Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: August 1, 2019

FILE NO.: DM 159293

Moving Part(ies): Roger Bejjani and Doris Haddad

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 3

Respondent(s): City of Ottawa

Property Location(s): 757 Sherbourne Road

Municipality(ies): City of Ottawa

Roll Number(s): 0614-084-601-70200-0000

Appeal No. 3330473 and 3330474

Taxation Year(s): 2017 (October 1 to December 31)

Hearing Event No. 709068

Legislative Authority: Section 40(4) of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Heard: January 15, 2019 by written submission

Parties	Counsel+/Representative	Submissions
Roger Bejjani and Doris Haddad	Self-represented	Received
MPAC	Mohammad El Dali	Received
City of Ottawa	No one appeared	Not Received

Moving Part(ies): Municipal Property Assessment Corporation (“MPAC”) Region 03

Respondent(s): Roger Bejjani and Doris Haddad

Respondent(s): City of Ottawa

Property Location(s): 757 Sherbourne Road

Municipality(ies): City of Ottawa

Roll Number(s): 0614-084-601-70200-0000

Appeal No: 3330468, 3330469, 3330470, 3330471, 3330472, 3330473 and 3330474

Taxation Year(s): 2015, 2016 and 2017

Hearing Event No. 709068

Legislative Authority: Section 40(1), and 40(26) of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Heard: January 15, 2019 by written submission

Parties	Representative	Submissions
Roger Bejjani and Doris Haddad	Self-represented	Received
MPAC	Mohammad El Dali	Received
City of Ottawa	No one appeared	Not Received

DISPOSITION OF THE BOARD DELIVERED BY PIERRE R. LAVIGNE AND JOSEPH JEBREEN

INTRODUCTION

1Two motions are before us today. The first motion, by Roger Bejjani (“Appellant”), is for an extension of the deadline for filing a Request for Reconsideration required as a pre-condition of appeal by s. 40(3) of the Assessment Act, R.S.O. 1990, c. A.31, (“Act”) for the property located at 757 Sherbourne Road (“subject property”).

2The second motion, by MPAC, is for:

a) the dismissal of appeals 3330468, 3330469, 3330473 and 3330474, created by the Board, for the years 2015, 2016 and 2017; and

b) an order in appeals 3330470, 3330471, and 3330472 on the same terms as the parties’ minutes of settlement for the 2015, 2016 and 2017 taxation years.

BACKGROUND

3The appeals for the taxation years 2015, 2016, and 2017 mentioned above, as well as the appeal for the taxation year 2018, came before the Board on November 15, 2018 for a hearing on the merits.

4On November 9, 2018, MPAC submitted a letter and supporting documents to the Board requesting, as a preliminary matter:

(i) dismissals of certain appeals; and

(ii) decisions on the same terms as signed minutes of settlement in other appeals.

5It became clear at the outset of the November 15, 2018 hearing that the Appellant would oppose MPAC’s motions and that the Appellant was required to bring a motion of his own for an extension of time to file a request for reconsideration of the assessments that are the subject of appeals 3330473 and 3330474.

6Pursuant to Rules 64 to 68 of the Board’s Rules of Practice and Procedure (“Rules”), we required the parties to bring their motions in writing. The written motion was set down for January 19, 2019. We adjourned the hearing of the appeals until we issued reasons for our decision on these motions. These are those reasons.

RELEVANT LEGISLATION

7Section 40(3) of the Act states that:

Precondition of appeal

(3) If a property is in the residential, farm or managed forests property class, or in such other circumstances as the Minister may prescribe, no appeal may be brought to the Assessment Review Board under subsection

(1) by a person who is entitled to make a request for reconsideration under section 39.1 in respect of the property, if the person has not made the request within the time required under that section. 2008, c. 7, Sched. A, s. 11; 2015, c. 38, Sched. 1, s. 4 (2).

