Tribunals Ontario / Tribunaux décisionnels Ontario

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

ISSUE DATE: October 26, 2021

FILE NO.: DM 173343

Assessed Person(s): AMB Annagem II Canco Inc.

Appellant(s): AMB Annagem II Canco Inc.

Respondent(s): Municipal Property Assessment Corporation Region 15

Respondent(s): City of Mississauga

Property Location(s): 375 Annagem Boulevard

Municipality(ies): City of Mississauga

Roll Number(s): 2105-040-117-03700-0000

Appeal Number(s): 3432855

Taxation Year(s): 2019

Hearing Event No.: 749070

Legislative Authority: Section 357(1)(d.1) of the Municipal Act, 2001, S.O. 2001, c. 25

APPEARANCES:

Parties	Counsel*/Representative
AMB Annagem II Canco Inc.	Colin Francis
City of Mississauga	Robert Ryan*

REQUEST FOR: Dismissal of Appeal(s)

HEARD: July 30, 2021 in writing

ADJUDICATOR(S): Carly Stringer, Member

MOTION DECISION

OVERVIEW

1The City of Mississauga (the “City”) has brought this motion before the Assessment Review Board (the “Board”) seeking dismissal of appeal 3432855 (the “Subject Appeal”) relating to 375 Annagem Boulevard in Mississauga, Ontario (the “Subject Property”).

2AMB Annagem II Canco Inc. (the “Appellant”) opposes the motion.

Result

3For the reasons that follow, the Board denies the motion to dismiss.

BACKGROUND AND APPLICABLE LAW

4On November 22, 2019, the Appellant filed an application with the City pursuant to s. 357(1)(a) of the Municipal Act, 2001, S.O. 2001, c. 25 (the “Act”) seeking a re-classification of the Subject Property for the 2019 taxation year.

5Section 357(1)(a) of the Act provides as follows:

357 (1) Upon application to the treasurer of a local municipality made in accordance with this section, the local municipality may cancel, reduce or refund all or part of taxes levied on land in the year in respect of which the application is made if,

(a) as a result of a change event, as defined in clause (a) of the definition of “change event” in subsection 34 (2.2) of the Assessment Act, during the taxation year, the property or portion of the property is eligible to be reclassified in a different class of real property, as defined in regulations made under that Act, and that class has a lower tax ratio for the taxation year than the class the property or portion of the property is in before the change event, and no supplementary assessment is made in respect of the change event under subsection 34 (2) of the Assessment Act;

6In addition, s. 357(5) to (8) provide that,

(5) On or before September 30 of the year following the year in respect of which the application is made, council shall,

(a) hold a meeting at which the applicants may make representations to council;

(b) notify the applicants of the meeting by mail sent at least 14 days before the meeting; and

(c) make its decision.

(6) Within 14 days after making its decision, council shall notify the applicants of the decision and specify the last day for appealing the decision.

(7) Within 35 days after council makes its decision, an applicant may appeal the decision of council to the Assessment Review Board by filing a notice of appeal with the registrar of the board.

(8) If council fails to make its decision by September 30 of the year following the year in respect of which the application is made, an applicant may appeal to the Assessment Review Board by October 21 of the year by filing a notice of appeal with the registrar of the board and the appeal shall be a new hearing.

7In accordance with s. 357(5) the City issued a Notice of Hearing to the Appellant dated February 27, 2020, scheduling the Appellant’s application to be heard by Council on March 25, 2020. The City’s Notice of Hearing stated a recommendation will be presented to Council that the Appellant’s application not be allowed.

8On March 17, 2020, the Ontario government declared a state of emergency due to the COVID-19 pandemic.

9On March 17, 2020, the City issued a Notice of Hearing Deferral advising the Appellant that its application would be rescheduled to a future date.

10On March 20, 2020, the Ontario government passed Ontario Regulation 73/20: Limitation Periods (the “Regulation”), which provided as follows:

1. Any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any limitation period shall be suspended, and the suspension shall be retroactive to Monday, March 16, 2020.

