Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: August 26, 2020

FILE NO.: RR 19-047

Assessed Person(s): Via Rail Canada

Appellant(s): Via Rail Canada

Respondent(s): Municipal Property Assessment Corporation Region 27

Respondent(s): City of Windsor

Property Location(s): ES – 0 Walker Road

Municipality(ies): City of Windsor

Roll Number(s): 3739-020-010-00801-0000

Appeal Number(s): 2898678, 2946526, 3029047, 3092899, 3159949, 3244759, 3313801 and 3367135

Taxation Year(s): 2012 - 2019

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

Parties	Representative
Via Rail Canada	Karen Marangone
Municipal Property Assessment Corporation	Michael Radan
City of Windsor	Valerie Critchley

REQUEST FOR: Reinstatement of appeals 2898678, 2946526, 3029047, 3092899, 3159949, 3244759, 3313801 and 3367135

HEARD: In writing

ADJUDICATOR(S): Caroline King, Vice-Chair

DECISION

OVERVIEW

1The Municipal Property Assessment Corporation (“MPAC”) is requesting that the Assessment Review Board (the “Board”) grant its Request to Reinstate appeal numbers 2898678, 2946526, 3029047, 3092899, 3159949, 3244759, 3313801 and 3367135 under Rule 122(c) of the Board’s Rules of Practice and Procedure (the “Rules); and that the Schedule of Events (“SOE”) for these appeals continues to run with any necessary amendments to Rule 34. The request was filed with the Board on June 21, 2019 with consent of the City of Windsor (the “Municipality”) and opposed by the Appellant, Via Rail Canada. For the reasons set out in this order, the Request to Reinstate is denied.

Background

2The appeals relate to assessments made for a property located at ES – 0 Walker Road, Windsor, Ontario. The appeals are for the 2012 – 2019 taxation years.

3The Appellant submitted a request to the Board to withdraw the appeals on or about May 22, 2019. At that time, no notice of any intention to seek a higher assessment or a higher rate tax property class had been served, and no hearing events had been commenced. This has not changed in the intervening time.

4Prior to the Board processing the request to withdraw the appeals, MPAC advised the Board that it opposed the request to withdraw the appeals.

5On May 31, 2019, the Board processed the request to withdraw the appeals and notice was provided to the parties.

6MPAC submitted this Request to Reinstate the appeals via the Board’s Expedited Board Directions Form, and on June 20, 2019, provided an affidavit by Brittany Allen, Senior Case Management Analyst, Legal, Policy and Compliance in support of their request.

7Despite being copied on MPAC’s Board Expedited Directions Form, and on the Appellant’s response, the Board did not receive a response from the Municipality. The Appellants opposed MPAC’s request.

8MPAC’s Request to Reinstate the appeals is based on their submission that the Board erred in withdrawing the appeals as the Appellant did not provide proper notice of the withdrawal, and that to allow the withdrawal of the appeals so early in the process would constitute a denial of procedural fairness and natural justice.

MPAC’s Submissions

9MPAC’s submissions were set out and confirmed in an affidavit dated June 20, 2019, by Brittany Allen, Senior Case Management Analyst, Legal, Policy and Compliance for MPAC including confirming the Appellant’s letter of withdrawal dated May 22, 2019.

10MPAC set out the factual grounds which form the basis of MPAC’s argument that the General Proceeding appeals were dismissed in error. These grounds include that:

1. The Rules require all appellants to provide a Statement of Issues (“SOI”) to all other parties on a specified timeline, which is this case was May 22, 2019. The Appellant did not do this. On May 22, 2019 MPAC sent a letter to the Appellant confirming that the SOI was not received;

2. On May 23, 2019 the Appellant emailed a copy of May 22, 2019 letter to an MPAC clerk stating its intent to withdraw the appeals. On the bottom of this May 22, 2019 letter it is indicated that the letter was copied to the Manager of Case Management, MPAC;

3. On May 28, 2019 Brittany Allen, MPAC Senior Case Management Analyst, emailed the Board advising that MPAC opposed the withdrawal. MPAC asked the Board to keep the appeals active until MPAC could review the appeals and decide on a course of action. However, notwithstanding this request, a few days later the Board processed the Appellants request to withdraw its appeals; and on June 21, 2019 MPAC filed the Request to Reinstate the appeals with the Board.

