Ferncastle (Esplanade) Inc. v. Municipal Property Assessment Corporation, Region 09, 2019 CanLII 52947

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

June 07, 2019

FILE NO.:

DM 2019M27

Moving Party(ies):

Ferncastle (Esplanade) Inc.

Respondent(s):

Municipal Property Assessment Corporation, (“MPAC”), Region 09

Respondent(s):

City of Toronto

Property Location(s):

1The Esplanade, Four Units

Municipality(ies):

City of Toronto

Roll Number(s):

1904-064-200-01020, 1904-064-200-01022,

1904-064-200-01023 and 1904-064-200-01024

Taxation Year(s):

2018

Hearing Event No.:

713888

Legislative Authority:

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

Heard:

May 14, 2019 by written submission

Parties

Counsel⁺/Representative

Submissions

Ferncastle (Esplanade) Inc.

Scott Niepage

Moving Party

MPAC

Drew Samuels

Received

City of Toronto

Not Received

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON

DISPOSITION OF MOTION

1John O’Keefe is a signing officer of Ferncastle (Esplanade) Inc. (the “Corporation”), the owner of four condominium units at 1 The Esplanade in the City of Toronto with the following legal descriptions: Level 1, Unit 9; Level 1, Unit 11; Level 2, Unit 29; and Level 2, Unit 30, all TSCP 2588. Through its representative Scott Niepage, the Corporation requested leave of the Assessment Review Board (the “Board”) to file appeals for the 2018 taxation year because it did not file appeals prior to the deadline set out in the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”).

2For the reasons that follow, the motion to file the 2018 appeals for these units is granted.

Background

3The evidence before the Board consisted of Mr. O’Keefe’s affidavit sworn March 12, 2019, Mr. Niepage’s affidavit sworn the same day, and the affidavit of Jaime Shevchuk, a Case Management Analyst for MPAC, sworn on April 9, 2019. Nothing in these affidavits was in dispute and MPAC indicated in its response that it consented to the relief requested in the motion.

4On February 11, 2019, Mr. Niepage contacted MPAC because the Corporation had received no assessments or tax bills for these condominium units that had been completed in 2017. He contacted the City of Toronto the next day for the same reason.

5Through these communications, Mr. Niepage determined that both MPAC and the City had been sending mail directed to the Corporation to an incorrect address that had no connection to the Corporation or the properties. At that time, Mr. Niepage also became aware of the assessments of which the Corporation had previously been unaware, and it was on that same day, February 12, 2019, that he informed his client of them. This motion was filed on March 12, 2019.

6It was not indicated that these condominium units were in the commercial property class rather than the residential property class. This is important because appeals for properties in the residential, farm or managed forests property classes cannot proceed without the filing of a request for reconsideration pursuant to subsection 40(3) of the Act first, and the question before the Board would have been different. Board staff determined that the properties were, in fact, in the commercial property class. Therefore, pursuant to subsection 40(6) of the Act, the last day for appealing the 2018 tax assessment was March 31, 2018. This motion was filed nearly a year later, on March 12, 2019.

Late Appeals

7Rule 26(b) of the Board’s Rules of Practice and Procedure (the “Rules”) provides that a late appeal can be accepted by the Board 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.”

8The first question is whether the Corporation was “a person entitled to receive notice of assessment.” That entitlement was not directly addressed in the motion material, but since the Corporation was the owner of the condominium units, it was entitled to receive notice.

9The second question is whether the Corporation did not receive notice of the assessments, and this was clearly stated in the affidavits. MPAC and the municipality had been using a completely unrelated address until notified by the Corporation’s representative on February 11 and 12, 2019. The Corporation did not receive the notice of the assessments

10On the third question, Mr. O’Keefe said that “as of March 11, 2019, I have received neither the Notice of Assessment from MPAC nor the tax bill from the City of Toronto for any property.” Nevertheless, he became aware of the assessments on February 12, 2019, the day that time began to run because the issue is not receipt of notices but awareness of the assessments as was recently confirmed by the Board in Solar Ship Inc. v Municipal Property Assessment Corporation, Region 20, 2019 CanLII 44275. This motion was filed on March 12, 2019, 28 days later and within the 30 day window provided by Rule 26(b).

11The Corporation has met all of the requirements of Rule 26(b) and its request to file appeals for the 2018 taxation year is therefore granted.

CONCLUSION

12Leave to appeal for the 2018 taxation year is granted. Ferncastle (Esplanade) Inc. is allowed to file its 2018 taxation year appeals for the properties that are the subject of this motion.