Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: August 13, 2020 FILE NO.: RD 20-031

Assessed Person(s): Toronto Community and Culture Centre Appellant(s): Toronto Community and Culture Centre, Xinsheng Zhong Respondent(s): Municipal Property Assessment Corporation Region 09 Respondent(s): City of Toronto

Property Location(s): 222 Spadina Avenue Unit 217 Municipality(ies): City of Toronto Roll Number(s): 1904-065-270-02014-0000 Appeal Number(s): 3251466, 3297009 and 3353224 Taxation Year(s): 2017, 2018 and 2019

Legislative Authority: Rule 123 of the Assessment Review Board’s Rules of Practice and Procedure

Parties Toronto Community and Culture Centre Representative: Yan Liu

Municipal Property Assessment Corporation Representative: Submissions not received

City of Toronto Representative: Submissions not received

REQUEST FOR: A review of the Board’s Decision WR 163844 issued on March 30, 2020 HEARD: In writing ADJUDICATOR(S): Maureen Helt, Acting Associate Chair

DECISION

OVERVIEW

1The Appellant, Xinsheng Zhong and Toronto Community and Culture Centre (“TCCC”), requests a review of the decision of the Assessment Review Board (“Board”) (WR 163844) issued on March 30, 2020 dismissing the TCCC’s appeal. The TCCC requests that the appeals be reinstated submitting that the Board, in dismissing the appeals, violated the principles of natural justice and procedural fairness; failed to provide adequate notice to an unrepresented Appellant to allow for preparation of the appeals; failed to provide an opportunity to respond to the proposed dismissal; and, breached procedural fairness by denying an adjournment request.

2The request for reinstatement relates to appeals that were filed with the Board respecting certain property for the 2017, 2018 and 2019 years. The appeals were dismissed after a hearing on the basis that the Appellant had not submitted any evidence or raised any issues at the hearing.

Background

3By way of background, the Appellant filed a letter of appeal to the Board dated April 17, 2017 disputing the Property Assessment Notice it had received for the taxation years 2017, 2018 and 2019.

4In July 2018, the Appellant received a letter from the Board setting out the Board’s Schedule of Events for the proceeding. The Schedule of Events states on the firs page that: “Parties are to comply by all dates in the Schedule of Events.”

5On August 20, 2018, the Appellant received a disclosure letter from the Municipal Property Assessment Corporation (“MPAC”) stating that they were unable to access any of the disclosure on MPAC’s website.

6It is not clear from the affidavit filed in support of the Request for Review if the Appellant provided any disclosure to MPAC. As the Board did not receive any indication from the Parties that a mandatory meeting did or did not occur, in accordance with the Board’s practice, this matter was scheduled for a hearing on the merits and it was made peremptory. The Appellant admits that he received the Board’s Notice of Hearing, Peremptory, dated December 9, 2019. The hearing was scheduled for February 4, 2020.

7On January 21, 2020, MPAC filed a Request to Dismiss with the Board requesting that the appeals be dismissed on the basis of the Appellant’s failure to comply with the Schedule of Events, by failing to provide its Statement of Issues on the due date of January 9, 2019. The Request for Dismiss was served on the Appellant and the Appellant was given 15 days to respond. No response was received.

8The Board held the hearing on the merits on February 4, 2020, one day before the expiration of the 15-day response period for disputing the Request to Dismiss. The hearing was conducted by teleconference call. At the outset of the hearing the Appellant requested an adjournment of the hearing and an extension of the due date for serving its Statement of Issues, stating that it was not aware that the Statement of Issues needed to be in a different form than the Notice of Appeal that was filed and also, that as English is his second language, he was not familiar with the Board’s process and requested an opportunity to retain legal assistance.

9The Member denied the request and dismissed the appeals.

ISSUES

10The Appellant raises four issues that need to be determined in this request for review:

i. Did the Board fail to ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of the self-represented persons?

ii. Did the Board failed to provide adequate notice to the public or unrepresented Appellant?

iii. Did the Board fail to provide the Appellant with an opportunity to respond to the proposed dismissal?

iv. Did the Board breach procedural fairness by denying the adjournment request?

