Angelo Carofano v. Municipal Property Assessment Corporation, 2019 CanLII 96134

Assessment Review Board / Commission de révision de l’évaluation foncière

ISSUE DATE: October 7, 2019

FILE NO.: DM 2019M48

Moving Party(ies): Angelo Carofano

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

Respondent(s): City of Hamilton

Property Location(s): 460 York Boulevard

Municipality(ies): City of Hamilton

Roll Number(s): 2518-010-106-03200-0000

Taxation Year(s): 2019

Hearing Event No.: 724291

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
Angelo Carofano	Moving Party
MPAC	Michael Radan	Received
City of Hamilton		Not Received

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON

DISPOSITION OF MOTION

1Angelo Carofano is one of the owners of 460 York Boulevard in the City of Hamilton. He brings this motion to extend time to file an appeal for the 2019 taxation year.

2MPAC, which is represented in the motion by Michael Radan, opposes the motion. The City of Hamilton, which would be a party to any appeal accepted by the Assessment Review Board (the “Board”), made no submissions in the motion.

3Mr. Carofano has not met all three of the requirements of Rule 26(b) of the Board’s Rules of Practice and Procedure (the “Rules”) for the request to be granted. Therefore, his motion is denied.

Background

4In his affidavit sworn on August 8, 2019, Mr. Carofano states that he originally filed a request to extend time to file a Request for Reconsideration (“RfR”) of the 2019 assessment on June 21, 2019. On July 10, 2019, he was told by the Board his request was being treated as a request to file a late appeal because the Board did not have the jurisdiction to consider his request to file an RfR late.

5The affidavit goes on to say that by way of an agreement of purchase and sale dated January 24, 2019, Mr. Carofano and his spouse, Giovanna Carofano, agreed to purchase the property from Giusseppe Carofano, Malfisa Carofano, Domenico Carofano, Angelo Carofano and Filomena Wyatt who held the property as bare trustees for Giusseppe Carofano and Malfisa Carofano, Mr. Carofano says these vendor parties “were at all times the 100% beneficial owners of the Property as per a Trust Agreement entered into by the parties on September 25, 2014.” The transaction was set to close on February 28, 2019 but that date was extended to March 31, 2019. The Trust Agreement referred to was not included in Mr. Carofano’s submission, nor were its terms explained.

6Mr. Carofano says that he was not able to file an RfR “prior to the April 30 annual deadline” and says he did not receive the notice of assessment after closing.

Analysis

7Rule 26(b) provides that:

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.

8In 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.

RfR

9Section 39.1(1) of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”) provides that the last day to file an RfR was March 31 for the 2019 taxation year and not April 30, 2019 as Mr. Carofano indicates in his affidavit. Nevertheless, he did not file an RfR and the Board’s authority to extend time if there are extenuating circumstances is limited to situations where the filing of an RfR is a precondition of filing an appeal according to s. 40(4) of the Act. Since the property is not in the residential, farm or managed forests property tax classes, an RfR is not a precondition of appeal. Therefore, the Board was correct in directing the request to be considered as a request to extend time to file an appeal.

Entitled to Notice

10The first requirement set out in Rule 26(b) is that the appellant be a person entitled to receive a notice of assessment.

11Mr. Carofano was a beneficial owner of the property prior to the conveyance on March 31, 2019 and was named in the notice of assessment. He therefore meets the first requirement of Rule 26(b).

Did Not Receive Notice and Filed Within 30 Days

12The second and third requirements of Rule 26(b) are that the person did not receive the notice of assessment and that they filed the appeal within the Board within 30 days of becoming aware of the assessment. These are two different questions.

13The submissions on the bare trust are important when considered with the second requirement of Rule 26(b). Although not articulated, Mr. Carofano appears to be arguing that because he was a bare trustee prior to the conveyance, he would not have received the notice of assessment or have been aware of it even though his name was on the notice of assessment as a function of his status as a bare trustee. On this point he would appear to be correct where in a recent decision, Rubner v. Bistricer, 2019 ONCA 733 at para. 56, the Court of Appeal described one of the roles of a bare trustee as having no active duties in respect of the property of the trust.

14However, even if Mr. Carofano did not receive the notice of the assessment, his affidavit does not say when he became aware of the assessment. He says that “upon becoming the registered owner of the Property, my wife and I were desirous of having the property re-assessed for the 2019 year,” which imputes knowledge of the assessment as of March 31, 2019. Thirty days after that was April 30, 2019. Mr. Carofano did not file his RfR request until June 21, 2019. On that basis, the request would fail because the appeal (assuming that it was in the form of the RfR request which the Board considered a late appeal request) was filed more than 30 days later.

15In fact, the only dates cited in the affidavit are the date Mr. Carofano filed the RfR on June 21, 2019 and the Board’s response to him on July 10, 2019. If the assessment did not come to his attention on the March 31, 2019 closing, when title to the property transferred to Mr. Carofano and his spouse, the affidavit fails to indicate when it did. The Board is therefore left with no other evidence on the third question as to when Mr. Carofano actually became aware of the assessment and whether the appeal was filed within 30 days of his becoming aware of that.

16Mr. Carofano therefore meets the second requirement of Rule 26(b) because he did not receive the notice of assessment. He does not, however, meet the third requirement of Rule 26(b) because there is no evidence that he filed the appeal with the Board within 30 days of becoming aware of the assessment that would be the subject of the appeal.

17As a result, the request to extend time to file an appeal must be denied.

CONCLUSION

18Angelo Carofano’s request to extend time to file an appeal for the 2019 taxation year is denied because it does not meet the requirements of Rule 26(b).