Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: November 02, 2020 FILE NO.: RR 20-007

Assessed Person(s): Conair Consumer Products Inc. Appellant(s): Conair Consumer Products Inc. Respondent(s): Municipal Property Assessment Corporation Region 14 Respondent(s): City of Vaughan

Property Location(s): 100 Conair Parkway Municipality(ies): City of Vaughan Roll Number(s): 1928-000-321-01105-0000 Appeal Number(s): 3130051, 3130030, 3130033, 3130032, 3151389, 3302056 and 3357750 Taxation Year(s): 2014, 2015, 2016, 2018 and 2019

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

Parties / Representative Conair Consumer Products Inc. / Colin Francis Municipal Property Assessment Corporation / Submissions not received City of Vaughan / Jaroslaw Wowk

REQUEST FOR: Reinstatement of appeals 3130051, 3130030, 3130033, 3130032, 3151389, 3302056 and 3357750 HEARD: In writing ADJUDICATOR(S): Jean-Paul Pilon, Member

DECISION

OVERVIEW

1Conair Consumer Products Inc. (the “Requestor”) requests that the Assessment Review Board (the “Board”) reinstate the Requestor’s appeals in the 2012 and 2016 taxation cycles pursuant to Rule 122 of the Board’s Rules of Practice and Procedure (the “Rules”). The Requestor submits that these appeals were dismissed in error and that natural justice or procedural fairness require that the appeals be reinstated.

2Prior to their dismissal, the Requestor’s appeals had been following Schedules of Events that required the Requestor to serve Statements of Issues on the other parties to the appeals on or before September 10, 2019. On October 22, 2019, the Municipal Property Assessment Corporation (“MPAC”) requested that the appeals be dismissed because Statements of Issues had not been served. That request was granted by the Board.

3The Board’s process that was followed by MPAC in requesting that the appeals be dismissed allowed the Requestor to file a written response within 14 days. On the fourteenth day following service of the form, the Appellant served a Statement of Issues for the Requestor’s 2012 cycle appeals and indicated that a Statement of Issues for the 2016 appeals would follow the next week.

4All the Appellant’s appeals were dismissed by the Board which led to this request to reinstate the appeals.

5Only the Requestor and the City of Vaughan (the “Municipality”) filed submissions in this request to reinstate the appeals. No submissions on the motion were received from MPAC.

Issues

6There are two issues for the Board to determine in this decision:

a. Whether the 2012 cycle appeals should be reinstated; and

b. Whether the 2016 cycle appeals should be reinstated.

Result

7The Requestor’s 2012 cycle appeals are reinstated but its appeals in the current 2016 taxation cycle are not.

BACKGROUND

8On October 22, 2019, MPAC filed a request with the Board to dismiss all of the Requestor’s appeals in the 2012 and 2016 taxation cycles because the Requestor had not served Statements of Issues in accordance with the Schedules of Events that had been assigned to the appeals. The form that is central to this process, known as the “Request to Dismiss a General Proceedings Appeal for Failure to Serve a Statement of Issues” form (the “Form”), states that “any Party who opposes the request must serve on all other Parties, and file with the Board, a written response no later than 14 days from the date this form was served and filed with the Board.”

9On November 5, 2019, the fourteenth day after service and the filing of the Form, the Requestor wrote to the Board copying the other parties to the appeals. The Requestor said in its response that its Statement of Issues for the 2012 cycle appeals would follow by the end of that day and that the Statement of Issues for its 2016 appeals would follow by the end of that week. Statements of Issues were then served and filed in accordance with that communication.

10On November 12, 2019, the dismissal of the appeals by the Board was approved and the appeals were dismissed.

ANALYSIS

Submissions

11The Requestor made two arguments to support its request for reinstatement.

12First, the Requestor argued that it had provided its response within 14 days, noting that the form also provides that “when no response is filed, the Board will proceed to issue a decision on the request without providing further procedural directions to the parties.” The Requestor further argued that the Board’s decision in Magna International Inc. v. Municipal Property Assessment Corp., Region 15, [2019] O.A.R.B.D. No. 392 (“Magna”), where appeals were dismissed following the same process, is distinguishable because in that case no response to the Form was filed, where in this case a response was filed.

