Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: December 02, 2020

FILE NO.: DM 2020M23

Moving Party(ies): Sradhananda Mishra In Trust for Shree Jagannath Temple, also known as Jagannath Temple (A Place of Hindu Worship)

Respondent(s): Municipal Property Assessment Corporation, Region 15

Respondent(s): City of Brampton

Property Location(s): 9893 Torbram Road

Municipality(ies): City of Brampton

Roll Number(s): 2110-100-025-03800-0000

Taxation Year(s): 2019

Hearing Event No.: 735565

Legislative Authority: Rules 17 and 26(b) of the Assessment Review Board Rules of Practice and Procedure

Parties Sradhananda Mishra In Trust for Shree Jagannatha Temple, also known as Jagannath Temple (A Place of Hindu Worship) Counsel+/Representative Subramanyam Narasimhan+

Parties Municipal Property Assessment Corporation Counsel+/Representative Brandy Pitz

Parties City of Brampton Counsel+/Representative Submissions not received

REQUEST FOR: Late appeal

HEARD: September 30, 2020 in writing

ADJUDICATOR: Jean-Paul Pilon, Member

MOTION DECISION

OVERVIEW

1Sradhananda Mishra In Trust for Shree Jagannath Temple, also known as Jagannath Temple (A Place of Hindu Worship) filed this motion for the Board to accept a late appeal for the 2019 taxation year.

2This motion was filed pursuant to Rules 26(b) and 17 of the Assessment Review Board’s (the “Board”) Rules of Practice and Procedure (the “Rules”). These Rules provide that late appeals can be accepted by the Board in specific circumstances (Rule 26(b)) and that any time period in the Rules can be altered by the Board (Rule 17).

3The Municipal Property Assessment Corporation (“MPAC”) opposed the motion and the City of Brampton filed no submissions in the motion.

Evidence

4Rule 26(b), which is reproduced below, requires an appellant to satisfy the Board by way of affidavit evidence that it meets the requirements of the Rule. That affidavit evidence is summarized here.

5Sradhananda Mishra In Trust for Shree Jagannath Temple, also known as Jagannath Temple (A Place of Hindu Worship) filed two affidavits from Sradhananda Mishra (the “Moving Party”), the person holding this property at 9893 Torbram Road in Brampton (the “Subject Property”) in trust.

6The first of these two affidavits was declared on February 21, 2020. It said that a Request for Reconsideration (“RfR”) was filed with MPAC because the Moving Party disagreed with the assessment of the Subject Property. It went on to say that the settlement offer that followed, which was rejected by the Moving Party, noted a deadline of October 14, 2019 to file an appeal.

7The affidavit further said that the Moving Party “was travelling extensively out of country for extended period (sic) for the last six months and did not become aware of this deadline,” and that the request to file an appeal late was filed “when (the Moving Party) became aware of the missed appeal deadline.”

8The first affidavit concluded by saying that the request was filed “within 30 days of (the Moving Party) becoming fully aware of the filing requirement.”

9Additional information was provided in the Moving Party’s notice of motion that was not in the form of an affidavit. That said the Subject Property had been a synagogue when it was purchased in 2018, and that it has since been operated by the Moving Party as a Hindu place of worship.

10It also noted that the Moving Party’s position was that the entirety of the Subject Property should have been exempted from taxation as land owned by a religious organization, and that MPAC and the Municipality had been provided with information to confirm its use. The material also noted that when the Subject Property had previously been used as a synagogue, it was exempt from property tax.

11MPAC relied on the affidavit of Rachel Michael sworn on September 28, 2020. It simply indicated that the RfR was filed on March 11, 2019, that a notice of reconsideration and minutes of settlement were served on the Moving Party on July 16, 2019, and that the minutes of settlement were rejected by the Moving Party on August 29, 2019.

12The Moving Party’s second affidavit dated September 15, 2020 said that (reproduced exactly): “the contents of the Reply to Response of MPAC from paragraph 3 to 12 are true and correct to the best of my knowledge and belief”, where those paragraphs contained MPAC’s argument opposing the motion. For the purposes of determining the motion, the Board assumed this to be an error. It also contained additional and new argument not appearing in the Moving Party’s earlier submission, and MPAC was therefore given the opportunity to further, sur-reply. This included additional factual information from the Moving Party that should have been before the Board in the form of an affidavit.

13This included that the Moving Party had been away from August 2019 to January 2020 and that the Moving Party had relied on his lawyer to file an appeal. It said that the lawyer “was also travelling out of the country due to his personal circumstances for an extended period without notice to the (Moving Party)” and that the appeal was not filed in the Moving Party’s absence as expected. It further indicated that the Moving Party could not have addressed this issue while overseas.