8Section 40(4) of the Act states that:

Extenuating circumstances

(4) If, in the Board’s opinion, there are extenuating circumstances explaining why a request for reconsideration in respect of a property was not made within the time required under section 39.1 by a person who was required to do so as a precondition of appeal under subsection (3), the Board may, on an application by the person during the taxation year, extend the deadline for making a request under that section. 2008, c. 7, Sched. A, s. 11.

9Section 40(26) of the Act states that:

Deemed appeals, 2009 and subsequent years

(26) For 2009 and subsequent taxation years, an appellant shall be deemed to have brought the same appeal in respect of a property,

(a) in relation to the assessments under sections 32, 33 and 34 for the year; and

(b) in relation to the assessment, including assessments under sections 32, 33 and 34, for a subsequent taxation year to which the same general reassessment applies, if the appeal is not finally disposed of before March 31 of the subsequent taxation year or, if an assessment has been made under section 32, 33 or 34, before the 90th day after the notice of assessment was mailed. 2008, c. 7, Sched. A, s. 11; 2008, c. 19, Sched. A, s. 8 (3).

10The Rules state that:

Definitions

3. These definitions apply to these Rules unless the context requires otherwise,

“affidavit” means a written statement made under oath or affirmation that is confined to facts or other evidence the person could give if testifying as a witness before the Board;

Failure to Comply With Rules and Orders

8. The Board will determine the appropriate consequences of non-compliance with these Rules.

Communication with the Board

9. All communication with the Board in relation to any proceeding must be copied to, or in the presence of, all other parties to the proceeding.

Dismissal of Appeals

24. A Board Member may dismiss an appeal without holding a hearing event, or after a hearing event, if:

(a) the Board is satisfied that it is without jurisdiction to hear the appeal;…..,

(e) the appellant has not complied with statutory requirements or these Rules.

Notice before Dismissal

25. Before dismissing an appeal pursuant to Rule 24, the Board will provide the appellant with an opportunity to respond to the proposed dismissal within a specified time, except in the case of a dismissal pursuant to Rule 24(a), in which case all parties to the appeal will be given an opportunity to respond to the proposed dismissal within a specified time.

THE FACTS

11The Appellant filed in support of his motion a document titled “Affidavit” which was neither sworn nor affirmed.

12Rule 64 of the Board’s Rules state that:

Evidence in a motion must be by affidavit, and transcripts of any cross- examination on those affidavits, unless the Board directs otherwise.

13The definition of “Affidavit” in Rule 3 is as follows:

“affidavit” means a written statement made under oath or affirmation that is confined to facts or other evidence the person could give if testifying as a witness before the Board;

14As many of the pertinent facts are not in dispute, while others are not relevant to the issues on the motions, the Board accepts the Appellant’s document as evidence.

15In September 2015, the Appellant commenced construction of a new residence on a lot made vacant by demolition of an existing 1958 residence.

16MPAC issued property assessment notices on October 4, 2015 and July 18, 2016 for the 2016 and 2017 taxation years respectively. These assessments were for “Residential Vacant Land”. The 2016 taxation year vacant land Property Assessment Notice was for $365,000 as of the January 1, 2012 legislated valuation date. The 2017 taxation year vacant land Property Assessment Notice was for $495,000 as of the January 1, 2016 legislated valuation date. We shall refer to these as the “2016-17 Land Only Assessments”.

17Both property assessment notices had deadlines to file requests for reconsideration. However, no requests for reconsideration, required by s. 40.(3) of the Act, were filed for the 2016-17 Land Only Assessments by the legislated deadlines.

18On May 1, 2017, MPAC issued three Property Assessment Change Notices, pursuant to s. 33 of the Act, increasing the assessment by $1,047,000 to incorporate the increased value due to the construction of the residence. The first Notice was for the period September 1, 2015 to December 31, 2015. The second Notice was for the 2016 taxation year and the third was for the 2017 taxation year. We shall refer to these as the “2015-17 Structure Assessments”.

