Loblaw Properties Limited v. Municipal Property Assessment Corporation Region 09, 2020 CanLII 30601

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: April 22, 2020

FILE NO.: DM 2020M07

Assessed Person(s): CP Reit Ontario Properties Limited

Appellant(s): Loblaw Properties Limited

Respondent(s): Municipal Property Assessment Corporation Region 09

Respondent(s): City of Toronto

Property Location(s): 985 Woodbine Avenue

Municipality(ies): City of Toronto

Roll Number(s): 1904-095-470-01700-0000

Appeal Number(s): 3243657, 3329115 and 3350562

Hearing Event No.: 724580

Taxation Year(s): 2017, 2018 and 2019

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

Parties	Counsel
Loblaw Properties Limited	Steven Longo, Jamie G. Walker
Municipal Property Assessment Corporation	Karey Lunau, Calvin Ho
City of Toronto	No one appeared

HEARD: October 07, 2019 in writing

ADJUDICATOR: Dirk VanderBent, Vice-Chair

MOTION DECISION

OVERVIEW

1Loblaw Properties Limited. (“Loblaw”) is the owner of a property located at 985 Woodbine Avenue, Toronto (the “Subject Property”), which is comprised of a small grocery store and parking lot.

2Pursuant to the provisions of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”), the assessment of land shall be based on its current value. The Act also provides that, for the 2017 to 2020 taxation years, the Municipal Property Assessment Corporation (“MPAC”) is required to assess this value as of the valuation date, January 1, 2016. (“current value”).

3Loblaw (the “Appellant”) has filed an appeal for the 2017 taxation year, which now includes deemed appeals for 2018 and 2019, with the Assessment Review Board (the “Board”), pursuant to s. 40 of the Act. These appeals are being heard by way of general proceeding.

4On August 20, 2019, Loblaw filed a letter with the Board indicating that it wished to withdraw its appeals. In an email to the Board sent on August 21, 2019, MPAC objected to the withdrawal of the appeals. On August 22, 2019, the Board advised the parties that it had already administratively processed the withdrawal request.

5MPAC has filed a motion, pursuant to Rule 122 of the Board’s Rules of Practice and Procedure amended May 2019 (“Rules”) requesting that the Board re-instate the appeals. MPAC asserts that the Board erred in proceeding to process Loblaw’s withdrawal request. MPAC relies on Rule 72 of the Rules which states:

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.

6In support of its motion, MPAC states that it served its Statement of Response on the other parties on July 4, 2019. Paragraph 13 of MPAC's Statement of Response states:

13. MPAC takes the position that the Property should be valued on the basis of its development potential, not its current use value. The returned value of $9,708,000 is too low. The correct current value of the Property is $17,108,000 …

7Therefore, MPAC maintains that is has raised the issue that the correct current value of the Subject Property is higher than the assessed value returned by MPAC on the assessment roll, and that this constitutes “notice pursuant to these Rules of its intention to request a higher assessment.” Accordingly, it is MPAC's position that Loblaw cannot withdraw its appeals ‘as of right’. Instead Loblaw must bring a motion, pursuant to Rule 73, asking that the Board grant its request to withdraw the appeals.

8Loblaw disagrees. For several reasons, Loblaw maintains that Rule 72 does not apply because the statement made in MPAC's Statement of Response does not constitute a notice of its intention to request a higher assessment. Therefore, it is Loblaw’s position that it can withdraw its appeals ‘as of right”, and, consequently, its appeals should not be re-instated.

9The City of Toronto took no position on this motion.

RESULT

10MPAC’s request to re-instate the appeals is granted. If Loblaw wishes to bring a motion requesting the Board’s permission to withdraw its appeals, it must, within 30 days of the date of issuance of this Order, submit a request to the Board to schedule a motion made pursuant to Rule 73.

ANALYSIS

11As described above, MPAC's Statement of Response includes an issue of a higher assessment than that returned by MPAC, as required pursuant to Rule 38(7) of the Rules which states:

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.

Issues for the Motion Hearing

12There are three questions which the Board must address in this motion:

1. Does the inclusion of the issue of a higher assessment in MPAC's Statement of Response qualify under Rule 72(a) as a “notice pursuant to these Rules of its intention to request a higher assessment?”
2. If so, does MPAC's Statement of Response, in fact, raise an issue of higher assessment, or does it only indicate that MPAC may raise this issue at some future point in time?
3. In determining whether notice has been given pursuant to Rule 72(a), should the Board consider if the notice provided in MPAC's Statement of Response is adequate notice, more specifically, does it comply with the standard set out in Rule 38(7)(a) and (b)?

