Ayesha Khalid v. Municipal Property Assessment Corporation Region 21, 2021 CanLII 122302

Tribunals Ontario

Assessment Review Board

Issue Date: November 24, 2021 File No.: DM 2021M15

Assessed Person(s): Ayesha Khalid Appellant(s): Ayesha Khalid Respondent(s): Municipal Property Assessment Corporation Region 21 Respondent(s): City of Kitchener

Property Location(s): 6 Crossbridge Avenue Municipality(ies): City of Kitchener Roll Number(s): 3012-060-017-07263-0000 Taxation Year(s): 2017 and 2018 Hearing Event No: 757266

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

Appearances:

• Ayesha Khalid: Submissions not received
• Municipal Property Assessment Corporation: Allyson Amster and Matthew Kanter
• City of Kitchener: Submissions not received

Request For: Late Appeals Heard: November 17, 2021 in writing Adjudicator(s): Jean-Paul Pilon, Member

MOTION DECISION

OVERVIEW

1The Municipal Property Assessment Corporation ("MPAC") filed this motion requesting an order pursuant to section 40.1(b) of the Assessment Act, R.S.O. 1990, c. A.31 (the "Act") to extend the time for bringing appeals for the 2017 and 2018 taxation years, and for a direction that MPAC be the appellant in those appeals.

2Two affidavits were filed in support of this motion: one from Ayesha Khalid, the current owner of 6 Crossbridge Avenue (the "Subject Property") affirmed on November 11, 2021, and one from MPAC's employee, Allison Haffner, affirmed on November 12, 2021.

3MPAC filed this motion on behalf of Ms. Khalid and indicated in the motion material that the City of Kitchener (the "Municipality"), the municipality in which the Subject Property is located, consented to the relief requested in this motion.

4MPAC alleged in this motion that there were two palpable errors in the roll pertaining to roll number 3012 060 017 07263 0000 (the "Roll Number") for the 2017 and 2018 taxation years.

5The first palpable error alleged was that the roll for the applicable taxation years indicated an incorrect municipal address for the Subject Property, where section 14(1)3. of the Act requires MPAC to prepare an assessment roll including "(A) description of each property sufficient to identify it." The result of this error was that the owners of the Subject Property, a numbered company and then Ms. Khalid, had no notice of the second palpable error alleged in the roll. This was that the assessment attached to the Roll Number for the Subject Property was, in fact, the assessment of an entirely different property.

Result

6For the reasons that follow, this motion is granted.

Background

7The Roll Number was created by MPAC on September 23, 2016 following a land severance. The Subject Property was owned by the numbered company at that time and it was identified as property code 100 in the roll, denoting vacant residential land.

8When it created the Roll Number, MPAC inputted an incorrect address for the Subject property as 6 Crosswinds Drive instead of 6 Crossbridge Avenue. As a result, the assessment roll did not meet the requirements of section 14(1)3. of the Act because it did not sufficiently identify the Subject Property.

9Ms. Khalid purchased the Subject Property on November 28, 2017 but the incorrect address remained in the roll and in MPAC's records as the mailing address for the Subject Property. On April 10, 2018, MPAC updated the property code to 301, denoting a single family detached residence, as a result of a building permit that had been issued in 2017 for the Subject Property. That update was also based on a sketch for 6 Crosswinds Drive.

10On May 11, 2018, MPAC issued a Property Assessment Change Notice effective November 28, 2017 and January 1, 2018 for $380,000 to reflect these changes. However, this was sent to 6 Crosswinds Drive and identified the property it related to as 6 Crosswinds Drive and not the Subject Property.

11When MPAC sent its Property Assessment Notice ("PAN") on November 27, 2018 updating the current value to $558,000 for the 2019 taxation year, it had corrected the Subject Property's address in the roll. However, it was sent to 6 Crosswinds Drive. MPAC did not correct that mailing address until December, 2018.

12MPAC's PAN for the 2020 taxation year correctly reflected the address of the Subject Property. This time it was sent to the Subject Property, but the property that was assessed in that notice was again not the Subject Property but 6 Crosswinds Drive.

