Fabric Cleaning Depot Services Ltd. v Municipal Property Assessment Corporation, Region 09 2020 OARB mini 30

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

January 31, 2020

FILE NO.:

RD 2019M30AA

AMENDED DECISION ISSUED ON: April 2, 2020

AMENDED DECISION ISSUED ON: April 7, 2020

Assessed Person(s):

Fabric Cleaning Depot Services Ltd.

Appellant(s):

Fabric Cleaning Depot Services Ltd.

Respondent(s):

Municipal Property Assessment Corporation (“MPAC”) Region 09

Respondent(s):

City of Toronto

Property Location(s):

891 Yonge Street

Municipality(ies):

City of Toronto

Roll Number(s):

1904-101-060-01200-0000

Taxation Year(s):

2017

Legislative Authority:

Rule 123 of the Assessment Review Board’s Rules of Practice and Procedure, as amended

Request for:

A review of a Decision of the Board reported by the Board Registrar on March 5, 2018

Heard:

In writing

Parties

Representative

Submissions

Fabric Cleaning Depot Services Ltd.

Kil Youn Kim

Requester

MPAC

Not Received

City of Toronto

Not Received

DECISION DELIVERED BY DIRK VANDERBENT AND ORDER OF THE BOARD

AMENDED DECISION

In accordance with Rule 114 of the Assessment Review Board’s Rules of Practice and Procedure, as amended May 2019, related to the correction of minor errors and in accordance with Rule 21.1 of the Statutory Powers and Procedure Act regarding the correction of errors, this further Amended decision is issued to correct a date in paragraph 11. The amendment has been underlined for ease of reference. There are no other changes in this further Amended Decision.

INTRODUCTION

1On December 17, 2018, Fabric Cleaning Depot Services Ltd. and Kil Youn Kim filed a written Request for Review with the Assessment Review Board (the “Board”) respecting the Board’s decision to refuse his request to file a late appeal, pursuant to Rule 26 of the Board’s Rules of Practice and Procedure (“Rules”). The background information leading to this Request for Review is as follows.

2Fabric Cleaning Depot Services Ltd. is shown as the assessed person (owner) of a property located at 891 Yonge Street in Toronto that is classified as ‘one storey - retail’ (“the Subject Property”). Mr. Kim is the sole shareholder of Fabric Cleaning Depot Services Ltd., and, as such, he describes himself as the owner of the Subject Property. For the purposes of this Request for Review, the Board, for ease of reference, will refer to Mr. Kim as its owner and the person making this Request for Review.

3MPAC conducted a general reassessment of the current value of the Subject Property pursuant to the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”). This general reassessment applies to the current assessment cycle (2017 to 2020 taxation years). It is not disputed that MPAC issued a Property Assessment Notice for the 2017 taxation year. Included in the documents filed in respect of Mr. Kim’s Request for Review is the Property Assessment Notice issued on November 15, 2017, which shows that the assessed value of the Subject Property for 2018-2020 taxation years is $3,211,000, which is $982,000 higher than its assessed value for the previous assessment cycle (2013-2016). The documentary evidence filed by Mr. Kim in support of his Review does not indicate that MPAC's assessed value for the 2017 taxation year is different from the $3,211,000 assessed value for 2018-2020.

4Mr. Kim proposes to appeal MPAC's general reassessment of the current value, pursuant to s. 40 the Act, in respect of the 2017 taxation year. If Mr. Kim was granted permission to file this appeal, the deeming provisions of the Act would then include appeals for the 2018 and 2019 years (if Mr. Kim has not otherwise filed appeals with the Board for either of these taxation years).

5Mr. Kim has not indicated that he submitted a Request for Reconsideration to MPAC pursuant to s. 39.1(1) of the Act. As the Subject Property is a commercial property, there is no mandatory requirement that he submit one. Consequently, pursuant to s. 40(6) of the Act, the last day for filing his appeal for the 2017 taxation year was March 31, 2017. As discussed in greater detail below, Mr. Kim acknowledges that he did not file his appeal by this date.

s .40(6) If a person has not made a request for reconsideration in respect of a property under section 39.1 and is not required to do so as a precondition of appeal under subsection (3), the last day for the person to appeal for a taxation year is March 31 of the taxation year.

6On August 16, 2017, Mr. Kim submitted a request to the Board asking to file a late appeal for the 2017 taxation year. Mr. Kim’s affidavit material indicates a history of communications with the Board following this request. Ultimately, his request was considered by the Board, and on March 5, 2018, he was advised by the Board Registrar as follows:

Further to your request to have the Board grant you a late appeal, the request has been denied.

The Board had no jurisdiction to grant an appeal to an owner that received the Notice of Assessment.

