Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE:
January 08, 2020
FILE NO.:
DM 162842
Assessed Person(s):
Durante Spinelli and Marie Spinelli
Moving Party(ies):
Municipal Property Assessment Corporation, (“MPAC”) Region 15
Respondent(s):
Durante Spinelli and Marie Spinelli
Respondent(s):
City of Mississauga
Property Location(s):
6830 Second Line West
Municipality(ies):
City of Mississauga
Roll Number(s):
2105-040-096-18315-0000
Appeal Number(s):
3271189; 3382868 and 3382855
Taxation Year(s):
2015 and 2016
Hearing Event No.:
725373
Legislative Authority:
Rule 24 of the Assessment Review Board Rules of Practice and Procedure and s. 40(3) of the Assessment Act, R.S.O. 1990, c. A.31 (“Act”)
Heard:
November 01, 2019 by telephone conference call
Parties
Representative
Submissions
Durante Spinelli and Marie Spinelli
Daryl Thompson
Respondent
MPAC
Brandy Pitz
Requester
City of Mississauga
No one appeared
Respondent
WRITTEN REASONS AFTER ORAL DECISION OF MOTION BY THE BOARD DELIVERED BY JENNIFER GRIFFITH
DISPOSITION OF MOTION
1This peremptory hearing was scheduled by the Assessment Review Board (“Board”) because no Mandatory Meeting Form (“MMF”) and no documentary evidence were filed with the Board as required by the Schedule of Events (“SOE”), pursuant to Rule 33 of the Board’s Rules of Practice and Procedure (“Rules”). On October 30, 2019, MPAC filed a Motion to Dismiss the appeals for the 2015 and 2016 taxation years with the Board. The Motion was heard at today’s peremptory hearing.
2MPAC requests an order to have the appeals for the 2015 and 2016 taxation years dismissed for non-compliance pursuant to Rule 24(e) of the Board’s Rules, and s. 40(3) of the Assessment Act, R.S.O. 1990, c. A.31 (“Act”).
3The Appellants did not file a response to MPAC’s motion prior to today’s hearing. However, the Appellants were given the opportunity to present oral submissions.
4The Municipality was not in attendance at this hearing.
5The Board dismisses the appeals for the 2015 and 2016 taxation years and finds the Appellants are in breach of the Board’s Rules 24(e) and the Act s. 40(3).
Legislation and Board’s Rules of Practice and Procedure
6Section 40(3) of the Act states:
Precondition of appeal
(3) If a property is in the residential, farm or managed forests property class, or in such other circumstances as the Minister may prescribe, no appeal may be brought to the Assessment Review Board under subsection (1) by a person who is entitled to make a request for reconsideration under section 39.1 in respect of the property, if the person has not made the request within the time required under that section. 2008, c. 7, Sched. A, s. 11; 2015, c. 38, Sched. 1, s. 4 (2).
7Section 40(26) of the Act states:
Deemed appeals, 2009 and subsequent years
(26) For 2009 and subsequent taxation years, an appellant shall be deemed to have brought the same appeal in respect of a property,
(a) in relation to the assessments under sections 32, 33 and 34 for the year; and
(b) in relation to the assessment, including assessments under sections 32, 33 and 34, for a subsequent taxation year to which the same general reassessment applies, if the appeal is not finally disposed of before March 31 of the subsequent taxation year or, if an assessment has been made under section 32, 33 or 34, before the 90th day after the notice of assessment was mailed. 2008, c. 7, Sched. A, s. 11; 2008, c. 19, Sched. A, s. 8 (3).
8Rule 24:
Dismissal of Appeals
24.A Board Member may dismiss an appeal without holding a hearing event, or after a hearing event, if:
(a) the Board is satisfied that it is without jurisdiction to hear the appeal;
(b) the Board is of the opinion that the proceeding is frivolous or vexatious, is commenced in bad faith or only for the purpose of delay;
(c) the Board is of the opinion that the reasons set out in the appeal do not disclose any apparent statutory ground on which the Board can make a decision;
(d) the appellant has not responded to a request by the Board for further information within the time specified by the Board; or
(e) the appellant has not complied with statutory requirements or these Rules.
9Rule 33:
Commencement Day
- The Board will assign a day on which the schedule of events will commence for each proceeding.
