Assessment Review Board / Commission de révision de l’évaluation foncière

ISSUE DATE: July 14, 2020

FILE NO.: DM 164993

Assessed Person(s): 2198806 Ontario Inc.

Appellant(s): 2198806 Ontario Inc.

Respondent(s): City of Windsor

Property Location(s): 250 Dougall Ave

Municipality(ies): City of Windsor

Roll Number(s): 3739-040-050-00700-0000

Appeal Number(s): 3274175 and 3329157

Taxation Year(s): 2016 and 2017

Hearing Event No.: 730864

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

APPEARANCES:

Parties	Counsel/Representative*
2198806 Ontario Inc.	Monika Cholewa, Shaun Gupta
City of Windsor	John O’Kane*, Janice Guthrie, Peter Frise

REQUEST FOR: Dismissal of appeal numbers 3274175 and 3329157

HEARD: May 8, 2020 by telephone conference call

ADJUDICATOR(S): Subuola Awoleri, Member

MOTION DECISION

OVERVIEW

12198806 Ontario Inc. (the “Appellant”) has appealed the City of Windsor (the “City”) council decisions regarding the applications filed under s. 357 of the Municipal Act, 2001, S. O. 2001, c. 25, (the “Act”) for the refunds of property taxes for the 2016 and 2017 taxation years, due to the closure of its hotel located at 250 Dougall Avenue (the “Subject Property”) between May 1, 2016 to November 23, 2017, as a result of a major construction undertaken at the Subject Property.

2The City determined that the circumstances of the Appellant’s application did not fit within the purview of s. 357 of the Act. However, the City granted the Appellant’s Applications rather than denying relief for the 2016 and 2017 taxation years under s. 364 of the Act. Section 364 of the Act provides tax rebates to commercial and industrial property owners, for periods where portions of the properties were vacant. Accordingly, the City reduced the Appellant’s property taxes.

3The Appellant appealed the decisions of the City council to the Assessment Review Board (the “Board”) under s. 357(7) and s.364 (14) of the Act, on the basis that the refunds were too low.

4At the commencement of the hearing, the City of Windsor (the “Moving Party”) raised a preliminary motion requesting dismissal of the appeals for the Appellant’s breach of the Board’s Rules of Practice and Procedure (the “Rules”) and the rules of procedural fairness. The Moving Party submits that the Appellant raised new issues in its legal submissions, as part of its disclosure materials served on the Moving Party, that was also filed with the Board prior to this hearing. The Moving Party added that the new issues raised in the Appellant’s legal submissions are different from the issues it raised in its Statement of Issues (“SOI”), which is contrary to the Rules as the Appellant did not amend its SOI.

5In responding to this motion, the Appellant submits that it was not in breach of the Rules and that the issues raised in its legal submissions and its SOI are the same. The Moving Party further submits in its reply that the lack of opportunity to respond to the new issues raised by the Appellant is a breach of the rules of procedural fairness.

6The Board denied the Moving Party’s request and adjourned the hearing of the appeals to allow the Moving Party to provide a response to the Appellant’s legal submissions. As the Moving Party expressed an intention to appeal the Board’s ruling, the Board, in this Decision, is providing written reasons.

Result

7For reasons that follow, the Moving Party’s request to dismiss these appeals is denied.

ANALYSIS

Breach of the Rules

8Rule 24(e) of the Rules provides that:

A Board Member may dismiss an appeal without holding a hearing event, or after a hearing event, if:

e. the appellant has not complied with statutory requirements or these Rules.

9Dismissing an Appellant’s appeal has significant consequences for the Appellant. The Board will grant a dismissal request in the clearest of cases. See Municipal Property Assessment Corporation, Region No. 9 v 234900 Ontario Ltd., 2018 CanLII 248 (ON ARB), 2017 CanLII 74719 (ON ARB) (“234900 Decision”), at paragraph 8. Clearest of cases as determined by the Board in Municipal Property Assessment Corporation, Region No. 7 v Cherry, 2018 CanLII 60392 (ON ARB), at paragraph 10, “…are those where there are willful breaches of the Board’s orders or Rules that are entirely attributable to the taxpayer”.

10The Moving Party argues that the Appellant has significantly altered the basis of its claim in its legal submissions served and filed on April 27, 2020, a new deadline provided by the Board for the parties to provide all the documents they will rely upon at the hearing. According to the Moving Party, the amount of tax refunds the Appellant had initially claimed in its SOI, which was not filed with the Board but served on the Moving Party sometime in July 2019, is significantly different from what it claims in its legal submissions.

11The Moving Party submits that this significant alteration in the Appellant’s legal submissions is in breach of the Rules, since the Appellant did not amend its SOI in accordance with Rule 41. Furthermore, pursuant to Rule 49, no new issues can be raised at a hearing and the Schedule of Events cannot be altered except in exceptional circumstances.

