Merivale-Gilmour Manor Ltd. v. Municipal Property Assessment Corporation Region 03, 2020 CanLII 28326

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

ISSUE DATE: April 20, 2020 FILE NO.: RD 2019M31

Assessed Person(s): Merivale-Gilmour Manor Ltd. Appellant(s): Merivale-Gilmour Manor Ltd. Respondent(s): Municipal Property Assessment Corporation Region 03 Respondent(s): City of Ottawa

Property Location(s): 1220 Merivale Road Municipality(ies): City of Ottawa Roll Number(s): 0614-084-802-17200-0000 Appeal Number(s): 3218250, 3289586 and 3348056 Taxation Year(s): 2017, 2018 and 2019 Hearing Event No.: 717766

Legislative Authority: Rule 123 of the Assessment Review Board’s Rules of Practice and Procedure, as amended

Parties	Representative
Merivale-Gilmour Manor Ltd.	Steven Charlebois-Page
MPAC	Submissions not required
City of Ottawa	Submissions not required

REQUEST FOR: A review of the Board’s Decision DM 161644A issued on August 13, 2019 HEARD: In writing ADJUDICATOR(S): Dirk VanderBent, Vice-Chair

DECISION

OVERVIEW

1On September 13, 2019, the Appellant, Merivale-Gilmour Manor Ltd. (“Merivale”), filed a written Request for Review with the Assessment Review Board (the “Board”) respecting Merivale-Gilmour Manor Ltd. v Municipal Property Assessment Corporation, Region 03, 2019 CanLII 77526 (ON ARB), an amended decision issued by the Hearing Member (“Member”) on August 13, 2019 (the “Decision”). The Decision relates to the property located at 1220 Merivale Road, Ottawa, which is classified as a multi-residential building (the “Subject Property”).

Background

2The Municipal Property Assessment Corporation (“MPAC”) conducted a general reassessment of the current value of the Subject Property pursuant to the provisions of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”). This general reassessment applies to the current assessment cycle (2017 to 2020 taxation years).

3Pursuant to s. 40 of the Act, Merivale filed an appeal in respect of the Subject Property to the 2017 taxation year, asserting that the correct current value of the Subject Property is lower than the value assessed by MPAC. Pursuant to s. 40(26) of the Act, the Appellant is deemed to have brought the same appeal in respect of the 2018 and 2019 taxation years.

4MPAC and the City of Ottawa (“Municipality”) are both statutory parties to these appeals. In preparing their responses to Merivale’s appeals, they both concluded that the correct current value of the Subject Property should be higher than MPAC’s assessed value. They each served Statements of Response, which, as required under Rule 38(7) of the Board’s Rules of Practice and Procedure (the “Rules”), indicate their position that the correct current value of the Subject Property should be higher than MPAC's assessed value. Also, MPAC had previously served a separate written notice on the other parties indicating that it was seeking a higher assessment.

5Subsequent to receiving these Statements of Response, Merivale filed a written notice with the Board indicating that it was withdrawing its appeals as of right (i.e. without requiring prior permission of the Board) pursuant to Rule 72. Both MPAC and the Municipality opposed the withdrawal, arguing that, under Rule 72(a), Merivale cannot withdraw an appeal as of right where another party has given notice of its intention to request a higher assessment.

6The Board declined to withdraw the appeals, directing, instead, that Merivale’s request be heard by a written motion pursuant to Rule 73, which led to the issuance of the Decision that is the subject of Merivale’s Request for Review. In the Decision, the Member found that Merivale cannot withdraw its appeals as of right. Furthermore, although the Board has the jurisdiction under Rule 73 to grant a request to withdraw (with or without conditions), the Member also found that Merivale’s request to withdraw should not be granted. Therefore, the Member directed that the appeal proceeding should continue.