19The total assessment for the subject property, land and residence, was therefore $1,338,991 (effective Sept. 1, 2015) for the 2015 taxation year; $1,412,000 for the 2016 taxation year; and $1,530,000 for the 2017 taxation year.

20The deadline to file a Request for Reconsideration for these 2015-17 Structure Assessments was September 18, 2017. The Appellant filed a request for reconsideration for these 2015-17 Structure Assessments within the legislated deadlines.

21On November 14, 2017, MPAC issued a Property Assessment Notice for the 2018 taxation year on the completed residence for $1,530,000. The deadline date to file a Request for Reconsideration for this Property Assessment Notice was April 2, 2018. We shall refer to this assessment as “the 2018 Taxation Year Assessment”. The Appellant filed a request for reconsideration of the 2018 Taxation Year Assessment within the legislated deadline, and subsequently an appeal to the Board for the 2018 taxation year. The validity of the appeal for the 2018 taxation year is not in question and is not an issue before us.

22In early March, 2018 MPAC offered to settle the 2015-17 Structure Assessments by reducing the $1,047,000 increase in assessment to take into account a portion of the structure that was not yet completed and was unusable.

23While the Appellant believed a reduction for this reason was in order, he did not agree with the $1,530,000 from which it would be reduced. He felt the resulting total assessment of $1,200,000 for the 2017 taxation year was still too high.

24Nevertheless, on March 15, 2018, he signed three minutes of settlement, one for each of the 2015, 2016 and 2017 taxation years, and thereby settled the 2015-17 Structure Assessments on the terms offered by MPAC. He included a note to the 2017 settlement agreement as follows:

Note: I am accepting this 2017 assessment only (sic) for the purpose to close this phase-in assessment. I still believe my combined house plus land should be assessed close to $1.05 Million dollars for 2018.

25On May 11, 2018, MPAC issued two further property assessment change notices. These were due to the completion of the residence under construction. The notices were effective October 1, 2017 for the 2017 taxation year. We shall refer to these as “the October 2017 Assessments”.

26The first October 2017 Assessment increased the assessment of the subject property by $332,168 and brought the total assessed value of the subject property for the period October 1, 2017 to December 31, 2017 to $1,516,000.

27Also accompanying this major change was a companion notice increasing the assessment of an Exempt (Non-assessable unit) part of the subject property by $832, included in the above total. The deadline for filing a request for reconsideration of the October 2017 Assessments was September 10, 2018.

28On October 1, 2018, the Appellant met with Liane Arcand, an MPAC assessor, to discuss the 2018 Taxation Year Assessment that he had not settled and had appealed to the Board. Ms. Arcand informed him that he had missed the deadline to file a request for reconsideration for the October 2017 Assessments. She indicated that MPAC would consent to the filing of a late request for reconsideration provided this Board would allow a late submission.

29On October 11, 2018, the Appellant emailed a Case Coordinator of this Board’s administrative staff. He did not copy anyone from MPAC or the City of Ottawa.

30After dealing with a file formatting issue with respect to documents filed with respect to his outstanding 2018 appeal, the Appellant continued:

On a separate note and as we discussed yesterday, I have two requests specifically to ARB that I would like an ARB ONLY (sic) decision on: Request #1) During my settlement meeting with Mrs. Liane Arcand from MPAC, she suggested that I contact you to allow me to submit an Rfr for the period of Oct. 1, 2017-Dec. 31, 2017 that I had a deadline of September 10, 2018. She did not have an objection as long as ARB allows the late submission.

31The Appellant then indicated why the Board should allow a late filing of a request for reconsideration.

32He also detailed how he felt that he had been treated unfairly by MPAC in his 2015, 2016 and 2017 requests for reconsideration before he “reluctantly accepted the assessments of the previous years, fully knowing they were wrong but I could do nothing about it.”

