Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE: January 31, 2020
Assessed Person(s): Riokim Holdings (Ontario) Inc.
Appellant(s): Lowe’s Companies Inc.
Respondent(s): City of Ottawa
Property Location(s): 1021 - 1055 St. Laurent Boulevard
Municipality(ies): City of Ottawa
Roll Number(s): 0614-031-202-68000-0000
Appeal Number(s): 3273670
Taxation Year(s): 2016
Legislative Authority: Rule 122 of the Assessment Review Board’s Rules of Practice and Procedure, as amended
Request for: Reinstatement of appeal 3273670
Heard: By written submission
Parties
Representative
Submissions
Lowe’s Companies Inc.
Erin Johnston
Requester
City of Ottawa
Mishele Joanis
Received
DECISION DELIVERED BY CAROLINE KING AND ORDER OF THE BOARD
INTRODUCTION
1Lowe’s Companies Inc. (“Lowe’s”), (the “Requester”) is requesting the Assessment Review Board (“Board”) to reinstate appeal 3273670 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 May 14, 2019.
2Lowe’s is the tenant of the property located at 1021 - 1055 St. Laurent Boulevard in the City of Ottawa. Lowe’s had a 2016 appeal before the Board. Lowe’s representative had a discussion with her staff about the appeal and based on that discussion ordered that the appeal be withdrawn, as she assumed that Lowe’s no longer had an interest in pursuing the appeal. Lowe’s representative therefore proceeded to instruct her staff to withdraw the appeal.
3The Board was notified of request to withdraw on May 8, 2019. The Board acted in accordance with the request and processed the withdrawal.
4On May 10, 2019 the representative understood that she acted without the prior instructions of Lowe’s who still had an interest in continuing with the appeal, and that withdrawing the appeal had been done in error.
5Supporting materials were filed by Ms. Johnston, on behalf of Lowe’s supporting the request, and by Ms. Joanis on behalf of the City of Ottawa, opposing the request
6For the reasons that follow, I deny the request to reinstate Lowe’s 3273670 appeal.
The Reinstatement Rule
7Rule 122 sets out the circumstances in which the Board will reinstate appeals that were withdrawn. The relevant provision of the Rule for this application is in clause 122(a), which states, in relevant part that “a party to a former proceeding may seek an order… to reinstate an appeal by filing an affidavit with the Board… no more than 30 days after the appeal was… withdrawn… setting out that… the appeal was withdrawn… in error.”
8There are three essential components to Rule 122(a). 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. Finally, the Board must be satisfied that the appeal was withdrawn in error. All three conditions must be met before an appeal will be reinstated.
9Lowe’s application meets the first two requirements of Rule 122(a) but not the third requirement due to the type of error. Therefore, the request to reinstate appeal 3273670 is denied.
Party
10Lowe’s was the appellant in the withdrawn appeal and the City of Ottawa is a statutory party. They therefore meet the first part of the test set out in Rule 122(a).
Timely Application
11Lowe’s representative sent the request to withdraw this appeal on May 10, 2019 and the Board issued its acknowledgement of withdrawal on May 17, 2019. This application was filed with the Board on May 14, 2019 within the 30 days set in Rule 122(a). Lowe’s therefore meets the second requirement of Rule 122(a).
Error
12The final requirement in Rule 122(a) is that the appeal was withdrawn in error. The Rule is generally aimed at clerical errors but other errors are contemplated, on a case by case basis.
13The Board accepts that an error was made in withdrawing the appeal. The crux of this case turns on the nature of the error.
14As stated in Precise Resource Canada Ltd. v. Municipal Property Assessment Corporation, Region 21 [2019] CanLII 7179, paragraph 8:
…the requirement that the appeal be withdrawn in error is a legal determination to be made by this Board. Parties must provide the facts of who the withdrawal took place, which the Board can then evaluate against a reasonableness standard to determine if a reasonable error was made…
15In this case, it is clear that Lowe’s representative intended to withdraw appeal 3273670. That was the appeal that was withdrawn.
16The error therefore was not a clerical type error such as withdrawing the wrong appeal due to misidentifying the appeal number. Here, the appeal that was withdrawn was the appeal that Lowe’s representative intended to have withdrawn.
17The error in this case, relates to an entirely different kind of error. That is an error in a legal representative taking action without the prior instruction of the client.
18I am not satisfied that this kind of error is a reasonable error as it is fundamental to every relationship between a legal representative and their client that they only act upon the instructions of their client.
19I find it is inappropriate for the Board to go behind a legal representative’s representations and directions to the Board. The Board must be able to rely on the representations and actions of legal representatives. To undermine this basic principle, is unreasonable and extremely problematic both for the Board, and other parties who also need to be able to rely on the representations and actions of opposing legal representatives.
20I find that this is a withdrawal done in error, but the error is not one that falls within Rule 122(b), as the Board withdrew the appeal that Lowe’s representative intended to be withdrawn.
ORDER
21Lowe’s does not meet all three of the requirements for reinstatement.
22The Board denies the request to reinstate appeal 3273670.
“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