Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: January 10, 2020

FILE NO.: DM 2019M62

Moving Party: Ivy Lea North Inc.

Respondents: Municipal Property Assessment Corporation, Township of Leeds and the Thousand Islands

Property Location: 14 Flaggs Creek Crescent

Municipality: Township of Leeds and the Thousand Islands

Roll Number: 0812-812-025-11300-0000

Taxation Years: 2017, 2018 and 2019

Hearing Event No.: 724785

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

Heard: October 22, 2019 by written submission

Parties	Representative	Submissions
Ivy Lea North Inc.	Colin Francis	Moving Party
MPAC	Ashtyn Rank	Received
Township of Leeds and the Thousand Islands		Not Received

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON

DISPOSITION OF MOTION

1Ivy Lea North Inc. (the “Moving Party”) is the owner of a property at 14 Flaggs Crescent in the Township of Leeds and the Thousand Islands. It brought this motion to extend time to file late appeals for the 2017, 2018 and 2019 taxation years.

2MPAC opposed the motion. The Township of Leeds and the Thousand Islands (the “Municipality”), which would be a party in any appeal filed late, made no submissions in the motion.

3For the reasons that follow, the motion is denied. The Moving Party did not meet all of the requirements of Rule 26(b) of the Assessment Review Board’s (the “Board”) Rules of Practice and Procedure (the “Rules”), nor did the circumstances justify any extension of time pursuant to Rule 17.

Background

Notices

4On May 11, 2018, MPAC issued an omitted assessment notice which required notification by mail to the person assessed. The deadline to file an appeal on this notice of assessment was September 10, 2018. In addition, on November 27, 2018, MPAC issued a property assessment notice due to a change in current value of the property, where the last day to appeal was March 31, 2019.

5This motion was filed on September 23, 2019.

Date Received

6The Moving Party relied on the affidavit of its Vice-President of Finance, Kal Pervez, sworn on September 23, 2019. In his affidavit, Mr. Pervez he said he did not receive the notices of assessment because they were sent to the wrong address. He continued, saying that on June 17, 2019 his colleague inquired of the Municipality because “the financial records of (the Moving Party) did not show an amount for property tax.” Mr. Pervez did not say when property tax bills were then received from the Municipality, but in its submission document the Moving Party indicated that they were received on the same day, on June 17, 2019.

7Mr. Pervez wrote that these tax bills were entered into the Moving Party’s financial records “in or about mid to late July 2019,” and that a further review was conducted on August 6, 2019 resulting in contact with the Moving Party’s representative in this motion, Colin Francis, on August 13, 2019.

MPAC

8MPAC relied on the affidavit of its Property Valuation Analyst, Jody Brown, sworn on October 3, 2019. Ms. Brown wrote in her affidavit that a paralegal, Andrew Attard, identified himself as the agent of the Moving Party. Mr. Attard contacted her by telephone on September 21, 2019 and said, “that the owner did not get the omitted notice and that the only way his client knew about the new assessment was from the tax bill his client had just received.” In response to a subsequent email the same day, Ms. Brown said that she then emailed the omitted notice and property assessment notice to Mr. Attard. She also requested the correct mailing address for the Moving Party because it appeared that these documents had been sent to an incorrect address.

Mistaken Date

9MPAC’s response in the motion identified these discussions as having taken place on June 21, 2019 and not September 21, 2019 as shown in Ms. Brown’s affidavit, and the emails exhibited to that affidavit are clearly dated June 21, 2019 and not September 21, 2019. These factual statements were not mentioned in the Moving Party’s subsequent reply, therefore the Board finds that these discussions took place on the earlier June date, not the later September date.

10In any event, this earlier date was confirmed in a further affidavit filed by MPAC from Karen Leeder, sworn on October 3, 2019. In her affidavit, Ms. Leeder wrote that on June 24, 2019, she spoke to Mr. Attard about the assessments and then he took issue with them because they were too high.

Analysis

Rule 26(b)

11Rule 26(b) provides that a late appeal can be accepted by the Board “only if 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 that is the subject of the appeal.”

12In Cherry Beach Sailing Clubs v. Municipal Property Assessment Corp., Region 09, 2018 CanLII 107727 (ON ARB) at para. 8, the Board determined that a late appeal could only be granted if all three conditions in Rule 26(b) are met.

13It was not disputed that the Moving Party met the first two parts of the three-part test in Rule 26(b) because the Moving Party was entitled to receive the notices of assessment and did not receive them. The remaining question to be determined in this part of the decision was whether the Moving Party met the third requirement of the test: whether an appeal was filed within 30 days of the Moving Party becoming aware of the assessment.

Representation

14Mr. Attard’s involvement in June 2019 was unmentioned in the Moving Party’s motion material, even on reply. As a result, the Board accepts that the notices of assessment were sent to Mr. Attard, which was followed with a discussion with Ms. Leeder on the subject.

