Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: August 09, 2019

FILE NO.: DM 2019M35

Moving Party(ies): Mary Cosentino and Warden Construction Co. Limited

Respondent(s): Municipal Property Assessment Corporation (“MPAC”), Region 14

Respondent(s): City of Markham

Property Location(s): 2655 14^th^ Avenue

Municipality(ies): City of Markham

Roll Number(s): 1936-020-111-83000-0000

Taxation Year(s): 2019

Hearing Event No.: 719166

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

Heard: July 10, 2019 by written submission

Parties	Representative	Submissions
Mary Cosentino and Warden Construction Co. Limited	Joseph Cosentino	Moving Party
MPAC	Robert Zamozniak	Received
City of Markham		Not Received

DISPOSITION OF THE BOARD DELIVERED BY JOANNE LAWS

DISPOSITION OF MOTION

1Mary Cosentino and Warden Construction Co. Limited (the “Moving Party”) request leave of the Assessment Review Board (the “Board”) to file a late appeal.

2Vito Cosentino is the son of Mary Cosentino and is the signing officer of Warden Construction Co. Limited. Both Ms. Cosentino and Warden Construction Co. Limited are the registered owners of 2655 14^th^ Avenue, Markham (the “Property”).

3Vito Cosentino filed an affidavit he affirmed on May 10, 2019. MPAC submitted an affidavit of Damian Bernacik sworn on June 28, 2019, as well as copies of emails and the Response arguments of Robert Zamozniak. Both parties submitted copies of the same Property Assessment Notice (“Notice”) for the 2019 and 2020 taxation years. No submissions were received from Markham.

4Although Vito Cosentino’s affidavit supporting this request for leave to file a late appeal referred to the 2017 and 2018 taxation years, the only taxation year that could be subject to this Motion to file a late appeal is 2019. The taxation years subject to the Notice, which was submitted by both parties, are 2019 and 2020. The 2020 taxation year cannot be subject to this Motion because the deadline for filing it has not yet passed. With regard to the 2017 and 2018 taxation years, these years were not included in the Notice and MPAC provided a copy of a June 20, 2019 email from Joseph Cosentino in which he confirmed that the only year subject to this Motion is 2019. The Moving Party was provided with an opportunity to reply to MPAC’s evidence and submissions however none was received. Despite the lack of direct communication from the Moving Party on this issue, based on the Notice and the June 20, 2019 email, I consider Mr. Cosentino’s reference to 2017 and 2018 a clerical error and the Motion for a 2019 late appeal will proceed.

5To be successful in the motion, the Moving Party must meet the requirements of Rule 26(b) of the Board’s Rules of Practice and Procedure (the “Rules”), which it did not do. As a result, and for the reasons that follow, the Motion to file an appeal for the 2019 taxation year is denied.

Background

6Vito Cosentino affirms that he is the signing officer of Warden Construction Co. Limited and is the son of Mary Cosentino. He affirms that Mary Cosentino is a person entitled to receive a Notice but did not receive the Notice in a “proper and timely manner” because it was sent to 18 Princess Anne Crescent, Toronto and Cosentino’s correct mailing address is 15 Princess Anne Crescent, Toronto.

7Vito Cosentino submits at paragraph 6 of his Affidavit that “upon becoming informed of the need to file an appeal to extend the time to file an RfR [a Request for Reconsideration] in mid-April 2019, Mary Cosentino instructed me to do so”.

8The Board received the application and motion materials on May 14, 2019.

9The Property is assessed in the Commercial and Industrial taxation classes and, as such, an RfR is not a pre-requirement to filing appeals. Therefore, the Board treated the motion as a request for filing late appeals rather than an extension of time to file an RfR.

10In MPAC’s Affidavit, Damian Bernacik submits that Mary Cosentino became an owner of the Property on February 6, 2018 and that according to MPAC’s records her mailing address is 18 Princess Anne Crescent, Toronto. He states that MPAC sent the 2019 and 2020 Notice to the address of record on November 27, 2018. Mr. Bernacik also states that on June 20, 2019 he was advised by Mary Cosentino’s lawyer, Joseph Cosentino, that his client is only seeking to appeal the 2019 taxation year. As mentioned above, a copy of that email was included in MPAC’s evidence.

11In MPAC’s Response document, Robert Zamozniak submits that MPAC’s records show that Mary Cosentino’s mailing address is 18 Princess Anne Crescent, that she is the owner of 15 Princess Anne Crescent and Vito Cosentino is the owner of 18 Princess Anne Crescent. He states that the Notice was sent to Mary Cosentino’s son’s address which is the mailing address that MPAC has on record for Mary Cosentino.

12The Moving Party was given an opportunity to file a Reply to MPAC’s Response however none was received.

Law

13Rule 26(b) sets out the Board’s authority to accept a late appeal. It says that “the Board may accept an appeal received after the time set in the Assessment Act only if the appellant satisfies the Board, by way of affidavit evidence, 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

14On the first question, both parties agree that Mary Cosentino was entitled to receive a notice of assessment as an owner of the Property. For the reasons provided below, I find that Vito Cosentino was also a person entitled to receive a notice of assessment.

Did not Receive Notice

15Both the Moving Party and the Respondent agree that the notice was mailed to 18 Princess Anne Crescent, Toronto. MPAC states that this address is owned by Vito Cosentino, who is Ms. Cosentino’s son.

16Vito Cosentino is a person who is entitled to receive a copy of the Notice because he identified himself as the signing officer for Warden Construction Co. Limited which, he affirmed, is an owner of the subject property.

17Vito Cosentino is the person who made the affidavit on behalf of the Moving Party, yet the Board received no explanation as to why he is not “a person entitled to receive a Notice of Assessment”, that he does or does not own 18 Princess Anne Crescent, that he did not receive the Notice or that the Notice was not received in a timely way. Despite having an opportunity to respond to MPAC’s affidavit evidence that Vito Cosentino owns 18 Princess Anne Crescent, and that the Notice was mailed to that address, the Moving Party did not dispute or challenge this evidence. I find that it is more likely than not that the Notice was mailed to 18 Princess Anne Crescent to a person entitled to receive notice.

18Additionally, Vito Cosentino does not explain what happened between the date the Notice was mailed (November 27, 2018) and the date a person entitled to receive the Notice first became aware of the Notice; nor was that date provided in his Affidavit.

19There is no evidence that a person entitled to receive the Notice of Assessment for the 2019 taxation year did not actually receive that Notice. The Moving Party has not met the second essential requirement of Rule 26(b).

Timely Application

20The final requirement in Rule 26(b) is that the person bring an application within 30 days of becoming aware of the assessment or classification. However, that requirement would only come into play if there is evidence of when the person first became aware of the assessment or classification that is the subject of the appeal. I received no evidence as to when the Notice was received and, therefore, the 30 days cannot be calculated.

CONCLUSION

21Accordingly, I find that the requirements of Rule 26(b) were not met, and the Motion is denied.