3883281 Canada Inc. v. City of Mississauga, 2020 CanLII 83826

Assessment Review Board / Commission de révision de l’évaluation foncière

ISSUE DATE: October 29, 2020

FILE NO.: WR165443

Assessed Person(s): 3883281 Canada Inc.

Appellant(s): 3883281 Canada Inc., c/o Carttera Management LP

Respondent(s): City of Mississauga

Property Location(s): 1919 Minnesota Court

Municipality(ies): City of Mississauga

Roll Number(s): 2105-040-097-25810-0000

Appeal Number(s): 3376156

Taxation Year(s): 2018

Hearing Event No.: 732967

Legislative Authority: Section 364 (14) of the Municipal Act, 2001, S.O. 2001, c. 25

APPEARANCES:

Parties

3883281 Canada Inc.

City of Mississauga

Counsel

Lauren Lackie

Robert Ryan

HEARD: June 29, 2020 by telephone conference all

ADJUDICATOR(S): Jennifer Griffith, Member

DECISION

OVERVIEW

13883281 Canada Inc. (“Appellant”) filed an appeal for its commercial property located at 1919 Minnesota Court, in the City of Mississauga (the “City”) with the Assessment Review Board (“Board”). The Subject Property is improved with a five-storey low-rise office building and is located off Highway 401. On February 28, 2019 a Vacancy Rebate Application (“Application”) was filed with the City for 96,380 square feet (“sq. ft.”) of the Subject Property’s building area pursuant to s. 364(14) of the Municipal Act (“Act”) for the 2018 taxation year. On May 2, 2019 the City issued a Notice of Determination of zero ($0.00) vacancy rebate for the 2018 taxation year.

2Section 364 (14) states:

Complaint. – A person who has made an application under this section may within 120 days after the municipality mails the determination of the amount of the rebate, complain to the Assessment Review Board in writing that the amount is too low.

3Section 364 (16) states:

Determination by the Board. – In a complaint under subsection (14) or (15), the Assessment Review Board shall determine the amount of any rebate owing to the applicant.

4The Appellant submits that the City’s decision of a zero ($0.00) tax rebate was unreasonable and that a vacancy rebate of $47,409 is warranted because 96,380 square feet (“sq. ft.”) of the Subject Property’s building area were vacant in the 2018 taxation year.

5The City submits that the decision of a zero ($0.00) tax rebate was justified, because the Appellant failed to comply with the statutory evidentiary requirements to provide the City with the information requested by the due date of April 21, 2019. The City submits that the failure to comply with those requirements disentitles the Appellant to a rebate.

Issues for the Hearing/Evidence

6The issue to be determined on this appeal is the amount of the vacancy rebate owing. Because s. 364 of the Act and s. 27 of O. Reg. 325/01 require that the Appellant provide the information requested by the City in order to be entitled to a rebate, the main issues to be determined are:

1. Did the Appellant comply with the City’s requests for information and records in accordance with s. 364(5),(8)-(9) of the Act and s. 27(5)-(6) of O. Reg. 325/01?

2. If the Appellant failed to provide the information requested by the City within the 30-day time limit set by O. Reg. 325/01, can the Board nevertheless determine the amount of the rebate owing based on its consideration of the evidence before the Board?

Result

7The Board finds that the Appellant failed to provide sufficient evidentiary information in response to the City’s request to satisfy s. 364 of the Act and O. Reg. 325/01. The Board finds that although the Appellant’s appeal to the Board is a de novo hearing, s. 364(1)(5)(8)(9) of the Act and s. 27 (5)(6) of O. Reg 325/1 are clear that no rebate is payable if the information requested by the City is not provided within the 30-day time limit. Those provisions do not give the Board the discretion to deviate from the statutory evidentiary requirements or the statutory timeline for compliance; and therefore, the Appellant is not entitled to a rebate. Consequently, the Board determines that amount of the vacancy rebate is zero ($0.00).

PRELIMINARY MATTERS

8The City raised a motion to have Heidi Tibben, a representative of the Appellant’s management company (Carttera Management Inc.) to be in attendance to be cross-examined. Ms. Tibben had sworn to two affidavits dated May 8, 2020 that are included in the Agreed Statement of Facts in support of the Appellant. The City wished to cross-examine Ms. Tibben on her failure to include the attachments (brochure, MLS listings, site signage) that she had sworn to in the affidavits that were sent to the City.

