Tribunals Ontario

Assessment Review Board

ISSUE DATE: December 16, 2020 FILE NO.: DM 167194

Moving Party (ies): Municipal Property Assessment Corporation, Region 09 Respondent(s): City of Toronto Respondent(s): 1969697 Ontario Limited

Property Location(s): 1544 The Queensway Municipality(ies): City of Toronto Roll Number(s): 1919-014-080-02400-0000 Appeal Number(s): 3315444, 3355187 and 3401681 Taxation Year(s): 2018, 2019 and 2020 Hearing Event No.: 735571

Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31

Parties	Representative
1969697 Ontario Limited	Claude Bumstead
Municipal Property Assessment Corporation	Wellannie Ching
City of Toronto	Paola Romano

HEARD: September 28, 2020 in writing ADJUDICATOR(S): Dirk VanderBent, Vice-Chair

MOTION DECISION

OVERVIEW

11969697 Ontario Ltd. (the “Owner”) is the owner of a property located at 1544 The Queensway, in the City of Toronto (the “Subject Property”), which is described as industrial land. The City of Toronto (the “City”) has filed an appeal for the 2018 to 2020 taxation years with the Assessment Review Board (the “Board”), pursuant to s. 40 of the Assessment Act R.S.O. 1990, c. A.31, (the “Act”).

2These appeals are being heard by way of general proceeding. The Board’s Rules of Practice and Procedure (“Rules”) provides for a Schedule of Events which includes due dates for serving Statements of Issues and Response and the exchange of disclosure.

3In this proceeding, the Municipal Property Assessment Corporation (“MPAC”) has filed a Motion with the Board, pursuant to Rule 61 of the Board’s Rules, requesting that the Board issue a final decision in accordance with Minutes of Settlement (the “Minutes”) filed with the Board. The City supports MPAC's request. The Owner opposes it.

4Under the Schedule of Events, the Owner was required to serve its Statement of Response (“SOR”) on all other parties no later than January 3, 2020. The Owner acknowledges that it did not serve its SOR until May 6, 2020. For reasons discussed in greater detail below, the Owner requests that the Board amend the Schedule of Events due date for filing its SOR to May 6, 2020.

5The Board directed that the Motion be heard in writing.

Background

6The facts giving rise to this motion are not disputed. The City filed its appeal indicating the MPAC's assessed value of $2,633,000 is too low. The City served its Statement of Issues (“SOI”) asserting that the correct current value is $5,700,000.

7On December 11, 2019, MPAC provided its SOR to both the Owner and the City, thereby complying with the January 3, 2020 due date. In its SOR, MPAC agrees with the City’s position on the correct current value of the Subject Property.

8As the Owner did not serve an SOR by the January 3, 2020, MPAC and the City relied on Rule 39 which states:

39. A party that does not serve a statement of response in a general proceeding on or before the day set out in the schedule of events is deemed not to oppose any future settlement in that proceeding.

Consequently, MPAC and the City then proceeded to negotiate a resolution of the City’s appeals.

9On April 16, 2020, MPAC emailed the other parties requesting confirmation of the draft Minutes that MPAC had prepared.

10On May 6, 2020 the Owner then served its SOR.

11On July 9, 2020, the Minutes were executed by the City and MPAC.

12On July 20, 2020, MPAC filed the Minutes with the Board, requesting that the Board issue a decision in accordance with the Minutes.

13On July 27, 2020, the Owner sent correspondence to Board, opposing MPAC's request. In light of this objection, the Board subsequently directed that MPAC bring this Motion to determine whether the Minutes should be accepted by the Board.

Issues

14The issue in the Motion is whether the Board should issue a decision in accordance with the Minutes, or, instead, grant the Owner’s request to extend the due date for filing its SOR to May 6, 2020, thereby allowing the appeal proceeding to continue in accordance with the Schedule of Events.

Result

15MPAC’s Motion is granted.

ANALYSIS

16MPAC's submission, supported by the City, is that the Owner failed to serve its SOR by the required due date. MPAC states the Owner has been represented by a licensed paralegal, and submits, therefore, that the Owner ought to be familiar with the Board’s Rules, which have been in effect since April 1, 2017.

17MPAC also relies on Rule 82 which states:

82. After the day set in Rule 33 as the start of a proceeding the Board will not alter any timeline set out in the schedule of events, other than in exceptional circumstances.

18MPAC asserts that the Owner’s circumstances have been caused by its own lack of participation, which ultimately could have been mitigated by tracking and monitoring its appeals and by following the Schedule of Events. MPAC submits that a party should not be successful in arguing that there are exceptional circumstances when those circumstances were caused by its own carelessness. In support of this latter submission MPAC relies on Kitchener (City) v Municipal Property Assessment Corporation, Region 21, 2019 CanLII 91491 (ON ARB).

