Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: June 05, 2020 FILE NO.: RD 20-016 Assessed Person(s): James Nicoletti, Patricia Nicoletti Appellant(s): James Nicoletti, Patricia Nicoletti Respondent(s): Municipal Property Assessment Corporation Region 09 Respondent(s): City of Toronto Property Location(s): 106 Chestnut Hills Park Municipality(ies): City of Toronto Roll Number(s): 1919-022-160-02800-0000 Appeal Number(s): 3376355 Taxation Year(s): 2019 Hearing Event No.: 728286 Legislative Authority: Rule 120 of the Assessment Review Board’s Rules of Practice and Procedure

Parties	Representative
James Nicoletti, Patricia Nicoletti	Robert Baranowski
Municipal Property Assessment Corporation	Submissions not requested
City of Toronto	Submissions not requested

REQUEST FOR: A review of the Board’s Decision DM 163542 issued on January 24, 2020 HEARD: In writing ADJUDICATOR(S): Maureen Helt, Acting Associate Chair

DECISION

OVERVIEW

1James Nicoletti and Patricia Nicoletti (the "Appellants") are the owners of 106 Chestnut Hills Park in the City of Toronto (the "Subject Property"). The Appellants appealed the assessment of the Subject Property for the 2019 taxation year to the Assessment Review Board (the “Board”) and resolved the appeal on consent.

2The City of Toronto was a statutory party to the appeal but did not participate in the negotiations leading to that settlement, nor did it participate in the motion raised at the hearing.

3During the hearing the Appellants brought a motion arguing that the parties' settlement for the 2019 taxation year could be applied to the 2017 and 2018 taxation years, even though no appeals were filed for those two earlier years. After hearing submissions from the parties on this issue, the Hearing Member denied the motion. The denial of the motion is set out in the Board’s Decision, DM 163542, dated January 24, 2020 (the “Decision”).

Issues on Request for Review

4The Appellants seek a review of the Decision submitting that the Hearing Member committed errors of fact and law, which, had they not occurred, would likely have led the Hearing Member to reach a different conclusion. The Appellants also submit that the Hearing Member breached the principles of procedural fairness and natural justice, which had a material impact on the proceedings and its outcome.

5The Appellants request that the Board cancel the Decision and issue an order to apply the agreed current value of the Subject Property to the 2017 and 2018 taxation years, or alternatively, to order a re-hearing of the Appellants’ motion.

Result

6For the reasons that follow, the Board dismisses the request for review.

ANALYSIS

7In considering whether to grant a request for review made under the Board’s Rules of Practice and Procedure (the “Rules”), the test to be applied is whether the requester has established any of the grounds set out in Rule 121. In this case the Appellants submit that the Hearing Member made a significant error of law or fact such that the Board would likely have reached a different decision.

Grounds for Review

121. A request for review will not be granted unless the Board is satisfied that:

(a) the Board acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

(b) the Board made a significant error of law or fact such that the Board would likely have reached a different decision;

(c) the Board heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result;

(d) there is new evidence that could not have reasonably been obtained earlier and would have affected the result; or

(e) any of the situations in Rule 122 exist.

Background

8The background is set out in the Decision, however for ease of reference, the Board reiterates some of the salient facts. The Subject Property is in the residential property class. Pursuant to s. 40(3) of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”), the filing of a request for reconsideration ("RfR") with the Municipal Property Assessment Corporation (“MPAC”), pursuant to s. 39.1 of the Act, is a precondition to the filing of an appeal.

9An RfR for the 2017 taxation year was filed on August 31, 2016. Section 2 of the RfR form requires the requestor to "provide specific reasons as to why you would like us (MPAC) to review your assessment, as required under s. 39.1 of the Assessment Act". The Appellants set out the following in s. 2:

Based on review of my client's file and based on review of partial assessment information found on MPAC's website, the following are the reasons for my request: 1) I do not agree with MPAC's comparable properties used to value my client's property, (2) assessment is too high, 3) the property is not equitably assessed. I filed with MPAC request under GRAD policy for release of assessment information. The Complainant reserves the right to amend the reasons given above, or add issues, after release of requested assessment information by MPAC under GRAD policy.

10On October 24, 2016, MPAC replied to the Appellants stating it required additional information and notified the Appellants that the information needed to be provided within 30 days of the date of the letter or MPAC would be “unable to consider” the file.

11The Appellants did not provide the additional information and as a result, MPAC did not issue a Notice of Reconsideration pursuant to s. 39.1(7) of the Act.

Alleged Errors

12In their request for review the Appellants set out various alleged errors of the Hearing Member, each of which is considered below:

a) Did the Hearing Member err by misinterpreting and applying sections 44(1) and 45 of the Act?

b) Did the Hearing Member err in interpreting section 39(1) of the Act?

c) Did the Hearing Member err in not using section 40(4) of the Act to extend the timeline for filing a RfR?

a) Did the Hearing Member err by misinterpreting and applying sections 44(1) and 45 of the Act?

13The Appellants submit that the Hearing Member erred in interpreting and applying s. 44(1) and 45 of the Act which resulted in the Hearing Member's conclusion that the Board had no authority to reopen the question of the assessments where there is no appeal.

14While both of the above referenced sections start with the phrase "upon an appeal", the Appellants submit that there is nothing in s. 44(1) and 45 of the Act that states that an appeal needs to exist before the Board for the years where the reassessment of the Subject Property is requested.

