Brenda and John Givlin v. Municipal Property Assessment Corporation Region 09 and Municipality of Chatham-Kent, 2020 CanLII 33566

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: May 05, 2020

FILE NO.: DM 2020M18

Moving Party(ies): Brenda and John Givlin

Respondent(s): Municipal Property Assessment Corporation Region 09

Respondent(s): Municipality of Chatham-Kent

Property Location(s): 21227 and 21229 Hodovick Road

Municipality(ies): Municipality of Chatham-Kent

Roll Number(s): 3650-010-002-03015-0000 and 3650-010-002-03010-0000

Taxation Year(s): 2008 – 2016

Hearing Event No.: 729576

Legislative Authority: Rule 26 of the Assessment Review Board’s Rules of Practice and Procedure

Parties	Representative
Brenda and John Givlin	Brenda Givlin
Municipal Property Assessment Corporation	Rachel Lethbridge
Municipality of Chatham-Kent	No one appeared

REQUEST FOR: Late appeals

HEARD: March 31, 2020 in writing

ADJUDICATOR(S): Subuola Awoleri, Member

MOTION DECISION

OVERVIEW

1Brenda and John Givlin (the “Moving Parties”), owners of 21227 and 21229 Hodovick Road (the “Subject Properties”) seek the permission of the Assessment Review Board (the “Board”) to file late appeals for the 2008 to 2016 taxation years due to the appeals not being filed by the deadline as prescribed under the Assessment Act R.S.O. 1990, c. A.31 (the “Act”).

2The Subject Properties are vacant adjacent lots taxed under the residential property class. The Moving Parties submit that upon purchasing the Subject Properties in 2008, they have been paying separate property taxes on the properties. They further submit that sometime in 2017, they discovered through a real estate agent that the Subject Properties were registered as one property in the Land Registry office. In August 2019, after series of discussions with the Municipal Property Assessment Corporation (“MPAC”), the Municipality of Chatham-Kent (the “Municipality”), and the Land Registrar, MPAC issued amended property assessment notices for the Subject Properties consolidating the two vacant lots.

3The Moving Parties believe that there have been overpayments of property taxes on the Subject Properties. The Moving Parties’ affidavit indicates that the purpose of this Motion is to obtain a refund of property taxes and overpayments for the 2008 to 2016 taxation years. The Moving Parties are requesting permission to file late appeals for the Subject Properties in order to argue for the refund of property taxes, which they assert have been overpaid.

4MPAC submits that the Moving Parties’ application processed by the Board as late appeals request, should be dismissed for lack of compliance with Rule 26(b) of the Board’s Rules of Practice and Procedure (the “Rules”). MPAC further submits that the Moving Parties have not made a Request for Reconsideration (“RfR”), which in accordance with the Act, is the pre-condition for filing an appeal with the Board for properties under the residential property class after 2008.

5The Municipality did not provide any submissions in this motion.

Result

6For the following reasons, this Motion is denied.

ANALYSIS

Request for Reconsideration (RfR)

2009 to 2016 Taxation Years

7Pursuant to s. 40(3) of the Act, for properties in the residential property class, a person must first request MPAC to reconsider the assessment through a process called RfR before the taxpayer can file an appeal with the Board. This pre-condition applies to taxation years from 2009 to present.

8Section 39.1(1.1) of the Act provides the deadline to file for an RfR. It provides:

A request for reconsideration under subsection (1) must be made no later than March 31 of the taxation year in respect of which the request is made.

9The affidavit from the Moving Parties does not indicate that an RfR was made for the Subject Properties.

10Section 40(4) of the Act gives the Board authority to extend the time for filing an RfR if the request was made during the taxation year. It provides:

If, in the Board’s opinion, there are extenuating circumstances explaining why a request for reconsideration in respect of a property was not made within the time required under section 39.1 by a person who was required to do so as a precondition of appeal under subsection (3), the Board may, on an application by the person during the taxation year, extend the deadline for making a request under that section.

11The Board finds that for the Moving Parties to file late appeals for the 2009 to 2016 taxation years, the Moving Parties must have met the pre-condition of filing an RfR with MPAC. The Moving Parties did not file an RfR for the Subject Properties with MPAC and the Board does not have jurisdiction to extend the time for filing an RfR for the 2009 to 2016 taxation years, as no request to extend the time was made during the taxation years.

Late Appeal - 2008 Taxation Year

12The pre-condition to request a reconsideration of assessment applies to taxation years 2009 to present. For the 2008 taxation year, the Board will consider the late appeal request under Rule 26(b) of the Rules.

13Rule 26(b) stipulates the conditions in which the Board may permit the late filing of an appeal after the time set out in the Act. All the requirements must be satisfied before the Board can grant the request. The Moving Parties must satisfy the Board by affidavit evidence that:

1. They were entitled to receive notice;
2. They did not receive notice; and,
3. They filed the appeal within 30 days of becoming aware of the assessment.

Entitled to Receive Notice

14The Moving Parties are the owners of the Subject Properties and are entitled to receive the Property Assessment Notices (“PAN”). There is no dispute between the parties on this requirement. The Board finds that this condition is satisfied.

Did Not Receive Notice

15The Moving Parties did not provide evidence that they did not receive the 2008 PAN issued by MPAC for the Subject Properties. MPAC submits that on October 24, 2008, it issued the PAN’s for the Subject Properties. MPAC further provides a copy of the PAN in its response to the Moving Parties’ motion. The Moving Parties assert that MPAC only provided the PAN for one property and not for the second property, 21229 Hodovick Road. The Moving Parties did not state that they did not receive the PAN for the second property. The Board finds that this condition has not been met by the Moving Parties.

Filed within 30 Days of Becoming Aware of the Assessment

16Although the Moving Parties did not suggest that they did not receive the PAN for the Subject Properties for the 2008 taxation year. Assuming they did not receive it, the Board has to determine if they filed this application within 30 days of becoming aware of the assessment.

17MPAC argues that the Moving Parties’ affidavit lacks the specific date when they became aware of the assessment, therefore, the third condition is also not met, and the motion should be dismissed.

18The Moving Parties’ affidavit does not suggest that they were not aware of the assessment, rather, it provides the reason for the Motion, which is the “refund of property tax overpayments”. This indicates that the Moving Parties were aware of the assessment of the Subject Properties and have also not met the third pre-condition to file late appeals for the 2008 taxation year.

19The request to file late appeals can only be granted if the Moving Parties satisfy all three conditions as determined by the Board in Cherry Beach Sailing Clubs v. Municipal Property Assessment Corp., Region 9, [2018] O.A.R.B.D. No. 291.

20The Board finds that the Moving Parties have also not met the pre-conditions to file late appeals under Rule 26(b) for the 2008 taxation year.

CONCLUSION

21The Moving Parties are not allowed to file late appeals for the 2009 to 2016 taxation years as they have not fulfilled the pre-condition in s. 40(3) of filing an RfR.

22Furthermore, the Moving Parties cannot file late appeals for the 2008 taxation year as they have not met all the requirements under Rule 26(b).