Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: March 18, 2020

FILE NO.: WR 163344

Assessed Person(s): Harnsworth Builders Inc.

Applicant(s): Harnsworth Builders Inc.

Respondent(s): City of Brampton

Property Location(s): 76 Wentworth Court

Municipality(ies): City of Brampton

Roll Number(s): 2110-120-002-09428-0000

Appeal Number(s): 3321172

Taxation Year(s): 2017

Hearing Event No.: 726886

Legislative Authority: Section 364(14) of the Municipal Act, 2001, S.O. 2001, c. 25

APPEARANCES:

Parties

Representative

Harnsworth Builders Inc.

Laura Vessey, Robert Allen

City of Brampton

Kumar Sapkota, Darryl Ramos

HEARD: December 9, 2019 by telephone conference call

ADJUDICATOR(S): Anthony LaRegina, Member

DECISION

OVERVIEW

1Yeoman and Company Paralegal Professionals, submitted a vacancy unit rebate application dated February 23, 2018, on behalf of Harnsworth Builders Inc. (the “Applicant”) to the City of Brampton (the “City”) for their industrial facility located at 76 Wentworth Court (the “subject property”) for the period starting August 1, 2017 to December 31, 2017

2The Applicant states that the vacant portions of the subject property meet the eligibility criteria for vacancy rebates as stipulated in Ontario Regulation 325/01 (“O. Reg. 325/01”).

3Kumar Sapkota, on behalf of the City, submits that the Applicant’s application was declined, as it failed to provide the required documentation with the application pursuant to s. 364(5) of the Municipal Act, 2001, S.O. 2001, c. 25, (the “Act”); nor did the Applicant respond to provide relevant information, as requested by the City, in accordance to s. 364(8) of the Act.

Issues for the Hearing

4The main issue to be determined is whether the Applicant has provided sufficient information in its application to justify a vacancy rebate by the City?

RESULT

5The Board finds that the City was justified in declining the vacancy rebate application, as insufficient information was provided by the Applicant in its application for the City to make the decision. Consequently, no vacancy rebate is owed to the Applicant by the City for the August 1, 2017 to December 31, 2017 period.

BACKGROUND

Applicant’s Submissions – Sufficient Information Provided

6Laura Vessey, representative for the Applicant, submits that there was sufficient information provided by the Applicant to confirm that the building was vacant from August 1, 2017 to December 31, 2017 and that the City should have approved the vacancy unit rebate.

7Ms. Vessey confirmed that a notification was issued by the City dated May 14, 2018 requesting additional information in relation to building square footage as well as providing the lease termination notice. The Applicant responded on June 15, 2018 with floor plans of the facility and the move out notice showing the tenant move out date was July 31, 2017.

8Ms. Vessey, submits that the Applicant and the previous tenant, Chep Canada Inc, renewed the lease agreement for the period of August 1 to December 31, 2017 on March 23,2017 and then four days later, on March 27, 2017, the tenant decided they were not going to renew the lease beyond July 31, 2017. On that same day, March 27, 2017, the Applicant issued the move out notice. This is the same notice that was sent to the City on June 15, 2018 in the response to their request for additional information.

9As part of the Applicant’s evidence package, Ms. Vessey included the rent roles for January, April, July and December 2017, as well as a Metrus listing showing the property was available for lease as of August 1, 2017.

10Mr. Vessey confirms that on June 20, 2018 a letter from the City was received by the Applicant rejecting the vacancy rebate application citing that the property was under lease and therefore not eligible for the vacancy unit rebate.

The City’s Submissions – Insufficient Information Provided

11Mr. Sapkota submits that the City was unable to decide on the Applicant’s vacancy rebate application due to the insufficient information provided. He states that the City issued an Incomplete Notice May 14, 2018 clearly stating that the missing requirements included the square footage of the building and the lease termination notice.

12Mr. Sapkota confirms that he received a response from the Applicant dated June 15, 2018 submitting the floor plan and the move out notice dated March 27, 2017. The City has taken the position that: not only was the response to the incomplete notice two days late in being returned to the City; but more importantly, the information requested regarding the lease termination notice was not submitted. Mr. Sapkota submits that the move out notice is not an officially executed lease termination document and has not been signed by any official of the Applicant organization.

