City of Brampton v. Municipal Property Assessment Corporation Region 15, 2020 CanLII 30604

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

ISSUE DATE: April 21, 2020

FILE NO.: DM 164042

Moving Party(ies): City of Brampton

Respondent(s): Municipal Property Assessment Corporation Region 15

Respondent(s): Ontario Holdings Ltd.

Property Location(s): 100 Ironside Drive

Municipality(ies): City of Brampton

Roll Number(s): 2110-060-001-09301-0000

Appeal Number(s): 3222799, 3307974 and 3358267

Taxation Year(s): 2017, 2018 and 2019

Hearing Event No.: 728783

Legislative Authority: Rule 61 of the Assessment Review Board’s Rules of Practice and Procedure

Parties	Representative
City of Brampton	James Lee
Municipal Property Assessment Corporation	John Scherer
Ontario Holdings Ltd.	Colin Francis

HEARD: January 30, 2020 in writing

ADJUDICATOR(S): Dirk VanderBent, Vice-Chair

MOTION DECISION

OVERVIEW

1Ontario Holdings Ltd. (the “Appellant”) is the owner of a property located at 100 Ironside Drive, City of Brampton. On December 30, 2016, the Appellant filed an appeal for the 2017 taxation year with the Assessment Review Board (the “Board”), pursuant to s. 40 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”), which now includes deemed appeals for 2018 and 2019.

2The City of Brampton (the “City”) and the Municipal Property Assessment Corporation (“MPAC”) are statutory parties to this appeal proceeding. The Appellant and MPAC have negotiated a resolution of the appeals, which the City opposes.

3The City has filed a Motion requesting that the Board not accept the settlement negotiated by the other parties, and, instead, proceed to schedule a settlement conference.

Background

4These appeals are being heard by way of general proceeding. The following facts are not in dispute:

1. On December 30, 2016, the Appellant filed its 2017 taxation year appeal with the Board.
2. On February 28, 2017, the City served a special notice seeking a higher assessment, pursuant to Rule 30 of the Board’s Rules of Practice and Procedure that were in force at that time (“Former Rules”).
3. On April 1, 2017, a new version of the Board’s Rules of Practice and Procedure came into force (“Current Rules”), which removed the requirement to serve a special notice to seek a higher assessment for appeals heard by way of general proceeding. Instead, Rule 38(7) provides that a responding party must include the following in its Statement of Issues or Response:

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.

a. In addition, Rule 39 of the Current Rules provides:

Deemed Consent 39. A party that does not serve a statement of response in a general proceeding on or before the day set out in the schedule of events is deemed not to oppose any future settlement in that proceeding.

4. In accordance with the Current Rules, the Board assigned a Schedule of Events which provides a due date for the Appellant to serve its Statement of Issues and for the responding parties to file their Statement of Response. In this case, the Appellant served its Statement of Issues on February 1, 2019. MPAC served its Statement of Response on both the Appellant and the City. The City has not served a Statement of Response.
5. MPAC and the Appellant successfully negotiated a resolution of the appeal, which was confirmed by the Appellant by email dated November 21, 2009. Just prior to this date, on November 19, 2019, MPAC's representative, John Scherer, emailed the City stating his position that the City “has not correctly filed their increase notice” and that:

…the City could attempt to get the ARB to allow them to serve a late Response with a proper notice of increase. The appellant and MPAC would be able to support or oppose this request.

By response email sent by the City on the same date, the City stated:

By entering into a settlement with the appellant without taking into consideration the City of Brampton position, MPAC is not only putting the City of Brampton in a prejudiced position but also not observing the Rules at the time.

6. The City has not submitted a request to extend the due date under the Schedule of Events for filing its Statement of Response.
7. MPAC submitted a request to the Board to accept Minutes of Settlement that have been executed by both MPAC and the Appellant. In response, the City has instituted this Motion requesting that the Board not accept the Minutes of Settlement and, instead, schedule a Settlement Conference for this appeal proceeding.

5The Board directed that the Motion be heard in writing. All parties provided submissions.

