Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: March 30, 2020

FILE NO.: DM 2020M12

Moving Party(ies): 1223953 Ontario Limited

Respondent(s): Municipal Property Assessment Corporation, Region 14

Respondent(s): City of Richmond Hill

Property Location(s): 83 Dunlop Street

Municipality(ies): City of Richmond Hill

Roll Number(s): 1938-020-010-46000-0000

Taxation Year(s): 2017, 2018 and 2019

Hearing Event No.: 728784

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

Parties	Representative
1223953 Ontario Limited	Kimberly van Vliet
Municipal Property Assessment Corporation	Carrie Carone
City of Richmond Hill	No one appeared

REQUEST FOR: Late appeals

HEARD: February 4, 2020 in writing

ADJUDICATOR(S): Subuola Awoleri, Member

MOTION DECISION

OVERVIEW

1Kimberly van Vliet, on behalf of 1223953 Ontario Limited (the “Company” and the “Moving Party”), owner of 83 Dunlop Street (the “Subject Property”) filed a motion seeking permission of the Assessment Review Board (the “Board”) to file a late appeal for the 2017 to 2019 taxation years as the Moving Party missed the deadlines for filing the appeal as prescribed under the Assessment Act R.S.O. 1990, c. A.31 (the “Act”).

2The Moving Party presented the sworn affidavit of Homeyra Yamotahari, the owner of the Company, which provides reasons why the appeal was not filed by the prescribed deadline.

3MPAC takes no position in this motion, however, it provided a response and the affidavit of Sabrina Vizzacchero to assist the Board in making a decision in this motion. The City of Richmond Hill did not provide any submissions in this motion.

RESULT

4For the following reasons, this motion is granted.

ANALYSIS

Late Appeal

5In accordance with s. 33 of the Act, MPAC made an omitted assessment on the Subject Property. Accordingly, on May 8, 2019, as provided in s. 35 of the Act, it issued a property assessment change notice (“PACN”) to the Moving Party for the 2017 to 2019 taxation years, by mailing it to the Subject Property. Pursuant to s. 40(8) of the Act, the last day for filing an appeal for taxation years after 2016 is 120 days after the issuance date on the notice. The deadline to file an appeal on the PACN was September 5, 2019. The Moving Party did not file an appeal with the Board on or before this date.

6In this motion, although MPAC does not take a position on the request made by the Moving Party, the Board must determine if the Moving Party meets the requirements of Rule 26(b) of the Board’s Rules of Practice and Procedure (the “Rules”) for this motion to be granted.

7Rule 26(b) stipulates the conditions in which the Board may permit the late filing of an appeal after the time set out in the Act. The Board must be satisfied that the Moving Party:

(a) was entitled to receive notice;

(b) did not receive notice; and

(c) filed the appeal within 30 days of becoming aware of the assessment.

Entitled to Receive Notice

8The Moving Party is the owner of the Subject Property and is entitled to receive this notice. Nothing in the motion materials filed suggests otherwise, therefore the Board finds that this condition is satisfied.

Did not Receive Notice

9Ms. Vizzacchero states in her affidavit sworn January 15, 2020, that the PACN was sent to the mailing address of the Subject Property. However, Mr. Yamotahari states that it was not received. MPAC does not dispute this. Based on the evidence submitted, the Board finds that this condition is satisfied.

Filed within 30 Days of Becoming “Aware” of the Assessment

10The Board finds that the Moving Party became aware of the PACN on October 9, 2019, when it received the municipal tax bill and not November 4, 2019, when the actual notice was picked up by Mr. Yamotahari from MPAC’s Richmond Hill office.

11In Solar Ship Inc. v Municipal Property Assessment Corp., Region 20, [2019] O.A.R.B.D. No. 214 (“Solar Ship”), the Board determined that Solar Ship’s motion to file a late appeal should be denied since its application was not filed in a timely way. The Board determined that Solar Ship became aware of the assessment and classification changes when it received supplementary tax bills from the municipality.

12Specifically, the Board determined at paragraph 17 that:

Knowing the value of the assessment or the nature of the classification makes a person aware of it. This is consistent with the existing jurisprudence of this Board. In Marsh v Municipal Property Assessment Corporation., Region 09, 2018 CanLII 89425 (ON ARB), at paragraph 12, the Board held that the awareness requirement in 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."

13Mr. Yamotahari’s affidavit does not specify the date in which the Moving Party received the municipal tax bill. MPAC confirmed with the Moving Party that the municipal tax bill was received on or about October 9, 2019.

14As determined in Solar Ship, the awareness can be imputed from the date it received the municipal tax invoices, which the Board finds in this case was on or about October 9, 2019.

15Based on the date of awareness, the deadline to file an application for a late appeal with the Board was therefore November 8, 2019.

16The Moving Party sent a letter dated November 7, 2019, requesting to file a late appeal. The affidavit of Mr. Yamotahari sworn November 8, 2019 was attached to this letter.

17Rule 26 requires that the application can only be made by way of affidavit evidence. This request was made on November 8, 2019, which is the last day to file the late appeal request with the Board. The Board finds that this condition is also satisfied.

Findings

18As determined in Cherry Beach Sailing Clubs v. Municipal Property Assessment Corp., Region 9, [2018] O.A.R.B.D. No. 291, the request to file a late appeal can only be granted if the Moving Party meets all the three conditions. The Board determines that all three conditions are met by the Moving Party.

19Notwithstanding that the Moving Party has met all three conditions outlined in Rule 26(b), the wording of Rule 26, indicates that the Board can exercise its discretion in making this determination. The Board determined in Sabl Corp. v. Municipal Property Assessment Corp., Region 9, [2018] O.A.R.B.D. No. 94 at paragraph 16 that:

It may be appropriate to decline to accept late appeals if too much time has passed, or there is some bad faith on the part of the applicant.

There is no indication of these factors in this application.

CONCLUSION

20The Board orders that the late appeals be received pursuant to Rule 26(b). The Board shall communicate with the parties on the appropriate commencement date for the appeals.