Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: May 26, 2020

FILE NO.: RR 2020M05

Assessed Person(s): King Rose G P Inc.

Appellant(s): Metro Ontario Inc.

Respondent(s): Municipal Property Assessment Corporation Region 19

Respondent(s): City of Hamilton

Property Location(s): 1900 King Street East

Municipality(ies): City of Hamilton

Roll Number(s): 2518-040-341-06420-0000

Appeal Number(s): 3238190, 3310373 and 3364038

Taxation Year(s): 2017, 2018 and 2019

Hearing Event No.: 724388

Legislative Authority: Rules 122(b) and (c) of the Assessment Review Board’s Rules of Practice and Procedure

Parties

Representative

King Rose G P Inc.

Submissions not received

Metro Ontario Inc.

James Brook

Municipal Property Assessment Corporation

Rachel B. Lethbridge

City of Hamilton

Submissions not received

REQUEST FOR: Reinstatement of appeals 3238190, 3310373 and 3364038

HEARD: In writing

ADJUDICATOR(S): Caroline King, Vice-Chair

DECISION

OVERVIEW

1This is a request to reinstate appeals that were dismissed when no one for Metro Ontario Inc. (the “Appellant”) appeared at a settlement conference hearing event. This request was filed pursuant to Rule 122 of the Assessment Review Board’s (the “Board”) Rules of Practice and Procedure (the “Rules”). The Appellant complied with the filing requirements for a reinstatement request.

Background

2The Appellant owns a property at 1900 King Street East in the City of Hamilton (the “Subject Property”). The Appellant or its representatives appealed the assessment of the Subject Property for the 2017 taxation year. Appeals were then deemed for the 2018 and 2019 taxation years pursuant to section 40(26) of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”).

3The Board assigned a commencement date for the appeals pursuant to Rule 33. Flowing from that commencement date was a general stream schedule of events setting out steps in the proceeding, produced pursuant to Rule 34.

4In accordance with that schedule of events, the Board scheduled a settlement conference hearing event to be held on September 26, 2019 which was not attended by the Appellant or its representatives but was attended by other parties. The settlement conference hearing event was converted to a default hearing by the presiding Member and the appeals were dismissed as abandoned.

5The Appellant filed this request requesting the reinstatement of the appeals because it had no notice of the settlement conference hearing event.

6The Appellant relied on the September 30, 2019 affidavit of its representative’s senior valuator, Dayna Griffin. The affidavit said that there was no prior notice about when the settlement conference hearing event would take place. The Appellant’s senior valuator said they only became aware of the hearing event at 2:06 p.m. the same day when a representative of MPAC provided notification that the appeals had been dismissed. The affidavit said: “I have been actively working on this appeal and have no personal knowledge of why we have not received notice of the Settlement Conference.”

7MPAC relied on the January 13, 2020 affidavit of its analyst Kyle Duncan. It noted “a constant state of default brought on by the appellant’s representative” who did not file a statement of issues (an earlier required step in the schedule of events) until February 1, 2019 when it was due on October 9, 2018. It also noted that the parties (except the City of Hamilton which did not participate in the appeals or this request) “were in continual communication regarding a potential resolution between August 28, 2019 and September 23, 2019” and that no response was received regarding a settlement proposed from MPAC given on the latter date.

8In reply, the Appellant relied on the January 17, 2020 affidavit of Michael Cha, another analyst for the Appellant’s representative. He noted that “we do not receive Hearing Notices or Settlement Conference Notices by electronic format…the notices are sent to us by regular letter mail.” He also said that the Appellant’s statement of issues was filed the day after the Appellant was notified by MPAC it had not been filed on February 1, 2019, that the Appellant filed a settlement conference brief prior to the settlement conference hearing event, and that the Appellant itself did not receive notice of the settlement conference hearing event.

Issue

9The Board must determine whether the dismissed appeals should be reinstated. To answer this question, the Board must find that the facts and circumstances submitted by the Appellant fit within those contemplated by Rule 122.

a. Did the party fail to appear at a hearing event through no fault of their own per Rule 122(b)?

b. Does natural justice or procedural fairness require that the appeals be reinstated per Rule 122(c)?

Result

10The appeals are reinstated. The Appellant did not appear at the hearing event through no fault of its own. The Appellant was not reasonably able to participate in the process that led to the dismissal of the appeals and natural justice therefore requires that the appeals be reinstated.

ANALYSIS

11Rules 122(b) and (c) provide that a party to a former proceeding can seek an order to reinstate an appeal if it “failed to appear at a hearing event through no fault of their own” or if “natural justice or procedural fairness require that the appeal be reinstated.” In this case, the Board finds that the Appellant did not appear at the settlement conference through no fault of its own and that natural justice requires the reinstatement of the appeals.

Issue 1a – Did the party fail to appear at a hearing event through no fault of their own per Rule 122(b)?

