Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: July 13, 2020

FILE NO.: DM 163744

Assessed Person(s): SGS Lakefield Research Ltd.

Appellant(s): SGS Lakefield Research Ltd.

Respondent(s): Municipal Property Assessment Corporation, Region 07

Respondent(s): Township of Selwyn

Property Location(s): 155 Concession Street

Municipality(ies): Township of Selwyn

Roll Number(s): 1516-030-003-20200-0000

Appeal Number(s): 3236127, 3292864, 3348800 and 3398204

Taxation Year(s): 2017, 2018, 2019 and 2020

Hearing Event No.: 727692

Legislative Authority: Rule 24(e) of the Assessment Review Board’s Rules of Practice and Procedure

APPEARANCES:

Parties	Counsel/Representative*
SGS Lakefield Research Ltd.	James Brooke
Municipal Property Assessment Corporation	John White
Township of Selwyn	No one appeared

REQUEST FOR: Dismissal of Appeals 3236127, 3292864, 3348800 and 3398204

HEARD: January 27, 2020 in person

ADJUDICATOR(S): Joanne Laws, Member

MOTION DECISION

OVERVIEW

1The Municipal Property Assessment Corporation (“MPAC”) seeks to have these appeals dismissed because SGS Lakefield Research Ltd. (the “Appellant”) failed to file a Statement of Issues which was to be served by October 9, 2018.

Background

2The Appellant appealed the 2017 taxation year assessment of 155 Concession Street in Selwyn Township (the “Subject Property”). As of the date this decision is released, the Appellant has been deemed to file appeals of the 2018, 2019 and 2020 taxation year assessments because the appeal has not yet been finally disposed of by March 31 of these taxation years in accordance with the Act.

3On March 23, 2017 the Appellant’s representative in the United States, Cushman Wakefield, retained Argil Property Tax Services (“Argil”) as the representative for the appeal.

DISPOSITION OF MOTION

4For the reasons that follow, the appeals are dismissed for non-compliance with the Board’s Rules of Practice and Procedure (the “Rules”).

ANALYSIS

5The Appellant has had a decided lack of involvement with the appeal process from the time its initial appeal was filed in 2017 until January 2020. I find that this lack of involvement, which is marked by the Appellant’s failure to comply with the Board’s Rules, justifies dismissing these appeals.

6The Board issued a Schedule of Events (“SOE”), with a commencement date of May 15, 2018, pursuant to Rules 33 and 34 of the Board’s Rules. The Appellant failed to disclose its Statement of Issues to MPAC and Selwyn Township by the October 9, 2018 deadline set out in the SOE. Subsequent to the deadline, on November 1, 2018 and again on December 12, 2018 MPAC sent letters to Argil requesting the overdue Statement of Issues. On June 11, 2019, after receiving no response from the Appellant, MPAC made its first request that this Board dismiss the appeals.

7At this hearing, Paul Grossman, who represented Argil on these appeals in 2017, 2018 and 2019, was called as a witness for the Appellant. Mr. Grossman stated he sent emails to two people at Cushman Wakefield requesting direction but received no response. On June 11, 2019, the same day MPAC made its first request to dismiss, Mr. Grossman sent a “Withdrawal from Representation” letter to the Appellant’s business mailing address of PO Box 4300 Lakefield ON L0L 2H0, and to this Board.

8At this hearing the Appellant also called Marcel Costa, Finance Director for SGS, as a witness. Mr. Costa stated the Subject Property is not SGS’s corporate office, that there is no administrative staff at the Subject Property, and, that the mail received there is not monitored. Mr. Costa stated that he is not experienced in the assessment appeal process, that Cushman Wakefield told him the process would take some time and that he would be contacted in due course. He stated he did not know that Cushman Wakefield had consigned the appeal to Argil until January 17, 2020, when he received the Notice of Hearing from this Board. It was at that time he learned that the appeal was delinquent, and he took immediate action to investigate the delinquency. He stated he had not received any communication from either Argil or Cushman Wakefield since filing the appeal.

9MPAC called Shelby Roper, a paralegal employed by MPAC, as a witness. Ms. Roper’s evidence is that MPAC was unaware of Argil’s withdrawal from representation until this Board forwarded Mr. Grossman’s withdrawal letter to MPAC on June 27, 2019.

10After June 11, 2019, this Board received no evidence and no further communication from the Parties regarding the appeals. As a result of the non-compliance with the SOE, this hearing was scheduled to commence on January 27, 2020.

11On January 14, 2020, in response to the notice of hearing, MPAC filed a motion to dismiss the appeals citing the Appellant’s failure to comply with the Board’s SOE, stating that it could not comply with the Board’s SOE because it had not received the Appellant’s Statement of Issues.

12Prior to this hearing event, both MPAC and Argil filed submissions and affidavits with this Board regarding MPAC’s motion to dismiss. Immediately prior to this hearing Argil disclosed a Statement of Issues to MPAC on behalf of the Appellant.

13Jon White, representative for MPAC, argued that the appeals should be dismissed because the Appellant has not complied with the Board’s Rules, that neither the Appellant nor its representatives have sought to extend or alter the timelines set out in the SOE and, that until a few business hours before this hearing event, the Appellant had shown no intention to proceed with the appeals.