Request for Review

7In its Request for Review, Merivale requests that the Board cancel the Decision and issue a decision granting Merivale’s request to withdraw its appeals as of right, or alternatively, that the Board should exercise its discretion to permit Merivale to withdraw its appeals. In overview, Merivale cites four grounds in support of its request, arguing that the Member made a significant error of law and/or fact:

1. in interpreting Rule 38(7) as creating a substantive right to give notice of an intention to seek a higher assessment;
2. in finding that the Respondents can prevent the Appellant's withdrawal of its appeals;
3. in finding that MPAC issued a valid notice that it was seeking a higher assessment, which, in turn, led to the finding that the Appellant cannot withdraw its appeal as of right; and
4. in finding that there is "no confusion, ambiguity or tautology" in the interpretation of Rule 38(7), this finding being contrary to the evidentiary record.

8The Board has reviewed the Request for Review and finds that the issues raised can be addressed without further submissions from the other parties to the appeal proceeding.

Result

9For the reasons that follow, the Request for Review is dismissed.

RELEVANT LEGISLATION AND RULES

10The Act:

Appeal to Assessment Review Board

40. (1) Any person, including a municipality, a school board or, in the case of land in non-municipal territory, the Minister, may appeal in writing to the Assessment Review Board,

(a) on the basis that,

(i) the current value of the person’s land or another person’s land is incorrect, …

Assessment may be open upon appeal

44. (1) Upon an appeal on any ground against an assessment, the Assessment Review Board or court, as the case may be, may reopen the whole question of the assessment so that omissions from, or errors in the assessment roll may be corrected, and the amount for which the assessment should be made, and the person or persons who should be assessed therefor may be placed upon the roll, and if necessary the assessment roll, even if returned as finally revised, may be opened so as to make it correct in accordance with the findings made on appeal.

(3) For 2009 and subsequent taxation years, in determining the value at which any land shall be assessed, the Board shall,

(a) determine the current value of the land; and

(b) have reference to the value at which similar lands in the vicinity are assessed and adjust the assessment of the land to make it equitable with that of similar lands in the vicinity if such an adjustment would result in a reduction of the assessment of the land.

11The Board’s Rules:

Notices

10. Any notices required by these Rules or an order of the Board must be given in writing, unless the Board directs otherwise.

Statement of Issues and Responses

38. Statements of issues and responses must contain:

(7) If the issue is a higher assessment than that returned by the MPAC;

(a) the basis on which a higher assessment is sought; and

(b) a list of all facts, legal grounds and documents that the party relies on in support of its position.

Special Notices

40. A party to a summary proceeding must give notice to the Board, and all other parties to a summary proceeding, within 30 days of the day set in Rule 33 as the start of a proceeding, that the party intends to raise with the Board:

(c) a change in property classification that would result in higher taxation;

(d) a higher assessment than that returned by the MPAC;

No New Issues

49. An issue can only be raised at a hearing event if it has been set out in the statements of issue and response which have been served, and filed with the Board in accordance with these Rules, unless the Board determines that there are exceptional circumstances.

Withdrawal of Appeal

72. An appellant may withdraw an appeal, with notice to the other parties to the appeal and the Board, unless:

(a) another party has given notice pursuant to these Rules of its intention to request a higher assessment or higher tax rate property class; or

(b) a hearing event has commenced.

Motion to Withdraw

73. An appellant may seek an order from the Board, by motion, to withdraw an appeal that is prohibited by Rule 72 and the Board may:

(a) grant the request to withdraw, with or without conditions; or

(b) refuse the request to withdraw and

i. proceed immediately to hear the appeal, or

ii. adjourn the proceeding.

Request for Review

120. A party may request a review of any final decision of the Board, other than a decision pursuant to Rule 122, by filing a request in writing no more than 30 days after the decision was issued, including:

(a) a copy of the decision to be reviewed;

(b) the written reasons for the decision, as set out in Rule 112;

(c) the reasons for the request, addressing the factors set out in Rule 121;

(d) notice of any appeals or applications for judicial review that have been filed in relation to the decision;

(e) proof of service on all other parties to the proceeding;

(f) the remedy or relief sought; and

(g) the fee specified by the Board.

Grounds for Review

121. A request for review will not be granted unless the Board is satisfied that:

(a) the Board acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

(b) the Board made a significant error of law or fact such that the Board would likely have reached a different decision;

(c) the Board heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result;

(d) there is new evidence that could not have reasonably been obtained earlier and would have affected the result; or

(e) any of the situations in Rule 122 exist.

