by MPAC.

2The Board sent notice of this motion to two other parties identified in the Board’s file as assessed persons: Seabound Holdings Ltd., named only in the appeal related to the correcting assessment described below in 2017, and Farova Investments Ltd., listed as assessed person for the remaining appeals. Neither of these entities made any submissions on the motion and the Board has no further information as to their interest in the appeals, if any.

3The Township of Oro-Medonte, also a party to the appeals, also made no submissions on the motion.

4For the reasons that follow, the appeals for the 2017, 2018 and 2019 taxation years are dismissed for non-compliance with the Board’s Rules of Practice and Procedure (the “Rules”).

Background

5Fiera, the owner of 2491 Highway 11 in the Township of Oro-Medonte, filed an appeal with the Board for the 2017 taxation year. Also in the same taxation year was a further assessment made pursuant to section 32 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”) to correct an error where Seabound Holdings Ltd. was an assessed person. Fiera was deemed to have brought an appeal to the latter assessment in 2017 and appeals for the 2018 and 2019 taxation years pursuant to subsection 40(26) of the Act, for a total of six appeals.

6The Board assigned a commencement date of April 16, 2018 for the appeals pursuant to Rule 33. MPAC sent its initial disclosure to what it thought was Fiera’s representative on May 14, 2018 in compliance with the Schedule of Events set out in the Rules. The next significant event in the Schedule of Events was that Fiera would serve MPAC and the Township of Oro-Medonte with its documentary disclosure and an SOI on or before September 10, 2018. This was not done.

7In support of its motion, MPAC filed the affidavit of Roxanne Poulin, a Senior Case Management Analyst employed by MPAC, sworn on February 27, 2019. Ms. Poulin stated in her affidavit that MPAC was advised that the representative to which MPAC’s disclosure was sent no longer acted for Fiera on September 17, 2018. On October 2, 2018, MPAC wrote to Fiera directly by regular mail indicating that no SOI had been received, asking that if one was going to be produced it should be delivered to MPAC by October 19, 2019. The affidavit goes on to say none was received by MPAC.

Dismissal

8MPAC argues in this motion that Fiera has not complied with the Rules. It submits that the appeals should therefore be dismissed.

9Rule 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.” In 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.”

10A 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. However, the Board also 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.”

11MPAC provided evidence of prejudice. It 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 the Appellant failed to serve an SOI.

12The Board accepts MPAC’s submission that a failure of an appellant to serve a timely SOI 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.

13Fiera is in breach of the Rules in a clear, egregious and unilateral way, and that this breach has caused prejudice to MPAC. Fiera’s appeals for the 2017 to 2019 taxation years are therefore dismissed.

CONCLUSION

14MPAC’s motion to dismiss the 2017, 2018 and 2019 appeals is granted. Fiera is in breach of the Rules and the breach is entirely attributable to it, and MPAC has been prejudiced as a result. The Board therefore dismisses Fiera Axium Solar Limited Partnership’s 2017, 2018 and 2019 appeals.