RESULT

14For the reasons that follow, the Moving Party’s motion is denied.

ANALYSIS

Issue 1: Does the Moving Party Meet the Requirements of Rule 26(b)?

Deadline for Filing

15As noted above, the Moving Party filed an RfR but this was not a precondition to filing an appeal pursuant to section 40(3) of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”) because the Subject Property is not in the residential, farm or managed forests property classes. As a result, section 40(5) of the Act provides that the last day to file an appeal is 90 days after the issuance date of the notice of reconsideration.

16The notice of reconsideration was dated July 16, 2019, therefore MPAC was correct in indicating that the last day to file an appeal was 90 days later, on October 14, 2019. The Moving Party’s first contact with the Board was on February 5, 2020 and this motion was not filed until August 22, 2020.

Rule 26(b)

17Rule 26(b) provides that

the Board may accept an appeal received after the time set out in the Assessment 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.

18In Cherry Beach Sailing Clubs v Municipal Property Assessment Corporation, Region 9, 2018 CanLII 107727 (ON ARB), the Board confirmed what is evident in a plain reading of the Rule, that all three requirements must be met to be successful on a motion to file a late appeal.

19The first question is whether the Moving Party was the party entitled to receive notice and there was no suggestion in the material before the Board in this motion otherwise. Therefore, the Board finds that the Moving Party met the first requirement of Rule 26(b).

20The Moving Party did not meet the second and third requirements of Rule 26(b), that it did not receive the notice and filed the appeal within 30 days of becoming aware of the assessment. This is because the Moving Party must have been aware of the assessment when the RfR was filed on March 11, 2019 (or on March 14, 2019, the date indicated on the cover letter to the offer to settle resulting from the RfR), because he was seeking a reconsideration of the assessment that he had received. As indicated earlier, this motion was not filed until August 22, 2020, more than 30 days later.

21In Werzberger v Municipal Property Assessment Corporation, Region 09, 2018 CanLII 107717 (ON ARB), 2018 CanLII 73665 (ON ARB) (“Werzberger”), the Board determined that a notice of assessment and a notice of reconsideration (which was the result of the RfR and included the offer to settle from MPAC) are two different things and that Rule 26(b) does not apply to a notice of reconsideration. This means that the operative date in Rule 26(b) remained the date that the Moving Party became aware of the assessment, not the date of receipt of the decision in the RfR.

22The Moving Party’s reply indicated that the Moving Party had extenuating circumstances, suffered hardship dealing with urgent matters overseas and that the Moving Party should not be “punished for his lawyer’s delay.” However, Rule 26(b) provides no discretionary authority to alter the timeline it sets out.

23As a result, the Board finds that the Moving Party cannot be successful in his request to extend time pursuant to Rule 26(b).

Finding on Issue 1

24The Moving Party does not meet the requirements of Rule 26(b).

Issue 2: Should Time Be Extended Pursuant to Rule 17?

25The Moving Party’s alternate submission on reply was that the request to extend time should be granted pursuant to Rule 17 which provides that “any time period set out in these Rules can be altered by the Board.” To support his request, the Moving Party cited the Board’s decision in Fifteen Prince Arthur Corporation v Municipal Property Assessment Corporation, Region 9, 2020 CanLII 28972 (ON ARB) (“Prince Arthur”) which, in turn, cited 1983992 Ontario Inc. v Municipal Property Assessment Corporation, Region 03, 2019 CanLII 775528 (ON ARB) (”1983992”). These Board decisions applied Rule 17 to grant a similar request to file a late appeal.

26In its sur-reply, MPAC noted that even if the Moving Party was successful in its motion to file an appeal late, the only issue in that appeal would have been the Subject Property’s exemption from taxation as land owned by a religious organization pursuant to section 3 of the Act. MPAC argued, however, that exemption is not within the Board’s authority to determine because it is not set out in section 40 of the Act which sets out the Board’s jurisdiction in appeals. Instead, MPAC argued that the question was one to be determined by the Superior Court of Justice pursuant to section 46(1) of the Act.

The Prince Arthur Decision

27In Prince Arthur, the moving party was issued a notice of assessment pursuant to section 33 of the Act on March 8, 2019, with an appeal deadline of September 5, 2019. The moving party received tax bills on July 23, 2019 but believed them to be in error and asked their lawyer to investigate. On August 13, 2019, the moving party was advised that the lawyer was absent for personal reasons and, in September 2019, the moving party determined that the lawyer was on leave. Correspondence ensued between the moving party and MPAC and, after the moving party had their own medical procedure early in the same month, a request to file a late appeal was made on October 18, 2019.

