Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

December 21, 2021

FILE NO.:

DM 2021M19

Assessed Person:

Storage Guyz Port Colborne Inc.

Appellant:

Storage Guyz Port Colborne Inc.

Respondent:

Municipal Property Assessment Corporation Region 18

Respondent:

City of Port Colborne

Property Location:

Elm Street

Municipality:

City of Port Colborne

Roll Number:

2711-030-036-13202-0000

Taxation Years:

2019, 2020 and 2021

Hearing Event No.:

758072

Legislative Authority:

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

Parties

Representative

Storage Guyz Port Colborne Inc.

Kimberly van Vliet

Municipal Property Assessment Corporation

Douglas Keyes

City of Port Colborne

Submissions not received

REQUEST FOR:

Late Appeal

HEARD:

December 20, 2021 in writing

ADJUDICATOR(S):

Jean-Paul Pilon, Member

MOTION DECISION

OVERVIEW

1In this motion, Storage Guyz Port Colborne Inc. (the “Moving Party”), owner of a property on Elm Street in the City of Port Colborne (the “Subject Property”), requested that the Assessment Review Board (the “Board”) accept its appeals for the 2019, 2020 and 2021 taxation years 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 denied.

Factual Background

3Sandeep Chera (the “Owner”) is the owner of the Moving Party and filed his affidavit affirmed on November 10, 2021 to support the motion.

4In that affidavit, the Owner stated that the Municipal Property Assessment Corporation (“MPAC”) issued a Property Assessment Change Notice (“PACN”) for the Subject Property on May 10, 2021 which the Owner did not receive. The Owner said that in late September, 2021, he contacted MPAC to obtain recent notices of assessment which he was then able to view on MPAC’s website. The Owner noted that the mailing address used by MPAC was incomplete and assumed that this was why he did not receive the PACN.

5The affidavit continued saying that in October, 2021, the Owner received a supplemental tax bill from the City of Port Colborne for taxes owing back to 2019. The Owner wrote that “this is when I realized that the PACN related to prior tax years, and that there was an appeal deadline of September 7, 2021” for the 2021 taxation year. The Moving Party’s notice of motion is dated November 15, 2021 and the Board assumes it was filed on the same date.

6MPAC relied on the affidavit of its employee Montanna Hill-Sooley affirmed remotely on November 30, 2021. It said that the Owner contacted MPAC on September 29, 2021 to inquire about the PACN, and that the Owner was sent the PACN electronically on that date.

ANALYSIS

7This 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 the 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).”

8The use of the word “and” between the first and second requirements above mean that all three requirements need to be met for an appellant (more accurately, a potential appellant) to succeed in such a motion. This was confirmed in Cherry Beach Sailing Clubs v Municipal Property Assessment Corporation, Region 09, 2018 CanLII 107727 (ON ARB) at para. 8 where the Board determined that relief could only be granted in such a motion if all of the three requirements are met.

9These three requirements are addressed individually below as they relate to the 2021 taxation year, followed by an analysis relating to the request as it pertains to the earlier taxation years.

Issue 1 – Was the appellant a person entitled to receive a notice of assessment for the 2021 taxation year?

10The Moving Party owns the Subject Property and the Owner owns the Moving Party. Both were entitled to receive a notice of assessment.

Finding on Issue 1

11The Board finds that the Moving Party met the first requirement of Rule 26(b) for the 2021 taxation year.

Issue 2 – Did the Moving Party receive a notice of assessment for the 2021 taxation year?

12The notice of assessment in question in this motion was the PACN, and it was not disputed that the Owner did not receive it until late September, 2021 when the deadline to file an appeal for the 2021 taxation year was September 7, 2021.

13The Moving Party met the second requirement of Rule 26(b) because the Owner did not receive the PACN.

Finding on Issue 2

14The Board finds that the Moving Party met the second requirement of Rule 26(b) for the 2021 taxation year.

Issue 3 – Did the Moving Party file the 2021 appeal with the Board within 30 days of becoming aware of the assessment?

15The Owner stated that he “realized that the PACN related to prior tax years, and that there was an appeal deadline of September 7, 2021” at some point in October, 2021 when the Owner received the supplemental tax bill dated October 18, 2021 from the City of Port Colborne. However, the Owner also acknowledged in his affidavit that the PACN was received in late September, 2021 when MPAC either sent it to the Owner and/or it was posted to MPAC’s website.

16The PACN was appended to the Owner’s affidavit. It clearly indicated effective change dates of January 1, 2019, January 1, 2020 and January 1, 2021 and the September 7, 2021 deadline to file an appeal. Moreover, Rule 26(b) refers to an appellant becoming aware of an assessment, not taxes owing.

17In Four O One 45 Developments Inc. (Marvin Pernica) v Municipal Property Assessment Corporation Region 06, 2021 CanLII 125747 (ON ARB) at para. 17, it was determined that a party first became aware of an assessment when it received a tax bill. However, in this instance, it was not contested that the Owner received the PACN which indicated the years to which it applied in September, 2021. The Owner did not file this motion until November 15, 2021, more than 30 days later.

18As a result, the Board determines that the Moving Party became aware of the assessment at the end of September, 2021 but did not file an appeal until more than 30 days later. The Moving Party did not, therefore, meet the third requirement of Rule 26(b).

Finding on Issue 3

19The Board finds that the Moving Party did not meet the third requirement of Rule 26(b) for the 2021 taxation year.

Issue 4 – Rule 26(b) and the request to file late appeals for the 2019 and 2020 taxation years

20The Moving Party’s request to file a late appeal for the 2021 taxation year is denied because the Moving Party did not meet all three mandatory requirements of Rule 26(b). In this motion, however, the Moving Party also requested that the Board accept late appeals for the 2019 and 2020 taxation years. Neither of the affidavits filed in this motion, nor MPAC’s motion material specifically addressed the request for the Board to accept late appeals for these additional taxation years.

21As noted above, the first requirement of Rule 26(b) is that the appellant be the party entitled to receive a notice of assessment. The Owner’s affidavit did not indicate that the Moving Party or the Owner were so entitled for the 2019 and 2020 taxation years, stating only that “I (Sandeep Chera) am the owner of the Subject Property” in the present tense.

22Even if the Moving Party met the first requirement of Rule 26(b), the Owner’s affidavit did not state that notices of assessment for the 2019 and 2020 taxation years were not received, only that the 2021 PACN was not received. This does not meet the second requirement of Rule 26(b) referred to above which requires a determination that notices of assessment were not received.

23Finally, without knowing if or when the Moving Party received notices of assessment for those taxation years, the Board cannot determine whether the Moving Party filed appeals for those two taxation years in the form of this motion within 30 days of becoming aware of them. At best, the Owner’s affidavit might be read to infer that the Moving Party did not become aware of assessments for the 2019 and 2020 taxation years until it received the PACN in September, 2021. However, even if the Board were to accept that as a submission, the same conclusion applicable to the 2021 taxation year would follow for the request pertaining to the other taxation years and the request would be denied because more than 30 days passed.

Findings on Issue 4

24The Board finds that the Moving Party did not meet all three requirements of Rule 26(b) for the 2019 and 2020 taxation years.

CONCLUSION

25The Board finds that the Moving Party has not met all three requirements of Rule 26(b) for any of the taxation years in question, namely 2019, 2020 and 2021.

ORDER

26The Board orders that this motion is denied.