Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: June 12, 2019 FILE NO.: RD 2019M15

Assessed Person(s): Kamen Mladenov Laptev Appellant(s): Kamen Laptev Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 27 Respondent(s): Town of Lasalle

Property Location(s): 377 Mayfair Avenue Municipality(ies): Town of Lasalle Roll Number(s): 3734-090-000-24350-0000 Appeal Number(s): 3233370 and 3314043 Taxation Year(s): 2017 and 2018

Legislative Authority: Rule 123 o the Assessment Review Board Rules of Practice and Procedure Request for: A review of the Board’s Decision WR 158972 issued on March 4, 2019 Heard: By written submission

Parties and Counsel

Parties	Counsel+/Representative	Submissions
Kamen Laptev	Self-represented	Requester
MPAC	Brittany Allen	Received
Town of Lasalle	No one appeared	Not Received

DECISION DELIVERED BY PAUL MULDOON AND ORDER OF THE BOARD

INTRODUCTION

1Kamen Laptev seeks a review of the decision of this Assessment Review Board (this “Board”) in Laptev v Municipal Property Assessment Corporation, Region 27, 2019 CanLII 18810 (ON ARB) (the “Decision”). He claims that he did not receive notice of the hearing, and argues that doing so violated the principles of natural justice and that, as a result of not hearing his evidence, the Decision contains an error of fact or law such that the Board likely would have reached a different decision.

2The hearing of these appeals took place on July 23, 2018. Notices of the hearing were mailed to the parties on June 14, 2018. Only MPAC appeared at the hearing before Member Weagant. Member Weagant decided to proceed with the hearing, heard MPAC’s evidence, and issued the Decision.

3MPAC submits that Mr. Laptev was deemed to have received the notice of hearing pursuant to the Board’s Rules of Practice and Procedure (the “Rules”). It also submits that he does not meet the requirements in Rule 30 under which deemed acceptance can be set aside. MPAC did not address questions of procedural fairness or natural justice in its submissions.

ISSUES AND ORDER SOUGHT

4Mr. Laptev seeks a new hearing of these appeals, solely on the basis that he did not receive notice of the July 23, 2018 hearing.

5The Board finds that a new hearing is required. The Board violated the rules of natural justice when it failed to provide Mr. Laptev with notice of the hearing. Deemed notice cannot apply where it is unclear why notice was not received. In those situations it cannot be said that the party that did not receive notice was at fault. Deemed service does not apply to Mr. Laptev. A new hearing, before a different panel of the Board, is required to cure the violation of the rules of natural justice.

RELEVANT RULES

6Review requests must meet the procedural requirements of Rule 120 before they are considered. There are no procedural concerns with Mr. Laptev’s request. Reviews can only be granted if the provisions of Rule 121 are met: That Rule states:

121 A request for review will not be granted unless the Board is satisfied that:

(a) the Board acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

(b) the Board made a significant error of law or fact such that the Board would likely have reached a different decision;

(c) the Board heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result;

(d) there is new evidence that could not have reasonably been obtained earlier and would have affected the result; or

(e) any of the situations in Rule 122 exist.

7If the Board is satisfied that a provision of Rule 121 is met, the remedies available are set out in Rule 123, which states:

123 Upon consideration of a request for review, or on its own initiative, the Board may:

(a) dismiss the request;

(b) reinstate the appeal, with or without conditions; or

(c) after providing all parties an opportunity to make submissions,

i. confirm, vary, or cancel the decision,

ii. order a rehearing on all or part of the matter, or

iii. order a motion to decide the review.

8This review partly turns on Rules 29 and 30, which state in relevant part that “where a document is… sent by the Board, receipt is deemed to have occurred when sent by… regular mail, on the fifth day after the postmark date.” Rule 30 removes deemed service “if the person for whom the document was intended establishes that through absence, accident, illness or other cause beyond that person’s control, the document was not received until a later date or not at all.”

Deemed Receipt

9MPAC notes that Rule 29(b) operates to deem Mr. Laptev to have received the notice of hearing on July 19, 2018. It submits that notice that is provided over a month before the July 23, 2019 hearing is adequate notice. Mr. Laptev says that he did not receive the notice of hearing. He did receive other correspondence form the Board, and had a number of email exchanges with Board staff. He says that he is an organized person and cannot say why he did not receive the notice of hearing. But he argues that he is not at fault for not receiving the notice, so Rule 30 should apply and remove any deemed receipt of the notice of hearing.

10The Board considered Rule 30 in Municipal Property Assessment Corporation, Region 09 v Abe-Oldenburg, 2018 CanLII 80811 (ON ARB). Member Flemming held, at paragraph 19, that she “appreciates the difficulty of proving a negative,” but found the taxpayer’s failure to provide an updated mailing address to the Board put the taxpayer at fault. Thus, Rule 30 did not apply.

11Here, no one has pointed to any reason that Mr. Laptev did not receive the notice of hearing. It is difficult to say if Mr. Laptev bears any blame for his failure to receive notice. Rule 30 places the onus on Mr. Laptev to establish that through a cause beyond his control he did not receive the notice. He claims to have no knowledge of why the notice was not received. He received the decision of the Board by mail some time later, indicating that the Board had the correct mailing address. MPAC received the notice, indicating that it was sent out. It is clear that something went wrong, though it is difficult to say what.

12The Board agrees with Member Flemming that it is difficult to prove a lack of fault. It is reasonable to take evidence of non-receipt at face value, especially in these circumstances where there is simply no explanation as why the notice was not received. Rule 30 turns on control and fault and, as a practical matter, it may fall to the responding parties to point out fault when deemed receipt is at issue. There is no evidence here that Mr. Laptev was at fault for his failure to receive notice. Rule 30 applies and he is not deemed to have received the notice of the July 23, 2018 hearing.

Natural Justice and Procedural Fairness

13If receipt is not deemed then Mr. Laptev did not receive notice. Rule 121(a) permits a review if the Board is satisfied that it “violated the rules of natural justice or procedural fairness.” Notice is a core component of natural justice, see Telecommunications Workers Union v. Canada (Radio-television and Telecommunications Commission), 1995 CanLII 102 (SCC), [1995] 2 S.C.R. 781. A party that is impacted by a decision must have notice of the hearing and an opportunity to make submissions to the decision maker. This is known as the audi alteram partem principle.

14Mr. Laptev was clearly impacted by the Decision. It is his taxes that will be adjusted as a result of the Decision. As the person bringing the appeal it is arguable that no one had a greater interest in the hearing. A failure to provide notice of the hearing was a violation of the rules of natural justice. Mr. Laptev was deprived of his opportunity to make submissions and a new hearing is required in order to permit him to do so.

15Having found a violation of the rules of natural justice, the Board does not need to consider the other grounds raised by Mr. Laptev.

ORDER

16Mr. Laptev’s request to review the Decision is granted. He did not receive notice of the hearing and is not deemed to have received notice. A failure to provide notice is a violation of the rules of natural justice, which can only be remedied with a new hearing. That hearing must be before a different panel of the Board.