Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: April 22, 2020

FILE NO.: DM 2020M17

Moving Party(ies): Municipal Property Assessment Corporation Region 15

Respondent(s): Peel Condominium Corporation No. 451 and Golf Links Canada Inc.

Respondent(s): The Corporation of the City of Brampton

Property Location(s): 13-17 Kenview Boulevard

Municipality(ies): City of Brampton

Roll Number(s): 2110-150-107-13650-0000

Taxation Year(s): 1995 to 2011

Hearing Event No.: 726782

Legislative Authority: Section 40.1(b) of the Assessment Act, R.S.O. 1990, c. A.31

Parties	Counsel/Representative*
Municipal Property Assessment Corporation	Calvin Ho*
Peel Condominium Corporation No. 451 and Golf Links Canada Inc.	Submissions not received
The Corporation of the City of Brampton	Submissions not received

REQUEST FOR: Late appeal(s)

HEARD: January 15, 2020 in writing

ADJUDICATOR(S): Jean-Paul Pilon, Member

MOTION DECISION

OVERVIEW

1This motion alleging palpable errors in the assessment roll for the 1995 to 2011 taxation years was filed by the Municipal Property Assessment Corporation (“MPAC”) on behalf of The Corporation of the City of Brampton (the “Municipality”), Peel Condominium Corporation No. 451 and Golf Links Canada Inc. It concerns a 14-acre parcel of land, roughly half of which was subdivided into industrial condominiums and the other half used as a golf course. It is said in the motion that the result of the palpable errors was double taxation of the condominium units.

2In the motion, the parties, through MPAC, request an extension of time for bringing appeals and a direction that the assessment corporation (MPAC), be the applicant pursuant to s. 40.1(b) of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”) because it appears that there are palpable errors in the assessment roll. As noted, the taxation years at issue in the motion are 1995 to 2011.

3There was an indication in one of the two affidavits filed in support of the motion that MPAC did not consent to the relief requested. That appears, however, to no longer be the case with MPAC filing the motion on behalf of both the Municipality and the owner.

RESULT

4For the reasons that follow, this motion is denied. While the Assessment Review Board (the “Board”) finds that there are palpable errors in the roll in this case, it declines to exercise its authority to create appeals so that they may be corrected.

ANALYSIS

Background

5The entirety of the property at issue in this motion (the “Subject Property”) has two parts. The western part is currently occupied by industrial condominiums, and the eastern part is a golf course leased to Golf Links Canada Inc. Prior to the development of the western part of the Subject Property, the entire Subject Property had its own assessment roll number.

The Previous Motion

6The Subject Property is immediately south of land that was at issue in another motion brought by MPAC at around the same time. That decision, not yet reported, shows file number DM 2020M05. The Subject Property was developed in a similar way and at the same time as the land to the north by the same developer.

7As with the land in that preceding motion, the western part of the Subject Property was developed into industrial condominiums (operated by a different condominium corporation) and the eastern part is occupied by the same golf course with the same lessee. The evidence before the Board in this motion is almost identical to that relied upon in the other motion because both parcels had the same issues which were dealt with by the Municipality at the same time.

8As a result, the Board’s disposition in this motion is the same as it was in the previous one in that the motion is denied.

This Motion

9The motion record explains that in 1985, the eastern part of the Subject Property was leased for the development of a golf course. The lessor retained the right to develop the western part of the Subject Property, which eventually became 49 industrial condominiums now owned by Peel Condominium Corporation No. 451. The golf course is owned in common by the industrial condominium owners, yet between 1995 and 2012 the golf course was double assessed: once through the old, parent roll number, and once through the roll numbers assigned to individual condominium units.

10The motion record indicates that the Municipality advised MPAC of the errors in 2002 but that MPAC did not fix them until 2013 by deleting the roll number and correcting double assessments for the 2012 and 2013 taxation years. This motion seeks to create appeals so that the errors for the 1995 to 2011 taxation years can be corrected on grounds that the errors amount to palpable errors.

11The only evidence before the Board in the motion are two affidavits from Yvonne Kwiecien, the Municipality’s Manager of Taxation and Assessment. One affidavit was sworn on January 9, 2019 and a supplementary affidavit was sworn on August 1, 2019 (described as the first and second affidavits respectively).

