2662537 Ontario Ltd. v. Municipal Property Assessment Corporation, 2019 CanLII 94115

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: October 02, 2019

FILE NO.: DM 2019M43

Moving Party(ies): 2662537 Ontario Ltd.

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 19

Respondent(s): City of Hamilton

Property Location(s): 628-630 Barton Street East

Municipality(ies): City of Hamilton

Roll Number(s): 2518-030-237-51390-0000

Taxation Year(s): 724272

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

Heard: September 26, 2019 by written submission

Parties	Counsel/Representative	Submissions
2662537 Ontario Ltd.	William Smeaton	Moving Party
Municipal Property Assessment Corporation	Michael Radan	Received
City of Hamilton		Not Received

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON

DISPOSITION OF MOTION

1William Smeaton is the president and a director of 2662537 Ontario Ltd. (the “Corporation”) which owns the property at 628-630 Barton Street East in Hamilton (the “Subject Property”). On behalf of the Corporation, he seeks to extend time to file an appeal for the 2019 taxation year in this motion.

2MPAC is represented in the motion by Michael Radan and opposes the relief requested. The City of Hamilton, which would be a party to any appeal, made no submissions on the motion.

3For the reasons that follow, the Corporation’s motion is granted.

REASONS FOR DISPOSITION OF MOTION

Background

4Mr. Smeaton submitted a letter dated August 28, 2019, his affidavit affirmed on July 8, 2019 and a reply to MPAC’s submission dated September 4, 2019. MPAC submitted its response dated September 3, 2019, accompanied by the affidavit of its Case Management Analyst Douglas Keyes sworn on September 3, 2019.

5In his affidavit, Mr. Smeaton wrote that the Corporation purchased the Subject Property on November 9, 2018. The Subject Property had been assessed in the residential tax class, but the 2019 assessment returned by MPAC classified the property in the commercial tax class which Mr. Smeaton said resulted in a tripling of the Corporation’s tax bill.

6Mr. Smeaton determined that the notice of assessment showing the change in classification was sent to the previous owner after the Corporation purchased the Subject Property, and the previous owner did not forward the notice to the Corporation. He stated in his affidavit that the Corporation did not learn of the assessment until June 17, 2019.

7MPAC did not dispute that its notice of assessment was sent to the previous owner and that it was not received by the Corporation. Mr. Keyes’ affidavit additionally referenced a publicly available online tax tool run by the City of Hamilton that could have been accessed by the Corporation and noted in general terms that the City issues interim tax bills in February of each year and that it issued the final bill on June 1, 2019.

8In his reply letter, Mr. Smeaton said that the Corporation’s secretary “was first notified of the change on June 1, 2019,” that she requested and received the notice of assessment from MPAC on June 19, 2019 and that the Corporation filed a Request for Reconsideration (“RfR”) with MPAC on June 20, 2019. That same day, a copy was sent to the Assessment Review Board (the “Board”), and on June 25, 2019 the Board wrote back to the Corporation to indicate that “your request is … being treated as a request to file a late appeal with the Board.” The affidavit was then filed on July 8, 2019.

Analysis

Rule 26(b): Extending Time to File an Appeal

9In his affidavit, Mr. Smeaton made reference to both Rule 26(b) of the Board’s Rules of Practice and Procedure (the “Rules”) on extending time to file an appeal, and a request to extend time to file an RfR. In its response to the motion, MPAC argued that the request should be considered as a request to extend time to file an appeal. In his reply, Mr. Smeaton agreed that that was his request.

10Rule 26(b) of the Board’s Rules addresses late appeals and provides:

26. The Board may accept an appeal received after the time set out in the Assessment Act the appellant satisfies the Board, by way of affidavit evidence, that:

(b) 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.

11The Corporation met the first two parts of the three-part test: that the Corporation as the new owner of the Subject Property was entitled to receive the notice of assessment and that it did not receive it. MPAC conceded those two points in its material.

12Only the Corporation’s compliance with the third part of the test was at issue: whether the appeal was filed with the Board within 30 days of the Corporation becoming aware of the assessment.

Filed an Appeal Within 30 Days

13Mr. Smeaton’s affidavit said that “we did not learn of the property tax increase until June 17, 2019” and his letter sent in reply said that “MPAC acknowledges that 2662537 Ontario Ltd., the legal Owner of the Property (sic) was first notified of the change on June 1, 2019,” before the secretary contacted MPAC on June 19, 2019. In fact, the only reference to June 1, 2019 in MPAC’s material was in reference to the date that the City of Hamilton sent its final tax bill for the 2019 taxation year.

14The logical way to understand the reply is that the Corporation was using the word “notified” to mean the date the tax bill was sent. The affidavit evidence before the Board was that the Corporation “did not learn of the property tax increase until June 17, 2019” and that the secretary was forwarded the notice of assessment for the first time on June 19, 2019. The Board does not doubt that the City of Hamilton sent its tax bills on the dates MPAC says it did, and that there is an online tool that the Corporation could have accessed. Based on the evidence before it, however, the Board is satisfied that the Corporation did not become aware of the assessment until June 17, 2019.

15MPAC argued that Mr. Smeaton’s affidavit “does not provide any evidence as to when the request for late appeal was filed.” This was correct, but the Corporation’s initial request to the Board to file an RfR was sent on June 20, 2019 which was attached to the Corporation’s reply. The Board then acknowledged on June 25, 2019 that the request was being treated as a late appeal.

16MPAC argued that “the moving party is a sophistical real estate investor that made use of online property tools and information” and that “it is reasonable to conclude that the moving party was aware of the assessment of the subject property more than 30 days prior to its filing of a request for a late appeal.” Mr. Smeaton disagreed in his reply, noting that the Corporation had been formed ten days prior to the closing of its purchase of the Subject Property and that its principals had no knowledge of tax assessment or the process.

17There was, however, no evidence to prove that the Corporation was aware of the assessment any earlier than June 17, 2019. While the evidence on this issue should have been included in Mr. Smeaton’s affidavit rather than his reply, the Board finds that denying his request on that basis would be unfair where it simply confirms the lack of sophistication of the Corporation’s principals. Moreover, denying relief that would otherwise be granted because of a technical error would be contrary to Rule 7 which provides that “substantial compliance with the requirements of these Rules would be sufficient,” and Rule 4 requires that the Rules to be “liberally interpreted to ensure the just…determination of every proceeding.”

18The Board therefore finds that the Corporation has met the third requirement of Rule 26(b) where it learned of the assessment on June 17, 2019 and filed its appeal with the Board on June 25, 2019 at the latest, well within the 30 days allowed by Rule 26(b). Even if the Board is in error in its interpretation of the Corporation’s reply, and it became aware of the assessment on June 1, 2019 and not June 17, 2019 through the “notification” referenced in its material, the appeal was still filed within 30 days of that date on June 25, 2019.

19The Corporation’s motion should therefore be granted.

CONCLUSION

202662537 Ontario Ltd. has met all of the requirements of Rule 26(b) and that its request to file its appeal for the 2019 taxation year is granted.