13Second, the Requestor argued that the Board has the discretionary authority to reinstate the appeals, and that to do so would allow for “the just, most expeditious and least expensive determination of every proceeding” as set out in Rule 4. The Requestor argued that the other parties would not be prejudiced if the appeals are reinstated because they ultimately received the Requestor’s Statements of Issues.

14In its response, the Municipality argued that this request was not only a request for reinstatement, but also a request to extend time pursuant to Rule 82 which requires “exceptional circumstances” where the Requestor provided none. The Municipality further argued that the Requestor provided no evidence of prejudice, unlike the Municipality which said it would be prejudiced by the lack of finality caused by the Requestor’s failure to comply with the Schedules of Events. The Municipality also argued at length in its submission that the Board should insist on compliance with its timelines.

15The Municipality relied on an unreported Board decision dated March 19, 2020 involving a property at 1493 Lasalle Avenue in Sudbury (Roll No 5307-020-019-02701) (“Sudbury”). In that case, there had been an understanding between an appellant and MPAC that a Statement of Issues would be filed late. The municipality in that case, which had not been a party to that agreement, filed a request to dismiss the appeals because the appellant had not filed a Statement of Issues in accordance with the Schedule of Events. The municipality argued that it would be prejudiced if the appeals were reinstated as the Municipality did here. In that case, a Statement of Issues was eventually served 7 months late and the argument that was rejected by the Board was that the defect had been cured, which is essentially the same argument here but with different timelines.

16In reply, the Requestor argued that no extension of time would have been necessary had the appeals not been dismissed. It went on to say that the Form infers “that a Party can correct their default by delivering their Statement of Issues, or at a minimum, provide a written response” as it did.

The Applicable Caselaw

17The statutory basis for the Board’s dismissal process pursued by MPAC is set out in section 8.2(2) of the Assessment Review Board Act, R.S.O. 1990, c. A. 32 and referred to at para. 10 of the Magna decision. It provides that “before dismissing a complaint…, the Board shall notify the complainant or appellant and give the complainant or appellant an opportunity to make representations in respect of the proposed dismissal.”

18In this case before the Board, no representations were received other than the Statement of Issues for the 2012 cycle on the fourteenth day following service of the Form, as well as the indication that the Statement of Issues for the 2016 cycle would follow the week after.

19The Board finds the Sudbury decision to be more relevant to the circumstances here than the Magna decision because in Sudbury a Statement of Issues was eventually served, while in Magna none was forthcoming. In Sudbury, the Board found the argument that service of a Statement of Issues cured the issue in the request to dismiss “less than persuasive” and “not acceptable” because “to accept this as a valued [sic] reason would then change the mandatory timelines in the Schedule of Events to a flexible guideline.”

20In this case, the Requestor has provided no explanation for its failure to comply with the Schedules of Events, where the Municipality pointed out in its material that Statements of Issues were 58 and 64 days late in reference to the Schedules of Events. The Board would have expected that explanation in any response, because the Form provides that “any Party who opposes the request must serve on all other Parties, and file with the Board, a written response no later than 14 days from when this form was served and filed with the Board.”

Issue 1: Should the 2012 cycle appeals be reinstated?

21The Board has been clear that timelines in Schedules of Events are not intended to be “flexible guideline(s)” as indicated above. On the other hand, the circumstances in Sudbury and this case are also different. Here, the Statement of Issues for the 2012 cycle appeals was filed within the 14-day period for responses to the Form, which was not the case in the Sudbury decision where a Statement of Issues followed much later.

22While it might have been expected that the Requestor would have explained the delay in serving both Statements of Issues in its response to the Form, the issue before the Board was effectively cured through service of the Statement of Issues for the 2012 cycle appeals. In addition, while it could not have been the intention of the Form to provide flexibility by allowing that 14 day delay (as well as a 30 day waiting period after the due date in the Schedule of Events), it would be procedurally unfair to not reinstate the appeals in these circumstances where the defect was essentially cured during that time period for a response.