Notice of Withdrawal

11MPAC argued that the Appellant failed to properly notify the other parties of the withdrawal of the appeals as required by Rule 72. MPAC further argued that the Municipality was not notified of the withdrawal or copied on any correspondence between the Appellant, MPAC and the Board as required by the Rules.

12MPAC argued that the Appellant did not send notice to MPAC’s case management mailbox or to the Senior Case Management Analyst assigned to the appeals. Instead, the notice was sent to an MPAC clerk who did not have the authority to act on these appeals.

Procedural Fairness and Natural Justice

13MPAC argued that procedural fairness requires that the appeals be reinstated to allow MPAC an opportunity to address all issues with the assessment and to provide a Response to Statement of Issues (“RSOI”) which wasn’t due until more than 5 months later on November 2, 2019. MPAC argued that to withdraw or close the appeals without notice to MPAC and the Municipality prior to the due date for the RSOI offends the principles of natural justice and procedural fairness.

Appellant’s Submissions

14The Appellant’s reply submissions emailed to the Board dated June 14, 2019 (copied to MPAC and the City of Windsor), stating that MPAC’s request for reinstatement is without merit pursuant to Rule 72 and opposed MPAC’s Request to Reinstate the appeals.

15The Appellant further submitted in the June 14, 2019 email that all parties were notified of the withdrawal; and no notice seeking a higher assessment or tax rate was delivered by MPAC or the Municipality. It is noted that the format of the submissions deviated from the standard procedure. However, in this case, key facts are not in dispute including the fact that there was no notice of any higher assessment provided, nor had any hearing events commenced. In the context of this case, and the undisputed key facts, and the documents and submissions provided by MPAC, (which are consistent with the Board’s records), and the nature of the information and submissions in the Appellant’s records (which contain emails copied to MPAC and the Municipality), the Board has exercised its discretion to proceed with the information and submissions as provided.

16The Appellant submitted a copy of the Letter of Withdrawal dated May 22, 2019 to the Board for appeals 2898678, 2946526, 3029047, 3092899, 3159949, 3244759, 3313801 and 3367135 which “cc” the Manager of Case Management, MPAC on the withdrawal of the appeals.

Issue

17The issue in this proceeding is whether appeal numbers 2898678, 2946526, 3029047, 3092899, 3159949, 3244759, 3313801 and 3367135 should be reinstated under Board Rule 122(a) (appeals withdrawn in error) and 122(c) (natural justice and procedural fairness require reinstatement). If the appeals are to be reinstated, should the Schedule of Events be revised.

Result

18The Board denies MPAC’s Request to Reinstate appeal numbers 2898678, 2946526, 3029047, 3092899, 3159949, 3244759, 33139801 and 3367135 for the 2012 - 2019 taxation years. The Board finds that the appeals were not withdrawn in error, and natural justice and procedural fairness do not require the appeals to be reinstated.

ANALYSIS

Issue I - Preconditions of Request to Reinstate

19MPAC was a party to the former proceeding and the request was brought by MPAC by filing Expedited Board Direction Form and their affidavit to the Board less than 30 days after the appeals were withdrawn. These documents were copied to all parties. The Board finds that the preconditions to consider the Request to Reinstate have been met. MPAC is therefore in compliance with the preconditions set out in Rule 122.

Issue I - Withdrawn n Error?

Natural Justice, Procedural Fairness, and The Notice Provision

20Rule 122(a) provides that a party to a former proceeding can request that appeals be reinstated if the appeals were withdrawn in error.

21To determine whether these appeals were withdrawn in error, Rule 72 which sets out when and how appeals may be withdrawn by appellants must be reviewed. If there is no notice of a higher assessment and/or notice of a higher tax rate property class, and no hearing event has commenced, then appellants may withdraw appeals with notice to other parties.

