West Ridge Development Corporation v. Municipal Property Assessment Corporation Region 16, 2021 CanLII 118934

Tribunals Ontario

Assessment Review Board

ISSUE DATE: November 15, 2021

FILE NO.: DM 2021M13

Assessed Person: West Ridge Development Corporation

Appellant: West Ridge Development Corporation

Respondent: Municipal Property Assessment Corporation Region 16

Respondent: Township of Tiny

Property Location: County Road 6 South

Municipality: Township of Tiny

Roll Number: 4368-000-004-03400-0000

Taxation Year: 2021

Hearing Event No.: 754769

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

Parties	Representative
West Ridge Development Corporation	Shayne Large
Municipal Property Assessment Corporation	Submissions not received
Township of Tiny	Submissions not received

REQUEST FOR: Late Appeal

HEARD: November 4, 2020 in writing

ADJUDICATOR(S): Jean-Paul Pilon, Member

MOTION DECISION

OVERVIEW

1West Ridge Development Corporation (the “Moving Party”) is the owner of a property at County Road 6 South in the Township of Tiny (the “Subject Property”).

2Shayne Large is the Secretary/Treasurer of the Moving Party and brought this motion requesting that the Assessment Review Board (the “Board”) accept the Moving Party’s appeal for the 2021 taxation year after the time set out in the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”). This motion was filed pursuant to Rule 26(b) of the Board’s Rules of Practice and Procedure (the “Rules”).

Result

3For the reasons that follow, this motion is dismissed.

Factual Background

4Mr. Large relied entirely on his affidavit sworn on September 14, 2021 (the “Affidavit”) to provide the factual background for this motion.

5In the Affidavit, Mr. Large wrote that on May 11, 2021 he changed his address and advised the Municipal Property Assessment Corporation (“MPAC”) of the change. MPAC acknowledged the change of address by email on June 4, 2021.

6Mr. Large wrote that “since April 2021, (he) regularly followed up with MPAC” on the request for reconsideration (“RfR”) that he filed after receiving a Property Assessment Notice dated November 23, 2020 that set out the assessment of the Subject Property for the 2021 taxation year. He wrote that the RfR was filed some time in March, 2021, but the affidavit of MPAC’s employee Krysta Chapman that MPAC filed in response to the motion indicated that the RfR was filed “on or about March 1, 2021.”

7MPAC issued the results of the RfR on June 1, 2021, but those results were sent to Mr. Large’s previous address and returned to MPAC as undeliverable. On August 13, 2021, the same documentation was emailed to Mr. Large after a conversation with an employee of MPAC.

8Although MPAC set its own deadline for the Moving Party to execute the proposed Minutes of Settlement arising from the RfR, the letter with the results of the RfR said that the deadline for filing an appeal with the Board was August 30, 2021. Despite email correspondence that followed between Mr. Large and MPAC during the time period August 25, 2021 and August 31, 2021, no appeal was filed.

9It was not until September 1, 2021 that Mr. Large contacted the Board to file a late appeal. He wrote in the Affidavit that “had the original decision been mailed to my correct address, I would have filed an appeal prior to August 30, 2021.”

10MPAC did not oppose the Moving Party’s request to file a late appeal but did not provide any substantive legal grounds to support the request in its material filed with the motion.

Issue 1 – What was the Deadline to File an Appeal?

11The first issue to be determined in this motion is whether the deadline to file an appeal in these circumstances was, in fact, August 30, 2021, as MPAC represented it to be.

12Section 40(5) of the Act provides that:

40.(5) For 2017 and subsequent taxation years, if a person has made a request for reconsideration in respect of a property…, whether or not the person is required to do so as a precondition of appeal, the last day for the person to appeal for a taxation year is as follows:

1. If the assessment corporation has mailed a notice of reconsideration…, 90 days after the issuance date printed on the notice mailed by the assessment corporation.

2. If the assessment corporation has not mailed a notice of reconsideration within the time required under subsection 39.1(7) or (8), 90 days after the notice should have been mailed by the corporation.

