Loblaw Properties Ltd. v. Municipal Property Assessment Corporation Region 30, 2020 CanLII 106756

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

November 27, 2020

FILE NO.:

RR 20-032

Assessed Person (s):

CP REIT Ontario Properties Ltd.

Appellant(s):

Loblaw Properties Ltd.

Respondent(s):

Municipal Property Assessment Corporation Region 30

Respondent(s):

City of Greater Sudbury

Property Location(s):

1493 Lasalle Boulevard

Municipality(ies):

City of Greater Sudbury

Roll Number(s):

5307-020-019-02701-0000

Appeal Number(s):

3274267, 3338155, 3314494 and 3367782

Taxation Year(s):

2017, 2018 and 2019

Legislative Authority:

Rules 122 and 123 of the Assessment Review Board’s Rules of Practice and Procedure

Parties

Counsel

Loblaw Properties Ltd.

Jamie G. Walker

Municipal Property

Submissions not received

Assessment Corporation

City of Greater Sudbury

Stefan Zhelev

REQUEST FOR:

Reinstatement of appeals 3274267, 3338155, 3314494 and 3367782

HEARD:

In writing

ADJUDICATOR(S):

Jean-Paul Pilon, Member

DECISION

OVERVIEW

1Loblaw Properties Ltd. (the “Requestor”) requested that the Assessment Review Board (the “Board”) reinstate appeals 3274267, 3338155, 3314494 and 3367782 by way of a request for reinstatement pursuant to Rule 122 of the Board’s Rules of Practice and Procedure (the “Rules”).

2Rule 122 provides that a former party to a proceeding may seek an order to reinstate an appeal if it was dismissed in error or if natural justice or procedural fairness require that the appeal be reinstated. Rule 123 provides that the Board can reinstate the appeal without conditions, which is what this decision does. The reason for the reinstatement, as explained in more detail below, is that the appeals should not have been dismissed at the time they were because of the unusual circumstances surrounding the pandemic and the suspension of limitation periods.

3This decision reinstates the appeals by canceling the order dismissing the appeals, returning the parties to where they were had the request to dismiss not been filed.

Background

4The appeals in question were in the 2008, 2012 and 2016 taxation cycles. Statements of Issues were due in accordance with Schedules of Events that had been assigned to the appeals and were to be served on or before February 19, 2020 for the 2008 and 2012 cycle appeals, and by July 12, 2019 for the 2016 cycle appeals.

5The Requestor served all of its Statements of Issues on the other parties on February 19, 2020, on time for the 2008 and 2012 cycle appeals but not for the 2016 cycle appeals. The affidavit of Lorrie Frankland, a director of the Requestor, sworn on April 17, 2020, indicated that the Requestor’s counsel and counsel for the Municipal Property Assessment Corporation (“MPAC”), which made no submissions in this request, had agreed that the Requestor’s Statement of Issues for the 2016 appeals would be served later, by January 17, 2020. Ms. Frankland also acknowledged in the affidavit and “that the City was not notified of this arrangement due to inadvertence.”

6On March 13, 2020, the City of Greater Sudbury (the “Municipality”) filed a request to dismiss the Requestor’s 2016 cycle appeals and on March 16, 2020 the Requestor’s counsel filed his objections to the request. On March 19, 2020, the Board’s then Acting Associate Chair granted the Municipality’s request to dismiss the appeals, giving reasons in the form of a letter on the same date. That order led to this request to reinstate the appeals from the Requestor which was filed on April 17, 2020.

7After receiving this request to reinstate the appeals, the Municipality and MPAC were invited to make submissions in response, as was the Requestor in reply. However, in its reply, the Requestor included an argument that was not in its initial submission relating to an emergency order resulting from the pandemic, Ontario Regulation (“O. Reg.”) 73/20 (the “Emergency Order”), and the Board’s position on its implementation communicated on its website. In short, the Board indicated in that communication that it would not be adjudicating requests to dismiss appeals while the Emergency Order was in effect, where the decision to dismiss the appeals had been issued during that period.

8The Municipality had not had the opportunity to reply to that single argument because it was contained in the Requestor’s reply submission. As a result, and because the Board was of the view that the argument had the possibility of being meritorious, the Municipality was given the opportunity to provide its further submission on that argument in sur-reply, which was received by the Board on October 15, 2020.

Issue for the Review

9The single question considered in this decision is whether the Board should have dismissed the appeals when it did.

Result

10For the reasons that follow, the appeals are reinstated.

ANALYSIS

11The Emergency Order, which was later continued under the Reopening Ontario (A Flexible Response to Covid-19) Act, 2020, S.O. 2020, c. 17 on July 24, 2020 and eventually revoked by O. Reg. 457/20, was enacted under section 7.1 of the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9 as a result of the pandemic and the first lockdown. The purpose of the Emergency Order was to temporarily suspend limitation periods in Ontario as of March 16, 2020. However, the Emergency Order was not enacted until March 20, 2020.

12The Board released its position on the Emergency Order by way of an update posted on the Tribunals Ontario website dated March 26, 2020 which said:

Dismissal of Appeals

Where a request to dismiss an appeal has been filed due to the failure of a party to serve a Statement of Issues, the Board will adjudicate the request only in those cases where the fourteen (14) day response due date is before March 1, 2020. All requests to dismiss after March 1, 2020 will not be considered until the (Emergency) Order is no longer in effect.

13In this case, the Municipality’s request to dismiss was filed on March 13, 2020 and the order dismissing the appeals issued on March 19, 2020. This meant that the decision to dismiss the appeals was made during the time period that the Emergency Order was retroactively in effect and when the Board retroactively said that it would not consider such requests.

