Sobeys Ontario v. Municipal Property Assessment Corporation Region 15, 2020 CanLII 52446

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

July 30, 2020

FILE NO.:

RR 19-073

Assessed Person(s):

The Abbey Plaza Inc.

Appellant(s):

Sobeys Ontario

Respondent(s):

Municipal Property Assessment Corporation Region 15

Respondent(s):

Town of Oakville

Property Location(s):

1500 Upper Middle Road

Municipality(ies):

Town of Oakville

Roll Number(s):

2401-020-290-09210-0000

Appeal Number(s):

3273161, 3273159, 3273157 and 3273155

Taxation Year(s):

2016

Legislative Authority:

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

Parties

Counsel*/Representative

Sobeys Ontario

Tracy Coleman

Municipal Property Assessment Corporation

No one appeared

Town of Oakville

No one appeared

REQUEST FOR:

Reinstatement of appeals 3273161, 3273159, 3273157 and 3273155

HEARD:

In writing

ADJUDICATOR(S):

Caroline King, Vice-Chair

DECISION

INTRODUCTION

1Sobeys Ontario (the“Appellant”) is requesting the Assessment Review Board (the “Board”) reinstate the appeals 3273161, 3273159, 3273157 and 3273155 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 November 28, 2019.

2The Appellant is the tenant of the property located at 1500 Upper Middle Road in the Town of Oakville. The Appellant had appeals for the 2016, 2017, 2018 and 2019 taxation years before the Board. Those appeals included both s. 33 and s. 40 appeals of the Assessment Act R.S.O. 1990, c. A. 31 (“the Act”). On September 20, 2019, the Appellant emailed the Board to withdraw the s. 33 appeals for the 2016 taxation year, when in fact the s. 33 appeals for the 2017 taxation year were the appeals to be withdrawn.

3On September 24, 2019 the Appellant realized that she had made an error in filing the withdrawal notice to the Board for the 2016 appeals and immediately contacted the Board and notified the Case Coordinator of the error. She also notified the other involved parties of the error.

4On September 25, 2019 the Case Coordinator contacted the Appellant and directed her to send a corrected Letter of Withdrawal to the Board, to withdraw the 2017 appeals, and to all of the involved parties, which had already been done.

5This corrected Letter of Withdrawal was filed with the Board on September 25, 2019.

6On October 10, 2019 the Appellant received the Acknowledgement of Withdrawals and Notice of Decision from the Board and determined that the clerical error in relation to the appeals to be withdrawn had not been corrected. She attempted to contact the Case Coordinator but was advised that he was no longer with the Board and was assigned another Case Coordinator for assistance. The new Case Coordinator advised that a Request for Review and Affidavit would be required. She also advised the Appellant to contact all of the involved parties and advise them of the situation. She did so and MPAC and the Town of Oakville agreed to consent to ‘the Appellant’s request to reinstate the withdrawn appeals. The request was filed with the Board on October 18, 2019.

7On November 27, 2019 the Board sent an acknowledgement letter to the Appellant’s representative advising that Proof of Service, per Rule 9 of the Board’s Rules was missing from the reinstatement request and that they had until December 18, 2019 to file the necessary materials or the request would not be considered, per the Rules. The representative filed the supporting affidavit and completed request with the Board on November 28, 2019 and the Board sent an acknowledgement letter on December 19, 2019.

8The complete request for reinstatement was filed with the Board 49 days after the appeals had been withdrawn, which is outside the 30 days set in Rule 122(a), however, the initial request for review was filed within 8 days of receiving the Board’s Notice of Dismissal.

The Reinstatement Rule

9Rule 122 sets out the circumstances in which the Board will reinstate appeals that were withdrawn. Notwithstanding Rule 120, a party to a former proceeding may seek an order from the Board to reinstate an appeal by filing an affidavit with the Board, copied to all parties, no more than 30 days after the appeal was dismissed or withdrawn by the Board setting out that:

(a) the appeal was withdrawn, removed or dismissed in error;

(b) a party failed to appear at a hearing event through no fault of their own; or,

(c) natural justice or procedural fairness require that the appeal be reinstated.

10It is clear from the Rule that a request for reinstatement must first satisfy three requirements before the merit of the request is considered. 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 and lastly, an affidavit must be filed in support of the request. If these preconditions are met the Board will consider the specific grounds set out in Rule 122 (a), (b), and (c).

ANALYSIS

Party

11The Appellant was the appellant in the withdrawn appeals. Therefore the first part of Rule 122 is met.

Timely Application

12The Appellant’s representative sent the request to withdraw these s. 33 appeals for the 2016 tax year on September 20, 2019.

13Four days later, the Appellant realized there was an error and the wrong appeals were withdrawn and advised the Board of this error. Specifically, the Appellant advised that it made an error in requesting that the s. 33 appeals for the 2016 taxation year be withdrawn and the s. 33 appeals for the 2017 taxation year be left open. The other parties are in agreement that the error should be corrected.

14On October 10, 2019 the Board sent an Acknowledgement of Withdrawal letter and Notice of Decision to the Appellant. However, she realized that the error had not been corrected and contacted the Board. The representative was advised that a Request for Review and Affidavit would have to be filed with the Board.

15The request was filed with the Board on October 18, 2019. On November 27, 2019, some 41 days after the Appellant’s filing, they received notice from the Board that the application was deficient in that Proof of Service that the involved parties had been notified, per Board Rule 9 was missing. The Appellant was given until December 18, 2019 to provide the missing material or the matter would not be considered. The Appellant filed the supporting affidavit and completed request on November 19, 2019. The Board sent an acknowledgement letter to the Appellant on December 19, 2019.

16The complete request for reinstatement was filed with the Board 49 days after the appeals had been withdrawn, which is outside the 30 days set in Rule 122.

17However, part of this delay was due, in part, to a missing required form under Rule 9 from the Appellant’s application filed October 18, 2019. The Board did not respond to this omission until November 27, 2019 and the form was filed the next day. While the Appellant is responsible for ensuring the completeness of its application to the Board, it should also be expected that a reply from the Board, particularly when it affects timelines as this one did, should be sent to parties in a timely fashion. This notice of omission to the Appellant was sent by the Board over a month after it was filed and this affected the 30 day time limit.

18I find that despite the application being filed outside of the 30 day time limit, the Appellant did act within 30 days of learning of the error and then again immediately upon learning of a deficiency in its request for reinstatement. As such the request for reinstatement will be further considered.

Error

19The Appellant submits that the appeal was withdrawn in error. Rule 122 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 mixing up the 2017 taxation year s. 33 appeals (which were supposed to be withdrawn) with the 2016 taxation year s. 33 appeals (which were the ones erroneously withdrawn) can constitute a clerical type error. As noted above, the other parties agree that this was an error and support the request for reinstatement. For these reasons I am satisfied that the Appellant has established sufficient grounds under Rule 122(a) for the Board to reinstate the appeals.

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 the Appellant appeal would be inappropriate. The Appellant would be the sole party to suffer prejudice due to the representative’s error.

ORDER

22The Board reinstates appeals 3273161, 3273159, 3273157 and 3273155.