12The Moving Party submits that the Appellant’s actions are also contrary to the rules of procedural fairness and prejudicial to the Moving Party, since it did not have an opportunity to respond to the significant change in the Appellant’s legal submissions.

13Rule 34 outlines the Schedule of Events for the summary and general stream. These appeals are in the summary stream. The Schedule of Events provides a detailed timely process for an appeal from its commencement date to the date of the hearing. It sets out what the parties need to do to perfect the appeals to the hearing date. Due to the Moving Party retaining Counsel for the appeals coupled with other factors, the Board changed the hearing date from December 16, 2019 to May 8, 2020. The filing deadline for disclosure as outlined in the schedule of events was July 30, 2019. Due to the change in the hearing date, the Board extended the deadline for disclosure between the parties to April 27, 2020. The Appellant submits in response that the issues as stated in its SOI are still the same, and it only expanded its legal submissions on the amount of the tax refunds based on caselaw that was provided to the Moving Party. The Appellant further submits that the decision on the correct amount of refunds would be determined by the Board. The Appellant also submits, that if the Moving Party believes that the issues are different, it requests leave from the Board to amend its SOI.

Findings – Breach of the Rules

14The Board is not satisfied that the Appellant breached the Rules by changing the proposed amount of tax refunds in its legal submissions.

15Rule 38(4) outlines the mandatory contents of the SOI. It states:

Statement of Issues and Responses

38. Statements of issues and responses must contain:

(4) If the issue is the cancellation, reduction or refund of taxes pursuant to the Board’s authority under the Municipal Act, Municipal Act, 2001, City of Toronto Act, 2006, or Provincial Land Tax Act, 2006:

(a) the amount of taxes that have been paid or are owing;

(b) the proposed amount of the refund or reduction; [emphasis added]

(c) a full statement of the grounds to support the cancellation, reduction or refund of taxes; and

(d) a list of all facts, legal grounds and documents that the party relies on in support of its position.

16The use of the word “proposed” in Rule 38 (4)(b), contemplates that an Appellant provides a projected amount of tax refund. The determination on the correct amount of tax refund will ultimately be decided by the Board at the hearing of the appeal. The Board agrees with the Appellant that the issues are still the same, which are: what section of the Act applies to the Appellant’s appeals, how the tax refunds should be calculated and what is the correct amount of tax refunds.

17The Appellant’s action in providing a different figure for refund in its legal submissions cannot be classified as a willful flouting of the Rules. The Appellant submits that it proposed the amount of tax refund in its legal submissions based on caselaw, which was also provided to the Moving Party. The quantum of tax refunds proposed in the Appellant’s legal submissions is left to the hearing adjudicator to determine. This does not satisfy the clearest of cases threshold as stated in the 234900 Decision.

18Assuming the Appellant’s actions resulted in a breach of the Rules, is this enough to dismiss its appeals?

19The Board determined in Municipal Property Assessment Corporation, Region 14 v Upper Keele Inc., 2018 CanLII 126632 (ON ARB), 2018 CanLII 248 (ON ARB), at paragraph 10 that “the prejudice to each party will always be the primary consideration on a dismissal motion”.

Prejudice

20The Moving Party argues that as a result of the Appellant’s breach of the Rules, it will suffer prejudice, since it did not have the opportunity to respond to the change in the amount of tax refunds stated in the Appellant’s legal submissions. The Moving Party served its Statement of Response and had a clear understanding of the issues in the appeals.

21The Board finds that the prejudice the Appellant will suffer outweighs the prejudice to the Moving Party in this instance. The prejudice to the Appellant is that it will not have its appeals heard and will therefore not have the opportunity to recover any potential tax refunds it may be owed from the years under appeal.

22The Board determines that a dismissal of these appeals cannot be granted when there is no clear evidence of prejudice to the Moving Party. The Moving Party has not provided evidence of the prejudice it will suffer to justify this dismissal. If any, the prejudice is minimal compared to the prejudice the Appellant will suffer, which is a potential loss of tax refunds. The Board has the power to control its own process. Any potential prejudice to the Moving Party can be mitigated by an adjournment in this case. The Board adjourns the hearing, to allow the Moving Party an opportunity to adequately respond to the changes in the proposed amount of tax refunds now advanced by the Appellant.

CONCLUSION

23The Moving Party’s motion is denied. The Board finds that the Appellant’s change of the proposed amount of tax refunds in its legal submissions is not a clear case of a breach of the Rules and it is not enough to justify dismissing its appeals as the Moving party has not provided evidence of any prejudice or potential prejudice it will suffer.

ORDER

24The Moving Party may serve a response to the Appellant’s legal submissions, and file it with the Board, within two weeks from the date of the issuance of this decision.

25The continuation of the hearing of these appeals shall be re-scheduled by the Registrar to a date within six weeks, following the expiration of two weeks in which the Moving Party serves and files its response.