RESULT

11The Board finds that there was no violation of natural justice or procedural fairness. The Board denies the Appellant’s request for review.

ANALYSIS

12The Board’s authority for a request for review is found in Rule 121. A request for review will not be granted unless the Board is satisfied that:

(a) the Board acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

(b) the Board made a significant error of law or fact such that the Board would likely have reached a different decision;

(c) the Board heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result;

(d) there is new evidence that could not have reasonably been obtained earlier and would have affected the result; or

(e) any of the situations in Rule 122 exist.

Each of the four issues noted above is considered in light of the test for a request for review set out in Rule 121.

Issue 1 - Did the Board fail to ensure that procedural and evidentiary rules are not used to unjustly to hinder the legal interests of the self-represented persons?

13The Appellant submits that the Board violated the principles of natural justice and procedural fairness.

14In its submissions, the Appellant argues that the Board failed to ensure that the Appellant, as a self-represented person, was aware of his procedural options and failed to ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented parties. ¹

15In his affidavit sworn April 13, 2020, the Appellant stated that he joined a teleconference call with MPAC and the Board with one of his colleagues on February 4, 2020. As English is his second language, he stated that he did not understand the complex procedure and legal terminology and immediately asked for an adjournment to obtain a legal representative.

16The Appellant, in his submissions, relies on the principle articulated by the Supreme Court in Pintea that self-represented persons need to be aware of procedural options and be given information to assist them in understanding and asserting their rights before a court. The Board agrees with that principle however, this case is different in many ways than that what is contemplated in the Supreme Court’s decision.

17In this case the Appellant filed the Notice of Appeal in 2017. The Appellant also admits receiving the Board’s Schedule of Events dated July 9, 2018. The Schedule of Events sets out several dates by which parties are to comply with by completing certain actions. These dates are set out between September 12, 2018 through to September 2019. There ae due dates for the production of disclosure, additional disclosure, a mandatory meeting, the filing of all documentary evidence, witness statements and expert reports (if any) that a party intends to rely if the matter proceeds to a hearing and finally, the Schedule of Events states: “When the Board has scheduled a hearing, the Board will then conduct the hearing and issue a decision”.

18Despite the Appellant stating that he lacked understanding of the process the Board notes that at no time did the Appellant reach out to the Board to ask about process if there was confusion. The Notice of Appeal was filed in 2017. The Notice of Hearing, which the Appellant admits to receiving was dated December 9, 2019. There is no dispute that the Appellant received the Notice of Hearing however took no steps to ask for assistance from the Board nor retain counsel at that time.

19Based on the above, the Board finds that the Appellant had available to him several opportunities to seek procedural assistance from the Board but failed to do so. It is not appropriate to wait until the date of hearing to request such assistance. The Board therefore finds that it did not use procedural and evidentiary rules to unjustly hinder the legal interests of the self-represented persons

Issue 2 - Did the Board fail to provide adequate notice to the unrepresented Appellant?

20The Appellant submits that the purpose of the Notice is to give parties sufficient information about the subject matter of the hearing to allow them to prepare their case and to give them enough time to do so. In this case, the Appellant argues that he was not aware the February 4, 2020 date was for the purpose of having this matter heard on its merits.

21In reviewing the Notice of Hearing dated December 9, 2019, it clearly states that the Board will hold a “Telephone Conference Call …. To hear appeal(s) on the roll number(s) and taxation year (s) set out below.” The three appeals for 2017, 2018 and 2019 are then listed. The Appellant should have been aware, upon receipt of the Notice of Hearing, that his appeals were scheduled for hearing on February 4, 2020. If there was confusion of the intent of the Hearing, at no time did the Appellant reach out to the Board, request an adjournment or otherwise.

22The Board finds that the Notice of Hearing is clear and there is no error with respect to the adequacy of Notice.

Issue 3 - Did the Board fail to provide the Appellant with an opportunity to respond to the proposed dismissal?

23The Appellant submits that the Board’s dismissal of the appeals without a hearing was a breach of procedural fairness as the Appellant was not provided with an opportunity to respond.