28The moving party in that case also did not meet the second and third requirements of Rule 26(b). However, the Board granted the request pursuant to Rule 17 and 1983992 which provided that “the relevant considerations in altering time pursuant to Rule 17 are principles of fairness, lack of prejudice to the other parties, and the need for certainty in final decisions.”

29At the outset, this panel of the Board does not agree that Rule 17 should apply in these circumstances, as it explained in Fontana v Municipal Property Assessment Corporation, Region No. 09, 2019 CanLII 96132 (ON ARB) at para 21. This said that:

… Rule 17 is a residual provision intended for situations not specifically enumerated in the Rules. It is not there to give a “second kick at the can” (in MPAC’s words) to parties who do not meet the specific requirements of other Rules.

30In addition, the Rules 26(b) and 17 are in conflict, where one provides specific requirements for a late appeal to be accepted and the other does not. It is an established rule of statutory interpretation that specific provisions prevail over general ones (in Latin the maxim is specialibus generalis non derogant) and in this case, the specific provisions of Rule 26(b) should prevail over the general one in Rule 17. Otherwise, the very existence of a timeline in Rule 26(b) would be illogical, where there would be no need for specific provisions if the general ones were to prevail. In addition, had it been intended that the Board should have discretion to grant specific relief despite the existing provisions of Rule 26(b), the drafters of the Rule would have included a provision saying it in Rule 26 rather than elsewhere in the Rules.

31The Board is aware of the desirability of consistency in its decisions. However, the Board is composed of adjudicators that are independent decision-makers who are not bound by the decisions of other adjudicators of the Board. In this case, where this panel does not agree with the decisions of other panels in their consideration of Rule 17, this panel will not, and is not required to follow those preceding decisions.

32However, even if this panel of the Board is incorrect regarding its interpretation of the other decisions applying Rule 17, there are two more reasons why the motion considering Rule 17 should be denied.

33First, Rule 64 provides that “evidence by motion must be by affidavit” and the affidavit evidence before the Board from the Moving Party does not address any of the issues that 1983992 says should be considered, namely fairness, lack of prejudice to the other parties and the need for certainty in final decisions. As noted above, the Moving Party filed two affidavits, the first dated February 21, 2020 which simply set out the timeliness for the request, and the second dated September 15, 2020 which, as noted above, appeared merely to concur with MPAC’s submissions regarding Rule 26(b).

34Second, there would be no point to granting the relief requested because the issue in the appeal that would have been created would not have been within the Board’s authority to consider. This is because the Moving Party would not have been contesting the assessment or classification in a late appeal, which are within the Board’s authority to determine, but would rather have been contesting the fact that the Subject Property was not exempted from taxation, which is outside of the Board’s jurisdiction to consider. It may be the case that the result is unfair and prejudicial to the Moving Party as was argued in his material because the Subject Property is no longer exempt from taxation. However, it is settled law that exemption is outside of the Board’s jurisdiction and section 46(1) of the Act provides that an application for that relief can be made to the Superior Court of Justice. The Board addressed this jurisdictional issue in North America Railway Hall of Fame v Municipal Property Assessment Corporation, Region 23, 2016 CanLII 14708 at para. 15, where it said that:

Jurisprudence from the Supreme Court of Canada, the Ontario Court of Appeal and the Divisional Court clearly states that questions of exemption from taxation are within the exclusive jurisdiction of the Superior Courts (see Corporation of the City of Toronto v. Olympia Edward Recreation Club Ltd 1955 CanLII 11 (SCC), [1955] SCR 454, Quance v. Thomas A. Ivey & Sons Limited 1950 CanLII 113 (ON CA), [1950] OR 397 and Re Downtown Churchworkers Association of the Anglican Church of Canada, Diocese of Toronto and Regional Assessment Commissioner, Region No 07 et al. (1978) 1978 CanLII 2166 (ON SCDC), 18 OR (2d) 302)

Finding on Issue 2

35Time should not be extended pursuant to Rule 17.

CONCLUSION

36The Board cannot create a late appeal for the 2019 taxation years because the Moving Party does not meet the second and third requirements of Rule 26(b).

37In addition, the Board finds that Rule 17 should not apply to these motions. Even if it did, this motion to create a late appeal would have been denied because there was insufficient evidence to support the request and because it would have created an appeal seeking relief entirely outside of the Board’s jurisdiction to grant.

ORDER

38The Moving Party’s motion is dismissed.