Municipal Property Assessment Corporation Region 3 v. Avery, 2020 CanLII 80892

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

October 21, 2020

FILE NO.:

DM 2020M19

Assessed Person(s):

Garet Avery; Abdulhak Nagy

Appellant(s):

Garet Avery

Moving Party

Municipal Property Assessment Corporation Region 3

Respondent(s):

City of Ottawa

Respondent(s):

Garet Avery, Abdulhak Nagy

Property Location(s):

1044 Northgraves Crescent

Municipality(ies):

City of Ottawa

Roll Number(s):

0614-301-825-23397-0000

Taxation Year(s):

2010

Hearing Event No.:

735172

Legislative Authority:

Section 40.1 of the Assessment Act, R.S.O. 1990, c. A.31

APPEARANCES:

Parties

Representative

Garet Avery and Abdulhak Nagy

Submissions not received

Municipal Property Assessment Corporation

Ashtyn Rank

City of Ottawa

Lindsay Keck

HEARD:

September 16, 2020 in writing

ADJUDICATOR:

Jean-Paul Pilon, Member

MOTION DECISION

OVERVIEW

1The Municipal Property Assessment Corporation (“MPAC”) filed this motion for an order pursuant to section 40.1(b) of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”) to extend the time for bringing appeals for the 2010 taxation year and a direction that MPAC be the appellant.

2Assessed persons Garet Avery (“Avery”) and Abdulhak Nagy provided no submissions in the motion, although Avery indicated to MPAC by email that he consented to the motion. The City of Ottawa (the “Municipality”) indicated by email to the Assessment Review Board (the “Board”) that it took no position in the matter.

Background

3MPAC relied on the affidavit of its employee Paul Slobodzian sworn on July 22, 2020 (the “Affidavit”) to provide the factual background underlying the motion.

4The address of the property at issue in this motion is 1044 Northgraves Crescent, Ottawa (the “Subject Property”).

5Prior to the 2010 taxation year, the Subject Property was part of a 124.31 acre site owned by a real estate developer named Tartan Homes Corporation (“Tartan”). Subdividing M-Plans were registered to subdivide the land into blocks of land, and reference R-Plans were registered to divide the land into individual lots upon which houses would be built.

6For the 2010 taxation year, the Subject Property was assessed under M-Plan 4M1383 Block 61 and was severed into 3 parts under R-Plan 4R23962. Part 1 of 4R23962 became 1046 Northgraves Crescent and Parts 2 and 3 became the Subject Property.

7The Affidavit indicates that “for the 2010 taxation year, the legal description for the Subject Property at 1044 Northgraves Crescent was described as PLAN 4M1383 BLK 61”, although it does not say where that incorrect legal description appeared. In any event, MPAC relied on that incorrect legal description for the Subject Property which should have referred to Parts 2 and 3 of 4R23962 and not 4M1383 Block 61 which included all three parts of 4R23962.

8Avery purchased the Subject Property on November 6, 2009 from Tartan. Due to the timing of the purchase, MPAC sent its Property Assessment Notice to Tartan rather than to Avery. As a result, Avery could not have known that he was identified as the owner of Parts 1, 2 and 3 of 4R23962, when he was in fact the owner of only Parts 2 and 3. Part 1 was conveyed to someone other than Avery on October 23, 2009.

9The Affidavit indicates that MPAC has a process for notifying municipalities of severances and consolidations. In this case, however, “for an unknown reason” this was not done and the Municipality did not reapportion taxes accordingly. The error was corrected by MPAC for the 2011 taxation year.

10On July 6, 2018 Avery sold the Subject Property.

Result

11The motion is granted.

ANALYSIS

12In its material but without citations, MPAC correctly identified general principles the Board has applied in determining palpable error motions. These include:

a. that the relief in section 40.1 of the Act is an extraordinary remedy to be used sparingly and in the clearest of circumstances;

b. that a palpable error is one that is “plain and obvious”;

c. that a palpable error must be an error that mischaracterizes the fundamental nature or legal character of the property, and must be more than an error in judgment; and

d. that relief is discretionary and that it should only be exercised when it is clear that it would be unreasonable, unfair and highly prejudicial not to grant relief.

13MPAC went on in its motion record to note that Avery was assessed for property he did not own which resulted in an overpayment of property taxes. It correctly said that an incongruity between the assessment roll and the legal description of land is a common basis for finding there is a palpable error (Canadian Tire Corporation Limited v. Municipal Property Assessment Corporation, Region 15, 2017 CanLII 3661 (ON ARB) at par. 9), as it is a mischaracterization of the legal character of the property (Municipal Property Assessment Corporation, Region 5 v. Scrymgeour, 2018 CanLII 102695 (ON ARB) at pars. 7 and 8)(“Scrymgeour”). It is also noted that palpable errors must be inadvertent errors, citing Municipal Property Assessment Corporation v. Chew, 2015 CanLII 78969 (ON ARB) at par. 19 and Scrymgeour at par. 9.

CONCLUSION

14In this uncontested motion, the Board concurs with MPAC that the Board should exercise its discretion to grant the relief requested and that Avery was prejudiced by the error. The Board further agrees that it would be unreasonable and unfair for the Board not to do so when Avery did not receive the Property Assessment Notice and the Municipality did not receive its notice of the severance of the land.

ORDER

15Pursuant to section 40.1(b) of the Act, the Board extends the time for bringing appeals for the 2010 taxation year and directs that MPAC be the appellant.