533206 Ontario Inc. v. Municipal Property Assessment Corporation (“MPAC”) Region No. 23, 2019 CanLII 81681

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: August 29, 2019

FILE NO.: DM 161693

Appellant(s): 533206 Ontario Inc.

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region No. 23

Respondent(s): City of London

Property Location(s): 1515 Trossacks Avenue

Municipality(ies): City of London

Roll Number(s): 3936-020-500-13300-0000

Appeal Number(s): 3233310, 3312249 and 3366522

Taxation Year(s): 2017, 2018 and 2019

Hearing Event No.: 720576

Legislative Authority: Rules 82 and 24(e) of the Assessment Review Board Rules of Practice and Procedure

Heard: July 30, 2019 by written submission

Parties	Representative	Submissions
533206 Ontario Inc.	Patrick Prendergast	Received
MPAC	Douglas Keyes	Received
City of London	No one appeared	Not Received

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON

DISPOSITION OF MOTION

1Two motions are before the Assessment Review Board (the “Board”) in these appeals: one brought by 533206 Ontario Inc. (the “Appellant”) to alter the timeline set out in the Schedule of Events in the proceeding after this request had been denied through the Board’s Expedited Directions process; and the second brought by MPAC to dismiss the appeals.

2The Appellant is the owner of 1515 Trossacks Avenue in the City of London (the “Subject Property”). The Appellant filed an appeal for the 2017 taxation year with the Board and was deemed to have brought the same appeal with respect to the Subject Property for the 2018 and 2019 taxation years pursuant to subsection 40(26) of the Assessment Act, R.S.O 1990, c. A.31.

3For the reasons that follow, both motions are dismissed. The Schedule of Events will not be altered, nor will the appeals be dismissed.

Background

4The Subject Property is vacant multi-residential development land, and the appeals are general proceedings pursuant to Rule 32 of the Board’s Rules of Practice and Procedure (the “Rules”). At the outset of the proceedings, the Board generated a Schedule of Events pursuant to Rule 34 and assigned a commencement date of March 15, 2018 for these appeals.

5The facts in the motions are set out in the affidavit of Douglas Keyes employed by MPAC sworn on July 11, 2019 with exhibits, an email from the Appellant’s principal, Peter Stavrou, dated June 2, 2019 and the Appellant’s motion record.

Emails: April, 5, 2018 to May 7, 2019

6On April 5, 2018, MPAC emailed its initial disclosure to Mr. Stavrou. Mr. Stavrou replied by email the same day saying he was computer illiterate, was only able to use email online and that he did not understand MPAC’s disclosure. In particular, he sought an explanation of the Rules that MPAC quoted in its initial disclosure. Mr. Stavrou also wrote that “we have hand delivered and mailed in hard copies of all our comparable properties, our evaluation of the property and Cushman & Wakefield Real Estate Brokers letter of opinion, to MPAC back in 2016/17 (sic).”

7The next email was from MPAC to Mr. Stavrou on December 3, 2018. This said that MPAC had not received the Appellant’s Statement of Issues (“SOI”) which had been due on August 9, 2018, that MPAC had suffered prejudice as a result, and that MPAC was consequently unable to respond. MPAC requested that the Appellant withdraw the appeals, failing which MPAC would take steps to have them dismissed.

8Mr. Stavrou replied by email on December 11, 2018 indicating, among other things, that he would oppose any attempt by MPAC to dismiss the appeals, that he had delivered his SOI to MPAC “back in 2016/17”, and that MPAC had not provided its SOI to him.

9The email that followed was from MPAC’s Mr. Keyes to Mr. Stavrou on May 7, 2019 saying that the Schedule of Events required that a Mandatory Meeting be held by May 23, 2019. It also repeated the request that the Appellant provide MPAC with its SOI. In addition, in a separate email, MPAC provided a partially completed Expedited Board Directions Form (“EBDF”) for Mr. Stavrou to fill out to extend the timelines in the Schedule of Events to allow the Appellant to file its SOI and evidence. The motion material indicates a dispute as to whether MPAC agreed to the extension of time or not, but at this point it is only relevant to note that MPAC does not now consent to the Appellant’s motion for an extension of time.

