Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

March 4, 2021

FILE NO.:

DM 168342

Moving Party (s):

Claridge Homes (Bank St) Inc.

Respondent(s):

Municipal Property Assessment Corporation Region 03

Respondent(s):

City of Ottawa

Property Location(s):

4789 Bank Street

Municipality(ies):

City of Ottawa

Roll Number(s):

0614-600-075-22501-0000

Appeal Number(s):

3423568, 3423567, 3423569 and 3423570

Taxation Year(s):

2017, 2018, 2019 and 2020

Hearing Event No.:

739469

Legislative Authority:

Rule 72 and 73 of the Assessment Review Board’s Rules of Practice and Procedure

Parties

Representative

Claridge Homes (Bank St.) Inc.

Chantelle MacMillan

Municipal Property Assessment Corporation

Mohammad El Dali

City of Ottawa

Guy Tudino

REQUEST FOR:

Withdraw appeal(s)

HEARD:

January 28, 2021 in writing

ADJUDICATOR(S):

Carly Stringer, Member

MOTION DECISION

OVERVIEW

1The Appellant, Claridge Homes (Bank St) Inc. brings this motion to withdraw appeals 3423568, 3423567, 3423569 and 3423570 (the “Subject Appeals”) pursuant to Rules 72 and 73 of the Assessment Review Board’s (“Board”) Rules of Practice and Procedure (the “Rules”).

2The Municipal Property Assessment Corporation (“MPAC”) and the City of Ottawa (the “City”) oppose the motion.

Result

3I have carefully reviewed and considered the evidence, submissions, and case law provided by all parties. For the reasons that follow, the motion is denied.

BACKGROUND

4The Subject Property is known municipally as 4789 Bank Street in Ottawa. The Appellant brought the Subject Appeals relating to the Subject Property pursuant to s. 40 of the Assessment Act for the 2017, 2018, 2019 and 2020 taxation years. The Appellant has been represented by Altus Group Tax Consulting Paralegal Professional Corporation (“Altus Group”) in relation to the Subject Appeals since July 18, 2017.

5The Subject Appeals were assigned a commencement date of September 15, 2020. On July 31, 2020, the City delivered a Notice of Higher Assessment (“NOHA”) for each taxation year in question, reflecting an intention to seek an increase in the assessment of the Subject Property from $8,408,000 to $18,462,000.

6A hard copy of the NOHA was sent to the Appellant via mail. The City’s representative sent the NOHA to the Board via email, copying the City and MPAC. Altus Group, being the Appellant’s representative, was not copied on this email submission to the Board, or otherwise sent a copy of the NOHA by the City’s representative.

7On September 9, 2020, six days before the Commencement Date of September 15, 2020, Altus Group filed a letter to withdraw the Subject Appeals. This letter was processed by the Board and the Subject Appeals were withdrawn.

8On October 5, 2020, the City’s representative emailed the Board requesting reinstatement of the Subject Appeals on the basis the NOHA was filed on July 31, 2020. It does not appear this email was copied to the Appellant or its representative Altus Group.

9On October 16, 2020, the Board advised the parties that the September 9, 2020 withdrawal was processed in error. The Board stated that the Subject Appeals should never have been withdrawn due to the NOHA filed on July 31, 2020. The Board advised the parties that the Subject Appeals would be reinstated with the assigned commencement date of September 15, 2020.

10The Appellant then brought this motion, seeking that the reinstated Subject Appeals be withdrawn pursuant to Rules 72 and 73 of the Board’s Rules.

ANALYSIS

Issue 1 – Can the Appellant withdraw the Subject Appeals pursuant to section 72 of the Rules?

11Rule 72 provides as follows:

72. An appellant may withdraw an appeal, with notice to the other parties to the appeal and the Board, unless:

(a) another party has given notice pursuant to these Rules of its intention to request a higher assessment or higher tax rate property class; or

(b) a hearing event has commenced.

12Rule 72 effectively prohibits an appellant from withdrawing an appeal where another party has given notice of an intention to seek a higher assessment. In this case, in order for the Board to determine whether the Appellant may withdraw the Subject Appeals pursuant to Rule 72, this Board must determine whether the City gave notice pursuant to the Rules of its intention to request a higher assessment in accordance with Rule 72(a). If the Board confirms that proper notice was provided, then the Subject Appeals can only be withdrawn in accordance with Rule 73.

13The Appellant has raised many issues and arguments on this motion. I have carefully reviewed and considered the evidence, submissions, and case law provided by all parties, even if I do not refer to every submission in this decision for the sake of brevity.

14The Appellant’s position on Rule 72, in a nutshell, is that it was not given the NOHA in accordance with the Rules. The Appellant advances many alleged infractions of the Rules:

a. the City’s NOHA was delivered to the Appellant by mail instead of being delivered electronically to its representative Altus Group.

b. Altus Group was not copied on the City’s electronic filing of the NOHA with the Board.

c. The City filed its NOHA on July 31, 2020, which is 16 days outside of the timeline dictated by the Rules.

d. The City communicated with the Board regarding reinstatement of the Subject Appeals, without copying or including the Altus Group.

