Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: May 1, 2020 FILE NO.: RR 2019M08A AMENDED DECISION ISSUED ON: May 08, 2020

Assessed Person(s): 840 Yonge Street Holdings Inc, 1 Yorkville Inc., 846 Yonge Street Holdings Inc. Appellant(s): City of Toronto Respondent(s): Municipal Property Assessment Corporation Region 9 Respondent(s): 840 Yonge Street Holdings Inc, 1 Yorkville Inc., 846 Yonge Street Holdings Inc.

Property Location(s): See Schedule A Municipality(ies): City of Toronto Roll Number(s): See Schedule A Appeal Number(s): See Schedule A Taxation Year(s): 2014, 2015 and 2016

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

Parties	Counsel
840 Yonge Street Holdings Inc, 1 Yorkville Inc., 846 Yonge Street Holdings Inc.	Alon Eizenman
City of Toronto	Angus Mackay
MPAC	No one appeared

REQUEST FOR: Reinstatement of appeal number(s): See Schedule A HEARD: September 30, 2019 in writing ADJUDICATOR(S): Dirk VanderBent, Vice-Chair

AMENDED DECISION

In accordance with Rule 114 of the Assessment Review Board’s Rules of Practice and Procedure, as amended May 2019, related to the correction of minor errors and in accordance with Rule 21.1 of the Statutory Powers and Procedure Act regarding the correction of errors, this Amended Decision is issued to correct error(s) in the Decision regarding the appeal number on page 10, Schedule A. The amendment has been underlined for ease of reference. There are no other changes in this Amended Decision.

OVERVIEW

1In 2014, the City of Toronto (the “City”), pursuant to s. 40 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”), filed appeals with the Assessment Review Board (the “Board”) regarding the properties included in Schedule A, in respect of the 2014 taxation year. The ground for the City’s appeals is that correct current value for these properties is higher than the value assessed by the Municipal Property Assessment Corporation (“MPAC”). As these appeals were not finally disposed of before March 31, 2017, there are also deemed appeals for the 2015 and 2016 taxation years.

2Although the parties had begun some of the preliminary work required to prepare for the main hearing of the appeals, the appeal proceedings were still on-going before the Board when, on March 27, 2019, the City communicated with the Board stating that it withdrew the appeals. In response to this communication, the Board issued a notice to the parties on April 5, 2019 indicating that the appeals were withdrawn.

3On May 6, 2019, the property owners, 840 Yonge Street Holdings Inc, 1 Yorkville Inc. and 846 Yonge Street Holdings Inc. (“Property Owners”), who are respondents to the City’s appeals, submitted a Request to Reinstate these appeals.

Background

Applicable Rules and Withdrawal of Appeals

4The adjudication of these appeals was first governed by a previous version of the Board’s Rules of Practice and Procedure effective January 4, 2016 (“Former Rules”). The Board issued a new version of the rules effective April 1, 2017 (“Rules” or “Current Rules”) which introduced different requirements regarding the prehearing procedures to be completed before an appeal proceeds to a hearing. Therefore, the adjudication of the City’s appeals has been governed by the Current Rules since April 1, 2017.

5Under the Current Rules, Rule 72 provides that an appellant can only withdraw an appeal without prior permission from the Board (i.e. withdraw as of right), where none of the responding parties have served a notice of intention to request a higher assessment. Although worded slightly differently, Former Rule 67, in substance, makes the same provision.

6On September 14, 2015, MPAC, which is also a respondent to the City’s appeals, served a Response to Statement of Issues which included a notice to request a higher assessment. In overview, the Property Owners argue that MPAC’s notice remains in effect, even though it was served prior to the implementation of the Current Rules. They submit, therefore, that, under Rule 72, the City cannot withdraw its appeals as of right. The City disagrees, maintaining that the notice provided under the Former Rules is inapplicable to the appeal proceedings which are now governed by the Current Rules. MPAC did not provide a response to the Request to Reinstate.

Result

7For the reasons that follow, the Board concludes that the Request to Reinstate should be granted, subject to the provision that the City may, within 14 days from the issuance date of this Decision, bring a motion pursuant to Rule 73 of the Current Rules requesting leave to withdraw the appeals.

