Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: March 23, 2020

FILE NO. DM 2020M11

Moving Party(s): Daniel Janovjak

Respondent(s): Municipal Property Assessment Corporation Region15

Respondent(s): Town of Oakville

Property Location(s): 255 Snowden Road

Municipality(ies): Town of Oakville

Roll Number(s): 2401-020-180-07800-0000

Taxation Year(s): 1996-2016

Hearing Event No.: 728764

Legislative Authority: Section 40.1 of the Assessment Act, R.S.O. 1990, c. A.31

Parties	Representative
Daniel Janovjak	Self-represented
Municipal Property Assessment Corporation	Marissa Cheddi
Town of Oakville	No one appeared

REQUEST FOR: Late appeals

HEARD: January 31, 2020 in writing

ADJUDICATORS: Carly Stringer, Member Jean-Paul Pilon, Member

MOTION DECISION

OVERVIEW

1Daniel Janovjak (the “Moving Party”) brings this motion to extend time to file appeals on the basis there are palpable errors in the assessment roll, pursuant to s. 40.1 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act’).

Background

2The Moving Party owns a residential property at 255 Snowden Road in the Town of Oakville (the “Property”). The Municipal Property Assessment Corporation (“MPAC”) had been assessing the Property on the basis it had an in-ground swimming pool since at least 2006. In 2019, the Moving Party advised MPAC there is no in-ground swimming pool on the Property. According to the Moving Party, there has been no pool whatsoever on the Property since he purchased the property in 1996.

3MPAC removed the in-ground swimming pool from the assessment of the Property for the 2016 base year.

4The Moving Party sought a tax refund from the Town of Oakville (the “Town”). The Town provided a tax refund for the 2017, 2018 and 2019 taxation years, as it was permitted to do pursuant to s. 358 of the Municipal Act, 2001, S.O. 2001, c. 25.

5With respect to the 1996 to 2016 taxation years, the Moving Party sought to file late appeals pursuant to Rule 26 of the Assessment Review Board’s (the “Board”) Rules of Practice and Procedure (the “Rules”). He subsequently clarified that he was bringing a motion pursuant to s. 40.1(b) of the Act, which – if successful - would extend time to file appeals with the Board on the basis that there are palpable errors in the assessment roll.

6The Moving Party’s materials request that the Board approve refunding his property tax over-payments since he purchased the Property on December 13, 1996, and provide direction to MPAC and the Town to approve the tax refund. However, the Board has no authority over overpayments in these circumstances. What the Board can do, if the requirements of s. 40.1(b) of the Act are met, is grant an extension of time for the Moving Party to file appeals for the 1996 to 2016 taxation years. If this requested extension of time were granted, the appeals could then proceed on their merits.

7The Moving Party’s position on this motion is that there are palpable errors in the assessment roll, and the Board should grant an extension of time to bring appeals for the Property for taxation years 1996 to 2016.

8MPAC’s position is that the Board should dismiss this motion because the errors are not “palpable” errors. MPAC further argues that even if the errors were palpable errors, the Board should not exercise its discretion to extend time for bringing appeals.

9The Town is a party to this motion but has not made any submissions or taken a position on this motion.

Issues for the Written Hearing

10There are two issues to be determined in this motion:

1. Are there palpable errors in the assessment roll relating to the Property?; and
2. If the answer to (a) above is “yes”, should the Board extend time for bringing appeals relating to the Property for the taxation years 1996 to 2016?

RESULT

11We find there are palpable errors in the roll for the taxation years in question. However, we will not exercise our discretion to grant the extraordinary remedy of extending time for bringing appeals in these circumstances. As a result, the motion is dismissed.

ANALYSIS

1. Are there palpable errors in the assessment roll relating to the Property?

12Section 40.1(b) of the Act provides that the Board can extend the time to bring an appeal where there is a “palpable error” in the assessment roll.

13It is not enough that there be some error in MPAC’s data or in the assessment roll more generally – the error has to be a “palpable” one. Although the Act does not explain how we should determine if an error meets the threshold of being “palpable”, the Board’s jurisprudence clarifies what ought to be considered in the analysis.

14The “essential quality” of a palpable error is that it be “plain and obvious”: Kinglip Holdings Inc. v. Municipal Property Assessment Corp. Region No. 9, [2015] O.A.R.B.D. No. 42 (“Kinglip”) at para. 42. The Board may look at errors that are not on the face of the roll, including factual errors behind the roll and valuation errors based on MPAC data errors: Brockville (City) v Municipal Property Assessment Corp., 2016 ONSC 5752 (“Brockville”) at para. 14.

15Whether an error is “plain and obvious” can depend on its magnitude: Brockville, at para. 4. Although the Board has declined to find errors “palpable” where they pertain to small data errors apparent only after careful measurement, errors that would be “plain and obvious” to any casual observer taking even a cursory look at the subject property may be found to be “palpable”: Scott v Municipal Property Assessment Corp. Region No. 15, [2015] O.A.R.B.D. No. 64, Hopper v Municipal Property Assessment Corporation, Region 15, 2016 CanLII 24421 (ON ARB) (“Hopper”) and Municipal Property Assessment Corporation v Guelph Eramosa Township, 2018 CanLII 263 (ON ARB) (“Guelph”) at para. 9.

