Wilson Property Inc. v. City of Orillia, 2020 CanLII 103264

Tribunals Ontario

Assessment Review Board

ISSUE DATE: December 15, 2020

FILE NO.: RR 19-053

Assessed Person(s): Wilson Property Inc.

Appellant(s): Twin Lakes Orillia Inc., Jim Wilson

Respondent(s): City of Orillia

Respondent(s): Municipal Property Assessment Corporation, Region 16

Property Location(s): 20 Mulcahy Court

Municipality(ies): City of Orillia

Roll Number(s): 4352-030-314-04060-0000

Appeal Number(s): 3215957, 3308595, and 3362452

Taxation Year(s): 2017, 2018 and 2019

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

Parties	Representative
Wilson Property Inc. Twin Lakes Orillia Inc.	Allan Holmes
Municipal Property Assessment Corporation	Submissions not received
City of Orillia	Submissions not received

REQUEST FOR: Reinstatement of appeal(s) 3215957, 3308595, and 3362452

HEARD: In writing

ADJUDICATOR(S): Vincent Stabile, Member

DECISION

OVERVIEW

1Wilson Property Inc. and Twin Lakes Orillia Inc., (the “Requesters”) are requesting the Assessment Review Board (the “Board”) reinstate the appeals 3215957, 3308595 and 3362452 by way of a request for reinstatement pursuant to Rule 122 of the Board’s Rules of Practice and Procedure (the “Rules”). This request for reinstatement was filed with the Board on August 6, 2019.

Background

2The appeals at issue were dismissed on July 19, 2019, following a Motion by Municipal Property Assessment Corporation (“MPAC”) requesting dismissal of the appeals “because the Appellant has not served its Statement of Issues on the other parties by the due date specified in the applicable Schedule of Events.” The requesters did not file responding materials to the motion. The Board dismissed the appeals as requested by MPAC.

Issues for the Review

3There are three threshold requirements set out in the Rule that must be met before the grounds for the reinstatement request can be considered. These are as follows: the requester must be a party to the former proceedings, the request must be made within 30 days of the appeal(s) being dismissed or withdrawn and an affidavit filed in support of the request must be filed.

4At issue in this proceeding is:

1. Are the threshold requirements for reinstatement request met?
2. Are the grounds for reinstatement established?

Result

5For reasons set out below, the request to reinstate appeals 3215957, 3308595 and 3362452 is denied.

ANALYSIS

Issue 1 - Are the threshold requirements for a reinstatement request met?

Party / Timing

6The Requesters were parties to the former proceedings and the request for reinstatement was received August 6, 2019, within 30 days of the dismissal.

Affidavit

7An Affidavit was filed with the request. The heading of the Affidavit states “SWORN AFFIDAVIT by ALLAN HOLMES” however it is not signed by Mr. Holmes and is not dated. Curiously, it is purportedly sworn by Traci Goltz-Boyd, a Commissioner for the Province of Ontario ‘while being a licensed Paralegal’.

Findings on Issue 1

8Notwithstanding the technical deficiencies of the Affidavit, it is in substantial compliance with the requirement for an affidavit, in accordance with Rule 7 of the Rules of the Board regarding technical objections.

Issue 2 - Are the grounds for reinstatement established?

9The Requesters have not offered any explanation for their failure to file materials in response to the Motion brought by MPAC.

10Attached to the Affidavit are copies of email exchanges from Mr. Holmes to David Zhao, of MPAC dated May 6, 2019. These emails provide significant detail respecting the appeals. A hearing was set and convened on September 13, 2016. The parties attended as scheduled. The hearing was adjourned at the request of MPAC to enable MPAC to inspect the subject property. The hearing was adjourned sine die (without a resumption date).

11From the email I infer that an inspection was never arranged.

12In the May 6, 2019 email from Mr. Zhao, MPAC was requesting that a new Statement of Issues (“SOI”) be filed under the ‘new rules’, as the Appellant had filed its SOI in 2016 in accordance with the Board’s former rules. Nevertheless, the email from Mr. Zhao states in part “Actually, I have already advised you in last October that “Please be advised in this case MPAC accepted your Statement of Issues submitted under the old ARB Rules. In future MPAC may file a motion to dismiss the appeals if the Statement of Issues is not provided in accordance with the new rules.”

13MPAC’s motion to dismiss was supported by a ‘certification of its accuracy” certifying that the Appellant ‘had not filed a Statement of Issues’. The email noted above was marked as Appendix 2 to the motion. The record is clear however that MPAC had accepted the SOI filed by the Appellants in 2016. However, the Board was not directed to consider that email. In that respect, the certification is misleading.

14Mr. Holmes evidently relied upon the email from Mr. Zhao that the Statement of Issues filed in 2016 was being accepted and no new Statement of Issues was expected to be filed by the Appellant. He asserts further that if “Mr. Zhao’s decision was being overruled……it would not be fair play, nor acceptable to my Client.”

15Had the Appellants responded to the Motion from MPAC and filed the Exhibit referred to, it is possible that the Board would have reached a different conclusion. Regrettably that does not assist the Appellants on this request.

16The Requesters do not identify any of the grounds for reinstatement listed in Rule 122. Mr. Holmes asserts that MPAC changed its position on whether it would accept the Statement of Issues filed in 2016 and argues that this was unfair. The Requesters’ opportunity to raise this issue was in response to MPAC’s motion to dismiss. As the Requesters had an opportunity to respond, which they did not take advantage of, there is no breach of procedural fairness.

Findings on Issue 2

17The grounds for reinstatement have not been met.

CONCLUSION

18Not having established the grounds for reinstatement, the request to reinstate appeals 3215957, 3308595 and 3362452 is denied.