Relevant Rules of Practice and Procedure

8The Former Rules:

WITHDRAWAL OF APPEALS

67. Withdrawal of Appeal

An appellant may, by notice of withdrawal to the Board and the other parties, withdraw the appeal, as follows:

a) in the case of an appeal under the Assessment Act where another party has given notice of its intention to request a higher assessment and/or higher tax rate property class with leave of the Board;

b) in all other cases, including when an applicant has filed an appeal, as of right until a hearing has commenced. Once a hearing has commenced an appeal cannot be withdrawn without leave of the Board.

9The Current Rules:

Special Notices

40. A party to a summary proceeding must give notice to the Board, and all other parties to a summary proceeding, within 30 days of the day set in Rule 33 as the start of a proceeding, that the party intends to raise with the Board:

(a) a change in property classification that would result in higher taxation;

(b) a higher assessment than that returned by the MPAC;

Withdrawal of Appeal

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.

Reinstatement by Request for Review

122. Notwithstanding Rule 120, a party to a former proceeding may seek an order from the Board to reinstate an appeal by filing an affidavit with the Board, copied to all parties, no more than 30 days after the appeal was dismissed or withdrawn by the Board setting out that:

(a) the appeal was withdrawn, removed or dismissed in error;

(b) a party failed to appear at a hearing event through no fault of their own; or

(c) natural justice or procedural fairness require that the appeal be reinstated.

Review Order

123. Upon consideration of a request for review, or on its own initiative, the Board may:

(a) dismiss the request;

(b) reinstate the appeal, with or without conditions; or

(c) after providing all parties an opportunity to make submissions,

i. confirm, vary, or cancel the decision,

ii. order a rehearing on all or part of the matter, or

iii. order a motion to decide the review.

10The Board notes that minor amendments have been made to the Current Rules, effective May 1, 2017, but none of these amendments relate to the Rules applicable to the Board’s determination of this Request for Reinstatement.

ANALYSIS

11The City’s appeals are being heard by way of General Proceeding, which, among other things, requires that the parties exchange pleadings (Statements of Issues, Statements of Response, and Reply). To understand the issue raised in the Request for Reinstatement, it is necessary to understand the nature of the change introduced under the Current Rules to the Board’s process for conducting the pre-hearing exchange of pleadings.

Differences between Former and Current Rules

12Under the Former Rules, due dates for exchange of pleadings were set by individual procedural orders. Under the Current Rules, this system has been replaced by a regime where the Board sets a specific Commencement Date on which the parties are required to begin the pre-hearing exchange of pleadings. Specific due dates for each of the specific steps to be completed are set out in an associated Schedule of Events.

13Because the City’s appeals were not resolved prior to April 1, 2017, these appeal proceedings became subject to the Current Rules. Accordingly, a Commencement Date and Schedule of Events were assigned for each of these appeals, effectively replacing the due dates for exchange of pleadings and disclosure required in any procedural order previously issued under the Former Rules.

14The City argues that “it is prejudicial to the City for the Property Owner to rely on Rule 72, when MPAC's notice of higher assessment was served under the (inapplicable) old Rules.” The City emphasizes that different Commencement Dates have been set for each of the properties under appeal, and that the City has withdrawn its appeals prior to all but one of these Commencement Dates. The City submits, therefore, that the appeals have not commenced, and have now been withdrawn.

15The Property Owners state that they continued to provide their own responses and production of relevant documents in the appeal proceeding, including up to February 5, 2019. They maintain that this included significant productions and requests sought by both MPAC and the City. They also state that, at that time, the City continued to indicate reliance on its position that the current value should be higher, and that MPAC continued to indicate that it did not seek to change its response which was served in 2015. The Property Owners further state that they provided a valuation study to MPAC and the City which supports MPAC's assessed value, and they maintain that, upon receipt of this analysis, the City withdrew its appeals. The Property Owners, submit, therefore, that the notice provided by MPAC on September 14, 2015, qualifies a “notice pursuant to these Rules” as stated in Rule 72 of the Current Rules. Consequently, they maintain that the City cannot withdraw its appeals as of right.

