Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: April 16, 2020 FILE NO.: DM 2020M15

Moving Party(s): Fifteen Prince Arthur Corporation Respondent(s): Municipal Property Assessment Corporation Region 9 Respondent(s): City of Toronto

Property Location(s): 15 Prince Arthur Avenue Municipality(ies): City of Toronto Roll Number(s): 1904-052-080-01600-0000 Taxation Year(s): 2017-2019 Hearing Event No.: 729290 Legislative Authority: Rule 26 of the Assessment Review Board’s Rules of Practice and Procedure

Parties	Representative
Fifteen Prince Arthur Corporation	Monica Peters
Municipal Property Assessment Corporation	Jaime Shevchuk
City of Toronto	No one appeared

REQUEST FOR: Late appeal(s) HEARD: March 9, 2020 in writing ADJUDICATOR(S): Carly Stringer, Member

MOTION DECISION

OVERVIEW

1The Moving Party, Fifteen Prince Arthur Corporation, has brought this motion to file a late appeal pursuant to Rule 26(b) of the Assessment Review Board’s Rules of Practice and Procedure (the “Rules”). The Municipal Property Assessment Corporation (“MPAC”) does not take a position on the motion. The Board has not received submissions from the City of Toronto.

2For the reasons outlined below, the Board does not accept the appeal pursuant to Rule 26(b), but will grant the appellant an extension of time in which to file the appeal pursuant to Rule 17 of the Rules.

Background

3The Moving Party is a property owner of 15 Prince Arthur Avenue in Toronto (the “Property”). The Property is a small office building rented to several tenants, and acts as a satellite office for the controlling officer and director of the Moving Party, who resides in Florida.

4On May 8, 2019, MPAC issued a Property Assessment Change Notice (“Notice”) pursuant to s. 33 of the Assessment Act to BW International Inc. at 15 Arthur Avenue, Toronto, M5R 1B2. This Notice identified the updated value of the Property as $8,368,000.00 as of January 1, 2016, as well as an adjustment to the property class from Commercial Taxable: Vacant Land to Commercial Taxable effective January 1, 2017. The Notice also identified an appeal filing deadline of September 5, 2019.

No Receipt of Notice

5All mail pertaining to the Property is retrieved by the Moving Party’s bookkeeper, who attends the Property once or twice per month. It is uncontested that the bookkeeper did not receive or retrieve the Notice, nor did the Moving Party retrieve or receive the Notice. It is not clear why. Regardless, the Moving Party was unaware of the Notice.

6On or about July 23, 2019, the bookkeeper attended the Property and retrieved an envelope from the City of Toronto that contained six Supplementary/ Omitted Tax Bills for 2017-2019 (“tax bills”).

7The bookkeeper contacted the Moving Party and advised of the tax bills. Apparently, both parties believed the tax bills were in error.

8The bookkeeper did not provide the Moving Party with a copy of the tax bills. The Moving Party instructed the bookkeeper to forward the tax bills to its lawyer in Toronto, with a request to the lawyer to look into the issue.

Attempts to Follow Up

9On or around August 13, 2019, the Moving Party followed up with its lawyer’s office. It was advised the lawyer was absent from the office for “personal reasons”. The Moving Party assumed this was a short absence due to illness, but found out in September 2019 that the lawyer had taken leave to care for a seriously ill family member.

10In addition, the controlling officer and director of the Moving Party was preparing to undergo his own medical procedure in early September 2019.

11On or about September 13, 2019, the Moving Party contacted MPAC advising it wanted to appeal the property tax. MPAC responded on September 18, 2019, confirming an MPAC representative would review the enquiry and respond. The Moving Party and MPAC had a call on or about September 26, 2019, wherein MPAC provided information respecting the assessment. The Moving Party was advised on this call how to access the Notice and was advised to pursue the matter with the Board.

12The Moving Party made a request to file a late appeal on October 18, 2019.

Issues for the Motion

13The Moving Party brings this motion pursuant to Rule 26(b) of the Board’s Rules, which permits the Board to accept a late appeal. The primary issue on this motion is therefore whether the Moving Party has satisfied the Board it should accept this late appeal pursuant to Rule 26(b).