14The Requestor’s argument in its reply was simply that “to have (the Requestor’s) appeals dismissed in a timeframe prior to the lifting of the Province’s Emergency Order is contrary to the Board’s own procedure and a denial of natural justice which Loblaw reasonably expected.”

15In its reply, or sur-reply, the Municipality raised five arguments in opposition:

a. that the Board followed its process in dismissing the appeals;

b. that at the time that the order was made there was no legislation preventing the Board from reaching the decision it did;

c. that the Board retained discretion to make such orders pursuant to the Emergency Order;

d. that the matter was res judicata; and

e. that the Requestor was estopped from making the argument it did, and that granting this reinstatement would be an abuse of process.

16These arguments are considered individually below.

The Board’s Process

17The Municipality’s first argument was that the Board followed its process in dismissing the appeals. It must have been the case that Board thought it had followed its process in dismissing the appeals as it did on March 19, 2020, otherwise it would not have the order dismissing them. However, for reasons in its request to reinstate that need not be repeated here, the Requestor does not agree.

18Regardless, this decision to reinstate the appeals is based on the separate argument relating to the Emergency Order and is unrelated to any issues on the rest of the Board’s normal process for the dismissal of appeals. Issues involving the Board’s normal process for dismissal in this case can be raised if the Municipality or MPAC decide to file a subsequent request to dismiss the appeals now that they will be reinstated.

No Legislation in Place to Prevent the Decision Made

19The Municipality’s second argument was that there was no legislation to prevent the dismissal of the appeals in place when the appeals were dismissed on March 19, 2020 is correct but fails to consider the retroactivity of the Emergency Order. The Emergency Order enacted March 20, 2020 was made retroactive to March 16, 2020.

Discretion

20The Municipality’s third submission was that the Board was vested with discretion to not follow the Emergency Order because section 2 provided that:

Any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any period of time within which any step must be taken in any proceeding in Ontario, including any intended proceeding, shall, subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding, be suspended, and the suspension shall be retroactive to Monday, March 16, 2020.

21The Emergency Order was effective at the time that the order dismissing the appeals was made because it suspended limitation periods retroactively to March 16, 2020. Section 2 of the Emergency Order provided discretionary authority for the Board to proceed despite section 1 of the Emergency Order. However, the reasons given for the dismissal made no specific mention of any exercise of discretion in that context and could not have when the Emergency Order was not published until March 20, 2020.

22However, the Board ultimately decided that it would not exercise that discretion provided in section 2 of the Emergency Order. This is because in its communication dated March 26, 2020, the Board in fact confirmed that that it would be following section 1 the Emergency Order with respect to requests to dismissal with retroactive effect. That means that the order dismissing the appeals should not have issued when it did.

Res Judicata

23The Municipality argued that this matter is res judicata, framing the request to reinstate as fresh litigation that “would have no end, except when legal ingenuity is exhausted.” The Municipality wrote that “the appellant can only follow the Board’s procedure in seeking to reinstate its appeals and is estopped from asserting application of (the Emergency Order) to revisit (the decision to dismiss the appeals).”

24The Board’s power to review its own decisions comes from section 21.2(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 which provides that “a tribunal may, if it considers it advisable and if its rules made under section 25.1 deal with the matter, review all or part of its own decision or order, and may confirm, vary, suspend or cancel the decision or order.” To that end, Rule 122 entitled “Reinstatement by Request for Review” provides that a party can request that an appeal be reinstated if “the appeal was withdrawn, removed or dismissed in error” or “natural justice and or procedural fairness require that the appeal be reinstated.” Rule 123 (b) further provides that the Board can reinstate the appeal, with or without conditions.”

25The Requestor’s request is not new litigation, it is a request for review which the Board has authority to consider, along with the power to reinstate the appeals without conditions.

Abuse of Process

26The Municipality’s abuse of process argument relates to its estoppel argument and the fact that the Board’s decision to dismiss the appeals pre-dated the Emergency Order. However, as noted above, the Emergency Order had retroactive effect back to March 16, 2020 when the Board dismissed the appeals on March 19, 2020.

27The issue before the Board is whether the appeals were dismissed in error or whether natural justice or procedural fairness require that the appeals be reinstated.

28The request to reinstate the appeals was received on March 13, 2020 and determined on March 19, 2020 when the Emergency Order enacted March 20, 2020 became retroactively effective as of March 16, 2020. It was also before the Board’s communication to the public that all requests to dismiss submitted after March 1, 2020 would not be considered until the Emergency Order was lifted.

29The Board finds that the request to reinstate is not an abuse of process. Rather, it finds that the appeals were dismissed in error because natural justice and procedural fairness require that the appeals be reinstated. This is because the decision to dismiss the appeals should not have been made at the time that it was, even when this became clear after the fact as a result of the Emergency Order. In addition, the Board subsequently clarified on its website that it would not exercise its discretion pursuant to section 2 of the Emergency Order, further supporting the Board’s conclusion that the request should not have been considered when it was. Moreover, once that representation was made, parties before the Board, stakeholders and the general public should have had the assurance that the Board would follow it.

30The retroactive effect of the Emergency Order and the circumstances involving this request are unusual, but the end result is that the Board’s decision to dismiss the appeals should be cancelled on review, which is entirely within the Board’s authority to do. The appeals were dismissed in error and natural justice and procedural fairness require that the appeals be reinstated.

CONCLUSION

31For the reasons above, the Requestor’s appeals should be reinstated.

ORDER

32The Board orders that appeals 3274267, 3314494, 3338155 and 3367782 are reinstated.