Findings on Issues

16We find the errors in the roll in this case to be “palpable” errors. The Moving Party says there has been no pool at the Property since he purchased it. Using the language from the Board’s Guelph decision, the existence or non-existence of a pool would be plain and obvious to any casual observer taking even a cursory look at the Property. These errors are therefore palpable ones.

2. Should the Board extend time for bringing appeals?

17Although we find the errors in this case to be “palpable” errors, we decline to exercise our discretion to extend time to bring an appeal.

18There are two competing interests underlying the Act: equitable distribution of the tax burden and fairness to the taxpayer. To achieve a balance between these interests, the Act provides a mechanism to correct the assessment roll but limits the timeframe in which to do so with a specific and firm limitation period: Toronto (City) v. Wolf (Toronto), 2008 CanLII 39430 (ON SCDC), [2008] O.J. No. 3061 (Div. Ct.) at para. 20.

19Although there is an exception to the firm limitation period where there is a palpable error in the roll, this Board has repeatedly confirmed that this extension of time is “an extra-ordinary remedy to be applied and only in the clearest of circumstances”: Scott, at para. 35 and Kinglip at para. 18; Hopper at para. 13. This Board is required to use discretion in applying this remedy.

20The Board’s discretion should only be exercised when it is clear that it would be “unreasonable, unfair and highly prejudicial to penalize [parties] for not acting quickly enough. That is, when there are valid reasons for missing the statutory filing deadline in other provisions of the Act, s. 40.1 can act as a release valve, to see that fairness is preserved”: Guelph at para. 12 and Piggott v Municipal Property Assessment Corporation Region No. 28, 2019 CanLII 109527 (“Piggott”) at para. 31.

21The Board’s exercise of discretion under s. 40.1(b) “…involves a consideration of all of the circumstances surrounding the request and the taxation years for which the relief is sought”: Kinglip at para. 19. The circumstances to be considered include the conduct of the parties as well as any action or inaction of the assessed person.

Findings on Issues

22We decline to exercise our discretion in the Moving Party’s favour for the following reasons.

a. The assessment scheme set out in the Act is such that once Notices of Assessment are delivered, it is the responsibility of the assessed person to raise issues or identify errors in those assessments: Scott at para. 38.

b. We accept the Moving Party’s evidence that he only became aware of the data error in 2019 when he was told by MPAC that the description of the Property included a swimming pool.

c. We also, however, accept MPAC’s evidence that its Property Profile for the Property on the AboutMyProperty.ca website referenced the in-ground swimming pool since at least 2006. We further accept that the Moving Party would have had full access to these details since at least 2012, had he accessed that website. Had the Moving Party requested that MPAC provide details behind the assessment at any time between 2006 and 2017, he would have seen that the description of the property included an in-ground swimming pool. In addition, had the Moving Party taken any steps to review his assessment between 1996 and 2016, there could have been a property inspection which would have uncovered the issue earlier.

d. The Moving Party did not sufficiently explain why he did not review the assessment of the Property over the years. Although it is clear that he was not aware of the error, it was his failure to review the property description available to him that caused the delay. This is not a valid reason for missing the statutory filing deadline in a legislative scheme that allows an assessed person to raise issues and identify errors in an appeal filed in a timely way.

e. When considering prejudice to the parties, there are a number of factors to be considered and balanced, including the legislative intent for finality in the roll, prejudice to municipalities, impact on other taxpayers, and consequences to the assessed: Piggott at para. 42.

f. There is no evidence in the record of significant prejudice to the Town or MPAC. The outcome of denying the motion is that the Moving Party will not be able to appeal the assessed value of the Property from 1996 to 2016, and will not be able to pursue a refund of tax payments that have been made on incorrect data with the municipality.

g. That said, there is no evidence in the record to show the magnitude of that financial impact and, consequently, the significance of prejudice to the Moving Party should his request be denied. The extent of the prejudice is unknown for all parties.

23As noted by this Board in York Condominium Corporation No. 60 v Municipal Property Assessment Corporation, Region 09, 2019 CanLII 39632 (ON ARB) at para. 23:

Simple inadvertence cannot be enough to justify the exercise of discretion if such discretion is only to be exercised in a sparing way and only in extraordinary circumstances. It would render the time limit for filing an appeal meaningless and it would create a precedent that could be cited by anyone who had simply neglected to file their appeals within the statutory timelines. None of this could have been the legislature’s intent in enacting section 40.1 of the Act, and the Board has been clear in its decisions that this relief is to be granted only rarely and extraordinarily.

24We are not satisfied that it would be unreasonable, unfair or highly prejudicial to the Moving Party to deny the motion when the errors could have been identified and potentially corrected by appeals filed in the normal course set out in the Act. In these circumstances, we decline to exercise our discretion to grant the extraordinary remedy of extending time to bring appeals.

CONCLUSION

25The Moving Party’s motion to extend time for bringing appeals to correct palpable errors in the roll is dismissed. Although we are satisfied there are palpable errors in the roll for the years in question in the motion, the circumstances do not warrant exercising our discretion to extend time to bring appeals.