13The question applying section 40(5) of the Act is whether the notice of reconsideration was “mailed” to Mr. Large, where the term “mailed” is not defined in the Act or in the Rules.

14The Board finds that the notice of reconsideration was not “mailed” on June 1, 2021 because it was not sent to the correct address after MPAC had been notified of an address change. It was also not contested that Mr. Large did not receive the notice of reconsideration which was returned to MPAC as undeliverable.

15MPAC then emailed the same notice of reconsideration to Mr. Large on August 13, 2021. Whether or not that met the requirement of it being “mailed” pursuant to section 40(5) of the Act, the deadline for filing an appeal was August 30, 2021 for the reasons that follow.

16If the notice of reconsideration was “mailed” to Mr. Large on August 13, 2021 when it was emailed to him by MPAC, then subsection 40(5)1. would apply. This provides that the deadline for filing an appeal is 90 days after the issuance date on the notice of reconsideration. The date on the notice was June 1, 2021, therefore the deadline to file an appeal would have been Monday, August 30, 2021. As the request to file a late appeal was not sent to the Board until two days later, it was filed late.

17If the notice of reconsideration was not “mailed” to Mr. Large on August 13, 2021 because it was sent by email and not regular mail, then the applicable deadline would be 90 days after the notice of reconsideration should have been mailed by MPAC pursuant to subsection 40(5)2. of the Act. This date is set out in section 39.1(7) of the Act as “no later than 180 days after the (RfR) request is made.” Since the best and most precise evidence before the Board in this motion is that the RfR was filed “on or about March 1, 2021”, the deadline would have been Saturday, August 28, 2021, extended to the next business day, also Monday, August 30, 2021.

Finding on Issue 1

18The deadline to file an appeal, whether the notice of reconsideration was “mailed” or not, was August 30, 2021. Since this motion was not filed until September 1, 2021, it is confirmed that the appeal was filed late.

Issue 2 – Can the Board Accept the Late Appeal?

19This motion was filed pursuant to Rule 26(b), which sets out the circumstances in which the Board may accept an appeal received after the time set out in the Act.

20In essence, Rule 26(b) provides that the Board may accept a late appeal if “(1) the appellant is a person entitled to receive a notice of assessment (2) who did not receive notice, and (3) filed the appeal with the Board within 30 days of becoming aware of the assessment (numbering added).”

21The Moving Party met the first requirement of Rule 26(b) because it and Mr. Large were entitled to receive a notice of assessment. The Moving Party did not, however, meet the second or third requirements of Rule 26(b).

22On the second requirement, Mr. Large did not allege that he did not receive notice of the assessment dated November 23, 2020. On the third requirement, Mr. Large did not file an appeal with the Board within 30 days of becoming aware of the assessment for which he filed the RfR in March, 2021. In Werzberger v Municipal Property Assessment Corporation, Region 09, 2018 CanLII 107717 (ON ARB), 2018 CanLII 73665 (ON ARB) at par. 18, the Board determined that a notice reconsideration from an RfR is not a notice of assessment as the term is used in Rule 26(b). Therefore, an appeal would have had to have been filed within 30 days of the Moving Party becoming aware of the assessment in March, 2021, when this motion was not filed until six months later.

23The Board’s jurisdiction to accept late appeals is limited to Rule 26(b) where the Moving Party met the first, but not the second and third requirements for the Board to accept a late appeal. Although an analysis of section 40(5) determined that the Moving Party was only two days late, filing this motion on September 1, 2021 when the deadline in any scenario was August 30, 2021, the Board has no other jurisdiction to extend the time for filing an appeal.

24Therefore, applying Rule 26(b), the motion would be dismissed.

Findings on Issue 2

25The Moving Party did not meet the second and third requirements of Rule 26(b), therefore the Board cannot accept its late appeal.

CONCLUSION

26The Board finds that this motion should be dismissed because the Moving Party has not met all of the requirements of Rule 26(b) which would permit the Board to accept a late appeal.

ORDER

27The Board orders that this motion is dismissed.