Valentina Siple v. Municipal Property Assessment Corporation, 2019 CanLII 96135

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: October 09, 2019

FILE NO.: DM 2019M44

Moving Party(ies): Valentina Siple

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 29

Respondent(s): Municipality of Moonbeam

Property Location(s): FAUQUIER CON 9 PT LOT 14 RP6R-8227 PART 1 PCL 2730CC

Municipality(ies): Municipality of Moonbeam

Roll Number(s): 5656-000-003-33415-0000

Taxation Year(s): 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018 and 2019

Hearing Event No.: 723664

Legislative Authority: Rule 26(b) of the Assessment Review Board Rules of Practice and Procedure and Section 40 of the Assessment Act, R.S.O. 1990, c. A31, as amended

Heard: September 23, 2019 by written submission

Parties	Representative	Submissions
Valentina Siple	Self-represented	Moving Party
MPAC	Shelby Roper	Received
Municipality of Moonbeam		Not Received

DISPOSITION OF THE BOARD DELIVERED BY JOANNE LAWS

DISPOSITION OF MOTION

1Valentina Siple, the Moving Party, is the owner of a vacant lot with roll number 5656-000-003-33415-0000 (the “Property”) located in the Municipality of Moonbeam (the “Municipality). She seeks permission from the Assessment Review Board (the “Board”) to file an appeal for the 2009 through 2019 taxation years because she did not file appeals prior to the deadlines for those taxation years as set out in the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”). She also seeks to extend the time to file a Request for Reconsideration for the 2019 taxation year.

2To be successful in the motion, the Moving Party must meet the requirements of Rule 26(b) of the Board’s Rules of Practice and Procedure (the “Rules”), which she did not do. As a result, and for the reasons that follow, the motion to file late appeals for the 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017 and 2018 taxation years is denied.

3However, pursuant to s.40(4) of the Act, I find that there are extenuating circumstances that led to a late filing of her Request for Reconsideration and extend the time to do so. Ms. Siple may file a 2019 taxation year Request for Reconsideration with MPAC within 30 days of the date of this Order.

Background

4The evidence before the Board consists of Ms. Siple’s affidavit sworn on May 13, 2019, and her supporting evidence and arguments, MPAC’s affidavit sworn September 5, 2019 and supporting arguments, and, Ms. Siple’s reply evidence and arguments.

5Ms. Siple’s evidence is that she purchased the Property in 2008 and that it was consolidated with her adjacent cottage property, roll number 5656-000-003-45900-0000 (the “Cottage”). Her evidence includes documents from her lawyer supporting the sale and the consolidation of the Property with the Cottage. Ms. Siple submits that the assessed value of her Cottage increased by $8,250.00 between 2008 and 2009 which she believed reflected the addition of the Property to the Cottage. On February 5, 2019 while assisting her sister-in-law, who was the Vendor of the Property, with a property tax matter, she discovered that the Property had not been removed from the Vendor’s property taxes. She immediately asked the Municipality of Moonbeam to investigate.

6On April 23, 2019 the Municipality issued a letter to Ms. Siple acknowledging that the taxes for the Property had not previously been included in the taxes paid for the Cottage, that the Property’s Vendor, who had apparently been paying taxes for the Property, has now been credited back the Property’s taxes from 2009 to 2018 and that Ms. Siple will be invoiced for those tax years.

7In her affidavit, Ms. Siple states that Ted Picard of MPAC advised her that after a review of the Property, future assessments will likely be assessed between $8,000 and $9,000 which is less than the assessed current value. Ms. Siple also affirms that on April 26, 2019 she filed a Request for Reconsideration with MPAC’s Timmins and Toronto offices and that Mr. Picard advised her that the time had expired for filing a Request for Reconsideration. Ms. Siple also submitted a copy of her 2019 taxation year Request for Reconsideration and a May 21, 2019 letter from Walter Veneruzzo, Director, Valuation and Customer Relations at MPAC, confirming the receipt of her Request for Reconsideration on May 7, 2019 and advising that MPAC cannot proceed with the Request for Reconsideration because it was received after the April 1, 2019 deadline.

8In his affidavit, Glen Shalton, an MPAC employee, affirms that:

a. Between 2009 and 2019 MPAC mailed its Property Assessment Notices (“PANs”) for the Property to Ms. Siple in a timely fashion.

b. The PANs were mailed to 39 Ottawa Street, Kapuskasing, Ontario P0L 1V0, which is a property owned by Valentina Siple.

c. That MPAC has no record of receiving any Requests for Reconsideration for the Property “prior to this current assessment issue”.

9Neither party provided copies of the PANS for either the Property or the Cottage. In her reply submissions, Ms. Siple was silent on the issue of whether or not she received the PANs but stated that she “guided myself by the PAN associated to my cottage” because she had been advised by the Municipality, The Plantario Group Ltd. and her lawyer that the two properties were consolidated. She reiterated that the increase in property taxes between 2008 and 2009 led her to assume that the Cottage taxes included the Property’s taxes.