9The City also argued that the Agreed Statement of Facts clearly indicates “…that the document does not represent the extent of the facts in the evidence… or that which may be led at the hearing, through witness testimony or cross-examinations”. The City argued that there is nothing in the document that excludes the cross-examination of witnesses.

10In response, the Appellant argued that the issue of witness cross-examination was not raised during any discussions with the City and that she was of the understanding that witness cross-examination would not be required. However, the Appellant stated that Ms. Tibben is available if required.

11Based on the submissions, the Board ordered Ms. Tibben to attend the hearing to be cross-examined on the evidence she had sworn to in the affidavits, because the attachments stated in the affidavits were not sent to the City. The issue of which documents were provided to the City and when is a central issue on this appeal.

12The Board also found that the Agreed Statement of Facts provides no agreement excluding the cross-examination of witnesses.

EVIDENCE AND SUBMISSIONS

Agreed Statement of Facts by the Parties

13On February 18, 2019 the Appellant filed an application to the City for a vacancy rebate for the 2018 taxation year, claiming 96,380 square feet (“sq. ft.”) of the Subject Property’s building area. The area claimed includes 71,032 sq. ft. for Units 1 – 3 (floors 1 – 3) for the period September 1, 2018 to December 31, 2018; and 25,348 sq. ft. for Unit 4 (the 4th floor), for the period January 1, 2018 to December 31, 2018). Attached to the Application are the following:

1. The City’s Vacancy Rebate Supporting Documentation Checklist;

2. Rent Rolls for the year ending December 31, 2018 showing the monthly breakdown from January to December 2018;

3. A confirmation of vacancy form;

4. An Agent Letter of Authorization; and

5. Real Estate Marketing brochure prepared by Avison Young Commercial Real Estate (Ontario) Inc. (“Avison Young”) for the vacant units which included measurements of 71,246 sq. ft. for Units 1 - 3 and approximately 26,195 sq. ft. with respect to Unit 4 (the “Real Estate Marketing Brochure”).

14In response to the Application, the City sent by email on March 26, 2019 a copy of an “Incomplete Notice” to the Appellant dated March 22, 2019 stating that the original notice was sent by mail, together with copies of the required Confirmation of Unit / Building Status Form, an Affidavit template for proof of advertisement and Termination of Lease (if required), and Vacancy Rebate Supporting Documentation Checklist with detailed instructions of what was required for each of the document requested. In the notice, the City confirmed that the Application was received, and that the following information was required by April 21, 2019 in order to process the Application:

1. Confirmation of Unit Building Status Form;

2. Detailed monthly rent rolls with lease terms including two months prior and two months after vacancy rebate (i.e. November and December of 2017 and January and February of 2019) or if rent rolls did not exist, written confirmation;

3. Legible sketches with dimensions of square footage;

4. Real estate listing dated within claimed period (if no lease exists) or original affidavit if listing is unavailable and insufficient;

5. Previous lease issued including any amendments, extensions and termination notice including affidavit if lease is broken; and

6. Termination notice and letter issued by landlord.

15On or about April 18, 2019 the Appellant requested an extension of time within which to deliver the outstanding documents that were due April 21, 2019 and the request was denied by the City.

16On April 22, 2019 (no issues were raised by the City because April 21, 2019 was a Sunday), the Appellant submitted the following information to the City:

1. The City’s Vacancy Rebate Supporting Documentation checklist;

2. The 2018 Rent Roll showing the monthly breakdown from January to December 2018. This is a copy of the same rent roll submitted with Application;

3. An additional 2018 rent roll as of December 2018 (one page and unsigned) showing Unit numbers, Tenants names, area (sq. ft.), start and end dates of the lease, rent per sq. ft. and annual rent;

4. Rent roll for the year ending December 31, 2019 (one page and unsigned), showing only for the month of January 2019, the Unit numbers, Tenants names, area (sq. ft.), start and end dates of the lease, rent per sq. ft. and monthly rent;

5. The first two pages of a Lease Termination and Amending Agreement with E. I. Dupont Canada (“Dupont”) effective February 1, 2018 with respect to Units 1, 2, 3 and 4. The lease agreement states that the Original Lease to downsize the Premises and surrender the entire fourth (4th) floor of the building effective July 31, 2017 and the lease as it relates to the Premises shall…be terminated with effect as of August 31, 2018. The Appellant also stated that there is a new lease effective April 1, 2019 for the 2nd and 3rd floor, however the new lease is not fully executed at this time and was not available.