Issue

6The issue in this Motion is whether the special notice to seek a higher assessment served by the City under Rule 30 of the Board’s Former Rules overrides the application of Rules 38(7) and 39 of the Board’s Current Rules.

RESULT

7The Motion is denied.

PRELIMINARY MATTER

8As a preliminary matter, the Board notes that the City did not file affidavit evidence with its Notice of Motion but did file an affidavit as its Reply. The Appellant submits that submitting such evidence in reply is not permitted, and, therefore, the Board should not accept it. In addressing this issue, the Board notes the City is permitted to file affidavit evidence to respond to new issues or evidence raised in the responses made by the Appellant and MPAC. As the Board finds that the affidavit filed by the City provides only basic factual information that is not in dispute, and raises no new issues, the affidavit is accepted.

ANALYSIS

Submissions

9The City submits that MPAC was fully aware that the City is not in agreement with the Settlement, that the City would not be signing the Minutes of Settlement, and that the City relies on the special notice it served in accordance with Rule 30 of the Former Rules.

10Both MPAC and the Appellant provided detailed submissions in response to the City’s Motion. However, as these submissions are consistent with the Board’s findings below, it is unnecessary to recite them in detail here.

Findings

11Regarding the special notice seeking a higher assessment served by the City in accordance with Rule 30 of the Former Rules, the Board finds that the service of the notice was valid, as the Former Rules were in force at the time the notice was served. However, the appeal proceeding is governed by the Current Rules which came into force on April 1, 2017. There are no transitional provisions in the Current Rules to indicate that appeals filed prior to April 1, 2017 would be governed by the Former Rules, or that service of a special notice under the Former Rules would displace the application of Rules 38(7) and 39 of the Current Rules. Nor is there any indication that a special notice served under the Former Rules could or would constitute service of a Statement of Response as required under Rule 38(7). Therefore, the Board finds that Rules 38(7) and 39 of the Current Rules apply to this appeal proceeding.

12In reaching this conclusion, the Board considered whether, in the circumstance of this case, it was reasonable for the City to conclude that it was not required to file a Statement of Response in accordance with Rule 38(7). In this regard, the Board notes that it is not disputed that all parties were aware that a Commencement Date and Schedule of Events were assigned by the Board for this appeal proceeding in accordance with the Current Rules. The Former Rules did not include these requirements. Therefore, the Board finds that there is no basis on which the Board can conclude that the City could reasonably have misapprehended that service of its special notice would satisfy or displace the requirement to file a Statement of Response that complies with the requirement of Rule 38(7).

13Furthermore, the Board notes that MPAC emailed the City on November 18, 2019, specifically stating that the City was required to file a Statement of Response, and fairly pointed out that the City could attempt to obtain an extension of the filing due date. The Board notes that the City has chosen not to do so.

14In further support of the above finding, both MPAC and the Appellant have emphasized that Rule 38(7) requires that the City set out the basis of its claim for a higher assessment, as well as setting out a list of all facts, legal grounds and documents on which the City relies in support of its position. They both assert that the City has not met either of these requirements. The City has not disputed this assertion. Therefore, if the Board were to grant the City’s Motion, the result would be that the City would proceed to advance its request for a higher assessment in this appeal proceeding, without having provided the other parties with any of the necessary disclosure or legal grounds in support of its position. The purpose of the Schedule of Events and the requirements set out in Rule 38(7), is to ensure that this important pre-hearing preparation is completed on a timely basis prior to the Settlement Conference.

CONCLUSION

15For the above reasons, the Board finds that Rules 38 and 39 apply to this appeal proceeding. Therefore, as the City has not served a Statement of Response, the City is deemed not to oppose the settlement negotiated by MPAC and the Appellant. Consequently, the City’s Motion should be dismissed.

ORDER

16The City’s Motion is dismissed.

17The Board directs that the Board’s Registrar may proceed to accept and process the Minutes of Settlement submitted by MPAC and the Appellant in accordance with the Board’s Current Rules.