Richard Bouma and 849194 Ontario Limited v. Municipal Property Assessment Corporation ("MPAC") Region 13 and City of Oshawa, 2019 CanLII 75476

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

August 8, 2019

FILE NO.:

DM 2019M30

Moving Party(ies):

Richard Bouma and 849194 Ontario Limited

Respondent(s):

Municipal Property Assessment Corporation (“MPAC”)

Region 13

Respondent(s):

City of Oshawa

Property Location(s):

638 and 644 Bloor Street East

Municipality(ies):

City of Oshawa

Roll Number(s):

1813-040-029-22200-0000 and

1813-040-029-22300-0000

Taxation Year(s):

2016

Hearing Event No.:

715190

Legislative Authority:

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

Heard:

June 4, 2019 by written submission

Parties

Representative

Submissions

Richard Bouma and 849194 Ontario Limited

Richard Bouma

Moving Party

MPAC

Ashtyn Rank

Received

City of Oshawa

Robert Heil

Received

DISPOSITION OF THE BOARD DELIVERED BY JOANNE LAWS

DISPOSITION OF MOTION

Background

1Richard Bouma is the registered owner of 849194 Ontario Limited and 638 and 644 Bloor Street East in Oshawa. He seeks leave of the Assessment Review Board (the “Board”) to file an appeal for the 2016 taxation year because he did not file an appeal prior to the deadline set out in the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”).

2He brings this motion pursuant to Rule 26(b) of the Board’s Rules of Practice and Procedure (“Rules”). Rule 26(b) provides that the Board can accept an appeal if the appellant satisfies the Board that “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 or classification that is the subject of the appeal.” The use of the word “and” indicates that all three elements of the Rule must be satisfied for a prospective appellant to be successful.

Facts

3Mr. Bouma supports the motion with his affidavit affirmed on April 3, 2019 along with the following documents:

• A copy of the Board’s ARB Request for Reconsideration Extension of Time Form – (2017-2010) form dated March 22, 2017 and a copy of an addendum letter to the form, also dated March 22, 2017.

• A copy of the property tax statements for the period September 1, 2016 to September 25, 2017.

• A copy of a February 5, 2015 email regarding the development of the subject properties

• A May 9, 2017 letter, and documents from MPAC regarding the correction to the assessment for the 2017 taxation year for both properties

4MPAC relied upon the affidavit of Ashtyn Rank affirmed on May 21, 2019 and submitted accompanying written arguments.

5Mr. Bouma affirms that in the fall of 2016 MPAC mailed an amended property assessment notices to his address, changing the tax classification of the subject properties from vacant residential to multi residential vacant land. This change of taxation class was in error because the properties remained vacant residential for both the 2016 and 2017 taxation years. Mr. Bouma affirms that he did not see the notice until the spring of 2017 because he was travelling out of the country from the fall of 2016 until the spring of 2017. Upon his return in the spring of 2017 he contacted both the City of Oshawa and MPAC regarding the amended assessment. Through the Request for Reconsideration (“RfR”) process, MPAC corrected the error for the 2017 taxation year, returning the classification to vacant residential.

6Mr. Bouma affirms that by the time MPAC advised him that he should file an RfR for the 2016 taxation year, the deadline for filing an appeal to the Board had passed. He takes the position that the deadline for filing the appeal for the 2016 taxation year was March 31, 2017.

7Mr. Bouma argues that MPAC acknowledges the error because it corrected the 2017 assessment and that leaving the 2016 with an incorrect classification, which has a higher tax rate, is unjust particularly because he was not advised that a 2016 appeal was necessary.

8MPAC opposes the motion and argues that Mr. Bouma does not meet two of the three requirements of Rule 26(b).

9The City of Oshawa advised the Board it will not participate in this motion.

Late Appeal

10The first step in the analysis is to determine the date by which an appeal should have been filed in accordance with the Act.

11The properties in question were assessed as two multi residential lots for the 2016 taxation year. The Appellant submits that the correct classification is vacant residential. Residential land requires filing an RfR with MPAC as a prerequisite to filing an appeal with the Board. However, an RfR is not required for properties in the multi-residential class.

12Regardless of the classification, the possibility of filing an RfR for the 2016 taxation year was open to Mr. Bouma pursuant to s. 39.1(1) of the Act, which he claims he did in the spring of 2017. However, no evidence was presented to support a date of filing.

13Section 40(3.1) provides that an RfR, for an amended assessment notice for the 2016 taxation, may be filed 90 days after the mailing date of that notice or March 31 of the [2016] taxation year, whichever is later. In this instance the last date for filing an RfR for the 2016 taxation year was February 1, 2017, which is 90 days after the notice was mailed on November 3, 2016.

14Section 40(8.1) of the Act provides that the last day a 2016 taxation year appeal could have been filed for an amended assessment notice is 90 days after the notice was mailed or March 31 of the [2016] taxation year, whichever is later. In this instance the last date for filing an appeal with the Board for the 2016 taxation year was, again, February 1, 2017, which is 90 days after the notice was mailed on November 3, 2016.

15Having determined that the time to file an appeal had passed in either scenario, the Board returns to Rule 26(b) where, if the request meets the three requirements, the Board can accept Mr. Bouma’s late appeal.

16As noted above, Rule 26(b) provides that the Board can accept an appeal if the appellant satisfies the Board that “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 or classification that is the subject of the appeal.”

Entitled to Notice

17The first requirement is that Mr. Bouma be a person entitled to receive a notice of assessment. He is the owner of the numbered company that owns the properties in question and MPAC does not argue that he is not entitled to receive the notice of assessment. He therefore satisfies the first requirement.

Did not Receive Notice

18The second requirement is that Mr. Bouma did not receive a notice of assessment. However, Mr. Bouma acknowledges that MPAC mailed the amended notice to his address in November 2016 by regular mail but that he was out of the country and did not become aware of the amended assessment notice until his return in the spring of 2017. The fault with not receiving the notice falls with the Mr. Bouma; he ought to have taken steps to monitor his mail or have it forwarded. The second requirement is not met.

Timely Application

19The request would also fail on the third question in Rule 26(b). This is because no appeal was filed with the Board within 90 days of MPAC mailing the amended assessment notice, which was February 1, 2017.

20In summary, Rule 26(b) does not assist Mr. Bouma because he satisfies only one of its three requirements. As a result, the motion to accept a late appeal cannot succeed.

CONCLUSION

21849194 Ontario Limited cannot file a 2016 taxation year appeal late because Rule 26(b) only applies if an appellant has not received notice of assessment and its owner acknowledges receiving a notice of assessment. The motion is therefore dismissed.