Tribunals Ontario / Tribunaux décisionnels Ontario

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

ISSUE DATE: February 9, 2021

FILE NO.: DM 168043

Assessed Person(s): 1620251 Ontario Limited

Appellant(s): Gurjit S. Grewal

Respondent(s): Municipal Property Assessment Corporation Region 15

Respondent(s): City of Mississauga

Property Location(s): 3899 Trelawny Circle Unit 4

Municipality(ies): City of Mississauga

Roll Number(s): 2105-150-080-08613-0000

Appeal Number(s): 3061549 and 3153989

Taxation Year(s): 2015 and 2016

Hearing Event No.: 738679

Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31

Parties and Representatives:

• 1620251 Ontario Limited, Gurjit S. Grewal — Gurjit S. Grewal
• Municipal Property Assessment Corporation — Marissa Cheddi
• City of Mississauga — Submissions not received

REQUEST FOR: Dismissal of Appeals

HEARD: January 8, 2021 in writing

ADJUDICATOR(S): Carly Stringer, Member

MOTION DECISION

OVERVIEW

1The Municipal Property Assessment Corporation (“MPAC”) has brought this motion seeking dismissal of appeals 3061549 and 3153989 (the “Subject Appeals”) relating to the 2015 and 2016 taxation years for the property at 3899 Trelawny Circle Unit 4 in the City of Mississauga (the “Subject Property”).

Result

2I have carefully reviewed and considered all of the evidence and submissions of the parties. For the reasons that follow, this motion is granted and the Subject Appeals are dismissed.

Background

3The Subject Property is a commercial condominium unit.

4The Subject Appeals were assigned a Commencement Date of June 23, 2020. Pursuant to the Schedule of Events, the Appellant was required to provide MPAC its Statement of Issue (“SOI”) by July 21, 2020.

5The Appellant did not provide MPAC with the SOI by that date. MPAC sent correspondence dated July 27, 2020 to confirm that an SOI had not been received. MPAC requested the SOI by August 4, 2020.

6Between August 10 and 12, 2020, MPAC and the Appellant exchanged emails. The Appellant advised MPAC that the Subject Appeals ought to have been resolved as part of a 2016 settlement involving eight (8) other units at 3899 Trelawny Circle.

7MPAC reviewed the 2016 settlement communications provided by the Appellant, and the Subject Property was not referenced in the materials. The Appellant maintained this was an error on MPAC’s part. On August 11, 2020, MPAC advised it could not prepare Minutes of Settlement respecting the Subject Appeals in the circumstances. Given the SOI was due on July 21, 2020, MPAC told the Appellant it should seek direction from the Board if it wished to proceed and that if no action was taken, MPAC would seek dismissal of the Subject Appeals.

8The Appellant maintained the error on MPAC’s part, and requested Minutes of Settlement for the Subject Appeals. On August 13, 2020, MPAC told the Appellant it would accept an SOI within two (2) weeks, otherwise it was up to the Appellant to reach out to the Board.

9No SOI was received.

10MPAC filed a Request to Dismiss with the Assessment Review Board (“Board”) on September 4, 2020.

ISSUES

11At issue on this motion, generally, is whether the Board should dismiss the Subject Appeals. Two sub-issues must be determined to address that primary issue:

a. Did the Appellant fail to comply with the Board’s Rules of Practice and Procedure (“Rules”) when it failed to deliver its SOI by the deadline required by the Schedule of Events?

b. If the answer to (a) is yes, does this failure to comply with the Rules warrant dismissing the Subject Appeals?

ANALYSIS

Issue 1 – Did the Appellant fail to comply with the Board’s Rules when it failed to deliver its SOI by the deadline required by the Schedule of Events?

12Rule 8 of the Board’s Rules provides that the Board will determine the appropriate consequences of non-compliance. Rule 24(e) permits dismissal without a hearing if “the appellant has not complied with the statutory requirements or these Rules.” Therefore, a party’s failure to comply with a deadline prescribed by the Schedule of Events is a valid basis for dismissal, if deemed appropriate by the Board in a given case.

13The Schedule of Events required the SOI by July 21, 2020.

14The Appellant provided its SOI on September 15, 2020, almost two months after the deadline.

15Therefore, the Appellant did not provide its SOI in accordance with the timelines prescribed by the Schedule of Events.

Findings on Issue 1

16The Appellant failed to comply with the Board’s Rules.

Issue 2 – If yes, does the failure to comply warrant dismissing the appeals?

17The answer to Issue 1 is yes, therefore I will consider whether failure to comply with the Rules warrants dismissal in this case.

18In determining the appropriate consequence for failure to comply with the Rules, the Board routinely considers the circumstances surrounding the non-compliance, as well as prejudice to the parties: SGS Lakefield Research Ltd. and Municipal Property Assessment Corp., Region 07, Re, 2020 CarswellOnt 10309 (“SGS Lakefield”) at paragraphs 21-26; Kitchener (City) v CP REIT Ontario Properties Ltd, 2020 CanLII 30640 (ON ARB) (“CP REIT”) at paragraphs 30 to 35.