Issue 1 - Does the inclusion of the issue of a higher assessment in MPAC's Statement of Response qualify under Rule 72(a) as a “notice pursuant to these Rules of its intention to request a higher assessment?”

Submissions

13MPAC relies on the Board’s decision in Merivale-Gilmour Manor Ltd. v Municipal Property Assessment Corporation, Region 03, 2019 CanLII 77526 (ON ARB) (“MGM”), when the issue of a higher assessment is raised in a Statement of Response, the Board concluded that “Once it is raised as an issue, the Board’s authority to grant or deny the request to withdraw an appeal in Rules 72 and 73 comes into play.”

14Loblaw acknowledges the MGM decision, but emphasizes that a Board decision in one case is not binding in another. Loblaw further notes that the MGM decision was under review by the Board [as of the date if filed its submissions].

15Loblaw asserts that the ordinary meaning of the phrase “intention” in Rule 72 ought to refer to a design, resolve or determination with which a person acts or does a certain thing. In Loblaw’s view, simply stating that the correct current value is $17,108,000 falls well below this standard required to establish notice of intention to request a higher assessment.

16In the alternative, Loblaw submits that the requirement for formal notice in Rule 72(a), only relates specifically to the Special Notice required under Rule 40, which applies to appeals heard by way of summary proceeding. As Loblaw’s appeals are being heard by way of general proceeding, Loblaw maintains that Rule 72 is, therefore, inapplicable. Loblaw argues that the notice requirement in Rule 72 ought to require a formal Notice of Intent to Seek a Higher Assessment as opposed to a cursory reference to a “correct current value” as set out in paragraphs 13 and 16 of MPAC’s Statement of Response.

Findings on Issue 1

17The Board’s review of the MGM decision has now been released, Merivale-Gilmour Manor Ltd. v Municipal Property Assessment Corporation, Region 03, 2020 CanLII 28326 (ON ARB) (“MGM Review Decision”), which upholds the Member’s findings. In overview, in the MGM Review Decision, the Board found that:

• 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.
• 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. 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.
• There is nothing in Rule 72 to suggest that the Special Notice provision in Rule 40, which applies to summary proceedings, is the only form of notice contemplated under Rule 72.
• Consequently, raising the issue of higher assessment in a Statement of Response does qualify under Rule 72 as giving “notice pursuant to these Rules.”

18The Board stated, at paragraph 21:

In 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.

19The Board finds that the analyses and findings in the MGM decision and the MGM Review Decision apply to submissions made in this motion, and for this reason the Board finds that MPAC's Statement of Response does qualify under Rule 72(a) as a “notice pursuant to these Rules of its intention to request a higher assessment.”

Issue 2 - Does MPAC's Statement of Response raise an issue of higher assessment, or does it only indicate that MPAC may raise this issue at some future point in time?

Submissions

20Loblaw submits that MPAC's Statement of Response fails to provide notice of the higher assessment. Loblaw maintains that MPAC, in its Statement of Response, has not provided actual notice because it is not clear and obvious that an increase is in fact being sought. In support of this submission, Loblaw refers to paragraph 26 of MPAC's Statement of Response (“MPAC's Reservation Clause”):

26. MPAC reserves the right to alter its position after the production and discovery phases of these proceedings are complete or in response to an amended SOI. MPAC further reserves the right to request an increase in the assessed value, if deemed appropriate after production and discoveries in these proceedings.

Loblaw maintains that this paragraph expressly states that MPAC has not yet sought an increase and may or may not seek an increase in the future following production and discoveries.

21Loblaw argues that it is illogical and inherently contradictory for MPAC to take the position that its Statement of Response sought an increase while at the same time reserving its right to seek an increase.

22In its motion, MPAC submits that its Statement of Response provides notice of its intention to request a higher assessment. However, MPAC did not otherwise provide specific submissions in reply to Loblaw’s assertion that its Statement of Response does not include the issue of a notice of the higher assessment.

Findings on Issue 2

23In addressing Loblaw’s submissions, it is important to note the distinction between an “issue” and a “position”, as the question the Board must address is whether paragraph 26 of MPAC's Statement of Response relates to the issue of a higher assessment as opposed to MPAC's position on this issue.

