1331430 Ontario Inc. v. Hudson’s Bay Company, 2020 CanLII 26215

Assessment Review Board / Commission de révision de l’évaluation foncière

ISSUE DATE: April 1, 2020 FILE NO.: RR 2020M01

Assessed Person(s): Omers Realty Holdings, ARI YKD GP Inc. Appellant(s): 1331430 Ontario Inc. Respondent(s): Hudson’s Bay Company Respondent(s): Municipal Property Assessment Corporation Region 09 Respondent(s): City of Toronto

Property Location(s): 3401 Dufferin Street Municipality(ies): City of Toronto Roll Number(s): 1908-043-560-03800-0000 Appeal Number(s): 3148517 Taxation Year(s): 2016

Hearing Event: 724702 Legislative Authority: Rule 122 of the Assessment Review Board’s Rules of Practice and Procedure

Parties	Counsel
1331430 Ontario Inc.	Tara Piurko
Municipal Property Assessment Corporation	Carl Davis
City of Toronto	Angus MacKay

REQUEST(S) FOR: Reinstatement of Appeal No. 3148517 and Extension of Time HEARD: October 10, 2019 in writing ADJUDICATOR(S): Maureen Helt, Acting Associate Chair

DECISION

OVERVIEW

11331430 Ontario Inc., (the “Appellant”) is requesting that the Assessment Review Board (“Board”) reinstate Appeal No. 3148517 pursuant to Rule 122 of the Board’s Rules of Practice and Procedure (the “Rules”). The request for reinstatement was filed with the Board on June 26, 2019, outside the thirty-day allowable time frame as set out in the Rules. The Board directed the Appellant to file a motion to request an extension to the filing timeline.

2The Appellant and the Respondents filed submissions. In its motion, the Appellant requests that Appeal No. 3148517 be reinstated pursuant to Rule 122 and Rule 17 of the Board’s Rules. In support of its motion, the Appellant filed a supporting affidavit and book of authorities, submitting that it should be granted an extension to the 30-day time frame in light of the specific circumstances in this case; and that the motion for an extension of time and the request for reinstatement of the appeal is on consent.

RESULT

3The Appellant’s request for an extension of time to file and the Appellant’s request for reinstatement are granted for the reasons set out below.

Background

4Appeal No. 3148517 is a s. 40 appeal under the Assessment Act, R.S.O. 1990, c. A. 31 (“Act”) for the 2016 taxation year. The Respondents, the City of Toronto (the “City”) and the Hudson’s Bay Company (“HBC”), also had appeals open for the 2016 taxation year for the same property (the “Subject Property”). The City withdrew its appeal in December 2016 and HBC withdrew its appeal in January 2017. The Appellant withdrew its appeal, inclusive of the 2016 taxation year on October 5, 2018. The Board acted in accordance with the request and processed the withdrawal. The Board’s Acknowledgement of Withdrawal Decision is dated October 19, 2018.

5On October 30, 2018, the Municipal Property Assessment Corporation (“MPAC”) issued a supplemental assessment of the Subject Property changing the property classification of the property effective October 21, 2017, a date within the 2016 current value assessment (“CVA”) cycle.

6Notice of issuance of the supplemental assessment was not received by the Appellant until December 6, 2018, well beyond the thirty-day time frame as provided for in Rule 122.

7The City, MPAC and HBC have all advised they consent to the request to an extension of time and the request to reinstate Appeal No. 3148517 for the sole purpose of changing the property classification. The Appellant’s motion for an extension of time to file its request for reinstatement is considered below as part of the timeliness of the filing of the request.

Request for Reinstatement after Withdrawal

8This reinstatement request is governed by Rule 122(a), which states:

122 Notwithstanding Rule 120, a party to a former proceeding may seek an order from the Board to reinstate an appeal by filing an affidavit with the Board, copied to all parties, no more than 30 days after the appeal was dismissed or withdrawn by the Board setting out that:

(a) the appeal was withdrawn, removed or dismissed in error;

9There are three essential components to Rule 122(a). First, it is only open to parties to the appeal that was withdrawn. Second, the order must be sought within 30 days after the appeal was dismissed or withdrawn. This was not done. Finally, the Board must be satisfied, based on the evidence in the Appellant’s affidavit, that the appeal was withdrawn in error. All three conditions must be met before an appeal will be reinstated under Rule 122(a).

Parties to the Appeal

10As noted above, the Appellant was a party to the appeal. The parties to an appeal are set out in s. 40(11) of the Act and include “all persons whose assessment is the subject of the appeal.” Additionally, s. 40(28) makes any reference to an Appellant a reference to the owner, if the ownership changes before the appeal is disposed of. The Owner was a party to the appeal under both provisions. The first component of Rule 122 is made out.

Timeliness of Request

11The Appellant filed its request for reinstatement well beyond the 30-day time frame as set out in Rule 122. The reason for the timeline is to ensure finality of decisions. However, finality is not the only factor to consider. The evidence before me is that the Appellant was not aware of the supplementary assessment until after the 30-day timeline. Rule 122(a) gives the Board discretion to extend the time to request a review for a “good reason”.

12In 347428 Ontario Ltd. v. Municipal Property Assessment Corp., Region No. 27, [2004] O.A.R.B.D. No. 113 (at paragraph 19), the Board stated that a good reason “should be determined by the principles of fairness, lack of prejudice to the other parties and the need for certainty in final decisions”. I accept that those are relevant considerations in applying the extension of time in Rule 122(a).

13The affidavit of Tristan Bock, Senior Director at Altus Group Tax Consulting Paralegal Professional Corporation, sworn September 12, 2019, provides evidence that the Appellant was not aware of the impending issuance of the supplementary assessment when the appeal was withdrawn, and then did not receive notice of it until after the expiration of the 30-day time frame, namely early December 2018.

14The Appellant’s evidence, as set out at paragraph 22 of the affidavit, is that when supplemental assessments and associated tax bills are issued, both a valuation analysis and tax analysis are required. The tax and valuation analysis for the Subject Property were completed in January 2019. Throughout February 2019 and on May 29, 2019, the Appellant was in constant communication with the City, MPAC and HBC in an effort to obtain full consent to a reopening of the subject appeal. Once consent was obtained, on May 29, 2019, the Appellant wrote to the Board requesting a reopening of the appeal.

15While I recognize that the Appellant could have filed its request for reinstatement as soon as it became aware of the supplemental assessment, as good faith efforts were made to obtain the parties’ consent throughout January to May 2019, I find that that the principles of fairness favour a reopening of the appeal. The reopening of the appeal will not result in any additional tax implications for the 2016 taxation year and the unintended increase as a result of the s. 48.4 phase-in provision will be avoided.

Appeal Withdrawn in Error

16The final requirement in Rule 122(a) is that the appeal was withdrawn in error. The Rule is generally aimed at clerical errors, but other errors are contemplated and reviewed on a case by case basis. In this case, the Appellant was unaware of the impending issuance of the supplemental assessment. Had the Appellant known, the evidence is that the appeal would not have been withdrawn.

17The error in this case, relates to a subsequent event occurring after the withdrawal.

18I am satisfied that in this particular case, this kind of error is a reasonable error and as all of the parties are in agreement, the appeal should be reinstated.

ORDER

19The Board grants the extension of time to request reinstatement and hereby reinstates Appeal No. 3148517. The appeal will be assigned a commencement date by the Registrar.