6. An amended confirmation of Vacancy Form;

7. The Agent Letter of Authorization; and

8. The Real Estate Marketing Brochure.

17The Appellant also offered the City an opportunity to inspect the Subject Property if desired, but the City did not pursue an inspection.

18On May 2, 2019 the Appellant received a Notice of determination from the City with a zero ($0.00) vacancy rebate.

19On May 8, 2019 the Appellant emailed the City asking for the reasons why the decision rendered was for a zero ($0.00) vacancy rebate for the Subject Property. The City responded that the decision for a zero ($0.00) vacancy rebate was because information that was requested in the Incomplete Notice was not received by the due date of April 21, 2019. The following are the highlighted items that were not provided:

a. Units 1 - 3

1. Legible sketch clearly identifying dimensions and/or square footage (free-form sketches accepted);

2. Previous lease – amendments / extensions and termination notice / original affidavit if lease is broken;

3. Previous tenant’s lease and termination notice if broken lease or original affidavit;

4. Real estate listing, newspaper and internet advertisement dated within claimed period (if no new lease exists) or original affidavit if listing unavailable and insufficient; and

5. Termination notice / letter issued by the landlord.

b. Unit 4

1. Legible sketch clearly identifying dimensions and/or square footage (free-form sketches accepted; and

2. Real estate listing, newspaper and internet advertisement dated within claimed period (if no new lease exists) or original affidavit if listing unavailable and insufficient.

20The Appellant asked the City why the sketches, advertising, lease Termination and Amending Agreement did not meet the City’s requirements. The City responded that the sketches provided did not clearly identify the dimensions and/or square footage of the vacant units; the lease termination notice was received without the signature page; real estate listings were not provided; and the marketing brochures were not dated within the claimed periods.

Additional Materials filed with the Board

21On January 14, 2020 the Appellant submitted the Disclosure Brief to the Board. The Disclosure Brief contained the following documents, which with the exception of the first two pages of the Lease Termination and Amending Agreement, had not been provided to the City on or before April 21, 2019:

1. Additional sketches and Building Owners and Managers Association (“BOMA”) measurements of the vacant areas (Unit 1 -3, 71,031.99 sq. ft. and Unit 4, 25,347.66 sq. ft);

2. A copy of the new lease with General Electric Canada for Units 1 – 3 with the commencement date of April 1, 2019;

3. The full Dupont Lease Termination and Amending Agreement including signature pages;

4. Copies of agreements by which Avison Young was appointed the exclusive leasing agent to provide leasing and marketing services with respect to Unit 4, the term of Avison Young’s appointment being from December 6, 2016 to January 31, 2019.

22The Appellant also submitted to the Board two sworn Affidavits by a representative of its management company, Heidi Tibben, regarding lease termination and advertisement efforts made during the vacancy period.

Cross-examination of the Appellant’s Witness (regarding sworn Affidavits)

23Heidi Tibben was cross-examined on the two Affidavits she had sworn in support of the Appellant. Ms. Tibben confirms that she is aware of the process and has applied for vacancy rebates for other years.

24Ms. Tibben confirms that the Affidavits were signed May 8, 2020 after the City’s deadline of April 21, 2019 for providing the additional information. She also confirms that MLS Listings were not attached to the Affidavit as stated; that the marketing brochure provided was not dated to show the period claimed; and documents showing that Avison Young was retained for advertising were also provided after the City’s deadline.

25Ms. Tibben further states that the documents requested by the City were in the possession of the Appellant at the time of the deadline, except for the New Lease which she was not sure it was in the possession of the Appellant, although it was listed in the Affidavit.