22Prior to the Board acting on the Appellant’s request to withdraw the appeals, the Board received notice from MPAC on May 28, 2019, that MPAC opposed the request to withdrawal. Clearly MPAC received notice of the withdrawal.

23The Board agrees with MPAC, that the notice should have been sent directly to the Manager of Case Management (if the specific case manager was not known). The Board also agrees with MPAC, that there is no evidence submitted that the Municipality was copied on the May 22, 2019 letter from the Appellant’s withdrawing their appeal. The Board has not received any communication from the Municipality regarding the Request to Reinstate, nor does the information provided by the Appellant’s establish that the Municipality was given notice of withdrawal.

24The Rules do not contain any language which indicate that parties must consent to requests to withdraw if there is no notice of any higher assessment, and if no hearing events have commenced. Therefore, while any appellant must give notice to the other parties that it is seeking a request to withdraw appeals, as long as there is no dispute regarding any notices of higher assessment, and no hearing events have commenced, the failure to notify the other parties of a request to withdraw is not itself a fatal error.

25MPAC takes the position that the Board erred in dismissing the appeals, because:

1. the Appellant failed to properly notify MPAC and the other parties of the withdrawal of the appeals as required by Rule 72; and

2. by granting the withdrawal of appeals, MPAC was denied procedural fairness and natural justice.

26Therefore, to determine whether the appeals should be reinstated it must be considered whether the language in the Rules.

27In this case, despite the Appellant’s imperfect notice, it is clear based on the undisputed facts and MPAC’s submissions, that MPAC received notice of withdrawal before the Board processed the withdrawal request and the Board is satisfied that MPAC was given notice, that even after MPAC’s Case Manager had received notice and communicated with the Board on May 28, 2019, and at no time prior to the Request to Reinstate being submitted on consent of both MPAC and the Municipality weeks later in June 2019, was there any notice of higher assessment served on the Appellant.

28MPAC seeks a decision interpreting the Rules such that no appeals can be withdrawn prior to the timeline in the Schedule of Events when the responding party provides its Statement of Reply which in this case was November 2, 2019.

29This interpretation is contrary to the requirement that the Rules are to be liberally interpreted to ensure the “just, most expeditious and lease expensive determination of every proceeding” as set out in Rule 4.

30As the original assessment of the properties is set by MPAC, and all parties including MPAC, and the Municipality have received notice of the original assessment set by MPAC. At that time, it was open to all parties to seek a higher assessment, if they determined that the assessment was too low. This was not done in this case.

31Pursuant to Rule 72, the Board finds that MPAC has not met the requirement of (a) and in the case of (b), the hearing event had not commenced because the appeals were withdrawn by the Appellant on May 22, 2019 before any pleadings were exchanged on or before the date prescribed in the SOE (May 22, 2019 per MPAC) and before the hearing commenced.

32The Board also finds that submissions from the Appellant show that MPAC was copied on the Letter of Withdrawal sent to the Board May 22, 2019 and was sworn to in the June 20, 2019 affidavit of Brittany Allen.

33As with any time frame established in the Board’s Rules, the intention is to ensure that the Board acts in accordance with its mandate and the public interest in ensuring that matters proceed before the Board in a timely, efficient, and fair manner.

34In this case, the Board finds that prejudice falls on the Appellant if the appeals are to be reinstated. It is clear to the Board, from the evidence submitted, that the Appellants acted in accordance to Rule 72 (as of right) by withdrawing the appeals, because no notice seeking a higher assessment or tax rate was delivered by MPAC or any other parties.

35The Board finds that procedural fairness and natural justice require that MPAC’s Request to Reinstate the appeals be denied.

36The Board denied MPAC’s Request to Reinstate the appeals, and therefore there is no need to consider any changes to the SOE.

ORDER

37MPAC’s Request to Reinstate appeal numbers 2898678, 2946526, 3029047, 3092899, 3159949, 3244759, 3313801 and 3367135 for the 2012 - 2019 taxation years is denied.