12The first affidavit exhibits an email from Ms. Kwiecien to MPAC from August, 2011 which she describes as being “about Brampton’s attempts dating back to the early 2000’s to have MPAC correct the errors.” In fact, the text of that email referred to correspondence on the subject to MPAC dating from 1995. The first affidavit also makes reference to other correspondence through the years from 2002 which went unanswered until 2012.

13The first affidavit additionally addresses the issue of prejudice. It says the Municipality levied taxes on the Subject Property and remitted the upper-tier and education portions, showing penalties and interest for non-payment in its financial statements. The first affidavit goes on to say that the tax debt prejudices the owner of the Subject Property but that there is no prejudice to MPAC.

14The second affidavit provides an explanation as to “why the City did not use the section 40 Assessment Act appeal route to address the errors on the roll.”

15The first reason given was that “the City expected that its abundance of communications to MPAC over multiple years regarding the errors would engage MPAC to carry out its statutory mandate and correct the errors.”

16The second reason given was that “as a small department within the City of Brampton we do not routinely appeal assessment roll errors as that would be an inefficient use of taxpayer resources, but rather communicate to MPAC as the assessing authority about its errors.”

17The third reason “flows from the City’s adopted policy in respect of assessment appeals” which “limits the circumstances where City staff may launch appeals. None of the palpable errors on this property fit unto those limits on City staff authority to appeal.”

18Finally, the second affidavit notes that “MPAC created these condominiums for 1991 and 1992 and did not delete the roll numbers therefore created these duplicate assessment (sic) effective 1991 and 1992 respectively.”

Issues for the Motion

19The first question to be determined is whether there are palpable errors in the roll. If there are palpable errors in the roll, the next question to be determined is whether the Board should exercise its discretion to correct the errors.

Issue 1 - Palpable Errors

20In Municipal Property Assessment Corporation Region No. 03 v. Ottawa (City), 2019 CanLII 101175 (ON ARB), the Board noted at para. 29 that section 40.1 of the Act is the only part of the Act which is not subject to a limitation period. It “is an extraordinary remedy to be used sparingly, or the balance of the Act will be undermined,” and the relief requested is only to be granted “in the clearest of circumstances.”

21At paras. 30 and 31 of that decision, the Board reviewed some of the more compelling indicators in its jurisprudence that there might be palpable errors in the roll which include: if an error is truly inadvertent or unintentional, if it is plain, obvious or easily perceived, if it is of conspicuous magnitude and easy to understand.

22The Board finds these errors to be palpable errors. It is clear that they were inadvertent and unintentional at the outset, although it is arguable whether they remained so after they were discovered many years ago. However, the remaining tests of being plain and obvious and easy to understand, where the simple error was that the parent roll number was not deleted as it should have been, are plainly evident. Furthermore, the errors are easily perceived and easy to understand, where the error was simply that the golf course should not have been assessed twice.

Issue – 2 Discretion

Submissions

23Four paragraphs in the motion record address the Board’s discretion. Three of those four paragraphs address prejudice, one of the factors the Board considers in determining whether to exercise its discretion.

24Those three paragraphs note that the owner of the Subject Property faces significant prejudice as does the Municipality “due to automatic tax levies and interest that were applied to the property.” This is despite the further indication that the Municipality “has waived any prejudice it suffers from reopening the assessment roll for the years in question.”

25The fourth paragraph of the motion record addressing discretion indicates that the Municipality “relied on MPAC to correct the error after it notified MPAC in 2002” and that it “elected to rely on MPAC rather than filing its own s. 40 appeals or s. 40.1 motions on the Subject Property between 2002 and 2018.”

The Test to be Met

26The Board’s decision in Piggott v Municipal Property Assessment Corporation, Region 28, 2019 CanLII 109527 (ON ARB) at para. 31 states that the Board should only exercise its discretion to correct palpable errors if “it would (be) unreasonable, unfair and highly prejudicial to enforce the statutory filing deadlines in light of the palpable error.”

