Bramalea Medical Holdings Limited v. City of Brampton, 2019 CanLII 86381

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: September 10, 2019

FILE NO.: WR 160844

Assessed Person(s): Bramalea Medical Holdings Limited

Appellant(s): Bramalea Medical Holdings Limited

Respondent(s): City of Brampton

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 15

Property Location(s): 18 Kensington Road

Municipality(ies): City of Brampton

Roll Number(s): 2110-090-014-41700-0000

Appeal Number(s): 3334966

Taxation Year(s): 2017

Hearing Event No.: 714679

Legislative Authority: Section 364.(15) of the Municipal Act, 2001, S.O. 2001, c. 25, as amended

Heard: May 29, 2019 by telephone conference

APPEARANCES:

Parties

Counsel+/Representative

Bramalea Medical Holdings Limited

Jamie Walker+ Jack Walker+

MPAC

No one appeared

City of Brampton

Kumar Sapkota

DECISION OF THE BOARD DELIVERED BY SUBUOLA AWOLERI

INTRODUCTION

1The law firm of Walker, Longo and Associates (“WLA”), submitted a vacancy unit rebate application dated February 23, 2018, on behalf of Bramalea Medical Holdings Limited (the “Applicant”) to the City of Brampton (the “City”) for suites 104, 201A and 201B at 18 Kensington Road (the “subject property”) for the 2017 taxation year. The Applicant states that the vacant portions of the subject property meet the eligibility criteria for vacancy rebates as stipulated in Ontario Regulation 325/01 (“O. Reg. 325/01”).

2Kumar Sapkota, on behalf of the City, submits that the Applicant’s application was declined as it failed to provide the required documentation with the application pursuant to s. 364.(5) of the Municipal Act, 2001, S.O. 2001, c. 25, (the “Act”) nor did it respond to provide relevant information requested by the City in accordance to s. 364 (8) of the Act.

ISSUES

3The main issue to be determined is whether the Applicant has provided sufficient information in its application, for the City to make a decision to justify a vacancy rebate.

DECISION

4I find that the City was justified in declining the vacancy rebate application, as insufficient information was provided by the Applicant in its application for the City to make the decision. Consequently, no vacancy rebate is owed to the Applicant by the City for the 2017 taxation year.

REASONS FOR DECISION

Applicant’s Submissions

5Mr. Jamie Walker, counsel for the Applicant, submits that there was sufficient information provided in the Applicant’s vacancy rebate application for the City to make a decision. Furthermore, he submits that the City erred in sending its incomplete notice, issued March 8, 2018, to the Applicant instead of WLA, its authorized representative.

6Mr. Walker states that the application dated February 23, 2018, was submitted to the City with WLA’s cover letter, on WLA’s letterhead. Furthermore, he added that the first page of the application form states WLA as the authorized representatives of the Applicant. In addition, he refers to the Affidavit of J. Campbell McClure, the property manager of the Applicant, also included in the application, where Mr. McClure avers that WLA made the Application on behalf of the Applicant.

7Mr. Walker argues that the City was wrong when it mailed the incomplete notice requiring further supporting documentation including a written agent authorization to the Applicant and not to WLA. He states that this notice was received by the Applicant, but the Applicant provided it to WLA on April 25, 2018, after the 30 days deadline. Mr. Walker further argues that had the City mailed the incomplete notice to WLA, although they would have required additional time, they would have worked along with the Applicant to provide the required documents to the City. Mr. Jack Walker, co-counsel for the Applicant, (who will be referred to as Mr. Jack Walker) added that he has had dealings with the City for about 20 years and the City has never requested for a written agent authorization. Mr. Jamie Walker noted during the hearing that WLA is still willing to work with the City to provide the requested information, in a timely manner, since the information dates back to 2017.

8Notwithstanding, Mr. Walker further argues that the information provided in the application which consists of the Vacancy Rebate Application form, sketches of the three units and the Sworn Affidavit of Mr. McClure, is sufficient for the City to make its decision and it fulfills the requirement of s. 364 of the Act. Mr. Walker submits that the vacant units in the subject property meet the eligibility criteria established by O. Reg. 325/01 and the City. He calculated the total vacancy rebate for the three units to be $3,647.46.

The City’s Submissions

9Mr. Sapkota submits that the City was unable to make a decision on the Applicant’s vacancy rebate application due to the insufficient information provided. He states that the City issued an Incomplete Notice on March 8, 2018, to the Applicant, requesting for further supporting documentation such as a written agent authorization, sketch, rent roll, former tenant lease, new lease, real estate marketing and termination notice. He added that these supporting documents will be used to verify the information provided by the Applicant.

