Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE: January 21, 2020
Assessed Person(s): David H. Blanchard Property Corporation
Appellant(s): David H. Blanchard Property Corporation
Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 19
Respondent(s): City of Hamilton
Property Location(s): 9 -15 Main Street East
Municipality(ies): City of Hamilton
Roll Number(s): 2518-020-151-00580-0000
Appeal Number(s): 3244819, 3309748 and 3363666
Taxation Year(s): 2017, 2018 and 2019
Hearing Event No.: N/A
Legislative Authority: Rule 122 of the Assessment Review Board’s Rules of Practice and Procedure, as amended
Request for: Reinstatement of appeals 3244819, 3309748 and 3363666
Heard: By written submission
| Parties | Representative | Submissions |
|---|---|---|
| David H. Blanchard Property Corporation | Dave Poupard | Requester |
| MPAC | No one appeared | Not Received |
| City of Hamilton | No one appeared | Not Received |
DECISION DELIVERED BY CAROLINE KING AND ORDER OF THE BOARD
1Dave Poupard, representative for David H. Blanchard Property Corporation (the “Requester”) requests that this Assessment Review Board (this “Board”) reinstate Appeal Numbers 3244819, 3309748 and 3363666 by way of a Request for Reinstatement pursuant to Rule 122 – 123 of the Board’s Rules of Practice and Procedure (the “Rules”). This Request for Reinstatement was filed with the Board by email on September 24, 2019.
2The Board received the Request for Reinstatement from the Requester on September 24, 2019 at 3:10 p.m. for section 40 appeals (“s. 40”) for the 2017, 2018 and 2019 taxation years (Appeal Numbers 3244819, 3309748 and 3363666). The Requester is asking the Board to consider new evidence which was not available at the time of the hearing, that is credible and could have affected the result. The Requester states that Minutes of Settlement (“MOS”) were executed by all parties on June 9, 2019 and that MPAC did not forward them to the Board.
3For the reasons listed below, the Requester’s request to reinstate appeals 3244819, 3309748 and 3363666 is granted and the agreed upon terms of the MOS will be applied to these appeals.
THE REINSTATEMENT RULES
4Rules 121 – 123 sets out the circumstances in which the Board will reinstate appeals that were dismissed. The relevant provision of the Rule for this application is in Rule 122(a), which states, in part, that “a party to a former proceeding may seek an order… to reinstate appeals by filing an affidavit with the Board…no more than 30 days after the appeals were dismissed…setting out that… the appeals were … dismissed in error.”
5There are three essential components to Rule 122(a). First, it is only open to parties to the appeals that was dismissed. Second, the order must be sought within 30 days after the appeals were dismissed. Finally, the Board must be satisfied, based on the evidence in the Requester’s affidavit that the appeals were dismissed in error. All three requirements must be met for the Board to consider the request and to determine, whether in the circumstances, it is appropriate to reinstate the appeals. The Requester’s application meets all three requirements.
Party to the appeals
6David H. Blanchard Property Corporation was the Appellant party in the dismissed appeals. The first condition of Rule 22(a) is therefore met.
Timely request
7The Requester filed its Request for Reinstatement with the Board for the appeals s. 40 on September 24, 2019, 11 days after receiving the Board’s Notice of Dismissal which was issued on September 13, 2019. The request application for reinstatement is timely, satisfying the second condition of Rule 122(a).
Dismissal in error
8The final requirement of Rule 122(a) is that the appeals were dismissed in error, in this case because MPAC, in error, failed to file fully executed MOS with the Board as it had agreed to do.
9The Requester’s evidence is that there were s. 40 assessment appeals for 2017, 2018 and 2019 taxation years (Appeal Numbers 3244819, 3309748 and 3363666) against the subject property. The Requester states that on September 13, 2018 the Board issued Notice of Decision for the above noted appeals stating that the appeals are dismissed for non-compliance of Rule 69.
10In support of his argument, the Requester provided a signed Affidavit of Andrew Jones, Senior Consultant at Altus Group dated September 29, 2019 which contains Mr. Jones submissions. The emails pertaining to the MOS (including the Minutes of Settlement) were provided together with the affidavit.
11Mr. Jones submitted that:
on May 3, 2019, a case coordinator for the Board, confirmed with the parties that that “Further to the teleconference earlier today, the parties are to submit Minutes of Settlement as soon as possible. The Board accepts the party’s submissions that this appeal has been settled. Rule 69 will apply … minutes to be filed with the Board within 97 days of today’s date.”
on May 22, 2019, MPAC forwarded MOS by email to David H. Blanchard Property Corporation revising the 2016 Current Value Assessment (“CVA”) from $910,000 to $776,000 for the 2017, 2018 and 2019, taxation years. MPAC stated that as soon as they receive the fully executed MOS they will submit copies to the Board and to all parties to the appeal.
on May 31, 2019, he signed the MOS for the 2017, 2018 and 2019 taxation years and sent it back to MPAC via email.
on June 18, 2019, both MPAC and himself received fully executed 2017, 2018 and 2019 MOS from the City of Hamilton via email.
12The Board finds that the Requester’s evidence of Mr. Jones’ sworn, and signed Affidavit dated September 29, 2019, complete with the material emails and executed MOS was persuasive and reliable evidence. Indeed, for this kind of request, any requester should always provide copies of material emails and the executed MOS to establish the merit of their request.
13The Board finds that the evidence submitted establishes:
the Requester, who was the appellant to the original appeals, acted in reliance of MPAC’s agreement to forward the final executed MOS to the Board.
the Appellant to the original appeals acted in a timely manner in efforts to settle the original appeals.
The fully executed MOS were forwarded by the municipality to MPAC and to the Requester on June 14, 2019, well before the Rule 69, 97-day deadline for filing it with the Board (which was August 8, 2019).
both the Requester and the municipality were entitled to rely upon MPAC’s agreement to submit the fully executed MOS to the Board to resolve the appeals.
while MPAC received the fully executed MOS on June 14, 2018, and had agreed to submit them to the Board, MPAC erred and failed to submit them to the Board for processing.
the appeals were dismissed due to MPAC’s error in not submitting the MOS agreed.
14In the context of the evidence submitted, where there is corroborating evidence that the parties fully executed the MOS within the 97-day timeline provided for in Rule 69, where one party agreed to submit the executed MOS to the Board for processing, and where all parties understood that they would be bound by the MOS, it would be unfairly prejudicial to the parties to deny this request to reinstate the appeals so that the agreed upon terms of settlement could be applied to the appeals.
15The Board finds that the dismissal in this situation falls within the class of errors covered by Rule 122(a).
CONCLUSION
16The Requester, who was a party to the dismissed appeals, filed this application in a timely manner, supported by an affidavit with corroborating evidence that the parties had agreed to resolve the appeals by way of MOS and that MPAC had agreed to submit the MOS to the Board.
17The Board finds that the error which resulted in the appeals being dismissed, was not caused by the Requester. The Requester and the municipality were entitled to rely upon MPAC’s agreement to forward the fully executed MOS to the Board. It was MPAC’s failure to file the fully executed MOS with the Board that caused the appeals to be dismissed. The Board finds that this error meets the requirements of Rule 122 (a).
18Appeal Numbers 3244819, 3309748 and 3363666 for the 2017, 2018, and 2019 taxation years are reinstated and the Board is directed to apply the MOS in resolution to the appeals.
“Caroline King”
CAROLINE KING VICE-CHAIR
Assessment Review Board A constituent tribunal of Tribunals Ontario - Environment and Land Division Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248