The City’s Witness

26Counsel called Barbara Malta, Intermediate Tax Account for the City as a witness. She testifies that she has been employed by the City for 13 years handling tax accounts, tax appeals, assessments and vacancy rebates. Ms. Malta provides detailed explanation of the how the Application for Tax Vacancy Rebate process works. She also explained that the evidentiary documents requested are to confirm the square footage of the vacant units, confirm the vacancy period claimed, and to be able to respond to the Application in a timely manner.

27Ms. Malta confirmed on cross-examination that sketches are important to verify the square footage of the area claimed; that a detailed monthly rent roll is required to confirm whether or not the vacant spaces were leased and/or used temporarily; that the real estate listing is required to confirm whether the vacant units claimed were advertised by a listing agent agreement, newspaper and internet for the vacancy periods claimed and to demonstrate that advertising efforts were taken to have the vacant units rented; new leases, previous leases, lease amendments and extensions are necessary to confirm landlord and tenant names, property address, the units square footage, commencement and expiry dates, early termination, and signature; and reason for the denied claim in this case is incompleteness of the Application.

Appellant’s Submissions

28The Appellant submits that today’s hearing constitutes a hearing de novo and argues that the Board has the discretion to deviate from the City’s due date of April 21, 2019 for providing the requested statutory documents pursuant to s. 27(5)(6) of O. Reg. 325/01; and even though all of the requested evidentiary documents were not provided by the City’s deadline, the Board has the discretion to accept the evidentiary documents submitted approximately nine months after the statutory deadline, to provide remedial and essential justice to the Appellant. The Appellant however, does not argue that the evidentiary requirements imposed by the City were unreasonable, nor does it provide any submissions on whether the statutory evidentiary requirements were in fact complied with.

29In support of the above arguments the Appellant cited a number of cases to assist the Board in its determination, the most relevant of which are discussed below.

City’s Submissions

30The City argues that the Appellant had the documents requested by the City on March 26, 2019 as testified by Heidi Tibbin and failed to provide the documents to the City on or before the due date of April 21, 2019. The City argues that documents provided on April 22, 2019 show that the Real Estate Brochure re-submitted did not show the dates for the period claimed and showed that the measurements of the units were different than the area claimed; no legible sketches were provided; only one monthly rent roll was provided for 2019, although the city requested two months prior and two months after the period claimed; and official leases were not provided.

31The City argues that the Board does not have the jurisdiction to change the City’s due date of April 21, 2019 for providing the requested statutory documents pursuant to s. 27(5)(6) of O. Reg. 325/01 and the Appellant is therefore non-compliant with these regulations.

32The City also argues that the Board does not have the jurisdiction to accept the requested statutory evidentiary documents after the due date of April 21, 2019 pursuant to s. 27(5)(6) of O. Reg. 325/01. Therefore, the City argues that the Appellant failed to comply with the City’s statutory request for evidentiary documents by the due date of April 21, 2019 and that a zero ($0.00) vacancy rebate is justified.

33The City in support of its argument that the Appellant failed to meet the statutory requirements of pursuant to s. 27(5)(6) of O. Reg. 325/01; and its argument that the Board does not have the jurisdiction to change the timeline pursuant to pursuant to s. 27(5)(6) of O. Reg. 325/01 provides the Board with the several cases to assist it in its determination, the most relevant of which are discussed below.

ANALYSIS

34The issue before the Board is whether the Appellant is disentitled to a vacancy rebate because it failed to comply with the City’s requests for information within the required timeframe. Accordingly, the Board must decide whether the Appellant failed to comply with the requirements by the deadline and, if so, whether that precludes the Board from granting a rebate.

35In accordance with s. 364(5) of the Act, municipalities have the discretion to include evidentiary requirements as part of the criteria to be satisfied by the property owners making applications under this section of the Act. It provides:

The program may include evidentiary requirements that must be satisfied for the owner to be entitled to a rebate under this section.

36Pursuant to s. 364(8) of the Act, municipalities may also request additional information from the applicants:

For the purposes of determining the proper amount of any rebate payable under this section, the municipality may, by letter sent by mail, served personally or delivered by courier, require the owner or manager of the property referred to in an application under this section to provide any relevant information or produce any relevant records ... within such reasonable time as is set out in the letter.