33On October 12, 2018, the Case Coordinator replied to the Appellant, with a copy to MPAC and the City of Ottawa as follows:

In regard to your two requests, I have brought them to the attention of my team leads. You are no longer required to file an RfR for the previous years since you have an active 2018 appeal. We have been able to administratively deem the appeals for 2015, 2016, and 2017. You do not have to pay for the deemed appeals and all of these appeals will be added to your Schedule of Events and part of your hearing in November.

34Thus, in addition to the valid 2018 taxation year appeal (appeal number 3320057), the Board staff created the following appeals:

Appeal Number / Section of Act Relied on to Create Appeal	Assessment	Assessed Value	Effective Period
3330468 / s. 40	October 4, 2015 Property Assessment Notice	$365,000 (Land Only)	Jan 1, 2016 to Dec 31, 2016
3330469 / s. 40	July 18, 2016 Property Assessment Notice	$495,000 (Land Only)	Jan 1, 2017 to Dec 31, 2017
3330470 / s. 33	May 1, 2017 Property Assessment Change Notice	$1,047,000 (Structure Only)	Sep 1, 2015 to Dec 31, 2015
3330471 / s. 33	May 1, 2017 Property Assessment Change Notice	$1,047,000 (Structure Only)	Jan 1, 2016 to Dec 31, 2016
3330472 / s. 33	May 1, 2017 Property Assessment Change Notice	$1,035,000 (Structure Only)	Jan 1, 2017 to Dec 31, 2017
3330473 / s. 33	May 11, 2018 Property Assessment Change Notice	$332,168	Oct 1, 2017 to Dec 31, 2017
3330474 / s. 33	May 11, 2018 Property Assessment Change Notice	$832	Oct 1, 2017 to Dec 31, 2017

35On November 9, 2018, MPAC submitted a letter and supporting documents to the Board requesting:

(i) dismissals of appeal numbers 3330468, 3330469, 3330473 and 3330474; and

(ii) judgment on the same terms as the signed minutes of settlement in appeal numbers 3330470, 3330471 and 3330472.

36On November 15, 2018, all appeals came on for hearing and were adjourned to deal with the present motions.

ISSUE 1: MOTION TO EXTEND TIME

37The issue on the motion brought by the Appellant, pursuant to s. 40.(4) of the Act, is whether he has established extenuating circumstances permitting the Board to exercise its discretion to extend the deadline for filing Requests for Reconsideration of the October 2017 Assessments.

38In late November 2018, Mr. Bejjani filed with the Board an “ARB Request for Reconsideration Extension of Time Form (2017-2020)”. On December 13, 2018 Associate Chair Muldoon allowed the Appellant to submit a late request for reconsideration for the October 2017 Assessments. This is the same relief that the Appellant has requested on this first motion.

39Since the relief requested in this first motion has already been granted, there is no need to consider the matter further. The first motion is therefore dismissed as moot.

ISSUE 2: MOTION TO DISMISS APPEALS

40The issue on the motion brought by MPAC is the validity of the 2015, 2016 and 2017 appeals created by the Board on October 12, 2018 as appeal numbers 3330468, 3330469, 3330470, 3330471, 3330472, 3330473 and 3330474.

Decision on MPAC Motion to Dismiss Appeals

41For the reasons that follow, the motion to dismiss appeals 3330468, 3330469, 3330470, 3330471, and 3330472 is granted. Appeals 3330473 and 3330474 are also dismissed without prejudice to the Appellant commencing new appeals if the request for reconsideration process does not resolve the October 2017 Assessments.

Reasons for Decision on Motion to Dismiss Appeals

The 2016-2017 Land only Assessments (Appeals Nos. 3330468 and 3330469)

42MPAC`s submission with respect to these appeals is that the Appellant failed to file requests for reconsideration with respect to these Property Assessment Notices and, that pursuant to s. 40(3), these failures are an absolute bar to any appeal.

