Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE: January 10, 2020
Moving Party: Municipal Property Assessment Corporation (“MPAC”), Region 15
Respondent: The Corporation of the City of Brampton
Respondent: City of Brampton
Property Location: 0 Conservation Drive
Municipality: City of Brampton
Roll Number: 2110-070-006-01495-0000
Taxation Years: 2011 to 2014
Hearing Event No.: 726778
Legislative Authority: Section 40.1(b) of the Assessment Act, R.S.O. 1990, c. A.31
Heard: December 6, 2019 by written submission
Parties
Representative
Submissions
Municipal Property Assessment Corporation
Calvin Ho
Moving Party
The Corporation of the City of Brampton
Not Received
DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON
DISPOSITION OF MOTION
1This motion was filed by MPAC on behalf of The Corporation of the City of Brampton (the “Municipality”) which owns a cemetery at 0 Conservation Drive in Brampton. In the motion, the Municipality through MPAC requested an extension of time for bringing appeals and a direction that the assessment corporation be the applicant pursuant to section 40.1(b) of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”) because it appears that there are palpable errors in the assessment roll. The taxation years at issue in the motion were 2011 to 2014.
2There was an indication in one of the two affidavits filed that MPAC did not consent to the motion. That appears, however, to no longer be the case with MPAC filing the motion on the Municipality’s behalf.
3There are no other parties to the motion because the Municipality owns the cemetery.
4For the reasons that follow, this motion is denied.
REASONS FOR DISPOSITION OF MOTION
Facts
5The only evidence before the Assessment Review Board (the “Board”) in the motion are two affidavits from Yvonne Kwiecien, the Municipality’s Manager of Taxation and Assessment. One affidavit was sworn on January 9, 2019 and the supplementary affidavit was sworn on August 1, 2019 (described as the first and second affidavits respectively).
6The first affidavit identified the taxation years at issue in this motion as 2011 to 2018, but the notice of motion indicated the request pertained only to the 2011 to 2014 taxation years. It is assumed that palpable errors are now alleged only for the 2011 to 2014 taxation years, because the affidavits indicated that the Municipality was able to cancel the taxes owing on the property for the 2015 to 2018 taxation years.
7The cemetery in this motion was acquired by the Municipality in 1976. Historical information included in the first affidavit suggested it was established either in 1815 or 1851, and that it was used for burials between 1843 and 1951. There are no buildings on the property, nor have there been any burials there since 1951. The first affidavit indicated that the Municipality by by-law designated the property as a “property of cultural heritage value or interest” pursuant to the Ontario Heritage Act, R.S.O. 1990, c. O.18, and it is clearly identifiable as a cemetery from the street.
8The cemetery was assessed by MPAC as vacant residential land in the 2011 to 2018 taxation years when it should have been exempt from taxation. In addition, the owner of the property in MPAC’s records and in the roll was recorded as being the Meeting-House and Ground of the Congregation of Christian Brethren, with an address for service of the cemetery rather than the Municipality.
9As a result, as indicated in the first affidavit, “Brampton levied taxes” on the property and “remitted the upper tier portion and the education portion of the taxes levied to the Region of Peel and school boards.” These taxes were not paid however, and the Municipality imposed penalties and interest on itself that, including the unpaid taxes and as of September 2018, amounted to $29,114.64.
10The first affidavit also addressed the issue of prejudice, saying that while there would be no prejudice to MPAC, there was and will continue to be prejudice to the Municipality because the tax arrears remain unpaid for the property.
11The second paragraph of the second affidavit provided explanations as to “why the City did not use the section 40 Assessment Act appeal route to address the errors on the roll:”
a. The first reason given was that “the City expected that its abundance of communications to MPAC over multiple years regarding the errors would engage MPAC to carry out its statutory mandate and correct the errors.” An email attachment to the second affidavit asked: “why didn’t Brampton reach out to the MPAC about the errors?” Ms. Kwiecien’s reply was that: “we did reach out to MPAC, they ignored us;”
b. The second reason given was that “as a small department within the City of Brampton we do not routinely appeal assessment roll errors as that would be an inefficient use of taxpayer resources, but rather communicate to MPAC as the assessing authority about its errors;” and
c. The third reason “flows from the City’s adopted policy in respect of assessment appeals” which “limits the circumstances where City staff may launch appeals. None of the palpable errors on this property fit unto those limits on City staff authority to appeal.”
Legislation
12Section 40.1(b) of the Act provides:
Correction of errors
40.1 If it appears that there are palpable errors in the assessment roll,
(b) if alteration of assessed values or classification of land is involved, the Board may extend the time for bringing appeals and direct the assessment corporation to be the appellant.
Analysis
13The first question to be determined is whether there are palpable errors in the roll. If there are palpable errors in the roll, the next question to be determined is whether the Board should exercise its discretion to correct the errors.
Palpable Error
14In Municipal Property Assessment Corporation (“MPAC”) Region No. 03 v Ottawa (City), 2019 CanLII 101175 (ON ARB), the Board noted at para. 29 that section 40.1 of the Act is the only part of the Act which is not subject to a limitation period. It “is an extraordinary remedy to be used sparingly, or the balance of the Act will be undermined,” and the relief requested is only to be granted “in the clearest of circumstances.”
15At paras. 30 and 31 of that decision, the Board reviewed some of the more compelling indicators in its jurisprudence that there might be palpable errors in the roll which include: if an error is truly inadvertent or unintentional, if it is plain, obvious or easily perceived, if it is of conspicuous magnitude and easy to understand.