13Mr. Sapkota submits that a new lease was signed on March 23, 2017, and no further document was produced nullifying or terminating the agreement to lease; therefore, there is no proof that the lease dated March 23, 2017 has been cancelled, and no proof that the unit was vacant after July 31, 2017.

14Mr. Sapkota submits that without a lease termination document there is no way for the City to verify the commencement date and the end date of the vacancy period.

15Mr. Sapkota concludes that the Applicant has failed to meet the requirements to submit the lease termination documents, as specified in the City’s incomplete notice dated May 14, 2017. The City has therefore rejected the vacancy unit rebate application on the grounds that the property is still under lease, and therefore is not eligible for a vacancy rebate.

ANALYSIS

16In accordance with s. 364(5) of the Act, municipalities have the discretion to include evidentiary requirements as part of the criteria to be satisfied by property owners making applications under this section of the Act. It provides:

The program may include evidentiary requirements that must be satisfied for the owner to be entitled to a rebate under this section. (emphasis added)

17Pursuant to s. 364(8) of the Act, municipalities may also request for additional information from the applicants:

For the purposes of determining the proper amount of any rebate payable under (section 364), the municipality may, by letter sent by mail, served personally or delivered by courier, require the owner or manager of a property referred to in an application under this section to provide any relevant information or produce any relevant records within such reasonable time as is set out in the letter.

18Section 364(9) of the Act makes it mandatory for applicants to provide the information requested by the municipality within certain timelines. It provides:

A person who receives a letter under subsection (8) shall, within the time set out in the letter, provide to the municipality all the information that is within the person's knowledge and produce all of the records required that are within the person's possession or control.

19The O. Reg. 325/01 further provides the prescribed time limit for providing the information to the City and the consequences for failing to produce these documents. Section 27(5)(6) of the regulation provides:

(5) For the purposes of subsection 364 (8) of the Act, the prescribed time for providing relevant information or producing relevant records is 30 days after the date the letter is mailed, personally served or delivered by courier, as the case may be.

(6) No rebate is payable under section 364 of the Act for a taxation year in respect of a property if a person who receives a letter described in subsection 364 (8) of the Act fails to provide the information or records to the municipality within the time set out in subsection (5).

20As the Act gives municipalities the discretion to request supporting documentation with the application. The onus rests on the Applicant to establish that the vacant portions of the subject property are eligible for vacancy rebates.

21The City provided with the application form a list of 12 supporting documents that all applicants must submit in conjunction with the application. The application form states that the supporting documentation is used in the verification process. It also provides that:

failure to provide the supporting documentation will result in the rejection of the rebate application.

22After receiving the application, the City undergoes the verification process using the supporting documentation to ensure that properties that are the subject of the application were vacant within the legislated time frame and are eligible properties that warrant the rebate as mandated by the Act.

23The Board is satisfied that the City ’s request for additional information was reasonable, specifically the request for the lease termination documents. The Board agrees with the City that without properly executed documentation, the City has no way of determining and verifying the commencement and termination dates of the vacancy period. The move out notice supplied by the Applicant is not an official document, there is no way of determining who prepared the document and there are no signatures on the document. Furthermore, in cross-examination Ms. Vessey admitted that the rent roll information for August, September, October and November 2017 had not been provided even after she had specifically requested the information from the Applicant. Therefore, there is also no financial proof to support that the building was vacant as of August 1, 2017. Regarding the leasing information page supplied by Metrus, this is not an official Multiple Listing Service (“MLS®”) listing and therefore the Board attributes very little weight to the Metrus information sheet. Finally, the Applicant did not appear at the hearing to substantiate any of the evidence presented and there was no affidavit evidence provided by any member of the Applicant organization to support the facts in evidence.

24The onus is on the Applicant to prove that the subject property is eligible for a vacancy rebate. The Board is satisfied that the documents provided by the Applicant were insufficient for the City to make this decision. The Board finds that the Applicant has not met this onus.

CONCLUSION

25The Board determines that the supporting documentation in the Applicant’s application was insufficient for the City to decide that the subject property was eligible for a vacancy rebate. No vacancy rebate is owed by the City to the Applicant and therefore the appeal is dismissed.