Review Order

123. Upon consideration of a request for review, or on its own initiative, the Board may:

(a) dismiss the request;

(b) reinstate the appeal, with or without conditions; or

(c) after providing all parties an opportunity to make submissions,

i. confirm, vary, or cancel the decision,

ii. order a rehearing on all or part of the matter, or

iii. order a motion to decide the review.

ANALYSIS

Legal Test

12In considering whether to grant a Request for Review submitted pursuant to Rule 120, the test to be applied is whether the requester has established any of the grounds set out in Rule 121.

Overview of Merivale’s submissions

13Merivale’s arguments in support of its Request for Review focus on three substantive submissions:

1. Under Rule 72, an Appellant is required to obtain Board permission to withdraw an appeal only in Summary Proceedings, not General Proceedings. As the Appellant’s appeal proceeding is being heard by way of General Proceeding, the Appellant can withdraw its appeal as of right.
2. The Act does not allow Respondents to use the Appellant’s appeal proceeding to effectively advance their own appeals to request a higher current value for the Subject Property. If MPAC or the Municipality wanted to request a higher current value, they were required to file their own appeals.
3. MPAC does not have the legal authority to seek an increased assessment based only on a changed opinion of value (i.e. where there has been no change in the state and condition of the property). Consequently, the Board cannot exercise any jurisdiction in this appeal proceeding that MPAC did not have in the first instance.

The Board will address each submission in turn. However, the Board notes that, as these submissions are inter-related, all the arguments advanced by Merivale have been considered by the Board in making its findings respecting each individual submission.

1. Can the appellant withdraw its appeal as of right?

14Merivale’s appeals are being heard by way of General Proceeding. Rule 72(a) allows an appellant to withdraw an appeal as of right unless “another party has given notice pursuant to these Rules of its intention to request a higher assessment …”. Merivale argues that the term “notice pursuant to these Rules” refers only to “Special Notices” as provide in Rule 40. In support of this submission Merivale emphasizes that Rule 40 expressly requires that a party give notice of its intention to raise with the Board a higher assessment than that returned by MPAC. Merivale submits, however, that this requirement under Rule 40 applies only to Summary Proceeding appeals.

15In support of its submission, Merivale observes that the only other reference in the Rules to a higher assessment is Rule 38(7) which stipulates that if a party raises a higher assessment as an issue, it must include this issue in its Statement of Issues or Response. Merivale maintains that Rule 38(7) only lists the materials that must be included in a Statement of Issues or Response, and that nothing in Rule 38 is a notice provision. Therefore, Merivale asserts that the requirement under Rule 72(a) to obtain Board permission to withdraw an appeal only applies to Summary Proceeding appeals. Consequently, for a General Proceeding appeal, an appellant may withdraw its appeal as of right at any time prior to the Board’s final disposition of the appeal. For the following reasons, the Board does not accept this submission.

16In addressing Merivale’s submission, the Board first notes that Rule 72 does not expressly refer to “Special Notices” or Rule 40. Furthermore, the term “notice” is not defined in Rule 72 or elsewhere in the Rules. The only requirement in the Rules respecting the form of the notice is set out in Rule 10, which requires that the notice must be writing.

17As noted by the Board in 857529 Ontario Inc. Magna International Inc. Municipal Property Assessment Corporation, Region 15, 2019 CanLII 133074 (ON ARB), at para. 16, the purpose of notice is to provide a party with actual knowledge of a matter - it is the content of a document, not the form, that is important. Typically, an owner or other person who files a s. 40 appeal, does so on the ground that the correct current value of the property is lower that the value assessed by MPAC. An appellant can anticipate that other parties will rely on MPAC's assessed value as being correct. However, an appellant cannot anticipate whether another party will take the position that the correct current value is higher than MPAC's assessed value. Therefore, procedural fairness requires that an appellant be notified of this position. It is the communication of this information that is important, not the specific written format of the communication.

