Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: January 24, 2020

FILE NO.: DM 163542

Moving Party(ies): James Nicoletti, Patricia Nicoletti

Respondent(s): Municipal Property Assessment Corporation

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: Section 45 of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Heard: January 20, 2020 in Toronto, Ontario

APPEARANCES:

Parties	Counsel+/Representative
James Nicoletti, Patricia Nicoletti	Robert Baranowski
MPAC	Jonathan Langille and Frank Lee
City of Toronto	No one appearing

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON

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 and resolved the appeal on consent as indicated at the conclusion of this decision.

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.

3The motion was brought by the Appellants’ representative at the hearing. The issue in the motion was whether 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.

4MPAC’s representative at the hearing requested that the Appellants’ oral motion be converted to a written motion hearing so that evidence and argument could be assembled and submitted at a later date. That request was denied because MPAC had been made aware of the issue that would be raised at the hearing and should have been prepared to respond to it.

5For the reasons that follow, this motion is denied.

Background

6The Subject Property is in the residential property class. Pursuant to section 40(3) of the Assessment Act, R.S.O. 1990, c. A.31 (the ‘Act’), the filing of a request for reconsideration (“RfR”) with MPAC is a precondition to the filing of an appeal.

Incomplete RfR for the 2017 taxation year

7The Appellants’ representative filed an RfR for the 2017 taxation year on August 31, 2016. Section 2 of the RfR form required the requestor to “provide specific reasons as to why you would like us (MPAC) to review your assessment, as required under section 39.1 of the Assessment Act.” Inserted into the box below was the following text which is reproduced exactly as it appeared on the form:

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.

8On October 24, 2016, MPAC replied to the Appellants’ representative indicating that more information was required for it to consider the request. In other words, MPAC advised the Appellant’s representative that the RfR was incomplete.

9The letter quoted section 39.1(4) of the Act which provides that an RfR “must set out the basis for the person’s request and all relevant facts.”

10The letter essentially put the Appellants’ representative on notice that he would have 30 days from the date of the letter for this additional information to be provided, otherwise MPAC indicated that it would “be unable to consider” the RfR.

11The Appellants did not provide the additional information that MPAC requested. As a result, MPAC closed the file.

12The Board reserved its decision on the motion at the hearing. For the reasons that follow, the Appellants’ request to address non-existent 2017 and 2018 taxation year appeals is denied.

ANALYSIS

13The Appellants’ representative argued that the Board has the authority to create appeals even when none were filed. He advanced four arguments at the hearing.

First Argument: The Board’s Authority Pursuant to sections 44(1) and 45 of the Act

14The Appellants’ representative first referred to sections 44(1) and 45 of the Act. The former section provides that on appeal, the Board can reopen the question of assessment. The latter section provides that on appeal, the Board has the same powers as MPAC to determine assessments. It was argued that these provided authority for the Board to create the earlier appeals.

15Both of sections 44(1) and 45 of the Act contain the phrase “upon an appeal” and there was no appeal before the Assessment Review Board (the “Board”) for the 2017 and 2018 taxation years. Therefore, the Board finds that these provisions are of no assistance to the Appellants in creating appeals that do not exist.

Second Argument: The Creation of Appeals Pursuant to sections 33 and 34 of the Act

16Second, it was argued that Appellants should be entitled to create appeals two years prior, just as MPAC is entitled to with omitted and supplementary assessments pursuant to sections 33 and 34 of the Act.

17Sections 33 and 34 of the Act make specific reference to being for omissions and supplementary assessments and pertain to the authority of the assessor to make additional assessments. The Board finds they also provide no assistance for the creation of appeals.

Third Argument: Deeming

18Third, it was argued that it would make no sense for a property to be worth less and then more within the cycle (as would be the case here after the agreement on the 2019 taxation year), and that deeming should occur retroactively, not just on an ongoing basis within the taxation cycle.

19Appeals are deemed pursuant to section 40(26) of the Act when appeals are not disposed of prior to March 31 of the subsequent taxation year. The Board finds there is no legislative authority to deem appeals retrospectively.

Fourth Argument: Valuation Date

20Finally, the Appellants’ representative argued that since the valuation date in this cycle is January 1, 2016, an appeal for one year in the cycle should be considered an appeal for all years in the cycle.

21A taxpayer can appeal any year in the cycle where the valuation date for this cycle is set out in section 19.2(1)5 of the Act as January 1, 2016. The Board finds there is simply no authority for the argument that an appeal in one taxation year should apply to create appeals for any other year inside or outside the cycle beyond the deeming provision above.

The 2017 RfR

22The Appellants’ primary argument in the motion is that MPAC should not have “nullified” their RfR for the 2017 taxation year, which then precluded the possibility of filing an appeal.

23In requesting more details from the Appellants, MPAC cited section 39.1(4) of the Act which provides that “the request must set out the basis for the person’s request and all relevant facts.”

24This request was a reasonable one as the Appellants’ 2017 RfR form contained no such details. The Appellants’ representative indicated that there had been “meetings” with MPAC at that time, but there was no evidence provided at the hearing to indicate that MPAC’s request was responded to.

25MPAC’s letter dated October 24, 2016 gave the Appellants 30 days to provide the requested information, failing which it would “be unable to consider” the RfR. In fact, what occurred when that information was not provided was that MPAC proceeded to close the file. The Board finds that this was a reasonable position for MPAC to have taken as the Appellants’ 2017 RfR did not meet the statutory requirements for the RfR to be considered.

26In any event, the Board does not have any authority create appeals that were not filed in these circumstances, and the deeming provisions of the Act do not apply retrospectively. As a result, the Appellants’ request to have the terms of their settlement for the 2019 taxation year apply to prior years for which no appeals were filed is not possible because the Board has no authority to do so.

CONCLUSION

27On consent, the assessment of 106 Chestnut Hills Park for the 2019 taxation year is reduced from $2,208,000 to $1,953,000, in the residential property class.

28There are no appeals for the 2017 or 2018 taxation years, therefore the same terms cannot be applied to those taxation years.