EBDF

10To clarify what documents were in its possession from Mr. Stavrou, MPAC sent Mr. Stavrou a copy of all of the documents they had received from him previously which did not include any comparable properties from 2016. Then, on May 13 and May 14, 2019, there was further email correspondence where MPAC confirmed to Mr. Stavrou that he had not submitted comparable properties for 2016 in his initial disclosure, where Mr. Stavrou said he had. On May 27, 2019, the Appellant’s newly retained representative provided MPAC with a Statement of Issues.

The May, 2019 EBDF

11At the end of May, 2019, the Appellant’s representative submitted the completed EBDF to request an extension of time to file an SOI, a Statement of Reply and to hold the Mandatory Meeting. The EBDF indicated that Mr. Stavrou did not understand the Rules, that he could not access MPAC’s website and said that the Municipality consented to the relief in the motion.

12The request was denied by the Board. The Board’s endorsement noted that the commencement date was March 15, 2018, more than 14½ months prior, that the Appellant did not provide its SOI on or before August 9, 2018 and that Mr. Stavrou could have contacted the Board if he was confused. The endorsement went on to say that there were no exceptional circumstances as required by Rule 82, and therefore the request was denied.

13Unhappy with that decision, Mr. Stavrou wrote to the Board providing further information “appealing the decision of the Board.” The Board advised that the Appellant could bring a written motion to dispute the result from the May, 2019 EBDF.

The June, 2019 EBDF

14The Appellant submitted a second EBDF in June, 2019 to dispute the result from the May, 2019 EBDF. That second EBDF initiated the written motion process to be resolved in this decision. The salient details set out in the email attached to the EBDF were that he did not receive an SOI from MPAC, that his wife had a heart attack in February or March, 2019 which occupied his time, and that MPAC was sent comparable properties and an SOI in October, 2017.

Analysis

Appellant’s Motion

15The Appellant requests the alteration of the timelines set out in the Schedule of Events pursuant to Rule 82. This provides that “the Board will not alter any timeline set out in the schedule of events, other than in exceptional circumstances.”

16The Appellant’s motion record does not set out the relief requested, but it is assumed that it is the same relief that was requested in the EBDF as listed above. This was to alter the timelines fixed to extend the Appellant’s time to serve his SOI and to hold the mandatory meeting. This was a change in position for the Appellant, where he had indicated in his correspondence with MPAC and even in his response to the denial of the requests in the EBDF that his initial correspondence to MPAC in 2017 included an SOI.

Statement of Issues

17The first question to be determined is whether the Appellant had already provided an SOI to MPAC.

18The documents in the May 9, 2019 email received by MPAC in 2017 consisted of a cover letter from Mr. Stavrou dated July 2, 2017, a letter of opinion from DTZ Barnicke dated February 15, 2012, MLS listing sheets for 10 proposed comparable properties (none of which appeared to have transacted since 2009), and another opinion letter from Cushman Wakefield dated September 1, 2016.

19Rule 38(1) provides the requirements for SOI which, when current value is the issue, must contain the following:

(a) The current value requested and how it is calculated;

(b) A full statement of every issue that the party intends to raise, including identification of comparable property to be referred to, if any;

(c) A list of all facts, legal grounds and documents that the party relies on in support of its position.

20The Appellant’s submissions included an opinion of value which could have been construed as meeting the requirement in sub-rule (a) above. Those submissions did not, however, provide a statement of every issue the Appellant intended to raise, even if it did include additional comparable properties (which MPAC said it did not receive). It did not meet the second requirement of the sub-rule. It also did not meet the requirement of the third sub-rule, where it should have included the facts or legal grounds the Appellant intended to rely on.

