Paul Kuleba v. Municipal Property Assessment Corporation, 2019 CanLII 86383

Assessment Review Board Commission de révision de l’évaluation foncière

ISSUE DATE: September 09, 2019 FILE NO.: RD 2019M20

Assessed Person(s): Paul Michael Kuleba Appellant(s): Paul Kuleba Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 13 Respondent(s): Town of Ajax

Property Location(s): 836 Finley Avenue Municipality(ies): Town of Ajax Roll Number(s): 1805-040-007-11206-0000 Appeal Number(s): 3274167, 3300962 and 3355449 Taxation Year(s): 2017, 2018 and 2019

Legislative Authority: Rule 123 of the Assessment Review Board Rules of Practice and Procedure Request for: A review of Board’s Decision WR 160349 issued on May 22, 2019 Heard: April 30 By written submission

Parties	Representative	Submissions
Paul Michael Kuleba	Self-represented (although cover letter from a paralegal)	Requester
MPAC	No one appeared	Not received
Town of Ajax	No one appeared	Not received

DECISION DELIVERED BY PAUL MULDOON AND ORDER OF THE BOARD

INTRODUCTION

1Paul Michael Kuleba (the “Requester”) seeks a review of Decision No. WR 160349 Kuleba v Municipal Property Assessment Corporation, Region 13, 2019 CanLII 47986 (ON ARB) (the “Decision”), issued by the Assessment Review Board (this “Board”) on May 22, 2019. The Request to Review was filed with the Board on June 24, 2019. It was accompanied by an “AFFIDAVIT OF PAUL-MICHAEL, KULEBA (FAMILY NAME)”, sworn June 24, 2019. The first paragraph of the Affidavit makes a slightly different reference to the name of the Requester, beginning as it does: “I, Paul-Michael, (Family Name)”. The Board will refer to him as the Requester throughout.

ISSUES AND ORDER SOUGHT

2The Requester indicates three grounds for review:

a. that the Board violated the rules of natural justice;

b. that the Board made an error in law or fact such that the Board would likely have reached a different conclusion; and

c. that the Board heard false or misleading evidence which was discovered only after the hearing and could have affected the result.

3Specifically, the Requester submits that the Board acted outside its jurisdiction (Rule 121 (a), and the Decision contains an error of fact or law such that the Board would likely have reached a different decision (Rule 121 (b)), because the Vice-Chair wrongly concluded that the Board does not have jurisdiction to determine a Constitutional question, and the Board failed to consider the grounds of appeal. The Requester did not elaborate on the allegation that the Vice-Chair “heard false or misleading evidence”.

4The Requester asks that the Decision be cancelled and the appeals be reheard.

RELEVANT RULES

5Requests for a review of a Board decision must meet certain procedural requirements before they are considered. Rule 120 of the Board’s Rules of Practice and Procedure (the “Rules”) states:

120 A party may request a review of any final decision of the Board, other than a decision pursuant to Rule 122, by filing a request in writing no more than 30 days after the decision was issued, including:

(a) a copy of the decision to be reviewed;

(b) the written reasons for the decision, as set out in Rule 112;

(c) the reasons for the request, addressing the factors set out in Rule 121;

(d) notice of any appeals or applications for judicial review that have been filed in relation to the decision;

(e) proof of service on all other parties to the proceeding;

(f) the remedy or relief sought; and

(g) the fee specified by the Board.

6Reviews can only be granted if the provisions of Rule 121 are met: That Rule states:

121 A request for review will not be granted unless the Board is satisfied that:

(a) the Board acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

(b) the Board made a significant error of law or fact such that the Board would likely have reached a different decision;

(c) the Board heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result;

(d) there is new evidence that could not have reasonably been obtained earlier and would have affected the result; or

(e) any of the situations in Rule 122 exist.

7If the Board is satisfied that a provision of Rule 121 is met, the remedies available are set out in Rule 123, which states:

123 Upon consideration of a request for review, or on its own initiative, the Board may:

(a) dismiss the request;

(b) reinstate the appeal, with or without conditions; or

(c) after providing all parties an opportunity to make submissions,

i. confirm, vary, or cancel the decision,

ii. order a rehearing on all or part of the matter, or

iii. order a motion to decide the review.

Background

8Paul Michael Kuleba is the owner of property located on Finley Avenue in Ajax. He appealed MPAC’s assessment of his property value at $375,000 for the taxation years 2017, 2018 and 2019. The ground of appeal was that he should not be placed on the taxation roll.

9The Board dismissed the appeal as an abuse of process, under Rule 24(b) of the Board’s Rules and s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”). The Board did not consider the merits of the appeal; rather, it found that “Mr. Kuleba’s arguments are stereotypical of a class of litigants known as “Organized Pseudo-Legal Commercial Argument litigants” (“OPCA litigants”). The Board relied on Court decisions Jarvis v. Morlong, 2016 ONSC 4476 (“Jarvis”) and Meads v. Meads, 2012 ABQB 571 (“Meads”) to conclude that, as an OPCA litigant, the Requester was engaged in vexatious conduct made in bad faith.

Issues

10The issues are:

a. Did the Board err in finding that the Requester is an OPCA litigant? If so, would that error have changed the outcome of the appeal?

b. Did the Board err by not considering the appeal on the merits, despite finding that the Requester was found to be an OPCA litigant?

Analysis

a. Did the Board err in finding that the Requester is an OPCA litigant?

11In the Decision, the presiding Vice-Chair reviewed decisions from a number of courts and administrative tribunals that described a class of OPCA litigants.