15Overall, the Appellant submits these actions breached Rules 9, 36, and 40. This Board will address these various submissions in turn.

Delivery of the NOHA to the Appellant by Mail

16The Board’s Rules speak to service of documents. Rule 27(b) permits service by regular or registered mail to the last known address of the person or their representative, while Rule 28 provides that service on a corporation may be made, in accordance with Rule 27, on the registered office of the corporation. Rule 29 deems receipt of a document to have occurred on the fifth day after the postmark date, where served by regular mail.

17On July 31, 2020, the City delivered the NOHA by mail to the Appellant at its registered corporate office. The NOHA was stamped as received on August 10, 2020.

18The Appellant submits the City breached Rule 36, which provides that “All documents filed with the Board must be filed electronically, unless the Board directs otherwise.”

19Respectfully, Rule 36 is not applicable to whether or not the Appellant was provided notice in accordance with Rule 72(a). Rule 36 requires a party filing a document with the Board to file it electronically—it does not speak to notice on an Appellant. Rule 36 does not apply here.

20The Rules do not require electronic service. The evidence is clear that the Appellant corporation was served with the NOHA by mail to its registered office in accordance with Rules 27(b) and 28. Rule 29 would deem receipt five days after the NOHA was mailed on July 31, 2020.

21The Appellant also submits that the City should have sent the NOHA to the Appellant’s representative, Altus Group, and not to the Appellant directly. I will again reference Rules 27 and 28. The Rules do not require service on a representative.

22Finally, the Appellant argues that communication of a paralegal with a represented party is contrary to a paralegal’s obligations pursuant to the Paralegal Rules of Conduct mandated by the Law Society of Ontario, specifically Rule 7.02(4) which provides:

(4) A paralegal retained to act on a matter involving a corporation or organization that is represented by a legal practitioner in respect of that matter shall not, without the legal practitioner's consent or unless otherwise authorized or required by law, communicate, facilitate communication with or deal with a person

(a) who is a director or officer, or another person who is authorized to act on behalf of the corporation or organization;

(b) who is likely involved in decision-making for the corporation or organization or who provides advice in relation to the particular matter;

(c) whose act or omission may be binding on or imputed to the corporation or organization for the purposes of its liability; or

(d) who supervises, directs or regularly consults with the legal practitioner and who makes decisions based on the legal practitioner's advice.

23The Board does not have jurisdiction to enforce issues relating to the Paralegal Rules of Conduct. That said, for the purposes of this motion and whether direct service on the Appellant constitutes a ground to grant a withdrawal, the Board is not in agreement with the Appellant’s assertion that the City’s representative breached its professional obligations. The City’s representative sent a copy of the NOHA by mail to the corporation at its registered address, in accordance with the Board’s Rules. It did not communicate with a person named at 7.02(4)(a) to (d).

24This ground fails.

Failure to Copy Altus Group on filing NOHA with the Board

25The Appellant argues the City breached Rule 9 when it filed the NOHA electronically with the Board without copying Altus Group on the email.

26Rule 9 provides that “All communication with the Board in relation to any proceeding must be copied to, or in the presence of, all other parties to the proceeding.”

27It is true that the City did not comply with Rule 9 by copying the Appellant, or its representative, on its July 31, 2020 email communication with the Board filing the NOHA. However, a breach of Rule 9 does not mean the Appellant was not provided with notice of the NOHA in accordance with the Rules. As detailed above, the City served its NOHA on the Appellant in accordance with Rules 27(b) and 28. Where the City breached the Rules was not in failing to provide notice to the Appellant, but in how it communicated with the Board regarding that notice.

28This ground fails.

Timelines for Giving NOHA

29The Appellant submits that Rule 40 requires the NOHA be submitted within 30 days of the Commencement Date. The Commencement Date in this case was September 15, 2020. The Appellant submits the City filed the NOHA 46 days before the Commencement Date, and therefore 16 days outside the acceptable time limit dictated by the Rules.

30Rule 40 provides as follows:

Special Notices

40. A party to a summary proceeding must give notice to the Board, and all other parties to a summary proceeding, within 30 days of the day set in Rule 33 as the start of a proceeding, that the party intends to raise with the Board:

(a) a change in property classification that would result in higher taxation;

(b) a higher assessment than that returned by the MPAC;

(c) an application to invoke section 40(18) of the Assessment Act; or

(d) the doctrine of issue estoppel.

31The parties are in agreement that the Subject Appeals are general proceedings, not summary proceedings. The Appellant’s position is that the Rules do not contemplate a request for a higher assessment in a general proceeding, and therefore Rule 40 should be interpreted as applying to general proceedings as well.

32I do not agree with the Appellant’s submissions. First, although the Appellant suggests Rule 40 is ambiguous and could apply to general proceedings like the Subject Appeals, I do not find there is ambiguity in the ordinary and plain meaning of the words “to a summary proceeding” contained in Rule 40. Rule 40 speaks to summary proceedings only.