21The Appellant’s initial disclosure did not, therefore, substantially comply with the requirements of a SOI. The Appellant was in breach of the Rules by not providing a SOI in accordance with the Schedule of Events.

No Exceptional Circumstances

22In his motion, the Appellant’s representative indicated that Mr. Stavrou has lived in London since 1954 raising his family, that he owns several business properties there “…and has contributed to the city’s assessment base for over 50 years and wants to feel he has been treated fairly.” Breadth of experience in commercial property ownership and contributions to a city’s assessment base are not the exceptional circumstances envisaged by Rule 82.

23The Appellant’s motion material also indicated, however, as did his EBDF, that his wife had been ill for several years and had a heart attack early in 2019. These are the circumstances which he says “forced him to retain” his representative in the motion material.

24The problem with that submission is that the Appellant’s SOI was due on August 9, 2018, long before the occurrence of the heart attack. Mr. Stavrou also insisted that he had provided an SOI when the appearance of a new SOI prepared by his own representative suggested he had not. Moreover, Mr. Stavrou was notified of this breach of the Schedule of Events by MPAC in December, 2018, and he did nothing to remedy it until he hired his representative in May, 2019.

25The Appellant’s request to extend the timelines in the SOI was already denied in the EBDF submitted in May, 2019. It is questionable whether he should have had the opportunity to request the same relief a second time, especially when there were no new facts to support a different conclusion with information that could have been provided with the EBDF initially.

26The Appellant’s motion is denied for the same reasons as given in the May, 2019 EBDF endorsement which determined there were no exceptional circumstances: that the commencement date was March 15, 2018, that the Appellant did not provide its SOI on or before August 9, 2018 and that Mr. Stavrou could have contacted the Board if he was confused.

MPAC’s Motion to Dismiss

27MPAC argues in its motion that Mr. Stavrou has not complied with the Rules, and submits that the appeals should therefore be dismissed.

Cases on Dismissal

28This motion was brought pursuant to Rule 24(e) which provides the authority for the Board to dismiss an appeal without holding a hearing if “the appellant has not complied with statutory requirements or these Rules.” In Municipal Property Assessment Corporation, Region No. 9 v 234900 Ontario Ltd., 2018 CanLII 248 (ON ARB), 2017 CanLII 74719 (ON ARB) (“234900 Ontario Ltd.”), the Board determined that “dismissal is an extreme remedy and should only be granted in the clearest of cases.” In Municipal Property Assessment Corporation, Region No. 7 v Cherry, 2018 CanLII 60392 (ON ARB), the Board specified that the “clearest of cases are those where there are wilful breaches of the Board’s orders or Rules that are entirely attributable to the taxpayer.”

29A party’s failure to provide an SOI when required can form a valid basis for dismissal, as was the case in Municipal Property Assessment Corporation, Region 19 v Wentworth Property Management Inc., 2018 CanLII 89428 (ON ARB). However, the Board also determined in Municipal Property Assessment Corporation, Region 14 v Upper Keele Inc., 2018 CanLII 126632 (ON ARB), 2018 CanLII 248 (ON ARB) that “the prejudice to each party will always be the primary consideration on a dismissal motion.”

Analysis

30As noted above, Mr. Stavrou did not provide MPAC with an SOI in accordance with the Rules and as required in the Schedule of Events. In his email dated December 11, 2018, Mr. Stavrou said that it was MPAC who was in breach because they did not provide him with their “SOI”, but they could not have provided him their response without receiving the Appellant’s SOI first.

31Moreover, the allegation that MPAC did not, itself, comply with the Rules is baseless. MPAC did what it was supposed to do at the outset by sending Mr. Stavrou its initial disclosure which was acknowledged at that time. Mr. Stavrou indicated in his response that he wanted further clarification of the Rules, but MPAC did not have the obligation to provide that clarification. Mr. Stavrou could instead have contacted the Board for more information or could have done what he did in the end by retaining a representative.