18Under the Rules, in a General Proceeding appeal, an appellant is required to serve a Statement of Issues, and responding parties are required to provide Statements of Response. The purpose of this requirement, among other things, is provide other parties with the knowledge of the issues to be raised at a hearing, so that each party may adequately prepare and present its case at the hearing. Therefore, the purpose of Rule 38 is more than just a requirement to list the materials that must be included in a Statement of Issues or Response. It provides notice of the issues to be raised at the hearing. As such, the Board does not accept Merivale’s assertion that nothing in Rule 38 is a notice provision. More particularly, Rule 38(7) expressly requires that an intention to seek a higher assessment must be included in a Statement of Issues or Response, to ensure that notice of this issue is provided to all other parties. Therefore, the Board finds that raising this issue in this written form does qualify under Rule 72 as giving “notice pursuant to these Rules.”

19In further support of this conclusion, the Board notes that, while the Special Notice under Rule 40 obviously qualifies as a notice under Rule 72(a), there is nothing in Rule 72 to suggest that this Special Notice provision is the only form of notice contemplated under this Rule. Secondly, the Rules must be interpreted in a manner harmonious with one another and consistent with the overall purposes of the Rules. Rule 40 applies only to a Summary Appeal proceeding, which is an abridged proceeding that does not require the exchange of Statements of Issues and Response. Consequently, the only way an appellant could become aware that another party intends to raise the issue of a higher assessment, is if written notice of this intention is provided to the appellant. Therefore, Rule 40 has the specific purpose of ensuring such notice is provided. In a General Appeal proceeding, as discussed above, notice is provided in the Statement of Issues or Statement of Response. Therefore, inclusion of a Special Notice provision in Rule 40 respecting General Proceeding appeals is unnecessary.

20The Board now turns to consideration of the broader purpose of the Rules as it relates to notice of higher assessment. In addition to requiring that such notice be given, and that it be given in writing, the other important function of the Rules is to specify the due dates by which such notice must be communicated. For a Summary Proceeding appeal, the notice must be provided within 30 days following the Commencement Date set for the proceeding. For a General Proceeding appeal, the notice must be provided no later than the due date set for the Statement of Issues or Statement of Response, as the case may be. This is because Rule 49 provides that no new issues may be raised after the due date set out in the Schedule of Events has expired, other than in exceptional circumstances. It is important to note, however, that for both types of proceedings, the due dates specified are final dates by which notice must be given. There is nothing in the Rules to indicate that a party cannot give written notice of an intention to seek a higher assessment prior to these due dates. In the case of a General Proceeding appeal, this means that a party may provide a written notice of an intention to seek a higher assessment before serving a Statement of Issues or Response.

21In summation, in a General Proceeding appeal, a written notice of an intention to request a higher assessment may be made at any time prior to the applicable due date set out in the Schedule of Events for serving the Statement of Issues or Response. The written notice must be included as an issue set out in the Statement of Issues or Response, but, for purposes of Rule 72, notice may also be given by way of a separate written document served prior to the applicable Schedule of Events due date. This means that, under Rule 72, an appellant may withdraw an appeal as of right only if no notice of higher assessment has been given to the appellant. Where a notice has been given, the appellant cannot withdraw its appeal as of right, and, instead, must bring a motion, pursuant to Rule 73, requesting the Board’s permission to withdraw the appeal.

22In this case, it is not disputed that both MPAC and the Municipality included the issue of higher assessment in their Statements of Response. It is also not disputed that MPAC additionally served a separate written notice of its intention to seek a higher assessment prior to serving its Statement of Response. As such, the Member correctly found that Merivale was not entitled to withdraw its appeals as of right, and correctly directed that Merivale was required to bring a motion requesting the Board’s permission to withdraw the appeals. Therefore, the next question that the Board must address is whether the Member made an error of fact or law in denying Merivale’s request to withdraw, such that the Board would likely have reached a different decision.

2. Are responding parties required to file their own appeal?

23Merivale submits that neither the Act nor the Rules provide the responding parties with a right to cross-claim or cross-appeal, and that responding parties must file their own appeal if they want to request a higher assessment.