Circumstances Surrounding the Appellant’s Non-Compliance

19In deciding whether to dismiss the Subject Appeals, I must consider the totality of the circumstances.

20Some circumstances weigh against dismissal in this case. If the Subject Appeals were not included in the previous settlement solely as a result of MPAC’s oversight, this would weigh against dismissal. In addition, the Appellant has since cured its breach by providing the SOI on September 15, 2020.

21However, there are other circumstances favouring dismissal. The Appellant appears to attribute its failure to comply with the fact that the Subject Appeals ought to have been settled back in 2016. I find this explanation unsatisfying. The Appellant is represented by a property tax consultant seemingly familiar with the Board’s Rules. The Subject Appeals were not referenced in the settlement communications from MPAC to the Appellant back in 2016, nor in the Minutes of Settlement. Other than one email to MPAC dated July 17, 2019 where the Appellant suggested the Subject Property was missing from the Minutes of Settlement back in 2016, there is no evidence before me of additional effort by the Appellant to address the Subject Appeals with MPAC. The Appellant was equally responsible for reviewing the terms of resolution and the Minutes of Settlement, and bringing any concerns promptly before the Board. There is no evidence from the Appellant as to why steps were not taken to address the Subject Appeals when the Board provided notice of a June 23, 2020 Commencement Date. There is no evidence from the Appellant as to why, faced with MPAC’s unwillingness to settle the Subject Appeals in August 2020, the Appellant did not seek an amendment to the timelines prescribed in the Schedule of Events, or other relief from the Board.

22MPAC advised the Appellant it was not prepared to settle the Subject Appeals in the circumstances and would require the SOI. On more than one occasion, MPAC told the Appellant to seek direction from the Board if it wished to proceed. MPAC explicitly warned the Appellant that if no action was taken, MPAC would seek dismissal of the Subject Appeals. Inexplicably, no action was taken.

23Finally, the Legacy Appeals process is an accelerated one, designed to resolve pre-2016 appeals in a timely way. There is an expedited dismissal process for non-compliance with the Rules, and the Appellant was provided with notice of pending deadlines and the importance of complying with the timelines in the Schedule of Events.

24Overall, the evidence before me on this issue favours dismissal.

Prejudice to the Parties

25The Appellant has not made submissions or provided evidence respecting prejudice to it if the Board were to dismiss the Subject Appeals. That said, the Board is prepared to recognize some prejudice if the Appellant is precluded from pursuing the Subject Appeals.

26MPAC has provided evidence of prejudice if the Subject Appeals are not dismissed. MPAC was unable to provide its Response to the SOI in accordance with the Schedule of Events. At this stage, the entire Schedule of Events would need to be amended and timelines significantly extended. Moreover, MPAC has made submissions regarding the prejudice it suffers from a resources and case management perspective when parties do not comply with the Schedule of Events.

27As noted by this Board in 857529 Ontario Inc. Magna International Inc. Municipal Property Assessment Corporation, Region 15, 2019 CanLII 133074 (ON ARB) at paragraph 28, “… it should be well understood by parties that failure to meet timelines both inherently impacts other parties to a proceeding who prepare and provide required information on time, and impacts the Board’s ability to manage and deal with its caseload.”

28In the circumstances of this case, I am satisfied there is more prejudice to MPAC.

Appropriate Consequences for the Breach

29Rule 8 confirms that the Board will determine the appropriate consequence for non-compliance with the Rules.

30Although this Board has held that dismissal “is an extreme remedy and should only be granted in the clearest of cases”, the Board has also been clear that “the Board will strictly enforce the new Rules, and expects compliance”: Municipal Property Assessment Corporation, Region No. 9 v. 234900 Ontario Ltd., 2018 CanLII 248 (ON ARB), 2017 CanLII 74719 (ON ARB) at paragraphs 8 and 9. Although dismissal puts a final stop to an appeal, and in that regard may be considered an “extreme” remedy, this does not mean dismissal will not be granted in appropriate circumstances. Parties that appear before the Board have been made well aware that the Board will strictly enforce its Rules, and it expects compliance with the timelines prescribed in the Schedule of Events: see CP REIT, supra at paragraph 34. As noted in SGS Lakefield, supra at paragraph 19, “[t]he Board has an interest in ensuring that Parties adhere to schedules to avoid delays and to achieve its mandate to justly and expeditiously resolve the appeals before it.”

31Each case will be determined on its own facts. In this case, both the circumstances of the breach and prejudice to MPAC weigh in favour of dismissal.

Findings on Issue 2

32In the totality of the circumstances, the Appellant’s non-compliance with the Rules warrants dismissing the Subject Appeals.

CONCLUSION

33This Board will strictly enforce its Rules. It expects compliance with the timelines prescribed in the Schedule of Events, and parties will face consequences for non-compliance where the circumstances warrant it.

34The Board finds that the Appellant breached the Rules by failing to provide its SOI in accordance with the Schedule of Events. The Board has considered all of the circumstances and weighed prejudice, and determines that dismissal is appropriate.

ORDER

35The Board grants the motion, and orders the Subject Appeals are dismissed.