23The Municipality filed evidence of prejudice, but this prejudice is outweighed by the requirement of procedural fairness within the current process which allows 14 days for a response to a request to dismiss an appeal.

24It is only because of the way this process is set out that these 2012 cycle appeals should be reinstated. Parties should not take from this decision that the time for filing Statements of Issues has essentially been extended. The expectation that parties will comply with the timelines in Schedules of Events will continue.

Extending Timelines for the 2012 Cycle Appeals

25The Municipality correctly noted that Rule 82 requires that there be exceptional circumstances to extend time in a Schedule of Events, where the Requestor has cited none. However, the Requestor also said by way of reply that no extension of time would have been required had the appeals not been dismissed and continued on the Schedule of Events.

26The resolution of this request to reinstate appeals was delayed and the last day for filing of settlement conference briefs in the Schedules of Events passed on July 20, 2020. As a result, it would be unfair not to give effect to the reinstatement by extending the timelines in the Schedule of Events which should return the parties to the point at which they were when the 2012 appeals were dismissed. Such a determination would be compliant with Rule 4 which requires that the Board liberally interpret the Rules to ensure the just determination of every proceeding. In addition, although it is an authority that should be exercised rarely, Rule 17 authorizes the alteration of time periods by the Board.

27The 2012 cycle legacy appeals were following an abbreviated 18-week Schedule of Events, and all suspensions for emergency reasons have been lifted. The Requestor’s Statement of Issues was due four weeks after the Commencement Date. Therefore, the revised Commencement Date for the 2012 cycle appeals should be fixed at a date around four weeks prior to the issuance date of this decision.

28The Board concludes that the dismissal of these appeals was an error. The 2012 cycle legacy appeals should therefore be reinstated and the timelines in the existing Schedule of Events extended.

Issue 2: Should the 2016 cycle appeals be reinstated?

29The circumstances surrounding the Statement of Issues for the 2016 cycle appeals were not the same, where the Requestor’s response on the fourteenth day was that the missing Statement of Issues would be submitted later.

30The Requestor argued that the Board has discretion to reinstate appeals in order to ensure that appeals are determined in a just manner, quoting Armstrong Inc. v. Municipal Property Assessment Corp., Region 17, [2013] O.A.R.B.D. No. 194 at para. 14. This says that “the over-arching principle is to attain a just determination of the merits in a fair and even-handed way. The statutory framework cannot envision every conceivable scenario whereby mistakes are made, administrative errors occur and/or confusion reigns.” However, as noted in Winners Merchants International LP v. Municipal Property Assessment Corporation, Region 13, 2018 CanLII 78260 (ON ARB) at para. 18, “parties must take reasonable steps in order for natural justice and fairness to aid them. There is generally no breach of natural justice if the party harmed by the process is at fault for that harm.”

31In these circumstances, the Board’s decision to dismiss the appeals for the 2016 was correct. No Statement of Issues was served or filed within the 14 day period following service of the Form and the Requestor provided no explanation for that failure when it had the opportunity to provide one.

32It may be the case that the Requestor would be prejudiced by the denial of this request to reinstate which effectively terminates its appeals within the 2016 cycle. However, the Municipality is correct that prejudice “must be proven with evidence”. Mississauga (City) v Michalakos, 2018 CanLII 126632 (ON ARB) at para. 13). The Appellant had an opportunity to mitigate that prejudice, if there was any, by at a minimum providing an explanation in its response to the Form as to why its Statement of Issues for this taxation cycle was late. The Municipality, on the other hand, did provide affidavit evidence of prejudice. It said it was prejudiced in managing its fiscal affairs, reserves and allocation of limited resources when appeals of high-assessment properties like this one remain unresolved.

33The Board therefore finds that the 2016 appeals were correctly dismissed and that there are no natural justice or procedural fairness issues that would require their reinstatement. Therefore, the Requestor’s 2016 appeals are not reinstated.

ORDER

34The request to reinstate appeals is granted for the Requestor’s appeals in the 2012 taxation cycle.

35The Commencement Date for these appeals is amended to occur on or around a date four weeks prior to the issuance of this decision.

36The request to reinstate the Requestor’s 2016 cycle appeals is denied.