50 Charles Street Limited v. Municipal Property Assessment Corporation Region 09, 2020 CanLII 104731

Tribunals Ontario

Assessment Review Board

Issue Date: December 29, 2020 File No.: DM 2020M24

Assessed Person(s): 50 Charles Street Limited Appellant(s): 50 Charles Street Limited Respondent(s): Municipal Property Assessment Corporation Region 09 Respondent(s): City of Toronto

Property Location(s): 59 Hayden Street, Suite 300, 400 and 500 Municipality(ies): City of Toronto Roll Number(s): 1904-068-530-02914-0000, 1904-068-530-02915-0000 and 1904-068-530-02916-0000 Taxation Year(s): 2019 Hearing Event No.: 736982, 736983 and 736984

Legislative Authority: Rule 26(b) of the Assessment Review Board’s Rules of Practice and Procedure

Parties	Representative
50 Charles Street Limited	Chantelle MacMillan
Municipal Property Assessment Corporation	Felicia Nacini
City of Toronto	Submissions not received

Request For: Late Appeals Heard: November 25, 26 and 27, 2020 in writing Adjudicator(s): Joanne Laws, Member

MOTION DECISION

OVERVIEW

1These motions were filed by Altus Group Tax Consulting Paralegal Professional Corporation on behalf of 50 Charles Street Limited (the “Moving Party”) requesting that the Assessment Review Board (the “Board”) accept appeals received after the time set out in the Assessment Act, R.S.O. 1990, c.A.31 (the “Act”) and an alteration of time to file appeals received after the time deadline in Rule 26(b) of the Board’s Rules of Practice and Procedure (the “Rules”).

2The Municipal Property Assessment Corporation (“MPAC”) opposes the motions. The Board has not received submissions from the City of Toronto.

Result

3For the reasons set out below, the Moving Party’s motions are denied.

Background

4The Properties are commercial condominiums located at 59 Hayden Street. On November 5, 2019 MPAC issued Property Assessment Change Notices (“PACN”) to the Moving Party. The PACNs indicate that the effective date of change for the Properties is January 1, 2019, the adjustment type is “R” defined in the PACN as “Previously Omitted Realty Assessment” and the “Property class/qualifier” is “XT Commercial (New Construction) Taxable”. Although the wording of the PACNs is unclear as to what change occurred, it appears that the omitted assessment reflects a change in classification. Further, the Affidavit evidence does not clarify what change occurred, only that it resulted in higher taxes.

5Each of the motions included two affidavits: one of Daniel Jones, a Senior Consultant with the Moving Party’s representative, Altus Group, affirmed on October 9, 2020 and the second of David Mann, Chief Financial Officer of Cresford Developments (“Cresford”) affirmed on September 2, 2020.

6Mr. Mann affirms that he had been communicating with Cherie Lee Matthew, a property valuation analyst at MPAC, for five months and that on August 27, 2020 she advised him to seek permission from this Board to file Requests for Reconsideration after the legislated deadline has passed. The deadline to file Requests for Reconsideration is 120 days after the PACN has been issued (s.39.1(3)).

7On September 10, 2020 the Moving Party requested that this Board allow extensions of time to file Requests for Reconsideration. Subsequently, this Board notified the Moving Party that it converted the extension of time to file Requests for Reconsiderations to late appeal requests, pursuant to Rule 26(b) which provides:

26. The Board may accept an appeal received after the time set 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.

8Based upon the affidavit evidence, the following is a summary of events that led to the requests to file late appeals.

1. On December 13, 2018 Mr. Mann emailed Peter Vandervoort of MPAC confirming the Properties were vacant.
2. On November 5, 2020 MPAC issued Property Assessment Change Notices to the Moving Party at 170 Merton Street, Toronto M4S 1A1.
3. On November 20, 2019 Mr. Mann advised Sarah Lake-Mitchell of MPAC of a new mailing address, 59 Hayden Street, Toronto.
4. On November 25, 2019 Mr. Mann advised MPAC that the Properties had not been sold.
5. On January 15, 2020 Mr. Mann asked Ms. Lake-Mitchell to email him the 2020 Notice of Assessment but it was not received.
6. On February 13, 2020 Mr. Mann asked Ms. Lake-Mitchell to update “our” mailing address.
7. Between March 25, 2020 and August 27, 2020 Mr. Mann corresponded with Cherie-Lee Matthew of MPAC regarding the Properties’ assessment.
8. On March 25, 2020 MPAC emailed Mr. Mann regarding the sale of the Properties.
9. On March 27, 2020 Mr. Mann emailed Cherie-Lee Matthew of MPAC “asking if the office units have been assessed and the notices have been issued to date”.
10. On April 9, 2020 Ms. Matthew asked Mr. Mann for a copy of a Purchase and Sale Agreement.
11. “On May 4, 2020, [Mr. Mann] asked for an update on the assessments of the office units for the properties located at 59 Hayden St.”
12. On that same day “Cherie-Lee responded with the information and asked for an update on the assessments of the office units for the properties located at 59 Hayden St.”.
13. On August 27, 2020 Mr. Mann advised Ms. Matthew that he could not find the Properties’ omitted assessments but had received a tax invoice from the City of Toronto reflecting a large increase in taxes for 2019. He advised Ms. Matthew that the Properties were vacant until November 1, 2020 and asked her how to appeal the 2019 assessment. He also inquired whether the COVID-19 pandemic would provide an opportunity for a deferral of the appeals.
14. On that same day Ms. Matthew advised him that the omitted assessments were mailed to 50 Charles Street Limited at the previous mailing address, 170 Merton Street, Toronto, in October 2019, and that the Moving Party’s mailing address was recently updated. Ms. Matthew forwarded the 2019 PACNs to Mr. Mann and advised him to request an extension of time to file a Request for Reconsideration due to an error in the mailing address.