43The Appellant submits that the property taxes for taxation year 2016 (on the land only value) were being assessed based on $365,000, close to what he valued the property assessment and there were no financial reasons to file a request for reconsideration for land only value. He intended to soon have the structure completed and a new full value for land and structure assessment calculated. His expectation, based on his understanding of MPAC instructions, is that the new structure would have been included with the land as part of the new assessment.

44Section 40(3) of the Act is clear that this Board has no jurisdiction to hear any appeal with respect to these assessments without first filing a request for reconsideration with MPAC. This has been the consistent jurisprudence of this Board. See Messina v Municipal Property Assessment Corporation, Region 09, 2018 CanLII 78265 (ON ARB) at paragraphs 5 and 6 and Marsh v Municipal Property Assessment Corporation, Region 09, 2018 CanLII 89425 (ON ARB) at paragraphs 8 and14.

45Accordingly, the Board is without jurisdiction to hear the appeals pertaining to the 2016-17 Land Only Assessments. Appeals 3330468 and 3330469 are dismissed.

The 2015-17 Structure Assessments

46MPAC’s submission on Appeals 3330470, 3330471 and 3330472 is that the 2015-17 Structure Assessments were settled by the request for reconsideration minutes of settlement that were signed on March 18, 2018. In its submission, this precludes this Board from hearing any appeal with respect to these assessments.

47MPAC further submits that this Board has no jurisdiction to reopen or review the minutes of settlement.

48MPAC further requests orders from this Board confirming the assessments for the amounts in the minutes of settlement. MPAC relies on 1763931 Ontario Limited v Municipal Property Assessment Corporation, Region 30, 2018 CanLII 86685 (ON ARB) (“1763931 Ontario Ltd.”).

49The Appellant asks this Board to find that there were no settlement agreements or that, if there were, they should be set aside. He claims that the void or voidable settlements were the result of negligence, misrepresentation, duress or undue influence and unconscionable transactions by MPAC.

50He pleads that s. 40.1 and s. 44(1) of the Act permit the Board to reopen the assessments to correct errors and that it should do so.

51He also relies upon Rule 121.1 of the Board’s Rules “to hear appeals based on natural justice”.

52He asks that if the Board decided to make a decision unfavorable to him that the Board provide him with the opportunity to make oral submissions.

53The Appellant finally asks the Board that his submissions relating to duress and undue influence remain private pursuant to Rule 43.

54MPAC says the settlement agreement is valid and the consequence is that there can be no appeal. The Appellant says it is not valid and therefore it should not act as a bar to an appeal.

55Can this Board determine the validity of the minutes of settlement signed by the Appellant and MPAC?

56This Board has already determined the question of whether it can rule on the validity of settlement agreements. In 1763931 Ontario Ltd. at paragraph 37, Vice-Chair McAnsh found:

I do not find that broad principles of correctness can create a power for the Board to do something that is not set out in the statute. This Board is a creature of statute and only has the powers that the Legislature has conferred upon it. There is nothing in the Act that permits this Board to intervene in a request for reconsideration settlement.

57Similarly there is no power to set aside a settlement agreement grounded in s. 40(1)(a)(i) or s. 44(1) of the Act or Rule 121 of the Board’s Rules. Without deciding that these would permit intervention in this case, the relief permissible under these sections is premised upon there being a valid appeal before the Board. As there can be no appeal where the request for reconsideration has resulted in a settlement agreement, the condition precedent to the Board’s exercise of jurisdiction under these provisions has not been met.

58When a settlement agreement is signed, the assessment roll is altered to reflect the minutes of settlement, see s. 39.1(9) and (10) of the Act. By virtue of the settlements, the Appellant has had the benefit of the settlement’s assessment reduction.

59The Appellant submitted the Board’s decision in Municipal Property Assessment Corporation Region 09 v Chew, 2015 CanLII 78969 (ON ARB) (“Cherry”)for the proposition that s. 40.1 of the Act, the power to correct for palpable errors, could be relied upon to grant him relief from what he characterizes as an unfair tax burden.