2. Any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any period of time within which any step must be taken in any proceeding in Ontario, including any intended proceeding, shall, subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding, be suspended, and the suspension shall be retroactive to Monday, March 16, 2020.

3. For greater certainty, any limitation period or period of time within which a step must be taken in a proceeding that is temporarily suspended under this Regulation resumes running on the date on which the temporary suspension ends and the temporary suspension period shall not be counted.

11On September 14, 2020, the Regulation was revoked.

12On September 30, 2020, the City issued a Notice of Hearing and re-scheduled the Appellant’s application to a Council hearing on October 28, 2020. This Notice of Hearing stated that a recommendation will be presented to Council that no tax adjustment be made.

13On October 20, 2020, the Appellant filed the Subject Appeal with the Board pursuant to s. 357(8) of the Act, on the basis that Council failed to make a decision on its application by September 30, 2020.

14The Appellant did not attend the Council hearing on October 28, 2020.

15Council made a decision on the Appellant’s application, and the City delivered a Notice of Decision dated October 29, 2020 indicating that the application was not allowed.

16The City subsequently brought this motion to dismiss on the basis that the Appellant’s appeal brought pursuant to s. 357(8) is invalid.

ANALYSIS

Legal Framework

Dismissal

17The City has not cited the specific Rule or statutory provision upon which it relies to request dismissal.

18That said, s. 4.6(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) and s. 8.2 of the Assessment Review Board Act, R.S.O. 1990, c. A.32 set out circumstances under which the Board may dismiss an appeal without a hearing.

19Section 4.6(1) of the SPPA allows dismissal of a proceeding without a hearing if:

a. the proceeding is frivolous, vexatious or is commenced in bad faith;

b. the proceeding relates to matters that are outside the jurisdiction of the tribunal; or

c. some aspect of the statutory requirements for bringing the proceeding has not been met.

20The Assessment Review Board Act provides:

8.2 (1) The Board, on its own motion or on the motion of any party, may dismiss a complaint or appeal brought before it if,

(a) the Board is of the opinion that the proceeding is frivolous or vexatious, is commenced in bad faith or is commenced only for the purpose of delay;

(b) the Board is of the opinion that the reasons set out in the complaint or appeal do not disclose any apparent statutory ground on which the Board can make a decision; or

(c) the complainant or appellant has not responded to a request by the Board for further information within the time specified by the Board.

21Rule 24 of the Board’s Rules of Practice and Procedure (“Rules”) also pertains to dismissal of a proceeding before the Board. Rule 24 provides as follows:

24. The Board may dismiss a proceeding without holding a hearing, or after a hearing, if:

a. the Board is satisfied that it is without jurisdiction to hear the appeal;

b. the Board is of the opinion that the proceeding is frivolous or vexatious, is commenced in bad faith or only for the purpose of delay;

c. the Board is of the opinion that the reasons set out in the appeal do not disclose any apparent statutory ground on which the Board can make a decision;

d. the appellant has not responded to a request by the Board for further information within the time specified by the Board;

e. the appellant has not complied with the statutory requirements or these Rules; or

f. the appellant has abandoned the appeal.

22Neither party has provided the Board with case law outlining the Board’s approach to dismissal. That said, the Board’s case law is clear dismissal should only be granted in the clearest of cases.

23The Board has also been clear that dismissal should only be granted when the balance of prejudice between the parties favours dismissal: Ottawa (City) v 1649050 Ontario Ltd., 2018 CanLII 116161 (ON ARB) at paragraph 15. Simply put, “[t]he prejudice to each party will always be the primary consideration on a dismissal motion”: Municipal Property Assessment Corporation, Region 14 v Upper Keele Inc., 2018 CanLII 126632 (ON ARB), 2018 CanLII 248 (ON ARB) at paragraph 10.