14The Board may also consider extending any timeline prescribed by the Rules, in accordance with Rule 17 of the Board’s Rules. Therefore, the secondary issue on this motion is whether the Board should alter the timeline to afford the Moving Party with additional time to bring the appeal.

ANALYSIS

Issue 1 - Has the Moving Party satisfied the Board it meets the requirements of Rule 26(b)?

15In Cherry Beach Sailing Clubs v Municipal Property Assessment Corporation, Region 09, 2018 CanLII 107727 (ON ARB) 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.

16The Moving Party is the registered owner of the Property, and therefore has satisfied the Board they are a person entitled to receive a notice of assessment. I find the first part of the test is satisfied, on the evidence before me.

17The Moving Party has provided evidence it did not receive the Notice issued May 8, 2019. This evidence is not contested by MPAC. The second part of the test is satisfied, on the evidence before me.

18The Moving Party’s bookkeeper retrieved the tax bills on July 23, 2019 and made the Moving Party aware of them. The tax bills showed roughly $360,000.00 owing in taxes, and clearly state that the amounts are “…based on a supplementary/omit assessment roll provided by the Municipal Property Assessment Corporation (MPAC) in the year 2019. MPAC issues supplementary/omit assessments when a property’s assessment changes due to a change in tax class, new construction, or improvements”.

19Although the evidence establishes that the Moving Party did not receive a copy of the tax bills from its bookkeeper, it is unclear why the Moving Party did not request a copy of these bills, or why the bookkeeper did not identify the clear explanation stated on the tax bills.

20Becoming aware of an assessment does not require receipt of the actual notice of assessment and can be imputed from information in municipal tax invoices: Marsh v Municipal Property Assessment Corporation, Region 09, 2018 CanLII 89425 (ON ARB) at para. 12. The information in the Moving Party’s tax bills was sufficient to bring the assessment to the Moving Party’s attention. I find the Moving Party was aware of the assessment in or around late July 2019.

21The Moving Party brought a request for late appeal on October 18, 2019. This exceeds 30 days from becoming aware of the assessment. Therefore, the third part of the test is not satisfied, on the evidence before me.

22Overall, the Moving Party has not satisfied the Board that it meets the three requirements of Rule 26(b).

Issue 2 - Should the Board grant the Moving Party additional time to bring the appeal?

23The Board will also consider Rule 17, which provides the Board with discretion to alter any time period set out in the Rules.

24The relevant considerations in altering time pursuant to Rule 17 are principles of fairness, lack of prejudice to the other parties, and the need for certainty in final decisions: 1983992 Ontario Inc. v Municipal Property Assessment Corporation, Region 03, 2019 CanLII 77528 (ON ARB) at para. 20.

25I am satisfied that fairness would weigh towards granting an extension of time in the circumstances. The Moving Party provided a satisfactory explanation for its failure to bring an appeal before September 5, 2019. Although the Board found the Moving Party was aware of the assessment in late July 2019 and could not satisfy the strict parameters of Rule 26(b), the Board is satisfied that the Moving Party acted reasonably in the circumstances. The Moving Party sent materials to its legal counsel, and reasonably believed its lawyer would take steps on its behalf. The Moving Party was not aware of his lawyer’s tragic personal circumstances that would cause a delay. When the Moving Party became aware, he promptly took steps on his own to move the matter forward. The controlling officer and director of the Moving Party was also going through his own health issues during the relevant time, and contacted MPAC very shortly after his surgery on September 3, 2019. The Moving Party brought the request for a late appeal to the Board within 30 days of his discussion with MPAC. There is no evidence from MPAC or the City of Toronto with respect to fairness. In the circumstances, fairness weighs in the Moving Party’s favour.

26Neither MPAC nor the City of Toronto have presented any evidence with respect to prejudice. On the other hand, there is evidence of prejudice to the Moving Party of the significant cost of not being afforded the opportunity to challenge the assessment and change in class. In the circumstances, prejudice to the Moving Party weighs towards granting an extension of time.

27Neither MPAC nor the City of Toronto have presented evidence with respect to finality. Without clear evidence on finality, I am not prepared to find that finality would weigh against granting an extension of time when the other two factors weigh towards it.

28Therefore, the Board grants an extension of time in which to file the appeal.

CONCLUSION

29The Board grants an extension of time pursuant to Rule 17, and gives the Moving Party 30 days from the date this decision is issued to file its appeal.