24The Appellant states that the Adjudicator, in the Decision, relied on Rule 24(e) which permits dismissal without a hearing if “the appellant has not complied with statutory requirements or these Rules.” Then, relying on the Board’s decision in Municipal Property Assessment Corporation, Region No. 9 v 234900 Ontario Ltd., 2018 CanLII 248 (ON ARB), 2017 CanLII 74719 (ON ARB), the Appellant references paragraph 8 where the Board stated that dismissal “is an extreme remedy and should only be granted in the clearest of cases”.

25In reviewing the Decision, the Board finds that the appeals were not dismissed pursuant to Rule 24(e) or otherwise dismissed without a hearing. This was a hearing on the merits and the Appellant had an opportunity to put its case forward. The Board stated in its Decision:

As the Board has found that the Appellant has not established any exceptional circumstances, the Board denies the Appellant’s requests to extend the Schedule of Events and to adjourn this hearing. As the Appellant has no evidence or issue to raise at this hearing the appeals are dismissed.

26The Board finds that the Appellant had several opportunities to put the case forward. This was not a situation where the Board dismissed the appeals without a hearing but rather dismissed the case at the hearing.

Issue 4 - Did the Board breach procedural fairness by denying the adjournment request?

27The Appellant argues that an adjournment of the hearing was warranted in this case as he did not understand the process and wanted to retain counsel.

28In his submission the Appellant states his adjournment was wrongly denied in that it was his first request, there was no evidence presented that he was trying to delay the process, there were no previous hearing dates, and he is a self-represented party whose first language is not English. The Appellant submits that the failure to grant the adjournment resulted in serious prejudice to the Appellant in that the appeals were dismissed.

29The Court of Appeal has held that our courts (and tribunals) must ensure that self-represented litigants have a fair opportunity to advance their position including where the request is for an adjournment. The Board supports this approach, however disputes the submission that the Appellant was not provided with a fair opportunity to advance his position. As noted above, the Appellant had several opportunities over a two and half year period to advance his case, seek assistance from counsel, or from the Board if there was confusion about the process.

30In his submission the Appellant relies on the Law Society Discipline decision in Igbinosun v. Law Society of Upper Canada, which was appealed from the Divisional Court to the Court of Appeal:². In the Court of Appeal decision, the Court set out a thorough list of factors to consider when an adjournment is requested to retain counsel:

Factors which may support the denial of an adjournment:

a. lack of compliance with prior court orders; b. previous adjournments that have been granted to the applicant; c. previous peremptory hearing dates; d. the desirability of having the matter decided; and, e. a finding that the applicant is seeking to manipulate the system by orchestrating delay.

Factors which may support the granting of an adjournment:

a. the seriousness of the consequences of the proceeding on an individual; b. prejudice to the individual if the adjournment is not granted; c. finding that the applicant was honestly seeking to exercise a right to counsel; and, d. where an individual had been previously represented in the proceeding.

31The Appellant submits that the Board did not consider most of the factors noted above. Further, if the Board had done so, the preponderance of factors would have favoured granting an adjournment. Specifically, the Appellant sets out the fact that in this case, TCCC had no history of lack of compliance with prior Board orders; this was its first request of the Board for an adjournment; there were no previous peremptory hearing dates, and there was no finding that the Appellant was seeking to manipulate the system by orchestrating delay.

32In the Decision the Board considered the Appellant’s submission and the factors in support of an adjournment, however noted that the Appellant has had two years to arrange for assistance in understanding the appeal process yet failed to do so, and only asked for the adjournment at the outset of the hearing. Further, the Board also considered the “the integrity of the Board’s process, including the Board’s ability to efficiently resolve all appeals filed with the Board within the current four-year cycle”.

33In this case, the Board finds no error in the Decision. There was no denial of procedural fairness. The Appellant had more than enough time to retain counsel if he needed assistance or representation during the process, he failed to comply with any of the dates set out in the Schedule of Events, and he failed to make any effort to contact the Board to request assistance or additional information. For these reasons the Board denies the request for review.

ORDER

34The request for review is denied and the Board’s decision (WR 163844) is confirmed.

Footnotes

1. 1Pintea v. Johns, 2017 SCC 23, [2017] 1 SCR 470
2. 2Igbinosun v. Law Society of Upper Canada, 2009 ONCA 484, [2009] O.J. No. 2465