Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: July 30, 2020 FILE NO.: RR 20-005

Assessed Person(s): Atrium On Bay Portfolio Ince Appellant(s): Ryerson University Respondent(s): Municipal Property Assessment Corporation Region 09 Respondent(s): City of Toronto

Property Location(s): 595 Bay Street Municipality(ies): City of Toronto Roll Number(s): 1904-066-460-00010-0000 Appeal Number(s): 3288422 Taxation Year(s): 2015

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

Parties	Counsel*/Representative
Ryerson University	Karen Fiorini
Municipal Property Assessment Corporation	No one appeared
City of Toronto	No one appeared

REQUEST FOR: Reinstatement of appeal 3288422 HEARD: In writing ADJUDICATOR(S): Caroline King, Vice-Chair

DECISION

INTRODUCTION

1Karen Fiorini (the “Requester”) is requesting the Assessment Review Board (the “Board”) reinstate appeal 3288422 by way of a request for reinstatement pursuant to Rule 122 of the Board’s Rules of Practice and Procedure (the “Rules”). This request for reinstatement was filed with the Board on January 13, 2020.

2Ryerson University (“Ryerson”) is the tenant of the property located at 595 Bay Street in the City of Toronto. Ryerson had appeals for the 2015, 2016, 2017, and 2018 tax years before the Board. Those appeals included s. 323 appeals of the City of Toronto Act S.O. 2006, c. 11, Sch A (“the Act”). On November 28, 2019, Ryerson’s counsel emailed the Board to withdraw the s. 323 appeals. This included the appeal for the 2015 tax year.

3However, the appeal for the 2015 tax year was withdrawn in error. The parties were awaiting a reassessment of the subject property by Municipal Property Assessment Corporation (“MPAC”) for the 2015 tax year and the parties were to then meet and negotiate a settlement.

4On January 8, 2020 MPAC subsequently provided the City with the updated assessment data. The City notified Ryerson’s counsel that it was in receipt of the assessment data but that counsel had inadvertently requested the Board withdraw the 2015 tax appeal. The City’s representative recommended that counsel apply to the Board for a reinstatement of the 2015 appeal and they could then prepare Minutes of Settlement.

5On January 13, 2020 counsel for Ryerson filed a request for reinstatement of the withdrawn 2015 appeal with the Board and on January 16, 2020 filed additional documentation with the request.

6On January 17, 2020 the Board sent an acknowledgement letter to Ryerson’s counsel, of receipt of the reinstatement request.

7The complete request for reinstatement was filed with the Board 46 days after the appeals had been withdrawn, which is outside the 30 day time limit set in Rule 122(a).

The Reinstatement Rule

8Rule 122 sets out the circumstances in which the Board will reinstate appeals that were withdrawn. The relevant provision of the Rule for this application is in clause 122(a), which states, in relevant part that “a party to a former proceeding may seek an order… to reinstate an appeal by filing an affidavit with the Board… no more than 30 days after the appeal was… withdrawn… setting out that… the appeal was withdrawn… in error.”

9There are three essential components to Rule 122(a). First, it is only open to parties to the appeal that was withdrawn. Secondly, the order must be sought within 30 days after the appeal was dismissed or withdrawn. Finally, the Board must be satisfied that the appeal was withdrawn in error. All three conditions must be met before an appeal will be reinstated.

Party

10Ryerson was the appellant in the withdrawn appeals. Therefore, the first part of Rule 122(a) is met.

Timely Application

11On November 28, 2019 Ryerson’s counsel sent the request to withdraw all s. 323 appeals as the parties had negotiated resolution. Included in this request was the appeal for the 2015 tax year, sent erroneously.

12The parties had agreed to await a reassessment of the subject property by MPAC, for the 2015 tax year, so that a fair resolution could be negotiated.

13On January 8, 2020 the City received the updated assessment data from MPAC and notified Ryerson’s counsel. However, the City realized that the 2015 tax appeal was no longer active, having been withdrawn at counsel’s request. The City representative recommended that Ryerson’s counsel contact the Board and submit a reinstatement request so that they could prepare Minutes of Settlement and close the matter.

14On January 13 and 16, 2020 Ryerson’s counsel filed a reinstatement request with the Board and the Board acknowledged receipt on January 17, 2020.

15The request was filed with the Board 46 days after the appeal was withdrawn, outside of the 30 day time limit in the Board’s Rules. However, this delay was caused by the parties awaiting a reassessment of the subject property by MPAC and this did not occur until January 8, 2020. This is when the parties realized that the 2015 tax appeal had been withdrawn in error.

16Once the error had been recognized, Ryerson submitted the reinstatement request very quickly, well within the 30 day time limit, save for the intervening time while they were awaiting a reassessment of the subject property by MPAC.

17Despite being outside the 30 days time limit in the Board’s Rules, I find that Ryerson did file its request for reinstatement within thirty days of learning of the inadvertent withdrawal of its 2015 tax appeal.

Error

18One of the grounds for reinstatement is that the appeal was withdrawn in error. The Rule is generally aimed at clerical errors but other errors are contemplated, on a case by case basis. Based on the information provided, I am satisfied that the 2015 tax appeal was erroneously withdrawn and can constitute a clerical type error.

19The sole reason for re-opening the matter is for the parties to file Minutes of Settlement, as a resolution has been negotiated. There would be no extraordinary expense associated to the reopening.

Discretion

20It is not strictly enough that all of the conditions in Rule 122(a) are met. Reinstatement is a discretionary remedy, see Rule 123. The Board may refuse to reinstate appeals even where the requirements of Rule 122 are met. There must, obviously, be good reasons to deny reinstatement if the conditions of reinstatement are met. Prejudice to other parties will often be a relevant consideration in the discretionary aspect of any reinstatement order.

21There is nothing in the record here that would indicate that reinstatement of Ryerson’s appeal would be inappropriate. Ryerson would be the sole party to suffer prejudice due to the representative’s error.

ORDER

22Ryerson meets two of the three requirements for reinstatement but I will exercise my discretion in finding that there were extenuating circumstances as to why Ryerson’s counsel could not adhere to the 30 day time limit in the Board Rules. They were a party to the withdrawn appeal, they filed this application in a timely way, and the error was clerical in nature. The Board therefore reinstates appeal 3288422.