GOUNDS FOR THE MOTION
Facts
10The Subject Property was a Property Code 100 (Vacant Land - not on water) in 2015 and was improved later in 2015 with a single - family residential dwelling (Prop. Code 301 single - family detached - not on water).
MPAC’s Evidence
11Brandy Pitz, representative for MPAC raises a Motion to Dismiss the appeals for the 2015 and 2016 taxation years.
12In support of this motion, Ms. Pitz presents a signed Affidavit of Rachel Michel dated October 30, 2019 and summarizes the key arguments based on the Affidavit.
13The Board granted the Appellants an extension of time to file a Request for Reconsideration (“ RfR”) for the 2016 taxation year no later than December 22, 2016 with respect to the s. 33 appeal effective December 1, 2015 and s. 40 appeal January 1, 2016. MPAC testifies that the RfR was filed for the 2016 appeal. MPAC presents a copy of a document showing that the Board extended the time for filing the RfR for the 2016 appeals.
14No RfR was filed with MPAC for the 2015 appeal, pursuant to s. 40(3) of the Act. However, an appeal was filed with the Board without meeting the pre-condition requirement for filing an appeal under s. 40(3) of the Act. The Board allocated the appeal in the General Stream with a Commencement Date of April 16, 2018 as stated in the SOE.
15No s. 33 and s. 40 appeals were filed with the Board for the 2016 taxation year. The Board subsequently deemed the 2016 appeals in August or September 2019, well after the commencement date of the 2015 appeal.
16No Statement of Issues (“SOI”) was filed for the 2015 and 2016 appeals as required by the SOE on the due date of September 10, 2018. Despite failure of the Appellants to file the SOI by the due date, MPAC reached out to the Appellants and requested the SOI by email on September 20, 2018. On January 8, 2019 and on June 18, 2019 MPAC filed a Request to Dismiss because there were no responses to their emails.
17The Appellants contacted MPAC after receiving the notice of Request to Dismiss to advise that they are retaining legal representation and intend to submit a SOI for the relevant appeals. However, no SOI were filed for the 2015 and 2016 appeals. Instead, the Appellants’ representative filed SOI for the 2017 and 2018 taxation years on August 7, 2019, which were not the subject to this appeal.
MPAC’s Submissions
18MPAC submits that no RfR was filed for the appeal for the 2015 taxation year, pursuant to s. 40(3) of the Act (RfR is a pre-condition to an appeal). MPAC argues that the appeal should be dismissed for failure to comply.
19MPAC argues that the 2016 appeals are also non-compliant or invalid, because they are deemed off the 2015 appeal for which no RfR was filed and should be dismissed.
20MPAC argues that the Appellants failed to file SOI for the 2015 and 2016 appeals by the due date of September 10, 2018, despite MPAC’s many follow-up requests after the due date had passed. MPAC argues that the Appellants should not be given an extension to file SOI, because the Board had already given an extension to file the RfR for the 2016 appeals. Affording them an adjournment would bring the administration of justice into disrepute and would be a violation of procedural fairness.
21MPAC submits that the Appellants’ failure to comply with the filing of SOI has been prejudicial to MPAC and permitting the continuation of these appeals would further prejudice MPAC.
Appellants’ Evidence
22Daryl Thompson, representative for the Appellants submits that he was retained around the second or third week of August 2019 and filed a SOI for the 2017 and 2018 taxation years. Mr. Thompson submits that he was not involved in the appeals for the 2015 and 2016 taxation years and called on Maria Spinelli (representing Durante Spinelli and herself as the Appellants) to testify on issues dealing with these appeals. Ms. Spinelli was sworn in.
23Ms. Spinelli testifies that she believes that the RfR for the 2015 and 2016 appeals were filed at the same time. Ms. Spinelli states that she believes that the RfR for the 2015 appeal was filed on December 22 but could not recall the year in which the RfR was filed. Ms. Spinelli confirmed that they received MPAC’s response to the RfR for the 2016 appeals dated July 4, 2017.
24Ms. Spinelli testifies that she is a lay person and might have misunderstood the terminologies used in the appeals process. She testifies that they pursued several legal representatives and it was not until 2019, when Mr. Thompson agreed to represent them, and he was retained. Ms. Spinelli also testifies that she was experiencing many personal issues (including a death in the family approximately six months ago). Ms. Spinelli acknowledges that the Board had granted an extension to file the SOI for the 2016 appeals no later than December 22, 2016.