37Section 364(9) of the Act makes it mandatory for the applicants to provide the information requested by the municipality within certain timelines. It provides:

A person who receives a letter under subsection (8) shall within the applicable time under that subsection, provide to the municipality all the information that is within the person’s knowledge and produce all of the records required that are within the person’s possession or control.

38The O. Reg. 325/01 further provides the prescribed time limit for providing the information to the City and the consequences for failing to produce these documents. Section 27(5)(6) of the regulation provides:

(5) For the purposes of subsection 364(8) of the Act, the prescribed time for providing relevant information or producing relevant records is 30 days after the date the letter is mailed, personally served or delivered by courier, as the case may be.

(6) No rebate is payable under section 364 of the Act for a taxation year in respect to a property if a person who receives a letter described in subsection 364(8) of the Act fails to provide the information or records to the municipality within the time set out in subsection (5).

Issue 1 - Did the Appellant comply with the City’s requests for information and records in accordance with s. 364 of the Act and [s. 27(6)](https://www.canlii.org/en/on/laws/regu/o-reg-325-01/latest/o-reg-325-01.html#sec27subsec6_smooth) of [O. Reg. 325/01](https://www.canlii.org/en/on/laws/regu/o-reg-325-01/latest/o-reg-325-01.html)?

39The City’s evidence is that the Appellant submitted a Vacancy Rebate Application with missing information necessary to process the application. As a result, the Appellant was sent an Incomplete Notice requesting a list of evidentiary documents by April 21, 2019. However, the Appellant failed to fully comply with the request even after the Appellant was provided the necessary blank forms to be completed and a check list with detailed explanation of what should be included in each document.

40In response to the request for evidentiary documents which was due on April 21, 2019, the Appellant provided a list of documents on April 22, 2019 because April 21, 2019 was a Sunday which was not an issue for the City. Although the Appellant responded to the City’s request, the evidentiary documents provided were not in compliance with the request and did not provide the full and detailed information sought by the City. Amongst the documents sent in response to the request, were two pages of a rent roll without any signature; the first two pages of a Lease Termination and Amending Agreement with E. I. Dupont Canada (“Dupont”) effective February 1, 2018 (without any signature or explanation of why only two pages of the entire signed lease were provided, except to say that there is a new lease effective April 1, 2019 for the 2nd and 3rd floor which was not fully executed at that time and was not available); a copy of Avison Young marketing brochure without any specific dates to support the vacancy dates claimed; and no Multiple Listing of Sales (“MLS”) was provided.

41The Board finds that the Appellant is non-compliant by failing to provide the City with the pertinent, detailed and complete documents by the due date of April 21, 2019, which are necessary for the City to verify the claimed area’s eligibility for the vacancy rebate pursuant to s. 364(5)(8)(9) and O. Reg. 325/01 s. 27(5)(6). Specifically:

1. Rent rolls were provided for one month only January 2019, instead of the two months prior and after the vacancy period claimed. Rent rolls for all months are necessary for the City to confirm the period of vacancy;

2. MLS listings were not provided. These were referred to in Ms. Tibben’s affidavit but were not in fact attached to the affidavit, nor were they provided to the City at any time. MLS listings assist the City to determine the period of vacancy and to demonstrate if any efforts were made to have the units rented. Although the Appellant provided the City with a marketing brochure, the brochure was not dated and cannot be used to establish the period of vacancy. Also, the measurements shown in the brochure were different than the areas claimed which is required for the calculation of refund amounts; and

3. Only the first two pages of the Lease Termination and Amending Agreement were submitted by the deadline. These did not include the signature page and are insufficient to establish when the lease was terminated; and

4. Termination notice and letter issued by the landlord were not provided, which are required to confirm that the units were not rented for the period claimed.

42The Board finds that the city’s allotted timeframe of 30 days to provide the requested documents is reasonable and complies with the timelines indicated in O. Reg. 325/01 s. 27(5)(6), as stated above. Subsection 27(5) states that the prescribed time for providing the relevant information and records is “30 days after the date the letter is mailed…” The Incomplete Notice was dated March 22, 2019, and an email was sent to the Appellant on March 26, 2019 indicating that the Incomplete Notice had been mailed. In the absence of any argument to the contrary, the Board infers that it was mailed on March 22, 2019 and that the April 21, 2019 deadline was compliant with the prescribed 30-day time period.