15It may be the case that Mr. Attard was retained by someone other than Mr. Pervez involved with the corporate Moving Party, which would explain Mr. Pervez’s failure to mention Mr. Attard or his involvement. However, Rule 15 provides that “notice to a representative is deemed to be notice to the party or participant represented.”

16For these reasons alone, the Board finds that the Moving Party knew of the assessment on June 21, 2019 and did not file an appeal within 30 days later. As a result, the Moving Party did not meet the third requirement of Rule 26(b).

Additional Arguments on Rule 26(b)

17MPAC did not rely entirely on those facts in opposing the motion. Both parties made further submissions on the Board’s jurisprudence, which the Board addresses next for the purpose of providing alternative reasoning for its decision.

The Sabl Decision

18The Moving Party cited Sabl Corp. v. Municipal Property Assessment Corp., Region 9, [2018] O.A.R.B.D. No. 94 (“Sabl”) where a commercial tenant, after becoming aware in June 2017 that its monthly charges did not include property tax, requested tax invoices from its landlord which were provided in August 2017. In that case, it was not until November 16, 2017 that assessment notices were requested from the landlord and then provided on November 27, 2017, which resulted in the late appeal request on November 28, 2017. The Board determined in that case that the 30-day period began to run on November 25, 2017 after the assessment notices were received.

The Solar Ship Decision

19Sabl is inconsistent with a later Board decision, Solar Ship Inc. v. Municipal Property Assessment Corporation, Region 20, 2019 CanLII 44275 (ON ARB) (“Solar Ship”) issued by the same former panel of the Board. In that case, a taxpayer received supplementary tax bills on July 24, 2018, did not pay the taxes due at that time and received a demand letter from its municipality on December 3, 2018. It retained counsel on December 19, 2018 and was sent assessment notices by the municipality on January 2, 2019. It filed its unsuccessful late appeal request on January 22, 2019, 20 days later. Quoting Marsh v. Municipal Property Assessment Corporation, Region 09, 2018 CanLII 89425 (ON ARB) at para. 12, the Board found that the third requirement of Rule 26(b) “does not require receipt of the actual notice of assessment, and can be imputed from municipal tax invoices, which include assessment information.”

Solar Ship is More Persuasive

20The deficiency with the approach in Sabl is that it equates “becoming aware of the assessment or classification that is the subject of the appeal” in the third requirement of Rule 26(b) with actual receipt of a notice of assessment. This is incorrect because they are plainly two different things. Had it been intended that time would begin to run on receipt of a notice of assessment rather than after receiving knowledge of the assessment, the Rule would have said exactly that. This is the error that was corrected in the subsequent Solar Ship decision, a decision which the Board finds more persuasive.

The Fleming Decision

21The Moving Party also relied on a dated decision of the Ontario District Court, Re Fleming and Smith Ltd. and Regional Assessment Commissioner Region No. 31 et al, 1979 CanLII 1870 (ON SC) (“Fleming”), the decision upon which Rule 26(b) was based.

22The paragraphs in Fleming were unnumbered, but near the end of that decision, the court determined that “the time for appeals from the assessment runs from the date that the person assessed has knowledge of the assessment.”

23In that decision, a notice of assessment was sent by mail and not received by the party wanting to appeal the assessment. The decision cited Re Town of Milton and Ontario Municipal Board, now reported at 1978 CanLII 1288 (ON SC), where the High Court determined that if, for whatever reason, mail was not received, then service did not occur. However, no one in this motion is suggesting that the starting date for the analysis should be the date that the notice of assessment was sent because MPAC acknowledged it was sent to a wrong address.

24On reply, the Moving Party noted that it was also determined in Fleming that the then Assessment Commissioner had a duty to “to bring notice of the assessment to the attention of the person assessed and not for the person assessed to learn of the assessment by inquiring of the assessment of the Assessment Commissioner or otherwise.” It could be argued that section 40 of the legislation in force in the Fleming decision, the Assessment Act, R.S.O. 1970, c. 32, had a greater requirement, where the then Assessment Commissioner had an obligation to send (“shall deliver” is the language used) a notice of assessment. Currently, section 35(1) of the Act only requires that an assessed person “be notified by mail” of any correction. In any event, the decision contradicts itself because on one hand it makes reference to a party having knowledge of an assessment, while on the other, it implies that knowledge of an assessment can only come from the assessor and by mail.

25However, unlike in Fleming, the Moving Party in this case had knowledge of the assessment, if not through its previous representative, then on June 17, 2018 when it received property tax bills. This was the point at which the Moving Party should have made inquiries. There is no explanation as to why it would have taken more than 30 days, let alone more than three months until September 21, 2018 when this motion was filed, for the Moving Party to have determined that there was a problem with the assessment and to have requested it from MPAC.

26Therefore, even if the Board has erred in its earlier finding regarding the Moving Party’s previous representation, on these additional facts and argument the Moving Party has not met the third requirement of Rule 26(b).