Unreasonable and Unfair

27The first question to be determined then is whether it would be unreasonable and unfair not to create appeals in these specific circumstances.

28On this part of the test, the Board adopts its reasoning in a similar request from MPAC in Municipal Property Assessment Corporation v. 388210 Ontario Limited, 2020 CanLII 5708 (ON ARB) (the “Recreation Centre Decision”), issued on January 22, 2020.

29That case, also involving property in Brampton, was similar in that it involved the double assessment of a recreation centre and an associated business. Even though the Board found in that case that there was no palpable error in the roll, it provided reasons as to why the Board would not have exercised its discretion had it been determined that there were palpable errors in the roll.

30Mismanagement was a reason given in the Recreation Centre Decision to explain why no party filed appeals or alleged palpable errors in the roll when they were discovered in 2006. The Municipality made the same allegations of prejudice as it did here. However, the Board determined at para. 34 of that decision as it does in this case that the “Municipality itself was to blame for having placed policy limitations on its staff that would have prevented it from commencing process at the Board.”

31That decision went on to cite the first in this series of four motions filed by the Municipality alleging palpable errors (where this is the fourth, the Recreation Centre Decision was the second and the motion referred to above as the Previous Motion involving the golf course was the third), Municipal Property Assessment Corporation Region 15 v. Brampton (Corporation of the City), 2020 CanLII 1382 (ON ARB) (the “Cemetery Decision”). The Cemetery Decision was summarized at para. 35 of the Recreation Centre Decision as involving “a cemetery taxed as vacant residential land for years when it should have been exempt from taxation, which also led to arrears, penalties and interest.”

32The Recreation Centre Decision went on a para. 35 to address the Municipality’s decisions, reasonableness and fairness as follows:

The Board determined at para. 24 of (the Cemetery Decision) that “the Municipality essentially made its decisions – to rely on MPAC to correct the errors instead of filing appeals, in the allocation of its resources and in the placement of limitations of its staff – at its peril.” That decision also cited Wellington (County) and Municipal Property Assessment Corp., Region 22, 2018 CarswellOnt 6018 where municipal parties to appeals had information at hand to file appeals but did not. The Board found in that case that “it is not unfair to leave the assessment roll as it is when a party fails to file appeals in a timely way due to their own negligence.

33The Board adopts the same reasoning here because the same circumstances are cited for not filing appeals.

34The Board therefore finds that it would be neither unreasonable nor unfair for it to decline to exercise its discretion to create appeals in these circumstances.

Prejudice

35The allegation in the Recreation Centre Decision was that the owner had been diligent in contacting the Municipality and MPAC and then relied on MPAC to resolve the issue. The Board went on to say that it was surprising that none of the parties had done anything over the course of years to correct the errors in the roll.

36In this case, the motion record similarly indicates that the Municipality “relied on MPAC to correct the error after it notified MPAC in 2002.” It goes on to say that the Municipality “elected to rely on MPAC rather than filing its own s. 40 appeals on the Subject Property between 2002 and 2018.” Ms. Kwiecien’s first affidavit makes reference to “attempts dating back to the early 2000’s to have MPAC correct the errors” and it is as surprising as it was in the circumstances of the Recreation Centre Decision that nothing was done before now.

37The Board adopts the same reasoning as it did in the Recreation Centre Decision, quoting the reasoning at para. 53 of Canadian National Railway v Municipal Property Assessment Corporation, Region 19, 2019 CanLII 114732 (ON ARB):

…prejudice is not the Board’s only concern when deciding whether to exercise its discretion in these cases. On this point the Board again references the Richmond and York decisions quoted above where simple inadvertence or carelessness is not sufficient justification to exercise the extraordinary remedy requested. There must be more, because the Board has consistently determined that correcting palpable errors is a rare and extraordinary remedy to be exercised sparingly. Otherwise, the time limits in the Act would be meaningless, and that could not have been the intention of the legislature in enacting section 40.1 of the Act.

38The facts in this case lack that additional justification for the Board to exercise its discretion to create appeals. It therefore declines to exercise its discretion to create appeals to correct the palpable errors in the roll.

CONCLUSION

39The motion to create appeals to correct palpable errors in the roll is denied.