60Section 40.1 of the Act states that:

40.1 If it appears that there are palpable errors in the assessment roll,

(a) if no alteration of assessed values or classification of land is involved, the Board may correct the roll; and

(b) if alteration of assessed values or classification of land is involved, the Board may extend the time for bringing appeals and direct the assessment corporation to be the appellant. 1997, c. 5, s. 27 (1); 2006, c. 33, Sched. A, s. 31; 2008, c. 7, Sched. A, s. 12.

61In Chew, Member Wyger found, at paragraph 19, that “the enquiry into palpable error requires a consideration first of whether it is a true inadvertent and unintentional error, and second whether that error is palpable.” The signing of the minutes of settlement was not an error, was not inadvertent and unintentional, and was not palpable.

62The Appellant states that he was forced to sign the minutes and that he was under undue influence by MPAC. Even if we accepted this evidence, such a situation cannot constitute an error. Further, the circumstances of this case do no support the Appellant’s position. There were three minutes of settlement signed, one for each of the 2015, 2016 and 2017 taxation years. The Appellant only qualified his settlement of the 2017 settlement with a handwritten note. In that note, the Appellant states that he is “accepting this 2017 assessment only (sic) for the purpose to close this phase-in assessment.” He further wrote that he believes that his “combined house plus land should be assessed close to $1.05 Million dollars for 2018”. We find that this note shows that the Appellant was aware that there were land and structure assessments and that he was settling the years prior to 2018.

63The communications leading up to the signing of the minutes of settlements also support our finding that the Appellant signed the minutes of settlement with the intention of resolving the 2015-17 Structure Assessments. The minutes of settlement were not entered into inadvertently.

64Further, for an error to be “palpable” it must be “an error of conspicuous magnitude; plain, evident, obvious, and easy to understand.” See Scott v. Municipal Property Assessment Corp., Region 15, [2015] O.A.R.B.D. No. 64 at paragraph 34. Associate Chair Muldoon in Hopper v Municipal Property Assessment Corporation, Region 15, 2016 CanLII 24421 (ON ARB) held that a palpable error is an error “that mischaracterizes the fundamental nature or legal character of the property.”

65The purported error here is not, in our view, an error which is plain, evident, obvious and easy to understand, nor does it mischaracterize the fundamental nature or legal character of the property. What we have here is a difference of opinion on valuation methodology and the resulting opinion of value. If the Appellant wanted this Board to determine the value added to his property by the new residence, he could have refused MPAC’s offer of settlement and appealed to this Board as he did for the 2018 taxation year.

66With respect to MPAC’s request that this Board issue an order confirming the assessments for the amounts in the minutes of settlement, we decline to do so. If the Board has no jurisdiction to hear the appeals, because of the minutes of settlement, it has no jurisdiction to make a substantive order on the appeals. MPAC will have already altered the roll by filing the minutes of settlement with the municipality. The decision in 1763931 Ontario Ltd. is distinguishable. In that case, there was a valid deemed appeal before the Board that could be disposed of by confirming the assessment. In the present case, there is no valid appeal before the Board.

67The Appellant’s request to further appear before the Board in person is denied. This matter has been heard based on written materials in accordance with Board’s Rules.

68The Appellant’s request to have his evidence of duress and undue influence sealed is denied. In Toronto Star Newspapers Ltd v Ontario (Attorney General), [2018] OJ No 2256, 2018 ONSC 2586, 410 CRR (2d) 1, 291 ACWS (3d) 650, 421 DLR (4th) 687, 142 OR (3d) 266, 2018 CarswellOnt 6712, the Ontario Superior Court held that adjudicative tribunals, such as this Board, are subject to the constitutional principle of openness and that there is an onus upon any person seeking a publication ban to show a “serious risk” to the party seeking such an order, see paragraphs 89-91. In this case no evidence of serious risk was presented and therefore the onus for a publication ban has not been made out.