43The Board finds that the City’s Documentation Checklist which was provided to the Appellant clearly indicates the required evidentiary documents, records and/or original affidavits that were needed to proceed with the Application.

44The Board finds that the Appellant did not provide the Affidavits of Ms. Tibbin until May 13, 2020, well after the due date for April 21, 2019; and that it was clear from Ms. Tibben testimony that the documents requested by the City were available and in the possession of the Appellant prior to the due date. Ms. Tibben also confirms the attachments (e.g. MLS listings, advertising on Avison Young Brokerage’s website, site signage etc.) indicated in her May 8, 2020 sworn Affidavits were in fact, not attached and were not sent to the City.

45The Board finds that although the Appellant filed with the Board on January 12, 2020 additional sketches (based on BOMA measurements) showing the area for the units claimed ; a copy of the new lease with General Electric for Units 1 – 3, with a commencement dated of April 1, 2019; full lease Termination and Amending Agreement including signature pages; and copies of agreements appointing Avison Young the exclusive leasing agent to provide leasing and marketing services with respect to Unit 4 for the period December 6, 2016 to January 31, 2019, these documents were only a few of the evidentiary requirements not delivered to the City by the due date of April 21, 2019, so that the vacancy period could be confirmed. The Board finds that although there was substantial compliance on January 12, 2020, these documents were sent well passed the deadline of April 21, 2019 and were not compliant with the prescribed time of 30 days for providing the relevant information and records. The Board also finds that the requested evidentiary requirements were not unreasonable, because the vacancy checklist provided to the Appellant was very detailed as to what was required; and provided in some cases other options that the City was willing to accept (e.g. affidavit, free-form sketches, notifying the city if document does not exist etc.) that should have allowed the Appellant to respond to the City by the due date of April 21, 2019. This finding that the requested evidentiary documents were not unreasonable is supported by Manheim Auto Auctions Ltd. v. Municipality Property Assessment Corp., Region No. 15, [2013] O.A.R.B.D. No. 178, 78 O.M.B.R. 236, 2013 CarswellOnt 12584 (Ont. A.R.B.) at para. 22 which states:

The Board finds that the evidentiary requirements that the Town established in the rebate application were not unreasonable. It is quite reasonable for a municipality to insist on some form of verification, beyond simply accepting the word of the applicant. These requirements were clearly outlined in the application form.

46Accordingly, the Board finds that the Appellant did not comply with the statutory requirement to provide the requested information and records to the City within the required time period.

Issue 2 - If the Appellant failed to provide the information requested by the City within the 30-day time limit set by [O. Reg. 325/01](https://www.canlii.org/en/on/laws/regu/o-reg-325-01/latest/o-reg-325-01.html), can the Board nevertheless determine the amount of the rebate owing based on its consideration of the evidence before the Board?

47The Board rejects the Appellant’s argument that the Board has the discretion to deviate from the evidentiary requirements because this is a de novo hearing. The Board finds that s. 364 (1)(5)(8)(9) of the Act has clearly given the discretion to municipalities regarding the vacant unit rebate program, the evidentiary requirements; request for information; and makes it mandatory for the applicants to provide all the information requested by the municipality within 30 days of the request.

48This finding is supported by Manheim Auto Auctions Ltd. v. Municipality Property Assessment Corp., Region No. 15, [2013] O.A.R.B.D. No. 178, 78 O.M.B.R. 236, 2013 CarswellOnt 12584 (Ont. A.R.B.) at 21 which states:

In the absence of an MLS listing the Appellant had to supply the Town with some form of verification that the eligible space was vacant during the taxation year to merit a further vacant unit rebate and that it was actively being advertised for lease. The Town is entitled to lay out the rules of the program and to determine that compliance must be met in order for rebate to be payable, and this is clearly stated in s. 364(5) of the Act and in paragraph 7 of s. 3(1) of O. Reg. 325/01.