Grounds to Appeal Under s. 357

24As noted above, there are two statutory bases for a party to appeal to this Board following an application to a municipality pursuant to s. 357(1) of the Act:

a. First, where Council makes a decision on an application by September 30 of the year following the year for which the application was made, an appeal may be brought to the Board within 35 days of Council’s decision, pursuant to s. 357(7) of the Act.

b. Second, where Council fails to make a decision on the application by September 30 of the year following the year for which the application was made, the Appellant has until October 21 of that same year to bring its appeal before the Board, pursuant to s. 357(8).

25Accordingly, in the ordinary course, Council would have had until September 30, 2020 to make a decision regarding the Appellant’s application. If Council had made a decision by September 30, 2020, the Appellant would have had 35 days from the date Council rendered its decision to bring an appeal before the Board pursuant to s. 357(7). If Council had failed to render a decision by September 30, 2020, the Appellant would have had until October 21, 2020 to appeal to the Board pursuant to s. 357(8).

26Of course, 2020 was anything but ordinary. Some statutory timelines and processes may have been affected as a result of the Regulation, leading to the circumstances underlying this motion.

Issues

27The issue that must be determined on this motion is whether the Board should dismiss the Subject Appeal.

Issue 1 – Should the Board dismiss the Subject Appeal?

Submissions

28The City submits that the timelines concerning Council decisions pursuant to s. 357 of the Act were suspended pursuant to the Regulation, and the time during which that timeline was suspended did not count, as stated in ss. 1, 2 and 6 of the Regulation. The City submits that, per s. 6 of the Regulation, the September 30, 2020 deadline for Council to render a decision on the Appellant’s application was effectively extended by the length of the suspension. Accordingly, submits the City, the hearing scheduled for October 28, 2020 was timely and the Appellant’s appeal pursuant to s. 357(8) is invalid.

29In response, the Appellant submits that the Regulation was revoked as of September 14, 2020, and therefore Council was to make its decision on the Appellant’s application by September 30, 2020 pursuant to s. 357(8) of the Act. The Appellant also submits that s. 357 does not include a timeline, for instance, stating that Council must respond within 6 months from the filing of the application. Section 357(8) simply states “If council fails to make its decision by September 30”. The Appellant further submits that the modern principle of statutory interpretation requires the words in s. 357 to be read in their entire context and in their grammatical and ordinary sense, and the intention of the Act is that taxpayers are readily able to understand the timing of filing tax applications and tax appeals. In addition to the clear wording of the Act, the Appellant submits, the Board’s ”Municipal Act Application/Appeal – Cancel, Reduce, Refund” form indicates a deadline of October 21 of the year after the year for which the application was made if Council fails to make its decision by September 30 of the year after the year for which the application was made. The Appellant filed its appeal on October 20, 2020, in accordance with that deadline.

30Further, the Appellant submits that filing a s. 357(7) appeal in response to the October 28, 2020 decision would be redundant as there was a valid s. 357(8) appeal based on Council’s failure to render a decision by September 30, 2020. The Appellant submits that dismissal of the Subject Appeal is an extreme remedy which should not be applied when a taxpayer follows clear wording of an Act or appeal form or a legislative deadline. The Appellant submits that dismissing the Subject Appeal would be prejudicial to the taxpayer as it would result in an overpayment of property taxes, and there is no evidence of prejudice to the City.

31In reply, the City submits that it would have been impossible for the City to resume scheduling and rendering decisions in respect of tax applications within the two weeks following the revocation of the Regulation on September 14, 2020. The City submits that the revocation on September 14, 2020 did not affect the Regulation’s operation in suspending the limitation period for s. 357 applications. The City submits that the plain wording of s. 6 of the Regulation confirms that “the temporary suspension period shall not be counted.” The City submits that the fact that the timeline is stated as a date, namely September 30, rather than a period of time, does not mean that it is not a timeline impacted by the Regulation. The City submits that a proper and fair application of the Regulation is that as of October 28, 2021, when Council rendered its decision on the Appellant’s application, the City was still within the statutory timelines set out in the Act as extended by operation of the Regulation.