13Errors in the dimensions of the Subject Property in MPAC's assessments came to Ms. Khalid's attention on July 29, 2021 when she received an appraisal of the Subject Property. She promptly contacted MPAC who then determined that the details for 6 Crosswinds Drive were used in the assessments instead of those of the Subject Property. MPAC further determined that the Subject Property's improvement was 841 square feet smaller than in its records showed, and that the Subject Property had been overassessed by $149,000.

14The errors were corrected by other means for the 2019 to 2021 taxation years. However, in this motion MPAC requested an extension of time for bringing appeals for the 2017 and 2018 taxation years and a direction that MPAC be the appellant in those appeals pursuant to section 40.1(b) of the Act.

ANALYSIS

15Section 40.1(b) of the Act provides that "if it appears that there are palpable errors in the assessment roll...if alteration of assessed values or classification of land is involved, the Assessment Review Board (the "Board") may extend the time for bringing appeals and direct the assessment corporation to be the appellant."

16MPAC correctly set out the determinations to be made by the Board in its motion record that are summarized here.

17The first step is to determine whether the errors are truly inadvertent and unintentional errors and whether they are, in fact, palpable errors (Municipal Property Assessment Corporation Region 09 v Chew, 2015 CanLII 78969 (ON ARB)) ("Chew") at para. 19. Palpable errors are "error(s) of conspicuous magnitude: plain, evident, obvious and easy to understand" (Brockville (City) v Municipal Property Assessment Corp., [2016] O.J. No. 4871 (Div. Ct.) ("Brockville") at para. 14).

18The second step is to determine whether the Board should exercise its discretion to grant the relief requested. This "power should only be exercised...when it is clear that it would be unreasonable, unfair and highly prejudicial to penalize parties for not meeting their statutory obligation to file in a timely manner" (Municipal Property Assessment Corporation v Guelph Eramosa Township, 2019 CanLII 263 (ON ARB)) ("Guelph") at para. 16.

Palpable Errors

19The Board first finds that the errors were inadvertent and unintentional, as the Chew decision requires, because the evidence suggests they were nothing more than data entry errors in 2016.

20Next, the Board determines that these errors were palpable errors of "conspicuous magnitude: plain, evident, obvious and easy to understand" pursuant to the Brockville decision. This is because the incorrect municipal address in the roll was plainly and obviously wrong, and the assessments were not for the Subject Property but for a completely different property.

21Having met these criteria, the Board finds that the errors in the roll are, in fact, palpable errors in the roll.

Discretion

22After determining that there are palpable errors in the roll, the Board has to decide whether it should exercise its discretion to create appeals pursuant to section 40.1(b) of the Act.

23On fairness and reasonableness, the first two issues the Guelph decision directs the Board consider in deciding whether to exercise its discretion, notices of assessment were sent to an incorrect address and did not come to Ms. Khalid's attention. In Guelph at para. 12, the Board determined that "when there are valid reasons for missing the statutory deadlines in other provisions of the Act", which the Board finds there were here, "(section) 40.1 acts as a release valve, to see that fairness is preserved."

24This motion was also brought to the Board without delay because Ms. Khalid discovered these issues on July 29, 2021 and MPAC filed the Expedited Board Direction Form requesting that this motion be set on October 19, 2021.

25The Guelph decision then requires a determination as to whether the errors are "highly prejudicial" to the party alleging the existence of palpable errors in the roll. The only prejudice that needs to be considered in this case is that flowing to Ms. Khalid because both MPAC and the Municipality consented to the relief sought in the motion.

26The motion material did not address the threshold issue that the palpable errors must be "highly" prejudicial. However, as noted earlier, MPAC's material indicated that the Subject Property was 841 square feet smaller than as assessed, and that it had been overassessed by $149,000.

27In addition, the appraisal report exhibited in Ms. Khalid's affidavit indicated that the floor space of the Subject Property amounted to 1,805 square feet above grade, which means that the inclusion of almost 50% more floor space in the assessment was a significant error in these circumstances. Therefore, the Board finds that the extent of the prejudice meets the requirement of it being "highly prejudicial."

28As a result, the Board finds that these are circumstances where it should exercise its discretion to create the appeals requested.

CONCLUSION

29The Board finds that there are palpable errors in the roll and that it should exercise its discretion to create appeals for the 2017 and 2018 taxation years.

ORDER

30Pursuant to section 40.1(b) of the Act, the Board extends the time for bringing appeals for the 2017 and 2018 taxation years and directs that MPAC be the appellant.