19In response, the Owner makes the following submissions.

20The Owner submits that, while it is apparent that the SOR should have been served earlier, the late service does not preclude the Owner from participating in negotiations or the litigation process in its entirety.

21The Owner submits that the City has not filed with the Board a Special Notice under Rule 40 of the Assessment Review Board’s Rules that the City is seeking an increase to the assessment. The Owner submits that the City has, therefore, neglected to follow the Rules of the Board.

22The Owner further submits that, as outlined in their SOI and SOR, both the City and MPAC have failed to consider s. 44(3)(b) in their determination of the correct assessment of the Subject Property. The Owner asserts that MPAC is rushing to close these appeals without fully completing its own due diligence in determining the assessment by failing to consider other sections of the Act, and by not allowing the Respondent the opportunity to point out this deficiency. The Owner further submits that MPAC has a responsibility to both the City and the Owner insofar as MPAC is obligated to prove the value on the Roll and ensure the Roll is equitable.

23The Owner asserts that MPAC and the Appellant are not prejudiced, maintain that the only harm done is the late filing of the Owner’s SOR, as no impending hearing has been scheduled. The Owner notes, as well, that a Mandatory Meeting was foregone, due to the Motion currently under consideration. The Owner submits that granting MPAC's motion would be extremely prejudicial to the Owner, and, therefore, there is no rationale which “would afford MPAC the ability to make its request to the Board”.

24The Owner also submits that MPAC failed to act prior to being notified of the position of the Respondent and that this failure to act serves only to prejudice the Owner, as MPAC refused to reply, discuss or even acknowledge the SOR filed by the Respondent, albeit late. The Owner notes that its position was made very clear to the parties and ought to be before the Board during a hearing, should the parties not be able to resolve the issues without the Board’s assistance.

25The Owner argues that MPAC attempted to enforce the Rules of the Board as it saw fit, without a Board order, based on its own interpretation of the Rules, or any Board involvement. Therefore, the Owner submits that MPAC has over-stepped its role in this appeal proceeding and should have brought this Motion before attempting to impugn the Owner’s rights under the appeal protocols. In support of this submission, the Owner states that MPAC “sat on the position” from May 6th to late June before requesting that the Board issue a decision in accordance with the Minutes. The Owner argues that MPAC has failed to outline any realistic rationale to explain why it waited so long to file a motion to seek the relief sought. The Owner asserts that, again, the only prejudice here is self-inflicted and must be dismissed by the Board.

26The Owner would caution the Board that this type of relief will open tremendous “flood gates” of similar motions which “would serve only 2 of 3 or more parties to many appeals.” Conversely, the Board could be inundated with similar requests of assessed persons should the parties not agree.

27The Owner submits that these appeals must continue to ensure fair participation of the parties and to ensure that their legal right to challenge the MPAC's assessed value is protected. The Owner questions whether the Board has the jurisdiction to grant the relief requested by MPAC. The Owner argues that any relief that could have been awarded should have been sought prior to this Motion being served.

28Finally, the Owner submits that the relief sought is an attempt to remove the Owner’s voice without just cause and that it should not be considered by the Board as a just relief. Therefore, the Owner submits that the Board should dismiss the Motion and set the matter to next steps within the appeal structure.

Findings

29As noted above, a respondent in an appeal proceeding, in this case, the Owner, must serve its SOR by the due date in the Schedule of Events. Under Rule 39, if a respondent fails to do so, that respondent is deemed not to oppose any future settlement in the proceeding.

30The Owner admits that it did not serve its SOR by the due date set out in the Schedule of Events. Therefore, it was open to the City and MPAC to continue to: negotiate a settlement of the appeal proceeding; prepare and execute the Minutes; and file the Minutes with the Board requesting that the Board issue a decision in accordance with the Minutes. For this reason, the Board does not accept the Owner’s submission that MPAC in some way failed to act without authority, based on its own interpretation of the Rules.

31The Owner’s submissions indicate that it will be prejudiced if it this appeal proceeding is not continued. Prejudice to one party or another is a consideration when determining whether to grant an extension of a due date in a Schedule of Events. However, before such prejudice can be considered, the Board must first be satisfied that an exceptional circumstance exists, as required by Rule 82 (see: Mississauga (City) v Michalakos, 2018 CanLII 126632 (ON ARB), para. 8).

32In this case, the Owner has provided no explanation whatsoever for why it failed file its SOR by the January 3, 2020 due date, or a short time thereafter. The Owner received MPAC's SOR in December 2019, so there is no suggestion on the evidence that the Owner was unaware of the filing due date, or the issues being raised by the City and MPAC as set out in their pleadings. Similarly, there is no explanation why the Owner would delay four months in serving its SOR. Based on the evidence adduced on this Motion, an inference can be drawn that the Owner served its SOR when it did, because the Owner had been confronted with the agreement between the City and MPAC as confirmed in the draft Minutes sent to the Owner.