12The Appellant’s position was simply that it could not have been expected to attend a hearing event it had not been notified of.

13In its submission, the Appellant noted that it receives notices of hearing by regular mail and did not change its address. It had no explanation for not receiving the notice. The Appellant’s submission was that it would be substantially prejudiced if the appeals were not reinstated which the Board does not doubt.

14MPAC argued that “the appellant … provided no evidence as to why they did not receive notice of the settlement hearing,” while also suggesting that the Appellant did not provide an up-to-date address, (which was not the case).

15MPAC also argued the Appellant should have known when the settlement conference hearing event would take place because the date was posted on the Board’s website.

16The Board notes, that section 6(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 provides that “the parties to a proceeding shall be given reasonable notice of the hearing by the tribunal.” This indicates that it is up to the tribunal to notify a party of a hearing event. In this case, despite the Board providing information on the website, and providing electronic hearing event notices, this Appellant receives such notices by regular mail. While the Board is moving towards the technological transformation of its services, and it has the right to control its own process and procedure with respect to the provision of notice (within the parameters of statutory requirements), notice of a hearing event is a critical component of being reasonably able to participate in the resolution of appeals. In this case, the fact that the Appellant was receiving notice by regular mail instead of electronically distinguishes this case from the majority of cases before the Board.

17MPAC cited two cases having no bearing on the issue before the Board, for example Municipal Property Assessment Corporation, Region 09 v Abe-Oldenburg, 2018 CanLII 80811 (ON ARB), where a party did not update their mailing address with the Board, not an issue here, and CP Reit Ontario Properties Limited v Municipal Property Assessment Corporation, Region 16, 2019 CanLII 96145 (ON ARB), relating to appeals withdrawn in error, where the issue here is dismissals.

18The single case on point cited by MPAC, Laptev v Municipal Property Assessment Corporation, Region 27, 2019 CanLII 55269 (ON ARB), in fact supported the reinstatement request because, quoting MPAC’s submission, “the appellant did not have a reason why he would not have received the notice from the Board and he had provided the Board with an updated mailing address.” The result was that the default decision was set aside and a new hearing was set.

19In this case, there was no evidence submitted which contradicted the Appellant’s sworn statement that it did not receive notice of the settlement conference hearing.

20By the time of the settlement hearing conference, the Appellant had already expended considerable resources, time and effort to have the issues raised in the appeals resolved. Upon considering the totality of the evidence, the Board finds that it is likely that the Appellant did not have notice of the September 26, 2019 settlement conference hearing event as:

a. the Appellant’s conduct throughout the appeals process supports a finding that the Appellant had an ongoing and active intent to pursue the appeals (including actively working the appeals by providing a statement of issues, and submitting a settlement conference brief);

b. MPAC’s settlement offer shortly prior to the hearing event when the appeals were dismissed, supports a finding that MPAC perceived the Appellant to have an ongoing interest in pursuing the appeals; and in addition

c. the Appellant’s conduct in immediately responding to MPAC’s post-hearing email stating that the appeals had been dismissed, is more consistent with the Appellant’s position that they didn’t get notice, than a party who did receive notice but didn’t participate in the hearing event intentionally or unintentionally.

21Rules 29 and 30 provide that a party is deemed to have received a document sent by the Board five days after it was mailed, but not “if the person for whom the document was intended establishes…other cause beyond that person’s control, the document was not received until a later date or not at all.”

22Based on the Board’s finding above, that the Appellant did not receive the notice of the settlement conference hearing event, the Appellant’s mailing address did not change, and the Appellant’s ongoing efforts to participate in the hearing process and take the steps set out in the schedule of events, the Board finds that the document was not received for reasons beyond the Appellant’s control.

23Rule 122(b) allows the Board to reinstate an appeal if “a party failed to appear at a hearing event through no fault of their own.” Here, the Board finds that the Appellant did not receive notice of the hearing event through no fault of its own.

Issue 1b – Does natural justice or procedural fairness require that the appeal be reinstated per Rule 122(c)?

24Rule 122(c) provides for reinstatement of appeals in circumstances where “natural justice or procedural fairness require that the appeal be reinstated” which is also the case here.

25The reinstatement of appeals is not an automatic process, but requires that consideration be given to the entire circumstances of the case.

26In this case, through no fault of its own, the Appellant did not get notice of a hearing event at which appeals were dismissed. The Board finds that natural justice requires that the appeals be reinstated so that the Appellant can be provided with a reasonable opportunity to participate in the resolution of the appeals.

CONCLUSION

27The Board determines the Appellant’s appeals should be reinstated because the Appellant was not reasonably able to participate in the proceeding that led to the dismissal.

ORDER

28The Board orders that appeals 3238190, 3310373 and 3364038 are reinstated and that a new settlement conference is to be scheduled.