10Regarding the City’s request for a written agent authorization, Mr. Sapkota submits that there is a clear requirement by the City as provided in the City’s Response to the Statement of Issues (“RSOI”), which provides that “when an agent is representing the owner, written authorization from the owner is required”. Mr. Sapkota also added that the sketch provided by the Applicant were “very blurry and unintelligible”. Furthermore, that the Applicant’s failure to respond to the City’s request for supporting documentation, resulted in the City declining the Application, 48 days later, by issuing a letter of rejection to the Applicant on April 25, 2018, citing “insufficient information provided”. Mr. Sapkota further advised the Board that the City would not have extended the 30 days legislated time limit for the Applicant to provide the supporting documentation, since the City has the obligation to process all applications in a uniform and timely manner.

11Mr. Sapkota states that the first time the City communicated with WLA, was February 6, 2019, when the Applicant had filed an appeal with the Assessment Review Board (“the Board”) and the deadline for providing the Applicant’s Statement of Issues (“SOI”) had passed. He advised the Board that on April 11, 2019, the Applicant served the City with its SOI and some invoices, which he states satisfied the real estate marketing effort, but was provided too late. Mr. Sapkota submits that based on a review of the Applicant’s SOI, there was no compelling legal issue, for the City to reconsider and accordingly, the City filed its RSOI.

Board’s Analysis

12In accordance to s.364.(5) of the Act, municipalities have the discretion to include evidentiary requirements as part of the criteria to be satisfied by property owners making applications under this section of the Act. It provides:

The program may include evidentiary requirements that must be satisfied for the owner to be entitled to a rebate under this section. (emphasis added)

13Pursuant to s.364.(8) of the Act, municipalities may also request for additional information from the applicants:

For the purposes of determining the proper amount of any rebate payable under (section 364), the municipality may, by letter sent by mail, served personally or delivered by courier, require the owner or manager of a property referred to in an application under this section to provide any relevant information or produce any relevant records within such reasonable time as is set out in the letter.

14Section 364.(9) of the Act, further makes it mandatory for applicant’s within the required time period to provide the information requested by the municipality. It provides:

A person who receives a letter under subsection (8) shall, within the time set out in the letter, provide to the municipality all the information that is within the person's knowledge and produce all of the records required that are within the person's possession or control.

15The O. Reg. 325/01 further provides the prescribed time limit for providing the information to the City and the consequences for failing to produce these documents. s. 27.(5)(6) of the regulation provides:

(5) For the purposes of subsection 364 (8) of the Act, the prescribed time for providing relevant information or producing relevant records is 30 days after the date the letter is mailed, personally served or delivered by courier, as the case may be.

(6) No rebate is payable under section 364 of the Act for a taxation year in respect of a property if a person who receives a letter described in subsection 364 (8) of the Act fails to provide the information or records to the municipality within the time set out in subsection (5).

16As the Act gives municipalities the discretion to request for supporting documentation with the application, the Board is not bound by these evidentiary requirements to make a determination in an appeal. However, should the Board decide that this request is unreasonable or unnecessary, it must be based on clear evidence on the balance of probabilities that the Applicant’s application should be granted. The onus rests on the Applicant to establish that the vacant portions of the subject property are eligible for vacancy rebates.

17The City provided with the Application form a list of 12 supporting documentation that all applicants “MUST” provide with the Application. The Application form states that the supporting documentation is used in the application verification process. It also provides that:

“failure to provide the supporting documentation will result in the rejection of the rebate application”.

18The Applicant filled the Application form and provided sketches of the three units and an affidavit of the property manager as the supporting documents.

19The City undergoes the verification process using the supporting documentation to ensure that properties that are the subject of the application were vacant within the legislated time frame and are eligible properties that warrant the rebate as mandated by the Act.

20The Board will first address the City’s request for a written agent authorization. Mr. Sapkota did not advise the Board the reason why this document was still requested by the City despite the fact that WLA submitted the vacancy application on behalf of the Applicant. He only argued that the City needed the formal agent authorization but he did not make submissions on the purpose of this request in the application.

21The requirement of a written agent authorization is to safeguard against disclosing confidential information to unauthorized third parties. Mr. Sapkota did not argue that the City was uncertain of WLA’s authority to act as the Applicant’s authorized representative. He simply stated that the formal written agent authorization was needed. If the Applicant had submitted the Application itself, this request may be necessary for verification purposes. The application was filed by WLA using its letterhead.