24Merivale emphasizes that, under s. 25.1(3) of the Statutory Powers Procedure Act, the Rules made by a tribunal "shall be consistent with this Act and with the other Acts to which they relate", and that the deadlines for filing an appeal with the Board are set out under s. 40 of the Act.

25Merivale submits that an interpretation of Rule 38(7) that effectively allows parties to appeal an assessment outside of the s. 40 deadlines would be inconsistent with the Act to which the Rules relate. Therefore, Merivale maintains that the Member applied this flawed interpretation in the Decision, submitting that this is an error of law.

26Merivale argues that allowing the Respondents to issue a notice of higher assessment in their Statements of Response effectively extends the appeal period beyond that which is mandated in the Act. Merivale submits that the Respondents had the right to file an appeal and seek and increase in the assessment within the period prescribed by the Act but chose not to do so. In support of this submission, Merivale further emphasizes that the Board only grants permission to file late appeals in very limited circumstances as set out in Rule 26.

27In conclusion, Merivale asserts that, as the Respondents did not file their own appeals within the appeal period, they lost the right to appeal the assessments at issue. Merivale maintains that permitting the Respondents to leverage a procedural subtlety to effectively exercise appeal rights in their Statements of Response, would, in effect, provide them a right of appeal beyond that provided in the Act.

28In addressing these submissions, the Board first notes that Merivale correctly points out that the Board’s Rules must be consistent with the Act. Therefore, the issue the Board must address is whether the Act allows for a responding party to request a higher assessment where a person’s appeal asserts that the current value of the person’s land is incorrect.

29In addressing this issue, the Board notes that Merivale’s submission does not refer to s. 44(1) of the Act, which provides that, upon an appeal on any ground against an assessment, the Board may reopen the whole question of the assessment. Additionally, s. 44(3)(a) of the Act requires that the Board determine the correct current value of the land. Therefore, it is clear that the Board’s jurisdiction, when adjudicating an appeal under s. 40 of the Act, is not restricted to only considering whether the current value of a property is lower than the value assessed by MPAC. The Board must also consider whether the current value is the same as MPAC's assessed value or higher. For this reason, the Board does not accept Merivale’s submission that a responding party who maintains that the correct current value should be higher, can only advance this claim by filing its own appeal. It follows, therefore, that the Board also does not accept Merivale’s submission that the Board’s Rules are inconsistent with the Board’s jurisdiction under the Act.

3. Does MPAC have the legal authority to request an increased assessment where there has been no change in the state and condition of the Subject Property?

30Merivale submits that MPAC does not have the legal authority to seek an increased assessment based only on a changed opinion of value and, consequently, the Board cannot exercise any jurisdiction in this appeal proceeding that MPAC did not have in the first instance. In support of this submission, Merivale cites a decision of the Ontario Divisional Court in Toronto (City) v Municipal Property Assessment Corp, [2013] OJ No. 4425, 2013 ONSC 6137, 315 OAC 279, 14 MPLR (5th) 183, 2013 CarswellOnt 13617 ("Toronto (City)") at para. 64 where the Court held:

Accordingly, I find that that the ARB has no independent power to alter the current value on appeal. Its jurisdiction is strictly appellate and it has no jurisdiction beyond that vested in the initial decision making body, in this case MPAC. Since MPAC has no jurisdiction to amend the current value under s.33(3) or 34((1)(b)(i) in the absence of a physical change to the property, the same is true for the ARB.

31The Board notes that, as stated in para. 64 of this decision, the issue addressed by the Court relates to the Board’s jurisdiction when adjudicating an appeal of MPAC's decision to amend the current value of a property under s. 33 or s. 34 of the Act. However, in this case, Merivale’s appeals challenge MPAC's general reassessment of the Subject Property as of the valuation date specified in s. 19.2 of the Act. Therefore, the decision in Toronto (City) does not apply in the circumstances of this case. For this reason, the Board does not accept Merivale’s submission.

CONCLUSION

32As the Member’s conclusion in the Decision is consistent with the above analysis and findings, the Board finds that Merivale has not established that the Member made a significant error of law or fact such that the Board would likely have reached a different decision. For this reason, Merivale’s Request for Review is dismissed.

ORDER

33The Request for Review is dismissed.