49Similarly, Chelsea Square Ltd. v. Markham (Town), 2008 CarswellOnt 8115, 61 O.M.B.R. 380 (Ont. A.R.B.) states at paras. 13 and 14:

In the absence of an MLS listing, the owner had to supply Markham with some form of verification that the eligible property was vacant during the taxation year to merit a vacant unit rebate. The mere posting of a sign on the building does not satisfy the evidentiary requirement as set out by Markham. This coupled with the lack of a sketch of vacant area and/or lease agreement, also required in the application, entitled Markham to deny the application since it did not meet with its requirements. Markham is entitled to lay out the rules of the program and to determine that compliance must be met in order for rebate to be payable, and this is clearly stated in s. 364(5) of the Act and in paragraph 7 of s. 3(1) of O. Reg. 325/01.

The Board finds that the evidentiary requirements that Markham established, and was clearly entitled to establish were not unreasonable. It is quite reasonable for a municipality to insist on some form of verification, beyond simply accepting the word of the applicant. These requirements were clearly outlined in the application form.

50Regarding the Appellant’s argument that the Board has the discretion to deviate from the deadline of April 21, 2019 for accepting the evidentiary documents requested by the City, the Board finds that the time for providing the evidentiary documents prescribed in the regulations is 30 days and that time is mandatory. O. Reg. 325/01 s. 27(5) states:

…the prescribed the time for providing relevant information or producing relevant records is 30 days…

and

s. 27(6) states:

No rebate is payable…if a person who receives a letter…fails to provide the information or records to the municipality within the time set out in subsection (5).

51Subsection 27(6) of the regulation is clear that “no rebate is payable” if the requested information is not provided within the 30-day deadline. Subsection 364(5) of the Act also makes it clear that the rebate program’s evidentiary requirements “must be satisfied for the owner to be entitled to a rebate”. There is nothing stated in the regulations that gives the Board the discretion to extend the timeline of 30 days. If the legislature intended to give the Board the discretion to extend the deadline it would have stated so. Although the issue in 2397146 Ontario Inc. v. Brampton (City), Re 2018 CarswellOnt 6947 (Ont. A.R.B.) is extending the time for appeals, the Board finds that this case supports its finding at para. 20;

If the legislature had intended to grant the Board the power to extend the time…it would have done so expressly, as it has in other contexts. The legislature’s choice to omit that language here is an indication that it did not intend to make this deadline flexible.

52The Board also finds that there are some suggestions in Manheim Auto Auctions Ltd. v. Municipality Property Assessment Corp., Region No. 15, [2013] O.A.R.B.D. No. 178, 78 O.M.B.R. 236, 2013 CarswellOnt 12584 (Ont. A.R.B.) at para. 32 that the Board may have a degree of flexibility not to strictly apply all of a Municipality’s evidentiary requirements. However, the Board was clear in that case that at least some verification of the vacancy was required. The current appeal is not a case of technical non-compliance with the City’s requirements. Rather, the Appellant failed to submit the documents necessary to establish the vacancy dates by the City’s deadline. While some further documents were provided to the Board almost nine months after the deadline, these were still incomplete, and no explanation was provided for the significant delay. The Appellant did not substantially comply with the evidentiary requirements of the Act and O. Reg 325/01.

CONCLUSION

53For the reasons stated above, the Board finds that the Appellant failed to provide sufficient evidentiary information in response to the City’s requests to satisfy s. 364 of the Act and O. Reg. 325/01.

54The Board finds that s. 364(1)(5)(8)(9) of the Act and s. 27 (5)(6) of O. Reg 325/1 do not give the Board the discretion to deviate from the statutory evidentiary requirements; and statutory timeline for providing the municipality with the evidentiary documents requested. Pursuant to those provisions, entitlement to a rebate depends on compliance with the evidentiary requirements within the required timeline.

55Consequently, the Board finds that the Appellant’s failure to comply with the municipality’s request for evidentiary documents “within 30 days” supports the decision of a zero ($0.00) vacancy rebate. Therefore, the Board dismisses the appeal for a vacancy rebate for the 2018 taxation year.

ORDER

56The Board orders that the appeal for the 2018 taxation year be dismissed.