32The City further submits in reply that it would suffer prejudice under the interpretation proposed by the Appellant, as requiring or expecting the City to have scheduled and held a meeting by the September 30, 2020 timeframe proposed by the Appellant is simply unreasonable. The City further submits that the Appellant’s position that it would suffer prejudice ignores that the City notified the Appellant three weeks before the Appellant filed its appeal under s. 357(8) that a Council hearing was scheduled for October 28, 2020 and the Appellant ignored that meeting. The City submits that instead of amending its appeal or filing a new appeal, which the Appellant had ample opportunity to do, the Appellant chose to continue with its s. 357(8) appeal.

Findings on Issue 1

33The Board is not prepared to exercise its discretion to dismiss the Subject Appeal based on the totality of the circumstances underlying this motion, including:

a. The City has not cited the specific Rule or statutory provision upon which it relies to request dismissal, leaving the Board to speculate.

b. This is not a situation where a party missed a filing deadline, or otherwise entirely failed to comply with the statutory requirements or the Rules. In this case, the Appellant filed the Subject Appeal on October 20, 2020, in a good faith attempt to avoid missing the October 21, 2020 deadline for filing with the Board.

c. The City has not articulated what happened to the October 21, 2020 deadline by which the Appellant was required to bring its appeal before the Board if Council failed to make a decision. If the Board were to give the Regulation and s. 357(8) the interpretation proposed by the City, the effect would be that Council would have been granted until March 31, 2021 to make a decision, but if Council failed to make a decision by that deadline, the Appellant would have had no recourse to the Board as its appeal would be past the October 21, 2020 filing deadline. The interpretation proposed by the City could disenfranchise the Appellant in the event Council failed to make a decision.

d. The City has not satisfied the Board that it lacks jurisdiction. The elements of s. 357(8) were, at least on their face, met in the circumstances of this case. No decision was rendered by September 30, 2020, and the Appellant filed an appeal by October 21, 2020. The City has not provided the Board with sufficient evidence on this motion respecting the intent of the Regulation. Without sufficient evidence supporting the appropriate statutory interpretation, and in the specific circumstances of this case, the Board is not prepared to interpret the Regulation and the Act in a manner that would preclude the Appellant from bringing an appeal.

e. The City states that, had the Appellant amended its appeal within 35 days of Council’s October 28, 2020 decision to bring the appeal pursuant to s. 357(7), or had the Appellant filed a fresh s. 357(7) appeal within the 35 day window following Council’s decision, the appeal would be valid. However, the Subject Appeal was brought under s. 357(8), which according to the City makes it invalid. In all of the circumstances, the Board is not prepared to exercise its discretion to dismiss on the basis of such a technical difference, especially given the Appellant’s clear intention and reasonable attempts to file an appeal in time.

f. Most importantly, the City has not provided evidence of prejudice if the dismissal is not granted. The City has made submissions, in reply, that it would suffer prejudice if the Board interpreted the Regulation as requiring the City to have held a hearing by September 30, 2020. However, the City does not explain how such a determination would result in actual prejudice to it, particularly as the City ultimately denied the application, and the Appellant has been trying to appeal all along. To be clear, allowing this appeal to proceed does not necessarily mean that the City was required to make its decision by September 30, 2020. Rather, it means that the Appellant had a statutory right to appeal to the Board by October 21, 2020 in the event that the City did not do so. It is about the Appellant’s rights under s. 357(8), which exist under statute even if the City’s time to meet its obligation under s. 357(5) was extended by the Regulation. In the absence of evidence of prejudice to the City, the Board is not prepared to exercise its discretion to dismiss. In all of the circumstances of this case, the Board would require clear evidence of prejudice before dismissing the Subject Appeal.

CONCLUSION

34For the reasons outlined above, the Board is not prepared to exercise its discretion to dismiss the Subject Appeal.

ORDER

35The Board denies the motion to dismiss.