Newell v. Municipal Property Assessment Corporation, 2019 CanLII 98119

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: October 09, 2019

FILE NO.: DM 2019M42

Moving Party(ies): Joseph Ernest Newell

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region No. 05

Respondent(s): Township of South Frontenac

Property Location(s): 2779 Rutledge Road

Municipality(ies): Township of South Frontenac

Roll Number(s): 1029-040-010-10600-0000

Taxation Year(s): 2019

Hearing Event No.: 724266

Legislative Authority: Section 40(3) of the Assessment Act, R.S.O. 1990, c. A.31 and Rule 26(b) of the Assessment Review Board Rules of Practice and Procedure

Heard: September 25, 2019 by written submission

Parties

Representative

Submissions

Joseph Ernest Newell

Self-represented

Moving Party

MPAC

Ashtyn Rank

Received

Township of South Frontenac

No one appeared

Not Received

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON

DISPOSITION OF MOTION

1Joseph Newell is one of the trustees of the estate of George Newell, which owns the property at 2779 Rutledge Road in the Township of South Frontenac (the “Subject Property”).

2Mr. Newell requests that the Assessment Review Board (the “Board”) accept his appeal for the 2019 taxation year because the appeal was not filed by the deadline set out in the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”). For the reasons below, this motion is instead considered as a request to extend time for filing a Request for Reconsideration (“RfR”) with MPAC.

3Ashtyn Rank represents MPAC. It opposes Mr. Newell’s motion, whether to file a late appeal or extend time to file an RfR. The Township of South Frontenac would be a party to any appeal but filed no submissions on the motion.

4In support of his motion, Mr. Newell filed his email correspondence with the Board along with his brief affidavit sworn on June 6, 2019. MPAC relies on the affidavit of Sarah Moll, sworn on September 19, 2019, along with a written submission explaining MPAC’s opposition to the motion.

5MPAC argues in its motion material that the request should have been submitted as a request to extend time to file an RfR with MPAC. The Board agrees and, for the reasons that follow, it grants the motion.

Facts

6There are three emails in the string of electronic correspondence filed by Mr. Newell.

7In his first email to the Board, Mr. Newell wrote: “I am seeking consideration for an extension regarding the April 1, 2019 deadline” because the assessment was too high. His email did not specify whether he was seeking an extension of time to file an appeal or to file an RfR. He also wrote in that email that “I have just been given the letter sent out in November of 2018” without saying what that letter was.

8The Board initially viewed the request as a request to extend time to file an RfR and, in bolded letters in its reply, said: “the Board does not have the authority to extend the deadline to file a RfR for properties other than residential, farm, managed forests and conservation land.” It then said that the request would be considered as an extension of time to file a late appeal. Following was the text of Rule 26 of the Board’s Rules of Practice and Procedure (the “Rules”) which sets out the test for extending time to file an appeal. Mr. Newell then wrote back saying that he was requesting an extension of time pursuant to Rule 26(b) without providing any further particulars.

9Mr. Newell then filed his affidavit in which he indicated that “it came to my attention on or about the 29th day of April, 2019 that the April 1, 2019 deadline had passed.” Using the framework set out in Rule 26(b), he indicated that he was the person entitled to receive the notice of assessment who did not receive the notice, and that he filed the appeal within 30 days of becoming aware of the assessment.

10Mr. Newell indicates in his affidavit that MPAC returned an assessment of $814,000 for the Subject Property that was apportioned between three tax classes: commercial, commercial excess land and, most notably in these circumstances, residential.

Law

11Section 39.1(1) of the Act provides:

39.1(1) The owner of a property or a person who has received or would be entitled to receive a notice of assessment under this Act may request the assessment corporation to reconsider the following matters:

1. Any matter that could form the basis of an appeal under subsection 40(1);…

12Section 39.1(1.1) of the Act provides:

39.1(1.1) A request for reconsideration under subsection (1) must be made no later than March 31 of the taxation year in respect of which the request is made.

