Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE: January 6, 2020
Assessed Person: Milord Realty Inc.
Appellant: Milord Realty Inc.
Respondent: Municipal Property Assessment Corporation (“MPAC”) Region 09
Respondent: City of Toronto
Property Location: 2378-2410 Eglinton Avenue East
Municipality: City of Toronto
Roll Number: 1901-042-030-06400-0000
Appeal Numbers: 3259987 and 3315863
Taxation Years: 2017 and 2018
Legislative Authority: Rule 122 of the Assessment Review Board’s Rules of Practice and Procedure, as amended
Request for: Reinstatement of appeals 3259987 and 3315863
Heard: By written submission
Parties
Counsel+/Representative
Submissions
Milord Realty Inc
Nick Mewett, Altus Group Tax Consulting
Requester
MPAC
Not Requested
City of Toronto
Not Requested
DECISION DELIVERED BY CAROLINE KING AND ORDER OF THE BOARD
INTRODUCTION
1Milord Realty Inc. (“Milord”), (the “Requester”) is requesting the Assessment Review Board (“Board”) to reinstate appeals 3259987 and 3315863 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 July 26, 2019.
2Milord is the tenant of the property located at 2378-2410 Eglinton Avenue East in the City of Toronto. Milord had appeals for the 2017 and 2018 tax years before the Board. Those appeals included both s. 32 and s. 40 appeals of the Assessment Act R.S.O. 1990, c. A.31 (“the Act”). On July 23, 2019, Milord emailed the Board to withdraw the s. 32 appeals, when in fact the s. 40 appeals were the appeals to be withdrawn.
3Two days later, Milord realized that an error had been made in withdrawing the s. 32 appeals, requested that the s. 32 appeals be left open and have the s. 40 appeals withdrawn instead. However, the Board responded to Milord that the withdrawal of the s. 32 appeals had already been processed and to apply for reinstatement if they wished the appeals to be re-opened.
4On July 26, 2019, the next day, this request to reinstate the s. 32 appeals was filed with the Board.
5For the reasons that follow, I reinstate Milord’s appeals 3259987 and 3315863.
The Reinstatement Rule
6Rule 122 sets out the circumstances in which the Board will reinstate appeals that were withdrawn. The relevant provision of the Rule for this application is in clause 122(a), which states, in relevant part that “a party to a former proceeding may seek an order… to reinstate an appeal by filing an affidavit with the Board… no more than 30 days after the appeal was… withdrawn… setting out that… the appeal was withdrawn… in error.”
7There are three essential components to Rule 122(a). First, it is only open to parties to the appeal that was withdrawn. Secondly, the order must be sought within 30 days after the appeal was dismissed or withdrawn. Finally, the Board must be satisfied that the appeal was withdrawn in error. All three conditions must be met before an appeal will be reinstated.
Party
8Milord was the appellant in both of the withdrawn appeals. They therefore meet the first part of the test set out in Rule 122(a).
Timely Application
9Milord’s representative sent the request to withdraw these s. 32 appeals on July 23, 2019. The Board immediately processed the withdrawal request of the s. 32 appeals.
10Two days later, Milord realized there was an error and the wrong appeals withdrawn and advised the Board of this error. Specifically, that an error had been made and requested that the s. 40 appeals be withdrawn and the s. 32 appeals be left open. However, the Board advised that the withdrawal request had been processed.
11The next day, (three days after the request to withdraw was submitted), Milord filed this request to reinstate the s. 32 appeals.
12On August 6, 2019 the Board sent an acknowledgement letter to Milord’s representative advising that an affidavit was missing from the reinstatement request and that they had until August 27, 2019 to file the necessary materials or the request would not be considered, per the Rules. The representative filed the supporting affidavit and completed request with the Board on August 15, 2019 and the Board sent an acknowledgement letter on September 4, 2019.
13The complete request for reinstatement was filed with the Board 22 days after the appeals had been withdrawn, which is within the 30 days set in Rule 122(a).
14Milord therefore meets the requirement of Rule 122(a).
Error
15The final requirement in Rule 122(a) is that the appeal was withdrawn in error. The Rule is generally aimed at clerical errors but other errors are contemplated, on a case by case basis. Based on the information provided, I am satisfied that mixing up the 2017 and 2018 tax year s. 40 appeals (which were supposed to be withdrawn) with the 2017 and 2018 tax year s. 32 appeals (which were the ones erroneously withdrawn) can constitute a clerical type error and find the third and final requirement of Rule 122(a) is met.
Discretion
16It is not strictly enough that all of the conditions in Rule 122(a) are met. Reinstatement is a discretionary remedy, see Rule 123. The Board may refuse to reinstate appeals even where the requirements of Rule 122 are met. There must, obviously, be good reasons to deny reinstatement if the conditions of reinstatement are met. Prejudice to other parties will often be a relevant consideration in the discretionary aspect of any reinstatement order.
17There is nothing in the record here that would indicate that reinstatement of Milord’s appeal would be inappropriate. Milord would be the sole party to suffer prejudice due to the representative’s error.
ORDER
18Milord meets all of the requirements for reinstatement. They were a party to the withdrawn appeals, they filed this application in a timely way, and the error was clerical in nature. The Board therefore reinstates appeals 3259987 and 3315863.
“Caroline King”
CAROLINE KING
VICE-CHAIR
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