Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: March 23, 2020

FILE NO.: DM 2020M10

Moving Party(s): 1778206 Ontario Inc.

Respondent(s): Municipal Property Assessment Corporation Region

Respondent(s): County of Brant

Property Location(s): 555 Paris Road

Municipality(ies): County of Brant

Roll Number(s): 2920-004-040-01117-0000

Hearing Number: 728790

Taxation Year(s): 2019

Legislative Authority: Rule 26 of the Assessment Review Board’s Rules of Practice and Procedure

Parties | Counsel/Representative* 1778206 Ontario Inc. | Kristin Martin Municipal Property Assessment Corporation | Michael Radan County of Brant | No one appeared

REQUEST FOR: Late appeal

HEARD: January 31, 2020 in writing

ADJUDICATOR(S): Carly Stringer, Member

MOTION DECISION

OVERVIEW

1The Moving Party is the property owner of 555 Paris Road in Brant County (the “Property”). It has brought this motion under Rule 26 of the Assessment Review Board’s Rules of Practice and Procedure (the “Rules”) to ask the Board to accept a late appeal for the 2019 taxation year.

RESULT

2For the reasons outlined below, the Assessment Review Board (the “Board”) will not accept a late appeal in this case. The motion is dismissed.

BACKGROUND

3The Moving Party operates as Martin Farming. The Moving Party was the tenant of the Property from January 1, 2019 until September 30, 2019, when it purchased the Property from the previous owner. At all times throughout its tenancy and since the purchase, the Moving Party has used the Property to grow cash crops.

4The Notice of Property Assessment issued November 27, 2018 and delivered to the previous owner identifies the Property as classified as Commercial Industrial Vacant Land.

5On an unspecified date as part of the closing of the purchase of the Property, it was determined the Property was being taxed at commercial rates. On October 7, 2019, after the transaction closed and the Moving Party became the owner of the Property, its lawyer contacted the municipality and was advised the Property is zoned agricultural.

6The Moving Party filed an ARB Request for Reconsideration Extension of Time Form on October 7, 2019. It subsequently filed a request for late appeal dated December 9, 2019.

7The Municipal Property Assessment Corporation (“MPAC”) opposes the motion on the basis the Moving Party does not satisfy the criteria of Rule 26. The municipality has not filed submissions, and it is the Board’s understanding the municipality is not taking a position on this motion.

ISSUES

8The Board may accept a late appeal if the Moving Party satisfies the requirements of either Rule 26(a) or (b) of the Board’s Rules. Therefore, the issues on this motion are:

1. Has the Moving Party satisfied the Board it meets the requirements of Rule 26(a)?

2. If the answer to (a) is no, has the Moving Party satisfied the Board it meets the requirements of Rule 26(b)?

ANALYSIS

1. Has the Moving Party satisfied the Board it meets the requirements of Rule 26(a)?

9Rule 26(a) provides that the Board may accept an appeal received after the time set in the Assessment Act (“Act”) only if the appellant satisfies the Board that the appeal was mailed within the time set out in the Act.

10MPAC issued the Notice of Property Assessment on November 27, 2018 to Emblem Realty Ltd. (the previous owner). The notice specified an April 1, 2019 deadline for requests for reconsideration or appeals for the 2019 taxation year. There is no evidence that the Moving Party filed a request for reconsideration that would extend that deadline, or mailed an appeal before April 1, 2019. Therefore, Rule 26(a) is not satisfied and the motion cannot be granted on that basis.

2. Has the Moving Party satisfied the Board it meets the requirements of Rule 26(b)?

11In Cherry Beach Sailing Clubs v Municipal Property Assessment Corporation, Region 09, 2018 CanLII 107727 (ON ARB) (“Cherry Beach”) at para. 2, this Board confirmed the Moving Party has to prove three things before a late appeal can be accepted under Rule 26(b):

(1) That the person was entitled to receive a notice of assessment;

(2) That the person did not receive notice; and

(3) That the person filed an application for a late appeal within 30 days of becoming aware of the issues.

12MPAC mailed the Notice of Property Assessment on November 27, 2018 to Emblem Realty Ltd., the property owner at the time.

13The Moving Party did not purchase the Property until September 30, 2019. Therefore, the Moving Party was not entitled to notice as a property owner at the time the notice was issued: Dyk v Municipal Property Assessment Corporation Region No. 6, 2019 CanLII 109532 (ON ARB) at para. 4.

14Although the Moving Party has provided evidence it was a tenant at the Property from January 1, 2019 to September 30, 2019, it has not provided evidence of a legal entitlement to receive the November 27, 2018 Notice of Assessment: see Emblem Logistics Inc. v Municipal Property Assessment Corporation, Region 15, 2019 CanLII 22918 (ON ARB) at paras. 7 to 14. Given the onus on the Moving Party, in the absence of such evidence there is no evidence to support a finding that the Moving Party has satisfied the first part of the test.

15Further, even if the Moving Party were entitled to receive the notice, it has not provided clear evidence that it did not receive the Notice of Assessment. I cannot draw the inference, on the dearth of evidence before me, that the Moving Party did not receive the Notice of Assessment. Accordingly, the Moving Party has not satisfied the second part of the test.

16With respect to the third part of the test, at all material times the Moving Party used the land for agricultural purposes. At some unspecified time – “as part of the closing” - the Moving Party became aware that the Property was being taxed at commercial rates. Presumably this happened before closing on September 30, 2019. The only other evidence respecting knowledge of the classification issue is the Moving Party’s lawyer being advised by the municipality on October 7, 2019 that the Property is zoned agricultural. In this regard, the Moving Party has not met its onus of proving when precisely it became aware of the issues for the purposes of starting the clock on the 30-day deadline to commence an application for a late appeal.

17The Moving Party filed with the Board an Extension of Time for a Request for Reconsideration on October 7, 2019. There is no evidence regarding what transpired after that filing, however the Moving Party subsequently brought a request for a late appeal on December 9, 2019. Even if the Moving Party did not become aware of the issues until October 7, 2019, the request for late appeal was filed well beyond 30 days of that date. There is no explanation for that additional delay. The Moving Party therefore fails the third part of the test.

CONCLUSION

18To succeed on this motion, the Moving Party is required to have satisfied all three components of the Cherry Beach test. The Moving Party satisfies none of these requirements, and the motion is therefore dismissed.