Issues for the Hearing

9At issue in this proceeding is whether the Moving Party satisfies the requirements for filing late appeals pursuant to the Board’s Rule 26(b) and, if not, whether an alteration of the Rules’ deadlines is appropriate.

Is the Appellant a Person Entitled to Receive a Notice of Assessment?

10In his supporting documentation Mr. Mann states that Cresford is the owner of 50 Charles Street Limited, the Moving Party. Because the supporting documents were not commissioned, MPAC argues that Cresford has not met the first test of Rule 26(b), taking the position that Cresford is not a person entitled to receive notices of assessment because the affidavit evidence does not illustrate a connection between Cresford and 50 Charles Street Limited.

11To support its position, MPAC cited paragraph 14 of Fontana v Municipal Property Assessment Corporation, Region No. 09, 2019 CanLII 96132 (ON ARB) in which the Board Member found that a property manager, whose job included opening mail, was not a person entitled to receive a notice of assessment. To support this finding in Fontana, supra the Board Member cited three decisions where the person applying for a late appeal effectively stood in the shoes of an owner of a property. In Orangeville Agricultural Society v. Municipal Property Assessment Corporation, Region 22, 2019 CanLII 72766, the president of an association that owned a property; in Haydon Sr v Municipal Property Assessment Corporation, Region 3, 2019 CanLII 284 (ON ARB), the executor of an estate of an owner; and, in 10 Yonge Inc. v Municipal Property Assessment Corporation 09, 2019 CanLII 81693 (ON ARB) the president of a company owning the property.

12The Moving Party’s affidavits demonstrate that MPAC has consistently communicated with Mr. Mann, the CFO of Cresford, over a three year period from 2018 through 2020, that MPAC provided Cresford with property assessment notices and related documents and that MPAC advised and took direction from Mr. Mann relevant to the Properties’ assessments.

13Based on the affidavit evidence which shows Mr. Mann’s relationship with MPAC is that of a person who is entitled to receive a notice of assessment, has received such notices from MPAC, and, has provided direction to and received direction from MPAC related to the Properties’ assessments, the Board is satisfied that Cresford is a person entitled to receive a notice of assessment and, as such, the Moving Party has met the first test of 26(b).

Did the person entitled to receive a notice of assessment receive the notice?

14MPAC does not dispute that the PACNs were not received by the Moving Party.

Did the Moving Party file an appeal with the Board within 30 days of becoming aware of the assessment or classification that is the subject of the appeal?

15There is no dispute that MPAC mailed the PACNs to the Moving Party’s former address, 170 Merton Street, in early November 2019 or that the Moving Party notified MPAC of a new mailing address soon after the PACNs were mailed. Further, there is no dispute that the Moving Party did not receive the PACNs until on or about August 27, 2020 and that MPAC did not update its mailing address data for the Moving Party until that time. However, the test in Rule 26(b) is not when the notices were received but when the Moving Party became aware of the assessments or classifications that are the subject of the appeals.

16Mr. Mann’s affidavit evidence regarding his May 4, 2020 conversation with Ms. Matthew is somewhat vague. In its response to the Motion, MPAC relied on emails exchanged by Mr. Mann and Ms. Matthew which clarifies the communication and demonstrates that Mr. Mann was aware of the omitted assessments no later than May 4, 2020. In the emails on which MPAC relies, Ms. Matthew advised Mr. Mann that the “omitted assessments were issued to each of the individual units from January 1, 2019”. The Board is satisfied that the latest date the Moving Party became aware of the omitted assessments was May 4, 2020.

17The period between becoming aware of the assessments or classifications and September 10, 2020, the date the Moving Party first notified the Board it was seeking extensions of time exceeds the 30-day time period in Rule 26(b). Accordingly, the Board finds that the Moving Party has not met the third test in Rule 26(b).

