Four O One 45 Developments Inc. v. Municipal Property Assessment Corporation Region 06, 2021 CanLII 125747

Tribunals Ontario Tribunaux décisionnels Ontario Assessment Review Board Commission de révision de l’évaluation foncière

ISSUE DATE: November 29, 2021

FILE NO.: DM 2021M16

Assessed Person: Four O One 45 Developments Inc. c/o Marvin Pernica

Appellant: Four O One 45 Developments Inc. c/o Marvin Pernica

Respondent: Municipal Property Assessment Corporation Region 06

Respondent: Hamilton Township

Property Location: Baltimore Road

Municipality: Hamilton Township

Roll Number: 1419-000-030-04600-0000

Taxation Year: 2021

Hearing Event No.: 755867

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

Parties	Representative/Counsel*
Four O One 45 Developments Inc.	M. John Ewart*
Municipal Property Assessment Corporation	Shelby Roper
Hamilton Township	Submissions not received

REQUEST FOR: Late Appeal

HEARD: November 29, 2021 in writing

ADJUDICATOR: Jean-Paul Pilon, Member

MOTION DECISION

OVERVIEW

1Four O One 45 Developments Inc. (the “Moving Party”) is the owner of a property on Baltimore Road in Hamilton Township.

2Marvin Pernica is the owner 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. 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 granted.

Factual Background

4The Moving Party relied on two affidavits affirmed by Mr. Pernica on September 23, 2021 (the “September Affidavit”) and October 22, 2021 (the “October Affidavit”) to support the motion.

5In the September Affidavit, Mr. Pernica stated that the Moving Party relocated its office on June 1, 2021 to Hamilton Township (the “Municipality”). In the October Affidavit, Mr. Pernica said that the Moving Party’s new address was provided to the Municipality.

6The October Affidavit went on to say that in late June, 2021, the Moving Party received its Final Tax Notice dated May 31, 2021 from the Municipality. Mr. Pernica wrote that he “was shocked as to the amount due and owing, and accordingly, contacted the Municipality to address same.”

7In the same affidavit, Mr. Pernica stated that he was then advised by an employee of the Municipality that he should file a Request for Reconsideration (“RfR”) Extension of Time Form with the Board, which he did on July 14, 2021. In that request, Mr. Pernica wrote that “we believe this property has been assessed to (sic) high and would like to make an RFR Extension for 2021 citing the unusual and extenuating circumstances of the pandemic.”

8In response to that filing, the Board emailed Mr. Pernica on September 10, 2021 correctly indicating that “the Board does not have the authority to extend the deadline to file a RfR for properties other than residential, farm, managed forests and conservation land,” where the property was in the commercial property class. Mr. Pernica was directed instead to file this motion pursuant to Rule 26(b), which the September Affidavit indicates was done on September 23, 2021.

9MPAC, which consented to the relief requested in this motion, relied on the affidavit of its employee Charmaine Siddle affirmed on October 28, 2021. This simply confirmed that the Moving Party was the registered owner of the property, that a notice of assessment for the 2021 taxation year was sent to the Moving Party at its previous address in North York on November 19, 2020, and that the deadline to file an appeal was March 31, 2021.

10Mr. Pernica wrote in the October affidavit that he received the notice of assessment “sometime late summer/early fall, 2021,” most likely because “the delivery of mail has been somewhat askew to say the least” as a result of the pandemic. His position in the motion was that he became aware of the assessment when he received the final tax bill in late June 2021.

ANALYSIS

11This motion was filed pursuant to Rule 26(b). In essence, Rule 26(b) provides that the Board may accept a late appeal if “(1) the appellant is a person entitled to receive 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).” These three requirements are addressed individually below.

Issue 1 – Was the Appellant a person entitled to receive a notice of assessment?

12It was not contested that Mr. Pernica was the owner of the Moving Party. As a result, both he and the Moving Party were entitled to receive the notice of assessment.

Finding on Issue 1

13The Board finds that the Moving Party met the first requirement of Rule 26(b).

Issue 2 – Did the Moving Party receive a notice of assessment?

14Mr. Pernica did receive a notice of assessment, but not until the late summer or early fall of 2021 according to the October Affidavit, well after the date he filed the request to extend time to file an RFR on July 14, 2021. For the reasons set out in Issue 3 below, this latter date is the date the Board considers that the Moving Party sought to file a late appeal pursuant to Rule 26(b), even though it was in the wrong form.

15As a result, the Board finds that at the time that Mr. Pernica sought to challenge the assessment by way of a late appeal, albeit on the wrong form, neither he nor the Moving Party had received a notice of assessment. As a result, the Moving Party met the second requirement of Rule 26(b).

Finding on Issue 2

16The Board finds that the Moving Party met the first requirement of Rule 26(b).

Issue 3 – Did the Moving Party file the appeal with the Board within 30 days of becoming aware of the assessment?

17It was determined above that the tax bill was not received until late June, 2021 and that neither the Moving Party nor Mr. Pernica had by then received a notice of assessment. The Board finds that this is the time that Mr. Pernica became aware of the assessment. He filed the request to extend time to file an RfR on July 14, 2021 within 30 days of becoming aware of the assessment but did not file this motion until September 23, 2021.

18Mr. Pernica did, however, contact the Board about contesting the appeal within 30 days of becoming aware of the assessment by submitting the incorrect form. In it, he clearly articulated that he disagreed with the assessment.

19In 2356746 Ontario Inc. v Municipal Property Assessment Corporation, Region 13, 2019 CanLII 114731 (ON ARB) at para. 28, the Board found that a request to extend time to file an RfR was “sufficient to indicate an intention to appeal, even if it was on the incorrect form.” In that decision, the Board followed 2604696 Ontario Inc. v Municipal Property Assessment Corporation, Region 09, 2019 CanLII 109526 (ON ARB) quoting para. 24 which read:

The Board finds there to be a sufficient nexus between the statement that the Moving Party wants a reconsideration of the assessment in the RfR and the head of appeal in the Act that the assessment is incorrect for the RfR to be considered an “appeal” pursuant to Rule 26(b) in these circumstances. Such an interpretation of Rule 26(b) would be consistent with Rule 4 (now Rule 3), which provides that the Rules are to be interpreted liberally and is the fair result in the circumstances.

20As a result, the Board finds that the Moving Party “filed the appeal within 30 days of becoming aware of the assessment” even if that filing was on an incorrect form. To find otherwise in these circumstances would be procedurally unfair.

Finding on Issue 3

21The Board finds that the Moving Party met the third requirement of Rule 26(b).

CONCLUSION

22The Board finds that the Moving Party has met all three requirements of Rule 26(b) and that the Board may accept its late appeal for the 2021 taxation year.

ORDER

23The Board orders that the Moving Party’s appeal for the 2021 taxation year is accepted pursuant to Rule 26(b).