Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

June 13, 2019

FILE NO.:

DM 160794

Moving Party(ies):

Municipal Property Assessment Corporation (“MPAC”) Region 23

Respondent(s):

Fiera Axium Solar Limited Partnership

Assessed Person(s):

Gysbers Brothers Inc.

Respondent(s):

Township of Adelaide Metcalfe

Property Location(s):

2894 Napperton Drive

Municipality(ies):

Township of Adelaide Metcalfe

Roll Number(s):

3946-000-040-19700-0000

Appeal Number(s):

3247981, 3312797 and 3366419

Taxation Year(s):

2017, 2018 and 2019

Hearing Event No.:

715767

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 Partnership

No one appeared

Not Received

Gysbers Brothers Inc.

No one appeared

Not Received

Township of Adelaide Metcalfe

No one appeared

Not Received

DISPOSITION OF THE BOARD DELIVERED BY SUBUOLA AWOLERI

INTRODUCTION

1MPAC seeks to dismiss the appeals filed by Fiera Axium Solar Limited Partnership (the “Company”) of the assessment of the property located at 2894 Napperton Drive (the “subject property”) for the 2017, 2018 and 2019 taxation years. MPAC argues that these appeals should be dismissed for the Company’s non-compliance with the Assessment Review Board’s (the “Board’s”) Rules of Practice and Procedure (the “Rules”) by not providing its Statement of Issues on the date specified by the Board.

2The Company was served with this motion for dismissal but it did not provide any responding materials. The deadline to respond to this motion was further extended by the Board to March 29, 2019, in order to ensure that the motion materials were mailed to the Company’s correct address. There was still no response by the Company. The assessed person, the owner of the subject property was notified by the Board regarding this motion, but did not file any submissions. The Township of Adelaide Metcalfe did not file any submissions.

DISPOSITION OF MOTION

3The Board grants MPAC’s motion to dismiss the appeals. The Company is in breach of the Rules and MPAC is prejudiced by this breach. Accordingly, the Board dismisses the Company’s appeals for the 2017, 2018 and 2019 taxation years.

REASONS FOR DISPOSITION OF MOTION

4The subject property is land owned by a farmer, which is improved with non-farm residence, having a portion being farmed. The Company is not the owner of the subject property. The Company filed this appeal for the 2017 taxation year assessment of the subject property with the Board. This appeal was not resolved in 2018 and was also not resolved before March 31, 2019; consequently the Company was deemed to appeal the assessment for the 2018 and 2019 taxation years.

5In accordance to Rule 33, the Board assigned a commencement day of April 16, 2018 to these appeals. MPAC delivered its initial disclosure to the Company on May 11, 2018. In accordance to the Rules as set out in the Schedule of Events, the Company was to provide its Statement of Issues to MPAC and the Township of Adelaide Metcalfe by September 10, 2018. MPAC did not receive a Statement of Issues from the Company.

6On September 17, 2018, MPAC received a copy of a letter addressed to the Board, from Alison Davis, a Director at Altus Group Tax Consulting Paralegal Professional Corporation, (“Altus”) advising that it is no longer representing the Company in these appeals. Furthermore, that all correspondence should be directed to the Company.

7MPAC contacted the Company on October 2, 2018, advising the Company that it had received correspondence that Altus will no longer be representing the Company in these appeals. MPAC further stated that it had not received the Company’s Statement of Issues and if the Company intends to provide it, the Company should communicate this intention to MPAC by October 19, 2018, including a date in which it will be providing the Statement of Issues. However, MPAC also advised the Company that if a response is not received by October 22, 2018, MPAC will proceed to have its appeals dismissed by the Board.

8MPAC did not receive the Company’s Statement of Issues or any correspondence from the Company. MPAC then filed this motion seeking dismissal of the appeals for non-compliance with the Rules.

9I find that the Company is in breach of the Rules in a way that is completely attributable to it. In Municipal Property Assessment Corporation, Region 19 v Wentworth Property Management Inc., 2018 CanLII 89428 (ON ARB), at paragraph 11, the Board determined that failure to provide a Statement of Issues, a breach completely attributable to the appellant and not cured by it, was not enough ground for dismissing the company’s appeal. As the Board held in Municipal Property Assessment Corporation, Region 14 v Upper Keele Inc., 2018 CanLII 126632 (ON ARB), 2018 CanLII 248 (ON ARB), at paragraph 11, there must be evidence of prejudice to the requesting party to justify a dismissal order. Specifically, the Board held that “dismissal is an extreme remedy and requires clear evidence before it will be granted.”

Prejudice to MPAC

10MPAC argues that the Company’s breach is prejudicial to MPAC and that it will continue to suffer prejudice if the Board allows these appeals to proceed and furthermore, the prejudice cannot be compensated by an award of costs. In line with this, MPAC states that it has committed significant resources to its case management by increased staffing and increased information technology resources. This was done in order to comply with the Board’s goal of completing appeals within its assessment cycle, pursuant to the Rules. MPAC emphasizes that its management and staff have developed a plan allocating its resources to comply with the Rules and it has to carefully manage its resources to meet these deadlines. In order to carry this out, MPAC states that this pushes its resources to capacity.

11According to MPAC, if appellants do not comply with the Rules, as in this appeal, MPAC is unable to file a statement of response to comply with the Rules and this puts MPAC’s ability to manage its own resources at risk. Consequently, non-compliance with the Rules creates more workload on MPAC and puts a strain on its resources as it has had to incur additional expenses in providing initial disclosure, tracking and correspondence to the Company, and the expense of this motion.

12I find that the Company’s breach of the Rules has caused prejudice to MPAC. Its failure to provide its Statement of Issues makes it more difficult for MPAC to meet its appeal management obligations. This uncertainty puts a strain on MPAC’s resources. MPAC also had to incur additional expenses in providing initial disclosure materials, tracking and sending correspondence to the Company, and the cost of this motion. This breach of the Rules, which was not cured, is prejudicial to MPAC.

CONCLUSION

13I find that MPAC is prejudiced by the Company’s non-compliance with the Rules, a breach that is entirely attributable to the Company. The Board grants MPAC’s motion and dismisses the Company’s appeals for the 2017, 2018 and 2019 taxation years.