32The Appellant cited two cases in opposing MPAC’s motion. The first was 234900 Ontario Ltd., the same case relied upon by MPAC quoted above, which held that dismissal is an extreme remedy. The Appellant’s submission in the motion indicates that in that case “the Member also refused to dismiss as the Statement of Issues was filed prior to the motion.” This does not appear to be true, where in para. 7 the decision says that the SOI was not filed until after the motion had been filed.

33The second case relied upon by the Appellant is Municipal Property Assessment Corporation, Region 09 v Abe-Oldenburg, 2018 CanLII 80811 (ON ARB) (“Abe-Oldenburg”) which noted that an appellant might choose not to file documents and rely on the evidence of other parties to make its case. It also determined that the failure of an appellant to participate in a Mandatory Meeting “in and of itself, is not a sufficient reason to dismiss the Appellant’s appeals.”

34The Appellant’s failure to participate in a Mandatory Meeting was not the primary ground for MPAC’s motion, rather it was its failure to provide a SOI. SOIs are critical in general stream appeals, intended to guide and define the scope of the remaining process. Without an appellant’s SOI, MPAC could not know what issues an appellant intends to raise and cannot properly respond.

35MPAC provided evidence of prejudice in its motion material. It argued that it has been prejudiced by the breach of the Rules, both in the expenses it has incurred in pursuing this motion, and in how much more difficult it is to meet its other obligations when appellants fail to comply. MPAC had to take additional procedural steps when the Appellant failed to serve a Statement of Issues.

36The Board accepts MPAC’s submission that the general failure of appellants to serve timely SOI makes its overall case management more difficult. The Board finds there is prejudice to MPAC flowing from a failure to provide a SOI.

37The breach of the Rules meets the “clearest of cases” threshold set out in 234900 Ontario Ltd. because there was a wilful breach of the Rules. Mr. Stavrou did not comply with the Schedule of Events by providing MPAC with a SOI. He was also uncooperative when it became clear that MPAC might have misplaced the initial documentation sent to them, which he mischaracterized as his SOI. Instead of re-sending those documents, Mr. Stavrou took the unhelpful position that MPAC was in breach of the Rules, which it was not. The approach taken by Mr. Stavrou here is similar to the one he took in a previous case in which he was involved that was cited by MPAC. In the written decision from that case, Assessment Corporation v London (City), 2015 CanLII 51213 (ON ARB) at paras. 9 and 10, the Board determined that Mr. Stavrou did not “make any effort to facilitate discussions or resolution of this matter with MPAC” and failed to comply with a Board order in that case.

38This is not, however, a situation where the appeals should be dismissed. Mr. Stavrou’s personal circumstances may have been one factor in his failure to comply with the Rules and he clearly maintained his interest in pursuing the appeals despite long periods of silence. In addition, it would be significantly prejudicial to the Appellant if the appeals were dismissed summarily which would deprive its representative of, at minimum, the opportunity to challenge MPAC’s evidence like the appellant in Abe-Oldenburg wanted to. There is sufficient evidence of a wilful breach of the Rules and an intention to delay the proceedings, but, in this instance, it is not sufficient to justify the most extreme remedy of summary dismissal.

39As a result, these appeals will not be dismissed. In order to prevent further prejudice to MPAC, however, these appeals will be sent directly to a peremptory hearing. The Appellant’s SOI will not be accepted for filing, nor will the Appellant be entitled to rely on any documentation at the hearing other than that identified by MPAC as having been received in its email dated May 9, 2019 and what was contained in MPAC’s initial disclosure sent to the Appellant.

CONCLUSION

40533206 Ontario Inc.’s motion to extend the timelines in the Schedule of Events is denied because there are no extraordinary circumstances that would justify such an extension.

41MPAC’s motion to dismiss 533206 Ontario Inc.’s appeals is denied because it is an extreme remedy not justified by the facts before the Board.

42The appeals are to be heard at a peremptory hearing to be scheduled where only the evidence listed above will be considered. In addition, 533206 Ontario Inc.’s SOI will not be accepted for filing.