CP Reit Ontario Properties Limited v. Municipal Property Assessment Corporation, 2019 CanLII 96145

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: October 07, 2019

FILE NO.: RR 2019M05

Assessed Person(s): CP Reit Ontario Properties Limited

Requester(s): CP Reit Ontario Properties Limited and Loblaw Properties Limited

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region No. 16

Respondent(s): Township of Essa

Property Location(s): 285 Mill Street

Municipality(ies): Township of Essa

Roll Number(s): 4321-030-001-11315-0000

Appeal Number(s): 3336957 and 3336958

Taxation Year(s): 2018

Hearing Event No.: 701790

Legislative Authority: Rules 122 of the Assessment Review Board Rules of Practice and Procedure

Request for: Reinstatement of Appeals 3336957 and 3336958

Heard: By written submission

Parties

Representative

Submissions

Loblaw Properties Limited

Lorrie Frankland

Requester

MPAC

No one appeared

Not Received

Township of Essa

No one appeared

Not Received

DECISION DELIVERED BY PAUL MULDOON AND ORDER OF THE BOARD

1Lorrie Frankland, representative for Loblaw Properties Limited (the “Requester”) requests that this Assessment Review Board (this “Board”) reinstate Appeal Numbers 3336957 and 3336958 by way of a Request for Reinstatement pursuant to Rule 122 – 123 of the Board’s Rules of Practice and Procedure (the “Rules”). This Request for Reinstatement was filed with the Board on July 9, 2019.

2The Board received an email with an attached letter of withdrawal from the Requester on June 7, 2019 at 11:50 a.m. for section 40 appeals (“s. 40”) for 2013, 2014, 2015 and 2016 taxation years (Appeal Numbers 2958622, 3022956, 3087860 and 3155011) and section 33 (“s. 33”) appeals for 2018 taxation year (Appeal Numbers 3336957 and 3336958). Later that day at 1:40 p.m., the Board received another email from the Requester with a revised Letter of Withdrawal which excluded the s. 33 appeals; and asking that the Board disregard the previous email. However, on June 21, 2019, the Requester received Acknowledgement of Withdrawal letter from the Board showing that the request for the withdrawal of the s. 33 appeals were processed.

3The Requester’s request to reinstate the appeals is granted for the following reasons. Appeal Numbers 3336957 and 3336958 are reinstated.

The Reinstatement Rules

4Rules 122 – 123 sets out the circumstances in which the Board will reinstate appeals that were withdrawn. The relevant provision of the Rule for this application is in Rule 122(a), which states, in part, that “a party to a former proceeding may seek an order… to reinstate an appeal by filing an affidavit with the Board…no more than 30 days after the appeal was… withdrawn…setting out that… the appeal was withdrawn… in error.”

5There are three essential components to Rule 122(a). First, it is only open to parties to the appeal that was withdrawn. Second, the order must be sought within 30 days after the appeal was dismissed or withdrawn. Finally, the Board must be satisfied, based on the evidence in the Requester’s affidavit that the appeal was withdrawn in error. All three conditions must be met before an appeal will be reinstated. The Requester’s application meets all three requirements.

Party

6Loblaw Properties Limited was the appellant party in the withdrawn appeals. The first condition of Rule 22(a) is therefore met.

Timely Application

7The Requester sent its request to withdraw the appeals (s. 40 and s. 33) on June 7, 2019. Within hours that same day discovering that the s. 33 appeals were listed to be withdrawn in error, sent a revised withdrawal letter to the Board removing the s. 33 appeals. The withdrawal of the s. 33 appeals was processed on June 21, 2019 and the reinstatement request was filed on July 9, 2019. The request application for reinstatement is timely, satisfying the second condition of Rule 122(a).

WITHDRAWN IN ERROR

8The final requirement of Rule 122(a) is that the appeal was withdrawn in error. The Requester’s evidence is that there were s. 40 assessment appeals for 2013, 2014, 2015 and 2016 taxation years (Appeal Numbers 2958622, 3022956, 3087860 and 3155011) and s. 33 appeals for 2018 taxation year (Appeal Numbers 3336957 and 3336958) against the subject property.

9The Requester states that the withdrawal notice was sent to the Board on June 7th withdrawing all the s. 40 and s. 33 appeals. Within hours of discovering that the s. 33 appeals, which were pending signed Minutes of Settlement (‘MOS”) were sent in error, the Requester sent a revised withdrawal letter in which the s. 33 appeals were removed, leaving only the s. 40 appeals to be withdrawn.

10In support of her argument, the Requester provides copies of emails showing the dates of the original withdrawal letter and the revised withdrawal letter; Affidavit of Rosanne Mateff (sender of the emails); Acknowledgement of Withdrawal processed for s. 33 appeals from the Board; and prepared MOS not yet, fully executed.

11This Board held, in Winners Merchants International LP v Municipal Property Assessment Corporation, Region 13, 2018 CanLII 78260 (ON ARB), at paragraph 19, that the “errors in Rule 122(a) must be good faith errors.” The Board accepts that the Requester has demonstrated good faith error in the evidence provided in support of the Request for Reinstatement. The Board finds that as soon as the error was discovered, the Requester acted immediately to retract the withdrawal of the s. 33 appeals on the same day the original withdrawal request was sent to the Board.

12The Board also finds that the Requester’s evidence of a sworn and signed Affidavit dated July 9, 2019 has shown that that MPAC represented by Christeen Mattat and the Township of Essa represented by Lisa Lehr, Clerk, have consented to the Request for Reinstatement of the 2018 section 33 appeals and have been copied on the Affidavit. The Board finds that having the consent of MPAC and the Township would suggest that it was a good faith error.

13The Board finds that the error in this situation falls with the class of errors covered by Rule 122(a).

CONCLUSION

14The Requester was a party to the withdrawn appeals, filed this application in a timely manner, and the error it made was a good faith error. Therefore, it meets the requirements of Rule 122 (a). Appeal Numbers 3336957 and 3336958 are reinstated.