16The errors in the roll here largely meet those criteria. They must have been inadvertent and unintentional, at least to start. They are plain, obvious and easily perceived, as a very old, heritage cemetery should obviously not have been classified as vacant residential land, and the record of ownership has been erroneous. The errors are also of conspicuous magnitude, where the result has been that the Municipality has been taxed as if the property was residential when it should have been exempt.
17The Board therefore finds that these are palpable errors in the roll.
Discretion
18In Piggott v. Municipal Property Assessment Corporation, Region 28, 2019 CanLII 109527 (ON ARB) at para. 31, the Board determined that the Board should only exercise its discretion to correct palpable errors if “it would (be) unreasonable, unfair and highly prejudicial to enforce the statutory filing deadlines in light of the palpable error.”
Unreasonable
19It would be unreasonable to correct the palpable errors in this instance. This is because the evidence before the Board suggests that the Municipality was aware of the palpable errors and did not file appeals when it could have.
20In the notice of motion dated October 18, 2019, MPAC said that “Brampton discovered the erroneous classification and ownership information in 2018 and informed MPAC of the error immediately,” but this statement is not supported by the affidavit evidence filed. This is because:
a. in her first affidavit, Ms. Kwiecien wrote that “MPAC has recently acknowledged that the Subject Property is properly considered exempt from taxation,” suggesting the Municipality knew of errors prior to that acknowledgment; and
b. in the second affidavit, which responded to MPAC’s request for clarification, Ms. Kwiecien wrote “the City expected that its abundance of communications over multiple years regarding the errors would engage MPAC to carry out its mandate (emphasis added).” The affidavits did not say how many years went by during which no appeals were filed.
21The Municipality’s failure to file appeals is explained in the second affidavit as arising from the need to select priorities and municipal policy, but these were not reasonable where appeals could have been filed to address the errors in the normal course. The Municipality essentially made its decision - to rely on MPAC to correct errors instead of filing appeals, in the allocation of its resources and in the placement of limitations on the authority of its staff - at its peril.
Unfair
22It must have been the case that the errors were inadvertent and unintentional to start. However, at some point unspecified in the motion material that changed because the Municipality became aware of the errors but did not file appeals to correct them.
23In Wellington (County) and Municipal Property Assessment Corp., Region 22, 2018 CarswellOnt 6018, the Board denied a motion from municipalities to correct palpable errors in the roll. The Board wrote at para. 33 of that decision that “the Municipalities had all the information needed to make this case in hand at the time that they had a legal right to make this case.” The Board then wrote that: “it is not unfair to leave the assessment roll as it is when a party fails to file appeals in a timely way due to their own negligence.”
24The circumstances before the Board in this instance are the same where the Municipality could have filed appeals but did not.
Highly Prejudicial
25The Municipality is prejudiced because it had to remit education and upper tier portions of the taxes. It also had to pay penalties and interest it was required by statute to impose on itself.
26However, when the Board considered prejudice in Canadian National Railway v Municipal Property Assessment Corporation, Region 19, 2019 CanLII 114732 (ON ARB) (“CNR”), where like in this case the only party to suffer prejudice would have been the taxpayer, the Board determined that “prejudice is not the Board’s only concern when deciding whether to exercise its discretion in these cases.” It then went on to reference two other cases that are applicable to these circumstances.
27The first case CNR referred to in this context was 217-225 Richmond Street West Ltd. v. Ontario (Assessment Review Board), 1997 CanLII 26465 (ON CTGD), [1998] O.J. No. 35, where a taxpayer had notice of an assessment but declined to review it. The court there found that “a complainant cannot rely on its own carelessness” in not filing an appeal as it could have. The situation here is not entirely analogous, but for at least some of the years in question the Municipality’s failure was self-inflicted when it limited its staff’s authority to file appeals. Moreover, in this case no particular expertise or effort would have been required to file appeals on time.
28The second case referred to in CNR was the Board’s decision in York Condominium Corporation No. 60 v Municipal Property Assessment Corporation, Region 09, 2019 CanLII 39632 (ON ARB), which determined at para. 23:
More to the point, the prejudice to the Corporation and others who might have to pay for its error should not outweigh the fact that it would be unreasonable and unfair to reopen the roll when it was the Corporation that was entirely at fault for not filing appeals within the time allowed by the Act. Simple inadvertence cannot be enough to justify the exercise of discretion if such discretion is only to be exercised in a sparing way and only in extraordinary circumstances. It would render the time limit for filing an appeal meaningless and it would create a precedent that could be cited by anyone who had simply neglected to file their appeals within the statutory timelines. None of this could have been the legislature’s intent in enacting section 40.1 of the Act, and the Board has been clear in its decisions that this relief is to be granted only rarely and extraordinarily.
29It was not inadvertence that led to the circumstances before the Board in this case, but the Municipality was at fault for not filing appeals on time. The Board adopts the same reasons for denying the Municipality’s request here.
30As a result, the Board finds that while these errors are palpable errors in the roll, the Board also finds that it should not exercise its discretion to correct them.
CONCLUSION
31The Corporation of the City of Brampton’s motion to correct palpable errors in the roll is denied.
“Jean-Paul Pilon”
JEAN-PAUL PILON
MEMBER
Assessment Review Board
A constituent tribunal of Tribunals Ontario - Environment and Land Division
Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248