13Section 40.(1) of the Act provides:

40.(1) Appeal to Assessment Review Board. – Any person, including a municipality, a school board or, in the case of land in non-municipal territory, the Minister, may appeal in writing to the Assessment Review Board,

(a) on the basis that,

(i) the current value of the person’s land or another person’s land is incorrect,

14Section 40.(3) of the Act provides:

40.(3) If a property is in the residential, farm or managed forests property class, … no appeal may be brought to the Assessment Review Board under subsection (1) by a person who is entitled to make a request for reconsideration under section 39.1 in respect of the property, if the person has not made the request within the time required under that section.

15Section 40.(4) of the Act provides:

40.(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.

16Rule 26(b) provides:

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.

Nature of the Request

17MPAC argued that the request that should have been filed was a request to extend time to file an RfR, not a request to extend time to file an appeal late, and that the Board was in error in ultimately treating it as a late appeal request. This was because part of the property is in the residential tax class, and s. 40(3) of the Act provides that no appeal can be filed if a property is in the residential tax class unless an RfR was filed first.

18MPAC was correct that the Board’s correspondence to Mr. Newell assumed that the property was not in the residential tax class when, in fact, it was. This is the error that would have led Mr. Newell to focus his request on Rule 26(b) in requesting an extension of time to file an appeal, rather than s. 40(4) of the Act, which permits the Board to extend time to file an RfR if there are “extenuating circumstances.”

19There is no indication that Mr. Newell spotted the problem when he filed his affidavit referring to the test in Rule 26(b) and he submitted no reply addressing it. However, there was sufficient information in Mr. Newell’s affidavit for his request to be considered, and granted, as a request to extend time to file an RfR.

Extension of Time to File an RfR

20As noted above, s. 40(3) of the Act requires a prospective appellant to file an RfR before an appeal can be filed if the property in question is in the residential tax class, as this one is. Section 39.1(1.1) provides that the deadline for filing an RfR is March 31 of the taxation year in question, in this case March 31, 2019, a date that has clearly passed.

21Section 40(4) of the Act provides the Board with the authority to extend time for the filing of an RfR, if there is that precondition, where there are “extenuating circumstances.” In his email correspondence, Mr. Newell indicated his view that the returned assessment was too high, and that the notice of assessment came to his attention late because he had “just been given” what can be assumed to be the notice of assessment in April, 2019.

22MPAC argues that these are not extenuating circumstances and that Mr. Newell “does not outline why it had only just been given the letter (notice of assessment) set out in November 2018 in April 2019.” The Board does not agree.

23In Morshed v Municipal Property Assessment Corporation, Region 24, 2019 CanLII 3417 (ON ARB) (“Morshed”) the Board found that:

The use of the term “extenuating circumstances” suggests there should be events outside of a requestor’s control that prevented a request from being made on time. Not receiving a notice of assessment, for example, might have amounted to extenuating circumstances that would have justified an extension of time.

24The statement that Mr. Newell had “just been given” the notice of assessment could have been clearer in explaining who it was who gave it to him and whether it could have been given to him before. However, it is enough information to conclude that his late receipt of it was an event that was outside his control, meeting the basic threshold set out in Morshed. In addition, even though the intention of Mr. Newell’s affidavit was to answer questions pertaining to Rule 26(b) to extend the time to file an appeal, it does say that he did not receive the notice of assessment and filed his appeal within 30 days of becoming aware of it through his first letter. This indicates that he acted promptly when the assessment came to his attention.

25The deadline for the filing of an RfR was April 1, 2019 and Mr. Newell’s first submission to the Board was April 29, 2019. He therefore meets the other condition in s. 40(4) of the Act of making the request within the taxation year in question. There is also no evidence before the Board that granting this request, essentially made 29 days late, would prejudice any party.

26All of this is sufficient to determine that there were extenuating circumstances to justify an extension of time to file an RfR. The request to extend time to file an RfR is therefore granted.

CONCLUSION

27Joseph Newell shall have 30 days from the date of this decision to file a request for reconsideration with MPAC.