22On the balance of probabilities, it appears that the Applicant had fulfilled this requirement in the application form and the additional request by the City for a written agent authorization was unnecessary. The Board does not dismiss the fact that this may be a vital and reasonable request in other applications, as the City needs to protect itself from disclosing confidential information to unauthorized third parties.

23Mr. Walker argues that if the incomplete notice was sent to WLA, they would have worked with the Applicant to ensure that all the required documents were provided to the City, although an extension of time may have been requested. The Board disagrees with Mr. Walker. He confirmed with the Board that the Applicant received the incomplete notice but did not provide it to WLA until April 25, 2018. The Board notes that this fact was not pleaded in the Applicant’s SOI, as Mr. Sapkota advised the Board that this information is just being provided by Mr. Jamie Walker at the hearing. Rule 38 (4) and 49 of the Board’s Rules of Practice and Procedure (“the Rules”) provides:

Statements of issues and responses must contain:

(4) If the issue is the cancellation, reduction or refund of taxes pursuant to the Board’s authority under the Municipal Act, Municipal Act, 2001, City of Toronto Act, 2006, or Provincial Land Tax Act, 2006:

(c) full statement of the grounds to support the cancellation, reduction or refund of taxes; and

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

(49) 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.

24WLA did not advise the City about the late receipt of the incomplete notice from the Applicant. Mr. Walker argues that they had to protect the Applicant’s right to appeal, rather than risk the appeal deadline. Regardless, this important fact was not pleaded in the Applicant’s SOI and as rightly submitted by Mr. Sapkota, the City found no compelling legal issue upon reviewing the SOI.

25The supporting documentation was within the control of the Applicant not WLA. Mr. Walker could not provide the Board with a valid reason for the Applicant’s delay in providing WLA with the incomplete notice received from the City. He asserts that the client (the Applicant) is busy since it manages a number of portfolios’. The application was made by the Applicant and the onus is on the Applicant to ensure that that the required information is provided, to enable the City make a decision.

26Mr. Walker further argues that the application had sufficient information for the City to make its decision.

27Mr. Sapkota outlined the necessity and reasons for the City’s request for the supporting documentation. He stated that the rent roll provides information on the leased period and the leased area, the termination notice is used to verify the information claimed, and the invoices provided by the Applicant with its SOI satisfied the real estate marketing effort but it was provided outside the 30 days’ time limit. He further argues that the sketch provided by the Applicant is not legible and it does not have the square footage of the units. He submits that the sketch is used to properly identify the property, if it is delineated. During the hearing, Mr. Walker read out the square footage of the units, which was handwritten on the sketch. He states that the areas claimed on the sketch are legible and those that are illegible are irrelevant. Mr. Jack Walker argues that all the required information for the City to make the decision is in the sworn affidavit of the property manager of the Applicant. Mr. Sapkota responded that the Application had to be corroborated by the required supporting documentation for verification purposes.

28The Board agrees with the City that the information provided by the Applicant was insufficient for the City to make a decision. The Applicant provided invoices to the City, which Mr. Sapkota states satisfies real estate marketing effort. Mr. Walker states that the invoices were provided in order to explore means of resolving the appeal. This supporting documentation was provided outside the 30 day time limit. Mr. Walker did not argue that the Applicant did not have the requested supporting documentation; in fact his argument was that WLA could have worked with the Applicant to provide the documentation, though a time extension would have been required and that notwithstanding, there was sufficient information in the Application for the City to make its decision.

29The Board finds that the Applicant did not cooperate with the City. It did not respond to the City’s request and did not provide any of the documents requested by the City until April 11, 2019, when it fulfilled one of the requirements, by providing the invoices to prove the real estate marketing effort. The Applicant had this document in its possession, but did not provide it until after it had filed the appeal with the Board. The Board agrees with the City that the sketch provided by the Applicant is illegible as the Board had difficulty in reviewing it as well. The onus is on the Applicant to prove that the subject property is eligible for a vacancy rebate and documents provided by the Applicant were insufficient for the City to make this decision. The Board finds that the Applicant has not met this onus.

CONCLUSION

30The Board determines that the supporting documentation in the Applicant’s application was insufficient for the City to make a decision that the units in the subject property were eligible for vacancy rebate. No vacancy rebate is owed by the City to the Applicant.