What is the effect of the transition from the Former to Current Rules?

16In light of the above submissions, the main issue in dispute is the effect of the transition of the adjudication of these appeals from the Former Rules to the Current Rules. More specifically, the question is whether a party must repeat its service of a notice or a pleading, which was previously served under the Former Rules. In other words, are such previous actions effectively nullified by the introduction of the Current Rules?

17In answering this question, the Board first notes that the Current Rules contain no specific transition provisions, and that the City’s appeals continued as on-going appeal proceedings before the Board – they did not become new appeal proceedings. The Current Rules, therefore, do not expressly negate or nullify any steps taken under the Former Rules.

18More importantly, the purpose of setting a Commencement Date and associated Schedule of Events, is to ensure that the exchange of pleadings and disclosure is completed on a timely basis. The provisions in the Rules implementing the Commencement Date and Schedule of Events do not affect the substantive content of the pleadings or required notices. Furthermore, the Schedule of Events only sets the final due date to serve a Statement of Issues, Statement of Response, or Reply. There is nothing in the Schedule of the Events or the Current Rules that limits a party’s right to serve any of these documents earlier than the specified due date. Consequently, a party, in this case MPAC, is entitled to rely on the Statement of Response or notice that it served prior to the due date set out in the Schedule of Events.

19Based on the above analysis, it becomes clear that transition provisions were unnecessary. A party may rely on pleadings and notices served under the Former Rules, if the party chooses to do so. Therefore, the Board does not accept the City’s submission that MPAC's Statement of Response and notice of intent to seek a higher assessment have been nullified by the introduction of the Current Rules.

Is there a requirement for a Special Notice under Rule 40?

20Apart from the above issue, the City also argues that, under Rule 72(a), “notice pursuant to these Rules of its intention to request a higher assessment” refers only to Special Notices provided under Rule 40, which applies only to Summary Proceeding appeals, not General Proceeding appeals. For the following reasons, the Board does not accept this submission.

21The Board notes that this issue was addressed in the Board’s Review Decision in Merivale-Gilmour Manor Ltd. v Municipal Property Assessment Corporation, Region 03, 2020 CanLII 28326 (ON ARB) (“MGM Review Decision”), where the Board found that the required notice under Rule 72 is not restricted to only Special Notices given under Rule 40. More specifically, the Board found that, under Rule 38, the inclusion of a request for higher assessment in a Statement of Issues or Response, qualifies as notice under Rule 72(a) (see paras. 17, 18 and 19). The Board summarized its findings in para. 21, stating:

[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.

The Board adopts the analysis and findings set out in MGM Review Decision.

CONCLUSION

22The Board finds that the parties may rely on pleadings and notices served under the Former Rules. MPAC's Statement of Response and notice of intent to seek a higher assessment are not nullified by the introduction of the Current Rules. In a general appeal proceeding, service of a Special Notice under Rule 40 is not required if a Statement of Issues or Response raises the issue of a higher assessment.

23Based on the above analysis and findings, the Board concludes that the appeals were withdrawn in error and should be reinstated in accordance with the conditions set out in the Order below.

ORDER

24The Property Owners’ Request to Reinstate the appeals is granted, subject to the provision that the City may, within 14 days from the issuance date of this Decision, bring a motion pursuant to Rule 73 of the Rules requesting leave to withdraw the appeals.

“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

SCHEDULE A

Property Location	Roll Number	Appeal Numbers
848 Yonge Street	1904-052-020-00900-0000	3030150, 3076226, 3147432
846 Yonge Street	1904-052-020-01000-0000	3030151, 3076227, 3147433
844 Yonge Street	1904-052-020-01100-0000	3030152, 3074288, 3146335
842 Yonge Street	1904-052-020-01200-0000	3030176, 3075687, 3147102
840 Yonge Street	1904-052-020-01300-0000	3030177, 3076848, 3150030
838 Yonge Street	1904-052-020-01400-0000	3030179, 3076850, 3149085
836 Yonge Street	1904-052-020-01500-0000	3030181, 3076225, 3148468