33Absent any evidence that the Owner’s failure to file its SOR on time was due to an exceptional circumstance, the Board does not grant the Owner’s request to extend the filing due date to May 6, 2020. On this basis alone, MPAC and the City are permitted under the Rules to file the Minutes with the Board and for the Board to issue a decision in accordance with the Minutes.

34However, the Owner makes additional submissions requesting that the Board should, nonetheless, decline to accept the Minutes and allow the appeal proceeding to continue. In this regard, the Owner make several arguments which the Board will address in turn.

35The Owner argues that the City does not appear to have filed to the Board a Special Notice under Rule 40, thereby neglecting to follow the Rules of the Board. In addressing this submission, the Board notes that the City’s SOI was filed as evidence on this Motion and it clearly set outs a request for a higher assessment which complies with the requirements of Rule 38(7). The Board has previously ruled that pleading a request for higher assessment does constitute notice (see: Merivale-Gilmour Manor Ltd. v Municipal Property Assessment Corporation, Region 03, 2020 CanLII 28326 (ON ARB). Therefore, the Board does not accept the Owner’s submission.

36The Owner also argues that MPAC has a responsibility to both the City and the Owner insofar as MPAC is obligated to prove the value on the Roll and ensure the Roll is equitable. The Owner asserts that the settlement between the City and MPAC does not address the issue of whether there should be an equitable reduction of the correct current value of the Subject Property. In addressing this submission, the Board notes that Rule 38(2) clearly indicates that if the equity of the assessment pursuant to s. 44(3) of the Act is an issue, it must be included in a party’s Statement of Issues or Statement of Response. In this case, neither the City or MPAC raised this issue. As such, it is not an issue in this proceeding. If the Owner wished to raise this issue, the Owner should have included it in its SOR and served the SOR by the required due date. In this regard, the Board re-iterates that, as of January 3, 2020, the Owner was well aware of the issues being pleaded by both MPAC and the City, but has failed to provide any explanation why it did not proceed promptly to either obtain the consent of the parties to adjust the due date for filing its SOR, or, alternatively, apply to the Board for an extension. For these reasons, the Board does not accept the Owner’s submission.

37The Owner also submits that, while it is apparent that the SOR should have been served earlier, the late service does not preclude the Owner from participating in negotiations or the litigation process in its entirety. In addressing this submission, the Board first re-iterates that under Rule 39, the Owner is deemed not to oppose any future settlement in the proceeding. Therefore, the Owner’s further participation in the negotiation process is not required. The Board also notes that Rule 49 states:

An issue can only be raised at a hearing event if it has been set out in the statements of issue and response which have been served, and filed with the Board in accordance with these Rules, unless the Board determines that there are exceptional circumstances.

As the Owner has not filed an SOR, there are no issues which the Owner can advance in the litigation process. The Owner has not established that there are any exceptional circumstances on which the Board could grant an order allowing the Owner raise additional issues in this proceeding. For these reasons, the Board does not accept the Owner’s submission.

38The Owner submits that the Board should direct that this appeal proceeding should continue in order to ensure fair participation of the parties and to protect their legal rights to challenge MPAC's current value assessment. While the Board acknowledges the importance of the principle that a party has a right to be heard, this does not give a party the right to decide when it will participate in a proceeding. The Owner has been given a fair opportunity to advance its case by providing its SOR, with full knowledge of the consequences specified in the Board’s Rules for failing to comply with the Board’s process. Therefore, the Board does not accept the Owner’s submission.

39Finally, the Owner argues that granting MPAC's motion in this case “will open tremendous “flood gates” of similar motions”. The Board does not accept this assertion, as it is premised on the assumption that parties in other appeal proceedings will not comply with the Schedule of Events. The Owner had not provided any analysis or evidence to support this assertion. Instead, the Board is more concerned that allowing an extension of the Schedule of Events due date, absent any exceptional circumstance, will only serve to signal that timely compliance with the Board’s process is not required, which would ultimately result in delays in completing appeal proceedings. This would not be consistent with the Board’s duty under s. 36(5) of the Act which states:

As soon as practicable after the return of the assessment roll for a municipality or for non-municipal territory, as the case may be, the Assessment Review Board shall hear and dispose of all appeals respecting assessments for the year for which the roll is returned.

40For these reasons, the Board does not accept that the Owner has established a basis to direct that the appeal proceeding should continue.

CONCLUSION

41Based on the above analysis and findings, the Board grants MPAC's Motion and does not grant the Owner’s request to amend the Schedule of Events to extend the due date for serving its SOR.

ORDER

42The Board Registrar is directed to issue a decision in accordance with the Minutes of Settlement filed by the City and MPAC.