10MPAC agrees that Ms. Siple became aware of the assessment issues on February 5, 2019 and that she received confirmation of the taxation issue from the Municipality on April 23, 2019. MPAC takes the position that the latter date is the date Ms. Siple became aware of the assessment or classification issue that is the subject of the appeal and, therefore, her appeal dated May 8, 2019 was made within the 30 days set out in Rule 26(b). Although MPAC takes the position that Ms. Siple filed her motion for a late appeal in a timely manner, it argues that she was in receipt of the relevant PANs and, therefore, she does not qualify for a late appeal pursuant to Rule 26(b).

11MPAC argues that Ms. Siple has not met the second requirement of Rule 26(b) and that pursuant to jurisprudence, in particular, Cherry Beach Sailing Clubs v. Municipal Property Assessment Corp., Region 9, [2018] O.A.R.B.D. No. 291 and Sabl Corp. v. Municipal Property Assessment Corp., Region 9, [2018] O.A.R.B.D. No. 94, the Board can only grant a late appeal if all three conditions of Rule 26(b) are met.

12The Municipality did not take part in this Motion.

Late Appeal – 2009-2018 tax years

13Rule 26(b) of the Board’s Rules sets out the Board’s authority to accept a late appeal. It 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.

14In other words, Rule 26(b) provides that the Board may accept an appeal if Ms. Siple satisfies the Board that she 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.” The use of the word “and” indicates that all three elements of the Rule must be satisfied for a prospective Appellant to be successful.

Entitled to Notice

15The first requirement is that Ms. Siple be a person entitled to receive a notice of assessment. There is no dispute that she is the owner of the Property. She therefore satisfies the first requirement.

Did not Receive Notice

16The second requirement is that Ms. Siple did not receive a notice of assessment. MPAC’s undisputed evidence is that it mailed the relevant PANs to Ms. Siple in a timely manner for the 2009 through 2019 taxation years.

17Ms. Siple did not contradict MPAC regarding receipt of the PANs but said she chose to follow the PANs for the Cottage.

18Based on the evidence before me, I am satisfied that during the period of 2009 through 2019 Ms. Siple received the PANs for the Property in a timely fashion.

Timely Application

19I find that Ms. Siple did not act in a timely manner in regard to Rule 26(b) for the 2009 to 2018 tax years.

20Ms. Siple’s statement that she “guided” herself by the PAN associated with the Cottage indicates that it is more likely than not that she received the PANs, as indicated by MPAC, but that operating under a mistaken assumption she chose to ignore them.

21It is not the function of a late appeal motion to allow taxpayers to correct a mistake in understanding when they have received the appropriate notice from MPAC. Rather its function is to permit taxpayers who did not receive assessment notices an opportunity to file appeals.

22Valentina Siple meets only one of the three essential requirements of Rule 26(b) for late appeals. Therefore, her motion for the 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018 tax years is therefore denied.

Request for Reconsideration – 2019 tax year

23Section 40(4) of the Act provides:

Extenuating circumstances

(4) If, in the Board’s opinion, there are extenuating circumstances explaining why a request for reconsideration in respect of a property was not made within the time required under section 39.1 by a person who was required to do so as a precondition of appeal under subsection (3), the Board may, on an application by the person during the taxation year, extend the deadline for making a request under that section. 2008, c. 7, Sched. A, s. 11.

24Ms. Siple also sought an extension of time to file a Request for Reconsideration with MPAC. The only year for which I can consider an extension of time, pursuant to s. 40(4) is 2019. A Request for Reconsideration is a mandatory prerequisite to filing an appeal with this Board for the residential property class which includes vacant properties. Subsection 39.1(1.1) provides that a request for reconsideration must be made no later than March 31, 2019.

25The evidence presented by Ms. Siple show that she did file a Request for Reconsideration with MPAC but that it was rejected due to the date it was made.

26I find that the circumstances outlined by Ms. Siple which led her to discover the mis-application of taxes by the Municipality, qualify as extenuating circumstances, especially in the context of the Municipality’s misapplication of the Property’s taxes to the Vendor.

27Accordingly, I extend the time to file a request for reconsideration of the Property for the 2019 taxation year. Ms. Siple may re-file her Request for Reconsideration with MPAC for the 2019 taxation year within 30 days of this Order’s release date.

CONCLUSION

28Accordingly, Valentina Siple cannot file appeals for the 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017 and 2018 taxation years because the mandatory requirements of Rule 26(b) are not met.

29However, pursuant to s.40(4) of the Act Valentina Siple has 30 days from the date of this Order to file a Request for Reconsideration with MPAC for the 2019 taxation year.