Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: October 07, 2019

FILE NO.: DM 2019M45

Moving Party(ies): Katina Fontana

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region No. 09

Respondent(s): City of Toronto

Property Location(s): 2878 Dundas Street West

Municipality(ies): City of Toronto

Roll Number(s): 1904-014-080-00500-0000

Taxation Year(s): 2018

Hearing Event No.: 724171

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

Heard: October 1, 2019 by written submission

Parties

Representative

Submissions

Katina Fontana

Self-represented

Moving Party

MPAC

Drew Samuels

Received

City of Toronto

Not Received

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON

DISPOSITION OF MOTION

1Katina Fontana is the property manager of 2878 Dundas Street West in the City of Toronto and brings this motion to extend time to file an appeal for the 2018 taxation year.

2MPAC, represented by Drew Samuels, opposes Ms. Fontana’s motion. The City of Toronto, which would be a party to any appeal, made no submissions in the motion.

3For the reasons that follow, Ms. Fontana’s motion is denied because the Assessment Review Board (“Board”) is not satisfied that she meets the requirements of Rule 26(b) of the Board’s Rules of Practice and Procedure (the “Rules”) as she is not a person entitled to receive a notice of assessment.

Background

4Ms. Fontana filed two documents in support of the motion: her affidavit sworn on October 10, 2018 and a Request for Reconsideration (“RfR”) Extension of Time Form dated August 29, 2018.

5Ms. Fontana’s affidavit does not say whether she seeks an extension of time to file an RfR or an extension of time to file an appeal, but the Board processed the request as an extension of time to file an appeal and MPAC responded accordingly. Had Ms. Fontana intended that the request should be considered as a request to file an RfR, she could have filed a reply submission to that effect, but she did not.

6As a result, this request is considered as a request to extend time to file an appeal pursuant to Rule 26(b).

7MPAC submitted written argument dated September 11, 2019 along with an affidavit sworn by its Case Management Analyst Carrie Carone sworn the same day.

8In her affidavit, Ms. Fontana identifies herself as a property manager for the property and that she receives and reviews all mail delivered to the property. Ms. Fontana says that she “can state as a fact that no Notice of Assessment was received in relation to the property and nothing came to my attention until the tax bill was received.” The affidavit and the RfR form state that a building permit had been issued so that a restaurant could be built at the property but that the property has remained vacant.

9MPAC states that Ms. Fontana is the property manager and not the registered owner of the property and that “despite Ms. Fontana affirming that she did not receive the notice, she has not outlined that the owner, Tony Koemzidis, did not receive notice.” MPAC also argues that Ms. Fontana is not entitled to receive notice as she is not the owner of the property.

Rule 26(b)

10Rule 26(b) provides that:

26. The Board may accept an appeal received after the time set out in the Assessment Act only if 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.

11In Cherry Beach Sailing Clubs v. Municipal Property Assessment Corp., Region 9, 2018 CanLII 107727 (ON ARB) at para. 8, the Board determined that a late appeal could only be granted if all three conditions are met.

Person Entitled to Receive a Notice of Assessment

12The first of three requirements in Rule 26(b) is that the Board be satisfied, by way of affidavit evidence, that the appellant is entitled to receive a notice of assessment.

13The Assessment Act, R.S.O. 1990, c. A.31 (the “Act”) does not specify who is entitled to receive a notice of assessment. Moreover, despite section 36 of the Act which requires MPAC to prepare annual assessments, there is not even a requirement that annual assessment be mailed unless there is a change pursuant to section 14(1) of the Act. However, the roll that is prepared pursuant to section 14(1) of the Act is required to indicate “the names and surnames, in full … of all persons who are liable for assessment in the municipality…” Pursuant to section 17(1) of the Act, “land shall be assessed against the owner.”

14As a result, it is generally the owner of a property that applies to extend time to file an appeal pursuant to Rule 26(b) as the person entitled to receive a notice of assessment. There have been situations before the Board where others have been allowed to file the request, but those have been where the person applying has effectively stood in the shoes of an owner of a property. These have included, for example, the president of an association that owned a property (Orangeville Agricultural Society v. Municipal Property Assessment Corporation, Region 22, 2019 CanLII 72766 (ON ARB)), the executor of the estate of an owner (Haydon Sr. v. Municipal Property Assessment Corporation, Region 3, 2019 CanLII 284 (ON ARB)) and the president of a company owning the property (10 Yonge Inc. v. Municipal Property Assessment Corporation 09, 2019 CanLII 81693 (ON ARB)).

15In this case, Ms. Fontana identifies herself as the property manager of the property but there is no provision in the Act entitling a property manager to receive a notice of assessment. As noted above, Ms. Fontana identifies herself as the person who receives and reviews all mail, but, beyond those limited functions, there is no indication of her authority, if any, including whether to initiate an appeal. A property manager who opens and reviews mail does not have the same rights and responsibilities as a property owner, and there is no evidence before the Board that Ms. Fontana was delegated any other authority over the property or its affairs.

16The Board therefore finds that the Ms. Fontana is not a person who is entitled to receive a notice of assessment.

Remaining Requirements of Rule 26(b)

17In any event, had Ms. Fontana met the first requirement of Rule 26(b), the Board would have moved on to the second and third requirements: that she did not receive a notice of assessment and filed an appeal within 30 days of becoming aware of the assessment.

18In her affidavit, Ms. Fontana indicates she did not receive a notice of assessment but she does not say when she became aware of the assessment through receipt of the tax bill. That date would have been necessary to determine whether the appeal was filed within 30 days and without it, the Board would have been unable to make the necessary determination that the appeal was filed within 30 days.

19Ms. Fontana does not, therefore, meet two of the three requirements of Rule 26(b).

Rule 17

20MPAC also addresses Rule 17 in its argument, even though it is not argued in Ms. Fontana’s motion material, which provides that “any time period set out in these Rules can be altered by the Board.” MPAC argues that there are time limits in the Act which provide for finality and that a party should not be successful in obtaining an extension a second time when they did not meet the requirements in their first attempt through Rule 26(b).

21Had Ms. Fontana made the alternative argument that Rule 17 should apply to extend time, that request would also have been denied. This is because Rule 17 is a residual provision intended for situations not specifically enumerated in the Rules. It is not there to give a “second kick at the can” (in MPAC’s words) to parties who do not meet the specific requirements of other Rules. It is also not intended to give relief to parties in situations like this one, where the person bringing the motion is not a party entitled to receive a notice of assessment and where it cannot be determined that the request was made within 30 days of becoming aware of the assessment.

22This motion to extend time to file an appeal is therefore denied.

CONCLUSION

23Katina Fontana’s motion to extend time to file an appeal for the 2018 taxation year is denied.