15The Board sees no merit to this argument. The language of s. 44 and 45 is clear:

44(1) Upon an appeal on any ground against an assessment, the Assessment Review Board or court, as the case may be, may reopen the whole question of the assessment so that omissions from. or errors in the assessment roll may be corrected. and the amount for which the assessment should be made, and the person or persons who should be assessed therefor may be placed upon the roll, and if necessary, the assessment roll, even if returned as finally revised, may be opened so as to make it correct in accordance with the findings made on appeal.

45 Upon an appeal with respect to an assessment. the Assessment Review Board may review the assessment and, for the purpose of the review, has all the powers and functions of the assessment corporation in making an assessment, determination or decision under this Act, and any assessment, determination or decision made on review by the Assessment Review Board shall be deemed to be an assessment, determination or decision of the assessment corporation and has the same force and effect.

16The Appellants submit the Board can use these sections of the Act to create an appeal, however, they provide no authority for such an interpretation. The principles of statutory interpretation have been clearly articulated in administrative law with the predominant principle being the plain and ordinary meaning of the language used, not the language that is omitted. One must first look to the plain meaning of the Act and if the words have a plain meaning that makes sense in the context of the Act and give rise to no ambiguity then those words should be given effect.

17Taking into account the above rules of statutory interpretation, I am not satisfied that the Hearing Member made any significant error of law such that the Board would likely have reached a different decision.

18In the alternative, even if the Board did determine that it could consider reviewing an assessment in the absence of an appeal, in that s. 44(1) and 45 of the Act do not explicitly state an appeal is required, when the Act is read as a whole, the intent is clearly articulated that an appeal is required. Further, s. 40(26) does not allow appeals to be deemed retroactively. The fact that there was a settlement between MPAC and the Appellants, which resulted in the reduction of the 2019 assessment, does not in any way support the creation of appeals for the 2017 and 2018 assessments.

19The Appellants have failed to provide any legal authority for the proposition that the Board can apply a reduction of a 2019 assessment to the 2017 and 2018 assessments. While the Appellants are correct that s. 44(1) provides the Board with authority to open assessments, this power is limited to “upon an appeal on any ground against an assessment.” Nowhere in s. 44(1) does it provide the Board the authority to go back in time and apply, in this case, a 2019 assessment to 2017 and 2018.

b) Did the Hearing Member err in interpreting section 39(1) of the Act?

20The Appellants submit that there is no authority under the Act for MPAC to delete or nullify a RfR, and that neither s. 39.1(4), (the section which was relied upon by MPAC), nor any other section of the Act, provides MPAC with such authority.

21Section 39.1(4) of the Act provides that an RfR “must set out the basis for the person’s request and all relevant facts.” In the Decision the Hearing Member confirmed that the Appellants were put on notice that they had thirty days from the date of MPAC’s letter to provide additional information otherwise MPAC would “be unable to consider” the RfR. The Appellants failed to respond within the thirty days or at all. MPAC subsequently closed the RfR.

22The Appellants are now making the same argument that they made before the Board in the first instance and where the Hearing Member, in the Decision, held that it was reasonable for MPAC to close the file on the basis that the Appellants failed to provide the requested information.

23The Appellants have not put forward any additional information other than to say that MPAC should not have “nullified” their RfR for the 2017 taxation year thereby essentially eliminating any right to appeal.

24While the Board understands MPAC’s submission that without an RfR decision a party has no right of appeal to the Board, what the Board disagrees with is that the Appellants, more than two years after the closure of their 2019 appeal, now seek redress over MPAC’s closing of the RfR for the 2017 and 2018 tax years.

25Section 39.1(7) of the Act requires that MPAC deliver a Notice of Reconsideration which sets out the results of its reconsideration. Because MPAC found that the Appellants’ RfR was incomplete, MPAC did not mail a Notice of Reconsideration to the Appellants. Section 40(5) 2 of the Act sets a deadline date for filing an appeal where MPAC has not mailed a Notice of Reconsideration. This section states:

(5) For 2017 and subsequent taxation years, if a person has made a request for reconsideration in respect of a property under section 39.1, whether or not the person is required to do so as a precondition of appeal under subsection (3), the last day for the person to appeal for a taxation year is as follows:

2. If the assessment corporation has not mailed a notice of reconsideration within the time required under subsection 39.1 (7) or (8), 90 days after the notice should have been mailed by the corporation under those subsections.

Consequently, if the Appellants disagreed with MPAC's position respecting their RfR, they were required to file an appeal for 2017 taxation year by the due date specified in s. 40(5) of the Act. As they did not do so, they cannot file an appeal now, unless the Board can grant an extension to file their RfR pursuant to s. 40(4) of the Act (discussed below).

26As this determines the issue, it is unnecessary to determine whether MPAC acted reasonably in closing its file.

c) Did the Hearing Member err in not using section 40(4) of the Act to extend the timeline for filing a request for reconsideration?

27The Appellants submit that the improper deletion and nullification of the RfR amounts to "extenuating circumstances explaining why a request for reconsideration in respect of a property was not made within the time required under section 39.1" and that, accordingly, the Board has the authority to extend the deadline for making the request for reconsideration in accordance with s. 40(4) of the Act, which would in turn extend the time limit for the consideration of an appeal.

Section 40(4) of the Act states:

(4) 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. [emphasis added]

28Section 40(4) is clear that the Board only has jurisdiction to extend the deadline for making an RfR request if the request is made during the taxation year to which the RfR applies. In this case, the Appellants did not apply for an extension in either the 2017 or 2018 taxation years. Therefore, the Board has no jurisdiction to consider the request to extend the deadlines for these taxation years at this time.

CONCLUSION

29Based on the above, the Board finds that the Appellants have not established that the Hearing Member breached the principles of procedural fairness and natural justice or committed errors of fact and law. Therefore, the Appellants’ request for review is dismissed.