25Ms. Spinelli states that they did not receive the emails from MPAC requesting the SOI for the 2015 and 2016 appeals. However, Ms. Spinelli confirms the contact email she provided the parties contained in the file documents is correct.
Appellants’ Submissions
26The Appellants agree that no SOI was filed with the parties as required by the SOE.
27The Appellants agree that no disclosure was filed with the Board for the 2015 and 2016 appeals.
28The Appellants argue that more time is needed to prepare and file disclosure for the 2015 and 2016 appeals. They argue that it is their view that the system lets them down.
Board’s Findings
29The Board reviewed the submissions of the parties regarding the Motion to Dismiss the 2015 and 2016 assessment appeals.
30Regarding the 2015 appeal, the Appellants present no factual evidence that an RfR pursuant to s. 40(3) of the Act was filed with MPAC. MPAC argues that no RFR was filed by the Appellants for the 2015 appeal. The Board finds that the Appellants failed to meet the “pre-condition” requirement for filing an appeal with the Board pursuant to s. 40(3) of the Act. Therefore, the Board finds that the Appellants are not in compliance with the Act.
31Regarding the 2016 appeals, which were deemed based on the 2015 appeal filed with the Board, the Appellants filed an RfR on December 22, 2016 and received a response to the RfR on July 4, 2017. MPAC argues that the 2016 appeals were deemed off the 2015 appeal which is non-compliant with s. 40(3) of the Act and are therefore also non-compliant. The Board finds that although RfR for the 2016 appeals were filed and responded to appropriately, the fact that the 2016 appeals were deemed off the 2015 appeal which was found to be non-compliant of s. 40(3) of the Act would also make the 2016 appeals non-compliant of the Act.
32Regarding the Appellants’ personal issues and limited experience, the Board recognizes that the Appellants might have had personal issues and limited experiences dealing with the appeals. However, the Board must have given a great deal of consideration to some of these issues when it extended the RfR dates for the 2016 appeals to December 22, 2016, something that is done by the Board in exceptional circumstances. The Board finds that no evidence of exceptional circumstances exists at today’s hearing as was the case when an adjournment was requested on October 24, 2019 and was denied.
33Regarding the Appellants failure for not submitting the SOI for the 2015 and 2016 taxation years, because of difficulties of being able to find representation until August 2019 when Mr. Thompson was retained, MPAC stated that several emails (including Requests to Dismiss) were sent to the Appellants requesting the SOI for the 2015 and 2016 appeals even after the due date had passed. The Appellants only responded after receiving the Request for Dismissal to say that they would provide the SOI, which did not happen. Instead, Mr. Thompson provided the SOI for the 2017 and 2018 taxation years (not under appeal) on August 7, 2019.
34The Board finds the following:
a. That MPAC was considerate in accommodating the Appellants by requesting the SOI on several occasions after the deadline for filing SOI had passed;
b. That although the Appellants promised to file the SOI for the 2015 and 2016 taxation years it did not happen; and,
c. That there was enough time for the Appellants file the SOI for the 2015 and 2016 appeals, because they were able to prepare and file the SOI for the 2017 and 2018 taxation years on August 7, 2019 which was not under appeal.
35Regarding the issue of prejudice raised by MPAC, the Board finds that all parties are prejudiced by the non-compliance of the Appellants, because of the amount of time, money and resources required to prepare for these appeals and the impact it would have on other appeals that could have otherwise been dealt with. The Board finds that prejudice is suffered.
36Finally, the Board finds that the Appellants are in breach of the Act and the Board’s Rules by:
a. not meeting the pre-condition requirements pursuant to s. 40(3) of the Act; and,
b. failing to file disclosure with the Board by the due date of July 22, 2019 pursuant to Rule 24(e).
CONCLUSION
37Based on the evidence and submissions, the Board dismisses the appeals for the 2015 and 2016 taxation years and finds the Appellants in breach of the Board’s Rules 24(e) and s. 40(3) pf the Act.
“Jennifer Griffith”
JENNIFER GRIFFITH
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