Bakor Inc. v. Municipal Property Assessment Corporation, 2019 CanLII 81697

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: August 28, 2019

FILE NO.: DM 161801

Moving Party(ies): Bakor Inc.

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

Respondent(s): City of Toronto

Property Location(s): 15 Wallsend Drive

Municipality(ies): City of Toronto

Roll Number(s): 1901-091-660-00100-0000

Appeal Number(s): 3250734, 3298355 and 3350472

Taxation Year(s): 2017, 2018 and 2019

Hearing Event No.: 722365

Legislative Authority: Rule 41 of the Assessment Review Board Rules of Practice and Procedure

Heard: August 15, 2019 by written submission

Parties

Counsel^+^/Representative

Submissions

Bakor Inc.

Altus Group Tax Consulting Paralegal Professional Corporation

Moving Party

MPAC

Jonathan Langille

Received

City of Toronto

Not Received

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON

Background

1Bakor Inc. (the “Moving Party”) is the owner of 15 Wallsend Drive in Toronto (the “Subject Property”). In this motion, the Moving Party seeks an order allowing it to amend its Statement of Issues (“SOI”).

2The Moving Party filed an appeal for the 2017 taxation year with the Assessment Review Board (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 (“Act”).

3These appeals are general proceedings that were assigned a commencement date pursuant to Rule 33 of the Board’s Rules of Practice and Procedure (the “Rules”). A corresponding schedule of events was also generated following Schedule “B” to the Rules.

4A settlement conference was held on July 4, 2019 as was required by the schedule of events, but it was adjourned so that the Moving Party could file this motion.

5The Moving Party relies on the affidavit of Chris Ratnasingham sworn July 24, 2019 in the motion. The affidavit essentially describes how the firm of the Moving Party’s representative terminated the employment of its previous employee who had carriage of its file in April, 2019. It then discovered that there was “a large issue relating to the soil condition” which required a change to its analysis in the SOI. The Moving Party’s motion material indicates that the new analysis was provided to MPAC, and it seeks an order amending its SOI to include reference to the new sales analysis. The implication in the motion material is that this is an issue that should have been previously identified and included in its SOI.

6MPAC’s response to the motion indicates that MPAC accepts that the Moving Party’s change of representation amounts to an “exceptional circumstance.” It requests that it have until September 6, 2019 to amend its response and provide an expert report to the Board.

7The City of Toronto (the “Municipality”) is a party to the appeals but did not attend the settlement conference, nor did it make any submissions in this motion.

Analysis

8Rule 41 provides that:

Statements of issues or responses cannot be amended after the filing date set out in the schedule of events unless all parties consent, or as provided in these Rules, unless the Board directs otherwise.

9The only other active party in the appeals, MPAC, consents to the relief requested. The Municipality, through its silence, either takes no position or does not consent, therefore further analysis is provided to determine whether the Board should “direct otherwise” pursuant to Rule 41.

10Rule 49 provides that:

An issue can only be raised at a hearing event if it has been set out in the statements of issue and response which have been served, and filed with the Board in accordance with these Rules, unless the Board determines that there are exceptional circumstances.

11The Board noted in Mississauga (City) v Michalakos, 2018 CanLII 126632 at para. 10 that “exceptional means, among other things, something that does not occur regularly, something unusual, or something atypical.”

12It is not particularly unusual for a party to have to seek alternate counsel mid-litigation and ordinarily this kind of event would not constitute an exceptional circumstance. What distinguishes this case, however, and what is implied in the Moving Party’s submission, is that the person who previously had carriage of the file made a significant error in missing this issue and was terminated after this error occurred. Moreover, if left uncorrected, it could have the effect of leaving the Moving Party significantly prejudiced in the conduct of the appeals. MPAC, on the other hand, does not allege that it would suffer any prejudice if the request was granted, nor has the Municipality provided any submission to indicate that it would suffer any prejudice if the request was granted. The Board finds these to be extraordinary circumstances. It also follows that MPAC should have the corresponding opportunity to respond to the Moving Party’s amendment.

13As a result, the Board finds that the Moving Party Appellant’s motion to amend its SOI should be granted and that MPAC should have the opportunity to amend its response.

DECISION

14Bakor Inc. is permitted to amend its SOI to include reference to the new sales analysis which it has already provided to MPAC.

15MPAC shall have until September 6, 2019 to amend its response to the Moving Party’s SOI and provide an expert report to the Board.