Joseph Shiewitz v. Municipal Property Assessment Corporation Region 18, 2021 CanLII 134593

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

ISSUE DATE: December 21, 2021 FILE NO.: DM 2021M20

Assessed Person: Joseph Shiewitz Appellant: Joseph Shiewitz Respondent: Municipal Property Assessment Corporation Region 18 Respondent: City of Niagara Falls

Property Location: 0 Reixinger Rd. S/S Municipality: City of Niagara Falls Roll Number: 2725-130-004-18200-0000 Taxation Year: 2021 Hearing Event No.: 757267

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

Parties	Representative
Joseph Shiewitz	David Shiewitz
Municipal Property Assessment Corporation	Douglas Keyes
City of Niagara Falls	Submissions not received

REQUEST FOR: Late Appeal HEARD: December 21, 2021 in writing ADJUDICATOR(S): Jean-Paul Pilon, Member

MOTION DECISION

OVERVIEW

1Joseph Shiewitz (the “Moving Party”) is the owner of a property at 0 Reixinger Rd. S/S in the City of Niagara Falls (the “Subject Property”). He brought this motion requesting that the Assessment Review Board (the “Board”) accept his 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

2For the reasons that follow, this motion is granted.

Factual Background

3The Moving Party relied on his affidavit affirmed on November 2, 2021 in which he stated that he did not receive a notice of assessment from the Municipal Property Assessment Corporation (“MPAC”) for the 2021 taxation year. The Moving Party affirmed that he only discovered that MPAC had altered the assessed value and classification of the Subject Property when he received a substantially increased tax bill from the City of Niagara Falls after it was issued on August 4, 2021.

4The Moving Party wrote that he immediately contacted the City of Niagara Falls and MPAC and was told to file a request to extend time to file a Request for Reconsideration (“RfR”), which he did on August 30, 2021. That request was rejected by the Board on September 10, 2021 with the explanation that “the Board does not have the authority to extend the deadline to file an RfR for properties other than residential, farm, managed forests and conservation land.” In addition, the Moving Party indicated in his affidavit that he did not receive this response until October 19, 2021, which further directed him to file this request to extend time to file a late appeal. This motion was filed on November 2, 2021.

5Of particular note for reasons explained later in this decision was a statement in the Moving Party’s affidavit that “I was entered and was accepted into The Conservative Land Program on Sept 2 for the year 2022 (sic)” where the words “Conservative Land” should have read “conservation land.” In addition, the 2021 tax bill exhibited in the Moving Party’s affidavit did not indicate that the Subject Property included a conservation land component.

6In its response to the motion which did not include affidavit evidence, MPAC opposed the request to file a late appeal because it was filed more than 30 days after the Moving Party became aware of the assessment with the filing on November 2, 2021. It also noted that “this property is currently assessed with a Conservation Land component in addition to its commercial land component” and argued that filing an RfR is a precondition to filing an appeal in such circumstances. It said that, as a result, “MPAC is confused by the reasoning that is given by the Board” in not considering the request to extend time to file an RfR and “wonders if the Board erred in its reasoning.”

7The Moving Party filed a reply submission which essentially restated the initial grounds of the motion and did not further address the conservation land issue.

ANALYSIS

8This 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 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).”

9First, however, the Board addresses MPAC’s submission that the motion should be denied because there was a precondition of filing an RfR in these circumstances.

Issue 1 – Was the filing of an RfR a precondition to filing an appeal?

10Section 40(3) of the Act provides that “if a property is in the residential, farm or managed forests property class, or in such other circumstances as the Minister may prescribe (emphasis added),” there is a precondition of filing an RfR prior to an appeal. Such circumstances are prescribed in part VII of O. Reg. 282/98 (the “Regulation”) which addresses disputes relating to conservation land in section 39, para. 0.1. This says that “any person…may bring an appeal… that land is not conservation land” and that “subsection 40(3) of the Act applies to the appeal.”

11The Board finds that filing an RfR is not a precondition in these circumstances. This motion pertains to the 2021 taxation year where the evidence before the Board in the Moving Party’s affidavit is that the Subject Property will not include conservation land until the 2022 taxation year. As an aside, even if part of the Subject Property was conservation land in the 2021 taxation year, the only reason an RfR would be a precondition to an appeal is if the issue was “whether the land is conservation land,” quoting section 39, para. 1 of the Regulation. The statement in the Moving Party’s affidavit that he was the one who requested that classification suggests that that would not be an issue in any appeal.

Finding on Issue 1

12An RfR is not a precondition of an appeal because the Subject Property did not include conservation land for the 2021 taxation year. This request is therefore considered as it was filed, as a request to extend time to file a late appeal pursuant to Rule 26(b). The three requirements contained in Rule 26(b) are addressed individually below.

Issue 2 – Was the Moving Party/Appellant a person entitled to receive a notice of assessment?

13It was not contested that the Moving Party was the owner of the Subject Property and was entitled to receive the notice of assessment.

Finding on Issue 2

14The Board finds that the Moving Party met the first requirement of Rule 26(b).

Issue 3 – Did the Moving Party receive a notice of assessment?

15It was also not disputed that the Moving Party did not receive the notice of assessment as he stated in his affidavit.

Finding on Issue 3

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

Issue 4 – Did the Moving Party file the appeal with the Board within 30 days of becoming aware of the assessment?

17It was not contested that the Moving Party did not receive the tax bill until some time after it was issued on August 4, 2021 and that he had not received the notice of assessment. This is the date that the Board finds the Moving Party became aware of the assessment. He filed the request to extend time to file an RfR on August 30, 2021 within 30 days of becoming aware of the assessment no earlier than August 4, 2021.

18The requirement in the third part of Rule 26(b) is that the party “filed the appeal with the Board within 30 days of becoming aware of the assessment,” but instead the Moving Party filed a request to extend time to file an RfR. In that document he wrote that “this was a complete shock when the taxes went up $30,000 above the usual bill for vacant land,” which the Board finds was a clear indication of disagreement with the assessment and an intention to appeal.

19In 2604696 Ontario Inc. v Municipal Property Assessment Corporation, Region 09, 2019 CanLII 109526 (ON ARB) at para. 24, the Board found:

… 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.

20Similar determinations were made in other recent Board decisions: in 2356746 Ontario Inc. v Municipal Property Assessment Corporation, Region 13, 2019 CanLII 144731 (ON ARB) where a moving party filed an RfR instead of an appeal; in Madera Building & Renovations Inc. v Municipal Property Assessment Corporation, Region 06, 2021 CanLII 122303 (ON ARB) where the filing was a request to extend time to file an RfR like here; and finally in Four O One 45 Developments Inc. (Marvin Pernica) v Municipal Property Assessment Corporation Region 06, 2021 CanLII 125747 (ON ARB), which also involved a request to extend time to file an RfR.

21In all of these cases, the Board determined that it would be procedurally unfair to deny the request to file a late appeal simply because the party wanting to appeal filed the incorrect form.

Finding on Issue 4

22The Board finds that the Moving Party met the third requirement of Rule 26(b).

CONCLUSION

23The Board finds that the provisions of the Regulation pertaining to conservation lands do not apply because there was no conservation land component to the Subject Property for the taxation year in question. The Board also finds that the Moving Party met all three requirements of Rule 26(b) and that the Board may accept his late appeal for the 2021 taxation year.

ORDER

24The Board orders that the Moving Party’s appeal for the 2021 taxation year is accepted pursuant to Rule 26(b).