14MPAC submits that both the Board and MPAC communicated with the Appellant via the Subject Property’s mailing address (set out in paragraph 7, above) and that no other means of contact or other mailing address had been provided by the Appellant or its representatives. MPAC argues that this mailing address is correct because the Appellant receives mail at this address and because it responded to both MPAC’s Notice of Assessment by filing an appeal and the Board’s Notice of Hearing.

15The Appellant argues if the appeals are dismissed, it would be prejudiced and cited the following cases: Municipal Property Assessment Corporation, Region No. 7 v Cherry, 2018 CanLII 60392 (ON ARB), (“Cherry”), Municipal Property Assessment Corporation, Region No. 9 v 234900 Ontario Ltd., 2018 CanLII 248 (ON ARB), 2017 CanLII 74719 (ON ARB) (“234900”) and Municipal Property Assessment Corporation, Region 32 v Taddeo, 2019 CanLII 44276 (ON ARB) (“Taddeo”).

16In paragraph 13 of Taddeo, the Board noted that:

Appeals filed with this Board proceed according to a Schedule of Events pursuant to Rule 34 which includes the requirement that an appellant produce a Statement of Issues in accordance with that timeline. A Statement of Issues is an important early step in the process because it sets out the basis for the appeal. It ensures fairness both for the appellants and for MPAC.

17Rule 24(e) provides the authority for the Board to dismiss an appeal without holding a hearing if “the appellant has not complied with the statutory requirements of these Rules”. Specifically, a party’s failure to provide a Statement of Issues when required can form a valid basis for dismissal, as was the case in Municipal Property Assessment Corporation, Region 19 v Wentworth Property Management Inc., 2018 CanLII 89428 (ON ARB).

18In 234900, at paragraph 8, the Board determined that “dismissal is an extreme remedy and should only be granted in the clearest of cases”. In Cherry, the Board specified that the “clearest of cases are those where there are willful breaches of the Board’s orders or Rules that are entirely attributable to the taxpayer”.

19The Board’s Rules provide that appeals can be dismissed for a number of reasons and, absent of good reasons, the Board can dismiss an appeal where the timelines set out in the SOE are not met (see Rules 24(e) and Rule 34). Section 16.2 of the Statutory Powers Procedure Act supports the establishment of timeframes for completing proceedings and for completing the procedural steps within those proceedings. In reviewing the cases, I disagree that dismissing an appeal is an extreme remedy under the current set of Rules of Practice and Procedure, and 234900 can be distinguished on the basis the events occurred under a previous set of Rules, and there are different factual circumstances. In 234900 and Cherry, the Board found that both parties were in breach of the Board’s Rules or orders, or otherwise shared fault for non-compliance, which is not the case here. Furthermore, in 234900, also at paragraph 8, the Board anticipated that under the April 1, 2017 (now current) Rules, “compliance would be expected and enforced”. The Board has an interest in ensuring that Parties adhere to schedules to avoid delays and to achieve its mandate to justly and expeditiously resolve the appeals before it.

20With regard to representation, Rule 12(c) provides that a party must notify the Board and all other parties and participants to a proceeding of any changes in representation. Rule 13 provides that a representative may only be removed if the party issues a notice pursuant to Rule 12(c) or the Board removes the representative by order. Further, Rule 15 provides that “Notice to a representative is deemed to be notice to the party”.

21I find that the breaches of the Board’s Rules are entirely attributable to the Appellant and its representatives. Only the Appellant and its representatives can be held accountable for the management and monitoring of correspondence and the appeals. Mr. Costa testified that certain appeal-related correspondence did not come to his attention; he did not say that they were not received. It is evident that SGS received mail at the Subject Property’s mailing address, because, as MPAC pointed out, SGS responded to the Notice of Assessment sent by MPAC, which resulted in the filing of the 2017 taxation year appeal, and SGS received and responded to the Board’s Notice of Hearing.

22Both the Board and the other parties rely on the accuracy of the information received, such as the correct mailing address and contact person. It is the Appellant’s responsibility to monitor its appeals, its correspondence, and, to file the necessary supporting evidence in accordance with the Board’s Rules.

23I find that the Appellant failed to comply with Rule 34 when it did not fulfil the requirements of the SOE, namely disclosing a Statement of Issues to the other parties by October 9, 2018. Argil had a duty of care to its client and ought to have followed up with Cushman Wakefield when Mr. Grossman received no response to his emails. In addition, Mr. Grossman failed to comply with Rule 12(c) when he did not notify MPAC that Argil was withdrawing its representation.

24MPAC reached out to the Appellant, its representative and the Board, providing the Appellant with opportunities to respond, when it sent two written requests for the overdue Statement of Issues in late 2018. In June 2019, when MPAC requested that the appeals be dismissed, Argil’s response was to withdraw its representation.

25I accept MPAC’s submissions that the Appellant’s failure to provide its Statement of Issues in accordance with the SOE has created additional costs, including time and financial resources. Further, MPAC could not comply with the SOE because it did not know the issues in dispute, having not received the Appellant’s Statement of Issues.

26While prejudice is only a component of this determination, I find that the prejudice to MPAC, should the appeals proceed, outweighs the prejudice to the Appellant if the appeals are dismissed. The Appellant failed to provide a Statement of Issues, failed to comply with the SOE and did not take reasonable responsibility of its appeals.

CONCLUSION

27I am satisfied that the Appellant failed to comply with the Board’s Rules and therefore, I grant the motion to dismiss.

ORDER

28MPAC’s motion to dismiss the 2017, 2018, 2019 and 2020 appeals is granted.