12One of the cases is Jarvis v. Morlong, 2016 ONSC 4476 (“Jarvis”) and Meads v. Meads, 2012 ABQB 571 (“Meads”), which refers to Meads and Gao v. Ontario WSIB, 2014 ONSC 6497 (“Gao”), and describes OPCA litigants as follows:

[2] The statement of claim makes no mention at all of the defendant. Rather, it contains a number of familiar elements indicative of OPCA claims as discussed by Rooke ACJ in Meads v. Meads, 2012 ABQB 571. OPCA claims are an abuse of process and therefore this action is dismissed. Gao v. Ontario WSIB, 2014 ONSC 6497, at para. 16.

Some courts take pains to write lengthy, learned reasons to show OPCA plaintiffs how each element of their pleading is abusive. I respectfully take a different view. In my view, plaintiffs who file OPCA claims are playing a game that is designed to frustrate the system and inflict unrecoverable expense and needless stress on the defendants. OPCA claims have been derided as abusive over and over again in courts across the country. I do not believe for a minute that OPCA plaintiffs believe that they can separate their legal personalities by putting their names in capital letters or calling themselves “Noble” or otherwise. They know that they cannot avoid the law or government jurisdiction by claiming to be a free man who has no contract with the government. They don’t refuse to accept the free services of the police, ambulance attendants, firefighters, doctors, nurses, and other publicly funded service providers who approach them in their normal names in the absence of a contract. Nor do I accept that these plaintiffs believe in good faith that they can avoid their just debts by creating unilateral fee schedules and using legal words jumbled into sentences that have no English meaning. In my view, even if some OPCA plaintiffs are being conned by “gurus,” they still know that at bottom they have no legal defence to the debts or claims asserted against them and they only go to the gurus to avoid their legal obligations, at best, or to lash out in bad faith at the system and their creditors at worst. It plays right into OPCA plaintiffs’ ill motives to treat their claims with respect and spend hour upon hour of judicial time writing lengthy, reasoned responses to the gibberish that they spew.

[3] All litigants are entitled to treated with respect and with simple human decency before the court. The OPCA positions that they adopt are not. In my view, it is more respectful to OPCA plaintiffs to truthfully tell them that they are engaged in a despicable enterprise that cannot be tolerated than to pretend that there is some merit which deserves academic debate and response. In my view, precious judicial time should be spent on resolving real matters. Simply taking judicial time to respond seriously to OPCA claims gives the claimants a measure of success in advancing their improper purposes. Associate Chief Justice Rooke spent more than enough of his very valuable time creating a textbook of abusive OPCA practices in Meads v. Meads. In my view, not another moment of judicial resources or party expense should be invested on OPCA claims. They should be summarily nipped in the bud with reference to Meads v. Meads and no more as set out in para. 2 above.

13The presiding Vice-Chair then reviewed the Requester’s conduct and arguments in the appeals before the Board, and found them to match those outlined in the case law. The Board agreed with the approach in Meads, Jarvis and Gao, found the appeals be vexatious. The Board applied Rule 24(b), and the Board’s power to determine its own processes under the SPPA to dismiss the appeals as an abuse of process.

14The central issue in this Request for Review is whether the presiding Vice-Chair correctly found that the Requester falls under the category of an OPCA litigant. However, the Requester, in his submissions, simply did not speak to this issue. Instead, the Requester focused entirely on the Vice-Chair’s refusal to consider his alleged Constitutional argument that he should be free from taxation. It is apparent from the Vice-Chair’s reasons that he refused to involve himself in the substantive issue because the Requester was found to be a OPCA litigant. Rather than challenging that finding, the Requester continues to pursue the substantive issue that the presiding Vice-Chair refused to consider. The Board finds that the Requester has not shown that the presiding Vice-Chair made an error in his findings of fact, most notably in his finding that the Requester is an OPCA litigant.

15Once that finding of fact was made, it was entirely reasonable, and perhaps compelling, for the presiding Vice-Chair to follow the guidance provided in Meads and Jarvis, and refuse to expend Board resources hearing vexatious arguments relating to whether or not the Requester should be free from taxation.

16Since the Board has found that there was no error in the Decision, there is no need to address the question of whether an error would have changed the outcome.

b. Did the Board err by not considering the appeal on the merits, despite finding that the Requester was found to be an OPCA litigant?

17The Requester’s second argument is that the Board refused to hear the merits of his appeal, namely, the Constitutional argument, because the Board failed to recognize that it has “inherent jurisdiction” to hear Constitutional cases. Again, the “Constitutional question” was the Requester’s alleged Constitutional right to be free from taxation.

18When reviewing the presiding Vice-Chair’s reasons, it is absolutely clear the Requester was given an opportunity to be heard. The Decision makes explicit mention of the interaction between the presiding Vice-Chair and the Requester. The Requester’s demand that the Board finds that it did have “inherent jurisdiction” simply could not be met, and the presiding Vice-Chair made this point. A litigant cannot demand something of the Board that the Board cannot give, that is a finding of inherent jurisdiction, and then complain that the Board erred in not considering the merits of the appeal. The Requester had an opportunity to make his case in writing prior to the first scheduled hearing, in writing prior to the second scheduled hearing, and at the in-person hearing. With respect the Constitutional question, the Board had adjourned the hearing in the first instance to permit the Appellant to notify the Attorneys General of the Constitutional question. Both the Attorney General for Ontario and the Attorney General for Canada declined to participate. The Board finds that the presiding Vice-Chair did not err in not considering the merits. In order for the Presiding Chair to hear the merits, it had to make a finding of law that was wrong in law.

CONCLUSION

19The Request for Review is dismissed.