Rule 17, Alteration of Time

18The Moving Party requests that the 30-day time limit be extended pursuant to Rule 17 which provides that any time period set out in these Rules can be altered by the Board. The operative word in Rule 17 is “can” signifying it is discretionary. Additionally, in its affidavit evidence the Moving Party sought consideration due to the disruptions caused by the COVID-19 pandemic. In its written response, MPAC opposes the alteration of time.

19The Moving Party takes the position that it will be prejudiced if the time is not extended because it will pay an excess amount in property taxes due to incorrect assessments. It argues that neither MPAC nor the City of Toronto would be prejudiced because Ms. Matthew said she would not object to an extension of time. MPAC’s formal written response to these motions opposes the alteration of time. The Moving Party further argues that the City of Toronto would not be prejudiced because it consented to the requests to extend time to file a Request for Reconsideration.

20The Moving Party submitted Municipal Property Assessment Corp. and Conservation Authority Grand River, Re 2018 CarswellOnt 211, [2018] O.A.R.B.D. No. 2.(“Conservation”) in which Municipal Property Assessment Corporation Region 09 v Chew, 2015 CanLII 78969 (“Chew”) was referenced. Both decisions dealt with extensions to statutory deadlines which differ from this matter which addresses the deadlines set out in the Rules. However, the basic principles are the same. Both indicated that a party ought to “keep an eye” on assessments and file appeals within the deadlines and that when considering extending deadlines, the general principles of reasonableness, fairness and prejudice ought to be considered. In Chew, supra the Board found that the circumstances were exceptionally complex and therefore it would be difficult for the assessed person to “keep an eye” on the assessments. The Moving Party relied on Mr. Mann’s communication with MPAC staff, as outlined in his affidavit to show that he had kept an eye on the assessments.

21Those general principles were also considered in Cambridge Taylor Holdings Inc. v Municipal Property Assessment Corp. Region No. 21 2013 Carswel Ont 7057, [2013] O.A.R.B.D. No. 85 (Cambridge) as well as the Board’s discretion. Like Conservation and Chew, this decision flowed from statutory grounds rather than the Board’s Rules. The Board found that denying the motion was prejudicial to the Moving Party but not highly prejudicial and denied an extension of time, noting at paragraph 18, that there was nothing in the record to indicate any unfairness in enforcing the statutory filing deadlines.

22The circumstances in Bajus Consulting Inc. v. Nielissen 2013 CarswellOnt 9030, [2013] O.A.R.B.D. No. 123, also a motion to alter a statutory deadline, allowed an extension of time because of a clerical error and because the appellants had a “good faith intention to lodge appeals”.

23MPAC objects to the alteration of time arguing that it will be prejudicial to both MPAC and the City of Toronto because both are entitled to some measure of finality in respect to the assessments of properties and that the time limits in the Rules and the Act provide a measure of finality of the roll, that “once the time limits have passed, the assessment roll is deemed to be “valid and all parties are bound by it”.” MPAC referenced paragraph 33 of Ivy Lea North Inc. v Municipal Property Assessment Corporation Township of Leeds, 2020 CanLII 1385 (ON ARB) in which the Board Member found that Rule 17 “should only be applied sparingly and in the most unusual and extenuating circumstances where a party fails to meet all of the specific requirements of Rule 26(b)”.

24The City of Toronto did not respond to the Motions.

Should the Board grant the Moving Party additional time to appeal?

25There is no dispute that the Moving Party communicated with MPAC in a conscientious manner between December 2018 and May 4, 2020. Further, the Board acknowledges that the COVID-19 pandemic generally disrupted day-to-day business operations beginning in March 2020.

26The Board received no evidence of what occurred between May 4, 2020 and September 10, 2020 that would cause this length of delay. In Chew, supra the Board found that altering a deadline is to cure a situation where there are valid reasons for missing a deadline and to preserve fairness. The Board also found that the facts of that case were complex and unusual to the extent that it was not reasonable for the assessed person to “keep an eye” on its property assessments. Nothing in these motions indicates that the circumstances regarding the assessments were complex or unusual that would reasonably result in a delayed request to file a late appeal.

27I do not find that the delay is a result of the notice being sent to a changed address because Rule 26(b) pivots on becoming aware of the assessment or classification, not on whether a notice was received.

28Due to the length of time between becoming aware of the assessment or classification that would be the subject of an appeal and the lack of evidence to illustrate why the delay occurred, denying the motions to alter the deadline set out in Rule 26(b) is reasonable and not highly prejudicial. Accordingly, the Board will not exercise its discretion pursuant to Rule 17.

CONCLUSION

29The Board cannot create late appeals for the 2019 taxation year because the Moving Party does not meet all three requirements of Rule 26(b).

30The Board finds that Rule 17 should not apply to these motions.

ORDER

31The motions to file late appeals are dismissed.