10 Yonge Inc. v. Municipal Property Assessment Corporation, 2019 CanLII 81693

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: August 28, 2019

FILE NO.: DM 2019M32

Moving Party(ies): 10 Yonge Inc.

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 09

Respondent(s): City of Toronto

Property Location(s): 10 Yonge Street

Municipality(ies): City of Toronto

Roll Number(s): 1904-061-070-05412-0000

Taxation Year(s): 2018

Hearing Event No.: 717669

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

Heard: June 21, 2019 by written submission

Parties	Counsel+/Representative	Submissions
10 Yonge Inc.	Rajesh Aneja	Moving Party
MPAC	Chantelle MacMillan	Received
City of Toronto		Not Received

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON

DISPOSITION OF MOTION

Background

1Rajesh Aneja is the president of 10 Yonge Inc. which owns 10 Yonge Street in Toronto. He seeks leave of the Assessment Review Board (the “Board”) to file an appeal for the 2018 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. Aneja supports the motion with his affidavit affirmed on April 25, 2019. All but one of the dates recited in his affidavit is preceded with the term “on or around,” but it is assumed, without any other information provided, that “on or around” means, in fact, that an event occurred on the date noted.

4Mr. Aneja filed no other documentation in support of the motion. MPAC relied upon the affidavit of Rokhaya Sidikou affirmed on June 10, 2019 and submitted accompanying written argument.

5Mr. Aneja affirms that he received a notice of assessment from MPAC for the 2018 taxation year on November 25, 2017. He then filed a request for reconsideration (“RfR”) on March 29, 2018 because he disagreed with the assessment, and receipt of the RfR was confirmed by MPAC the same day.

6Mr. Aneja received a notice of assessment for the 2019 taxation year on November 30, 2018. He then contacted MPAC on March 28, 2019 to determine whether he should file an RfR for 2019, even though he was still waiting for the results of the RfR filed for the 2018 taxation year. He says he was told by MPAC that the decision resulting from the 2018 RfR had been sent to the correct address on June 5, 2018. Mr. Aneja affirms he did not receive it and now wants to file an appeal for that taxation year.

7MPAC opposes the motion and argues that that Mr. Aneja does not meet two of the three requirements of Rule 26(b).

Late Appeal

8The first step in the analysis is to determine the date by which an appeal should have been filed in accordance with the Act.

9The property in question is a neighbourhood shopping centre. It is not in the Residential, Farm or Managed Forests property classes, where Mr. Aneja would have been required to file an RfR as a precondition to filing an appeal pursuant to s. 40(3) of the Act. Nevertheless, the possibility of filing an RfR was open to Mr. Aneja pursuant to s. 39.1(1) of the Act, and he did so on March 29, 2018.

10Section 40(5) of the Act sets out the last day an appeal could have been filed where an RfR was filed, whether the filing of an RfR was required or not. It provides filing dates in two scenarios: if MPAC mailed a notice of reconsideration, where the deadline would be 90 days after the date is was issued, or if MPAC did not mail a notice of reconsideration, where the deadline would have been 90 days after MPAC should have mailed the notice of reconsideration. Section 39.1(7) of the Act requires MPAC to mail a notice of reconsideration no later than 180 days after the request is made if MPAC did not indicate the need for an extension, and none was required here.

11MPAC issued its notice of reconsideration on June 5, 2018 and, applying s. 40(5) of the Act, the last day for filing an appeal was September 3, 2018, a date that has since passed. If Mr. Aneja’s position is that MPAC did not send him the notice of reconsideration, which was not articulated in his affidavit, he would still be out of time. This is because MPAC would have had to have sent him the notice of reconsideration 180 days after the RfR was made, by September 24, 2018. At that point, Mr. Aneja would have had 90 more days to file an appeal pursuant to s. 40(5) of the Act, which would have extended the deadline to December 23, 2018. That date has also passed.

12Having determined that the time to file an appeal has passed in either scenario, the Board returns to Rule 26(b) where, if the request meets three requirements, the Board can accept Mr. Aneja’s late appeal.

13As 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.”

14The first requirement is that Mr. Aneja be a person entitled to receive a notice of assessment. He is the president of the company that owns the property in question and MPAC does not argue that he is not entitled to receive the notice of assessment. He therefore satisfies the first requirement.

15The second requirement is that Mr. Aneja did not receive a notice of assessment, but he acknowledges receiving it on November 25, 2017. The document Mr. Aneja did not receive is the notice of reconsideration from MPAC, but in Werzberger v Municipal Property Assessment Corporation, Region 09, 2018 CanLII 107717 (ON ARB), 2018 CanLII 73665, the Board determined that notices of assessment and notices of reconsideration are two different things, and that Rule 26(b) only applies to the notice of assessment. The Board noted in that decision that:

…there is nothing in the Act that grants me the authority to extend the time for filing an appeal, and none of the common law context supports stretching the meaning of “notice of assessment” beyond a notice sent by MPAC in accordance with the Act. It does not include a notice of reconsideration. Rule 26(b) does not generally apply when a request for reconsideration is made.

16In that decision, the Board also noted that “taxpayers can, and should, know their ultimate filing window from the moment they submit their request for reconsideration: between 180 and 270 days from when they submit their request for reconsideration,” which is what Mr. Aneja should have known here.

17The request would also fail on the third question in Rule 26(b). This is because no appeal was filed with the Board within 30 days of Mr. Aneja becoming aware of the assessment, which was December 25, 2017 (or the first business day after the holidays), 30 days after he received the notice of assessment on November 25, 2017.

18In summary, Rule 26(b) does not assist Mr. Aneja because he satisfies only one of its three requirements. There is no other provision in the Act or in the Rules which would permit the Board to extend time to file an appeal in these circumstances. As a result, the motion to accept a late appeal cannot succeed.

CONCLUSION

1910 Yonge Inc. cannot file an appeal late because Rule 26(b) only applies if an appellant has not received notice of assessment and its president acknowledges receiving a notice of assessment. The motion is therefore dismissed.