SUBMISSIONS AND ANALYSIS APPLICABLE TO ALL APPEALS

69MPAC argues that the Appellant and the Board failed to accord it procedural fairness when the administrative staff of the Board entertained submissions from the Appellant and created the appeals in question without providing MPAC an opportunity to respond.

70MPAC also argues that the Board did not have the authority in law to create these appeals, by deeming them into existence, simply because of an existing valid open appeal for the 2018 taxation year.

71The Appellant made no submissions with respect to MPAC’s lack of opportunity to make submissions or the Board’s authority to create the appeals.

Procedural Fairness

72MPAC did not participate in the Appellant’s phone call with the Board’s administrative staff on October 10, 2018 nor did the Appellant copy MPAC with the email to the Board’s administrative staff on October 11, 2018.

73Rules 9 of the Board’s Rules states that:

Communication with the Board

9. All communication with the Board in relation to any proceeding must be copied to, or in the presence of, all other parties to the proceeding.

74This Rule exists to provide fairness to all parties. Had the Appellant observed the Rule and copied MPAC with his email of October 11, 2018 to the Board, MPAC would no doubt have made its jurisdictional concerns known.

75The failure to afford an opportunity to MPAC to respond to the Appellant’s submissions before the Board’s administrative staff created these appeals was a failure to extend procedural fairness to MPAC.

76This lack of notice to MPAC was a substantial violation of Rule 9 resulting in prejudice to MPAC. It deprived MPAC of the right to make submissions on the question of dispensing with a statutory requirement of a request for reconsideration and the creation of appeals where minutes of settlement had settled matters.

77However, we have granted MPAC’s motions to dismiss on substantive grounds and so we do not need to address the procedural violation.

THE POWER TO DEEM APPEALS

78The creation of these 2015, 2016, and 2017 appeals was purportedly founded on a power to administratively “deem” these appeals because the Appellant had a valid open appeal with respect to the 2018 taxation year.

79Appeals are normally an originating process initiated by an Appellant. Deemed appeals arise by operation of law pursuant to s. 40(26)(b) of the Act. This was the holding of this Board in 1763931 Ontario Ltd., where Vice-Chair McAnsh said at paragraph 20:

The deeming of appeals is set out in subsection 40(26) of the Act and does not reference the request for reconsideration provisions. The only requirements for an appellant to be deemed to have filed the next tax year's appeal are that the same valuation day applies and the previous appeal was not disposed of before March 31 of the tax year. If those two conditions are met, clause 40(26)(b) creates a new appeal by operation of law.

80In the present case the Board`s administrative staff purported to “deem” appeals for the years prior to the valid 2018 taxation year appeal, as opposed to the subsequent year only, as authorized by statute. The previous taxation years under appeal also spanned two assessment cycles with different valuation days. The 2015 and 2016 taxation years assessments were valued as of January 1, 2012 but the 2017 and 2018 taxation year assessments were valued as of January 1, 2016. The 2015-17 Structure Assessments were also settled pursuant to the Minutes of Settlement.

81While the Board has the authority to process an appeal deemed to exist in law, it may only do so as authorized under s. 40(26)(b). The appeals should not have been created based on deeming.

DECISIONS AND ORDERS

82The motion by MPAC is granted in part. Appeals 3330468, 3330469, 3330470, 3330471, and 3330472 are dismissed. The Board denies MPAC’s request for an order on the terms of settlement for appeals 3330470, 3330471, and 3330472.

83Appeals 3330473 and 3330474 are dismissed but without prejudice to the Appellant commencing new appeals if the request for reconsideration process does not resolve the October 2017 Assessments.

84The appeal of the 2018 taxation year and the deemed appeal for the 2019 taxation year shall be scheduled for hearing.

“Pierre Lavigne