Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

June 07, 2019

FILE NO.:

DM 160642

Moving Party(ies):

Municipal Property Assessment Corporation (“MPAC”) Region 23

Respondent(s):

Fiera Axium Solar Limited

Respondent(s):

Municipality of Thames Centre

Property Location(s):

6955 Hamilton Road

Municipality(ies):

Municipality of Thames Centre

Roll Number(s):

3926-000-040-07505-0000

Appeal Number(s):

3247980, 3312647 and 3365804

Taxation Year(s):

2017, 2018 and 2019

Hearing Event No.:

715766

Legislative Authority:

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

Heard:

May 16, 2019 by written submission

Parties

Representative

Submissions

MPAC

Makael Nur

Moving Party

Fiera Axium Solar Limited

No one appeared

Not Received

Robert Francis Brulotte

Heather Anita Brulotte

No one appeared

Not Received

Municipality of Thames Centre

No one appeared

Not Received

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON

DISPOSITION OF MOTION

1MPAC requests the dismissal of these appeals because the appellant, Fiera Axium Solar Limited (“Fiera”), did not serve a Statement of Issues (an “SOI”) on or before the date specified by the Assessment Review Board (the “Board”).

2It was discovered that the Board’s notice of the motion, indicating how and by what date parties could make submissions on the motion, was sent to Fiera at an incorrect address. As a result, a further notice of the motion was sent by the Board to the correct address in the Board’s file which matched the address MPAC used for Fiera. In the circumstances, where Fiera might not have received the Board’s notice, additional time was allowed for submissions.

3Fiera did not make any submissions on this motion despite having been served with notice by MPAC and the Board.

4Notice of the motion was also sent to parties identified in the Board file as assessed persons, Robert Francis Brulotte and Heather Anita Brulotte, but no submissions were received from them either.

5The Municipality of Thames Centre, also a party to the appeals, made no submissions on the motion.

6For 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

4Fiera, the owner of 6955 Hamilton Road, filed an appeal with the Board for the 2017 taxation year. Fiera was deemed to have brought the same appeals in respect of the property related for the 2018 and 2019 taxation years pursuant to subsection 40(26) of the Assessment Act, R.S.O. 1990, c. A.31, for a total of three appeals.

5The 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 Municipality of Thames Centre with its documentary disclosure and an SOI on or before September 10, 2018. This was not done.

6In 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

9MPAC argues in this motion that Fiera has not complied with the Rules. It submits that the appeal should therefore be dismissed.

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.” 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 willful breaches of the Board’s orders or Rules that are entirely attributable to the taxpayer.”

12A 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.”

13MPAC 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.

14The 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.

15Fiera 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

17MPAC’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’s 2017, 2018 and 2019 appeals.