7Subsequent to this, there appears to have been some confusion as to how Mr. Kim should proceed with his request for a review of this decision. Ultimately, he filed his Request for Review, which the Board has accepted. This Decision provides the Board’s disposition of Mr. Kim’s Request for Review.

8For the reasons that follow, the Board concludes that the Request for Review should be dismissed.

DISCUSSION, ANALYIS AND FINDINGS

Legal Test

9In considering whether to grant a Request for Review submitted pursuant to Rule 120, the test to be applied is whether the requester has established any of the grounds set out in Rule 121.

Grounds for Review

121. A request for review will not be granted unless the Board is satisfied that:

(a) the Board acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

(b) the Board made a significant error of law or fact such that the Board would likely have reached a different decision;

(c) the Board heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result;

(d) there is new evidence that could not have reasonably been obtained earlier and would have affected the result; or

(e) any of the situations in Rule 122 exist.

10The Board confirms the following materials that were filed in support of Mr. Kim’s Request for Review and considered by the Board:

• Form entitled “ARB Request for Review of Board Decision or Order”, which includes the reasons for the Request for Review and a summary of reasons for the request;

• Affidavit of Angela Fu, sworn June 7, 2019;

• Affidavit of Christina Kim, sworn December 14, 2018;

• Affidavit of Kil Youn Kim, sworn December 14, 2018;

• Property Assessment Notice Issued November 15, 2017;

• City of Toronto Tax Bill (Interim 2018) dated December 20, 2017.

11Mr. Kim’s submissions can be succinctly stated. He does not dispute that he received a Property Assessment Notice for the 2017 taxation year. However, he became seriously ill in November 2016, requiring hospitalization for an extended period of time. Mr. Kim’s affidavit attaches medical reports confirming his medical condition. Christina Kim, his daughter has testified in her affidavit that, due to his illness, his mental capacity deteriorated and, therefore, he could not manage his affairs. Both she and Mr. Kim have indicated that he did not recover until early July 2017. The Board has no hesitation in accepting that Mr. Kim experienced this setback in his health during this time period. Ms. Kim also testified that, as she did not have a power of attorney, it was only in July 2017 that she and her father could work together to review the matters that he could not deal with during his illness. She states that it was only in July 2017 that she and her father “first became aware of the Notice of Assessment for his property at 891 Yonge Street”, and that he then proceeded to file a request to extend the time to file an appeal with the Board on July 31, 2017.

12In addressing this Request for Review, it is important to understand the legal regime governing the deadline date for filing an appeal with the Board. In the circumstances of this case, s. 40(6) governs, and sets an absolute deadline. The appeal must be filed by March 31, 2017 for the 2017 taxation year. The Act does not provide the Board with any residual discretion to extend this deadline, subject to only one narrow exception that is not provided for in the Act. Instead, it is provided by a ruling of the Superior Court of Ontario. In Re Fleming and Smith Ltd. and Regional Assessment Commissioner Region No. 31 et al., 1979 CanLII 1870 (ON SC) (“Fleming”), the Court ruled that the Board can accept a late appeal where owner did not receive the Property Assessment Notice. Therefore, the Board may permit filing of a late appeal only if this pre-requisite condition is satisfied.

13Mr. Kim argues that, due to illness, he did not become aware of the Notice of Property Assessment at the time he received it. In essence, his submission is that the Notice, although it was sent to him, was not received by him until he was able to review it several months later.

14It is important to note that, in Fleming, at page 12 of the decision, the Court found that, due to defects in the notice provided to the owner, the notice was a nullity. Therefore, no notice had been provided. The Court then proceeds to state, at page 19, that “A notice sent by mail but not in fact received does not constitute notice to the person assessed.”

15In summary, the decision in Fleming confirms that the requirement is to provide notice of the property assessment, and such notice is provided when it is received by the owner, not when the owner reviews it. To hold otherwise, would mean that any person could claim they did not receive notice by simply choosing not to look at it.

16In this case, Mr. Kim received the Notice of Property Assessment. His problem is that his ill health prevented him from taking action in response to the Notice. While the Board empathizes with his plight, the Board does not have authority to permit filing of a late appeal because he did receive the Property Assessment Notice. Consequently, his circumstance does not fall within the narrow exception set out in the Fleming decision. In this regard, the Board notes that Rule 26(b) effectively codifies this exception. It sets out three requirements before the Board can exercise its discretion to accept filing of a late appeal. The Board’s Rules of Practice and Procedure (the “Rules”):

26. The Board may accept an appeal received after the time set 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.

CONCLUSION

17The Board finds that Mr. Kim has not established any of the grounds set out in Rule 121. Therefore, the Board finds that the Request for Review must be dismissed.

ORDER

18The Request for Review is dismissed.