24In this regard, the Board notes that Rule 38 stipulates the information that a Statement of Issue or Response must contain. For each of the specific issues referenced in Rule 38, the mandatory information to be provided includes “a list of all facts, legal grounds and documents that the party relies on in support of its position” [emphasis added]. Rule 49 provides that an issue “can only be raised at a hearing event if it has been set out in the statements of issues and response …” Rule 49 makes no reference to party’s position in respect of an issue.

25For purposes of applying Rule 72, paragraph 16 of MPAC’s Statement of Response clearly raises the issue of higher assessment, as MPAC unequivocally states that the correct current value of the Subject Property is higher than the assessed value returned by MPAC on the assessment roll. As noted in the MGM Review Decision, it is not the form of the notice that is important, it is the content. For this reason, the Board does not accept Loblaw’s submission that MPAC's Statement of Response does not provide a notice of an intention to request a higher assessment simply because MPAC did not employ this specific wording in describing this issue.

26The remaining question, therefore, is whether MPAC's Reservation Clause in some way indicates that MPAC is not raising this issue. In this regard, the Board notes that the first sentence of the Reservation Clause indicates that MPAC reserves the right to alter its position. It does not state that MPAC reserves the right to change an issue raised in its Statement of Response or to raise a new issue. The second sentence of MPAC’s Reservation Clause must be interpreted in this context. It states that MPAC “reserves the right to request an increase in the assessed value …” This can clearly be interpreted as a notice to the other parties that MPAC will maintain its position on this issue if MPAC deems it “appropriate after production and discoveries in these proceedings.” As such, this is a notice that MPAC may change its position on the issue of a higher assessment. It does not indicate that MPAC only intends to raise the issue of higher assessment, for the first time, once production and discoveries have been completed.

27Based on this analysis, the Board does not accept Loblaw’s contention that MPAC's Statement of Response does not include the issue of a notice of the higher assessment.

Issue 3 - In determining whether notice has been given pursuant to Rule 72(a), should the Board consider whether the notice provided in MPAC's Statement of Response complies with the standard set out in Rule 38(7)(a) and (b)?

28Loblaw also argues that MPAC has not adequately set out the basis for its intention to seek a higher assessment in the manner required under Rule 38(7). In this regard, Loblaw provides several submissions in support of its assertion that MPAC's Statement of Response does not provide any meaningful support or explanation for why the Subject Property’s returned value constitutes a “significant error.” Loblaw argues that MPAC’s proposed correct current value appears to be nothing more than a change in opinion as to current value, which Loblaw further asserts is in contravention of section 32(1.1) of the Act which states:

Despite the delivery of any notice provided for under this Act, for 2009 and subsequent taxation years, the assessment corporation may, at any time during the taxation year, correct any error in the assessment or classification of a property that has resulted from incorrect factual information about the property, and not from a change in opinion as to current value,… [emphasis added]

29In its motion, MPAC submits that its Statement of Response provides notice of its intention to request a higher assessment. However, MPAC did not otherwise provide specific submissions in reply to Loblaw’s assertion that its Statement of Response does not adequately set out the basis for its intention to seek a higher assessment.

Findings on Issue 3

30For the following reasons, the Board finds that it is unnecessary to address Loblaw’s submissions on this issue at this time.

31This motion addresses a request made by MPAC pursuant to Rule 122 for a ‘Reinstatement by Request for Review’. Therefore, the only issue before the Board is to determine if Loblaw, as the Appellant, may withdraw its appeals ‘as of right’ pursuant to Rule 72(a). In making this determination, the Board is only required to decide if MPAC has given notice of its intention to seek a higher assessment. It does not require that the Board make a determination on the merits whether MPAC, as the party giving notice, has adequately substantiated its position on this issue.

32In making this finding, there is no prejudice to Loblaw, as Loblaw remains entitled under Rule 73 to bring a motion for an Order granting its request to withdraw the appeals. In the arguing this motion, Loblaw may advance its submissions regarding the sufficiency of MPAC's pleadings in its Statement of Response.

CONCLUSION

33Based on the above analysis and findings, the Board grants MPAC’s request to re-instate the appeals.

ORDER

34The appeals are re-instated.

35If Loblaw wishes to bring a motion requesting the Board’s permission to withdraw its appeals, it must, within 30 days of the date of issuance of this Order, submit a request to the Board to schedule a motion made pursuant to Rule 73.

“Dirk VanderBent”

DIRK VANDERBENT VICE-CHAIR Assessment Review Board

A constituent tribunal of Tribunals Ontario - Environment and Land Division Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248