Rule 17

The 1983992 Ontario Inc. Decision

27The Moving Party argued that even if the Board determined that all of the requirements of Rule 26(b) had not been met, the Board should extend time pursuant to Rule 17 which provides that “any time period set out in these Rules can be altered by the Board.” In support of this submission, the Moving Party cited a recent decision by the Board, 1983992 Ontario Inc. v Municipal Property Assessment Corporation, Region 03, 2019 CanLII 77528 (ON ARB) (“1983992 Ontario Inc.”), which extended time even in circumstances where a taxpayer failed to meet all of the three requirements of Rule 26(b).

28The determination that the Board should continue beyond Rule 26(b) to consider Rule 17 where all three requirements of Rule 26(b) were not met arose in Solar Ship. At para. 19 of that decision, it cited Block 9A Developments Ltd. v. Municipal Property Assessment Corporation Region 09, 2015 CanLII 37189 (ON ARB) (“Block 9A”) at para. 13 where it was determined that “fairness, prejudice and finality” are the principles the Board should consider before altering deadlines in the Rules.

29In Solar Ship it was determined that the moving party had not provided an explanation as to why it had not taken any action five months after it became aware of the assessment. The Board found that achieving fairness did not require extending time when the reason for the delay was unclear. The Board also found the only party to be prejudiced was the party that wanted to appeal, and, on the issue of finality, the Board determined that the municipality (which participated in the motion, unlike here) had relied on the finality of the roll. On balance, the Board in Solar Ship decided not to extend time pursuant to Rule 17.

30In the Board’s later 1983992 Ontario Inc. decision, there was no evidence of prejudice to the respondents or unfairness to the potential appellant, and finality was not an issue when the extension of time requested was of insignificant length. An extension of time was therefore granted.

31In this case, the Moving Party argued that the appeals have merit and that it would be unfair not to extend time when only a short delay was being requested. It argued that finality should be balanced with correctness and that the Moving Party would be prejudiced if the appeals were not allowed to proceed. MPAC argued that the delay requested would be longer than it was in 1983992 Ontario Inc., that the Moving Party did not explain the delay and raised the unexplained change of representation referred to above.

32MPAC also argued that “to ensure reliability and finality, all of the mechanisms to dispute an assessment within the Act are time limited,” where parties are bound by the roll pursuant to section 41 of the Act once the time limits have passed. MPAC argued that:

it is obvious that the Board has contemplated finality or else it would not have included a 30 day requirement to request a late appeal from the time a person who is entitled to receive a notice becomes aware of the assessment or classification. Altering the timeline to file an appeal when the Moving Party has failed to meet the timeline set out in Rule 26 frustrates the general scheme of the Act with respect to finality and creates prejudice for MPAC and the municipality as the assessment roll would be ‘open indefinitely.’

33The Board concurs with this submission and finds that for these reasons 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).

34Next, this decision considers the principles set out in Block 9A: fairness, prejudice and finality.

Fairness

35The Moving Party’s submission focussed on the unfairness that would result if the classification and assessed values remain uncorrected, however whether they are correct or not has not been determined. The issue is whether the Board should allow the late appeals.

36As with the facts in Solar Ship, the Moving Party’s explanation of delay is unclear. The problem was discovered on June 17, 2019 and tax bills were provided, yet it took a further month or more before the bills were entered into the Moving Party’s financial records. Then, another month went by for a (second) representative to be retained, and another month after that went for the motion to be filed on September 23, 2019. These delays were unexplained. Moreover, none of this considered the additional and uncontested evidence of Ms. Brown and Ms. Leeder that notices of assessment were provided to a previous representative of the Moving Party on June 21, 2019 and discussed with him days later.

37The Board finds that achieving fairness in these circumstances does not require the granting of additional time.

Prejudice

38As in Solar Ship, the only party to be potentially prejudiced is the Moving Party because there may be merit to its appeals.

Finality

39As in 1983992 Ontario Inc., there was no evidence of that finality was an issue, although the extension of time in that decision, two days, was significantly shorter than the one requested in this motion, over three months. However, as was argued by MPAC, the principle of finality is one that is built into the Act with its deadlines, and the longer the extension requested, the farther away finality will be.

Rule 17 Determination

40The Moving Party failed to adequately explain both the delays leading to this motion and the evidence before the Board that notices of assessment were provided on request to its previous representative on June 17, 2019.

41There are no unusual or extenuating circumstances to justify granting an extension of time pursuant to Rule 17 where the Moving Party has not met all three requirements in Rule 26(b).

CONCLUSION

42Ivy Lea North Inc.’s motion to extend time to file appeals is denied because it did not file an appeal within 30 days of becoming aware of the assessment. Its further request to extend time pursuant to Rule 17 is also denied where delays were unexplained and where it failed to demonstrate that it would be unfair not to extend time.

“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