1788639 Ontario Ltd. v. Municipal Property Assessment Corporation, Region 18, 2020 CanLII 83827

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: October 28, 2020

FILE NO.: DM 2020M20

Assessed Person(s): 1788639 Ontario Ltd.

Appellant(s): 1788639 Ontario Ltd., Francesco A. Giovannone

Respondent(s): Municipal Property Assessment Corporation, Region 18

Respondent(s): City of St. Catharines

Property Location(s): 88 Queenston Street

Municipality(ies): City of St. Catharines

Roll Number(s): 2629-030-001-13000-0000

Taxation Year(s): 2017, 2018, 2019 and 2020

Hearing Event No.: 735364

Legislative Authority: Rule 26 of the Assessment Review Board’s Rules of Practice and Procedure

Parties

Representative

1788639 Ontario Ltd.

Francesco A. Giovannone

Municipal Property Assessment Corporation

Michael Radan

City of St. Catharines

Submissions not received

REQUEST FOR: Late appeal(s)

HEARD: September 18, 2020 in writing

ADJUDICATOR(S): Jean-Paul Pilon, Member

MOTION DECISION

OVERVIEW

1This motion was filed by 1788639 Ontario Ltd. (the “Moving Party”) requesting that the Assessment Review Board (the “Board”) accept appeals received after the time set out in the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”) pursuant to Rule 26(b) of the Board’s Rules of Practice and Procedure (the “Rules”).

Background

2The Moving Party’s evidence in support of the motion was in the form of the affidavit of Francesco A. Giovannone affirmed on January 14, 2020. In his affidavit, Mr. Giovannone referred to the Board’s Notice of Decision in Appeal Number 3235469 which set out the resolution of the Moving Party’s appeal for the 2016 taxation year.

3Mr. Giovannone wrote that he was surprised that the Notice of Decision covered only that single taxation year, when “we intended to appeal the property taxes concerning 2016 and onward indefinitely” because “the conditions and/or reasons for the appeal are of chronic and/or ongoing nature (sic).”

4In his reply dated September 15, 2020, submitted in the form of a letter, Mr. Giovannone wrote “there was continual intimation of no deadline” and that since the process continued until 2019, “everyone knew that I was appealing” future years. Those allegations, however, were not before the Board in the form of an affidavit as required by Rule 26(b), nor were they relevant to the question of whether the requirements of Rule 26(b) were met.

5The Municipal Property Assessment Corporation (“MPAC”) opposed the motion and relied on the affidavit of Rachel Lethbridge sworn on September 3, 2020. That affidavit indicated that MPAC issued Property Assessment Notices and Amended Property Assessment Notices for the 2017, 2018 and 2019 taxation years in October and November 2016 respectively, and sent them to the owner’s address it had on file where the owner was the Moving Party.

6The City of St. Catharines did not file submissions on the motion.

Issues for the Hearing

7At issue in this proceeding is:

a. The deeming of appeals; and

b. Whether the request meets the requirements of Rule 26(b).

Result

8For the reasons that follow, the motion is denied.

ANALYSIS

Law and Relevant Rules of Practice and Procedure

9Section 40(26) of the Act provides for the deeming of appeals if an appeal is not disposed of by March 31 “for a subsequent taxation year to which the general reassessment applies.”

10The deadline for filing an appeal in each of the taxation years in the motion was March 31 of the taxation year pursuant to section 40(6) of the Act.

11Rule 26(b) provides that “the Board may accept an appeal received after the time set out in the Act only if the appellant satisfies the Board, by way of affidavit evidence, that the appellant is a person entitled to receive a notice of assessment who did not receive notice, and filed the appeal with the Board within 30 days of becoming aware of the assessment or classification that is the subject of the appeal.”

12In Cherry Beach Sailing Clubs v. Municipal Property Assessment Corporation, Region 09, 2018 CanLII 107727 (ON ARB) at par. 8, the Board confirmed that a request made pursuant to Rule 26(b) can only be granted if all three conditions in Rule 26(b) are met.

13The Board does not have the authority to consider “indefinite” appeals as suggested by the Moving Party. Instead, it considers this request as a request to accept late appeals for the 2017, 2018, 2019 and 2020 taxation years.

Issue 1: Deeming Appeals

14The Board would have deemed or created further appeals for subsequent taxation years not resolved by March 15 of the following year had the appeals been in the same taxation cycle, described in section 40(26) of the Act as “a subsequent taxation year to which the same general reassessment applies.” However, the 2017 taxation year was not a year to which the same general reassessment as the 2016 taxation year applied because it was the start of a new taxation cycle. There could not, therefore, have been any deeming of appeals for subsequent taxation years.

15In addition, with no outstanding appeal for the 2017 taxation year, there could not have been any deemed appeal for the 2018 taxation year or any subsequent taxation year.

16As a result, there were no deemed appeals created for taxation years subsequent to the 2016 taxation year.

Issue 2: The Requirements of Rule 26(b)

Deadlines to File Appeals

17The deadline to file an appeal in each of the taxation years was March 31 of each taxation year, a date clearly missed for all of the taxation years considered in the motion.

Entitled to Notice

18The first requirement of Rule 26(b) is that the Moving Party was entitled to receive notice. It was not contested that the Moving Party was that party. The Moving Party therefore met the first requirement of Rule 26(b).

Did not Receive Notice

19The second requirement of Rule 26(b) is that the Moving Party did not receive notice. Nowhere in the Moving Party’s affidavit and correspondence was it suggested that the Moving Party or its representative did not receive notices of assessment for the years in question, which MPAC in its evidence said were sent to the correct address, at least up to 2019.

20The Moving Party did not therefore meet the second requirement of Rule 26(b).

Timely Application

21The third requirement of Rule 26(b) is that the Moving Party filed an appeal within 30 days of becoming aware of the assessment or classification that is the subject of the appeal.

22In considering the second requirement above, it was determined that there was no evidence suggesting the Moving Party did not receive any notices of assessment. Therefore, it is not necessary to determine whether an appeal was filed within 30 days of the Moving Party becoming aware of the assessment.

23As a result, because the Moving Party met only the first of the three requirements of Rule 26(b), the motion should be dismissed.

CONCLUSION

24The Moving Party cannot file appeals for the 2017, 2018, 2019 or 2020 taxation years because the mandatory requirements of Rule 26(b) were not met. Its motion is therefore denied.