33The Board has previously confirmed that Rule 40 applies only to a summary appeal proceeding: see Merivale-Gilmour Manor Ltd. v. Municipal Property Assessment Corp., Region 03, 2020 CanLII 28326 (ON ARB) (“Merivale-Gilmour”) at paragraph 19. In that case, the Board specifically addressed the issue of the timing of an NOHA in the context of a general proceeding appeal. At paragraph 21, the Board confirmed that in a general proceeding appeal, written notice of an intention to request a higher assessment may be made at any time prior to the applicable due date set out in the Schedule of Events for serving the Statement of Issues or Response.

34Rule 40 does not apply. The evidence establishes that the City properly provided its NOHA on July 31, 2020. Therefore, this ground fails.

Failure to Copy the Appellant on Communications Regarding Reinstatement

35The Appellant maintains that the City breached Rule 9 when it failed to copy the Appellant on communications with the Board regarding a request for reinstatement.

36I agree that the City ought to have copied the Appellant on communications with the Board regarding a request for reinstatement. There is no evidence from the City as to why it did not comply with Rule 9 in that regard. That said, this communication happened well after the NOHA was filed. It is not relevant to whether the City provided proper notice of its intent to seek a higher assessment for the purposes of Rule 72.

37This ground fails.

Findings on Issue 1

38The evidence is clear that the City provided its NOHAs for the relevant taxation years on July 31, 2020 in accordance with the Rules. For the reasons outlined above, this Board finds the City provided notice in accordance with the Rules of its intention to request a higher assessment and, therefore, the Appellant is not entitled to withdraw the Subject Appeals pursuant to Rule 72.

Issue 2 – Should the Board permit the Appellant to withdraw the Subject Appeals pursuant to section 73 of the Rules?

39Rule 73 provides as follows:

Motion to Withdraw

73. An appellant may seek an order from the Board, by motion, to withdraw an appeal that is prohibited by Rule 72 and the Board may:

(a) grant the request to withdraw, with or without conditions; or

(b) refuse the request to withdraw and

i. proceed immediately to hear the appeal, or

ii. adjourn the proceeding.

40As noted above, under Rule 72, an appellant may withdraw an appeal as of right only if no notice of higher assessment has been provided. Where a notice has been given, the appellant cannot withdraw its appeal as of right. Instead, it must bring a motion pursuant to Rule 73 asking for permission from the Board to withdraw: see Merivale-Gilmour, supra at paragraph 21.

41The Appellant submits that the Board should grant it permission to withdraw. The Appellant makes several arguments in support of its request:

a. The Appellant submits the City’s non-compliance with the Rules is a basis for granting the withdrawal. The Appellant raises the same breaches of the Rules it alleges in its submissions on Rule 72.

b. The Appellant submits the City did not take the appropriate steps to reinstate the Subject Appeals pursuant to Rule 122, in addition to failing to copy the Appellant on communications with the Board regarding reinstatement. The Appellant submits it is prejudiced in this regard.

c. The Appellant argues that even if it had been given notice of the City’s intent to seek a higher assessment, a NOHA cannot be used to take away the right to withdraw its appeals and give the City a substantive right to appeal assessments beyond the legislated deadline.

d. The Appellant submits the most expeditious and least expensive determination of this proceeding is the withdrawal of the Subject Appeals.

42My analysis above regarding Issue 1 applies equally to the Rule 73 analysis. I do not find there were breaches of the Rules respecting notice when the City sent the NOHA to the Appellant via mail; when the City did not copy the Appellant’s representative on its electronic filing with the Board; or when the City provided its NOHA more than 30 days prior to the Commencement Date.

43The Board will consider the Appellant’s other arguments in turn.

Failure to Copy the Appellant on Communications Regarding Reinstatement

44In my view, the Appellant is correct that Rule 9 required the City to have copied the Appellant in its October 5, 2020 communications with the Board regarding reinstatement. The evidence does not clearly explain why the City did not include the Appellant, or its representative, on this email.

45In my view, however, this is not grounds to permit the Appellant to withdraw the Subject Appeals. The Board ought not to have allowed the withdrawal in the first place, given that the City’s NOHA was provided in accordance with the Rules. The Board made an error in this regard.

46The Board does have capacity, in certain circumstances, to reinstate withdrawn appeals that were closed because of its own clerical error without involvement of the parties. In Soul Restaurants v Municipal Property Assessment Corporation, Region 21, 2020 CanLII 24878 (ON ARB) at paragraphs 29 to 32, the Board dealt with a similar situation where it erroneously processed a withdrawal after a party provided notice it would seek a higher assessment value. As noted in that case at paragraph 31, “[t]here is no reason the Board should not be entitled to correct its own clerical errors to return the circumstances to those in place before the clerical error was made.” The Board confirmed that, in limited circumstances, withdrawn appeals can be reinstated if they were closed because of the Board’s own clerical error.

47This is precisely what happened in this case. I am not satisfied that the City’s failure to copy the Appellant on its communications with the Board regarding reinstatement is sufficient grounds to grant the Appellant’s request to withdraw the Subject Appeals.

48This ground fails.

Reinstatement of the Subject Appeals

49The Appellant’s position is that the City moved to reinstate the Subject Appeals outside of the requirements of Rule 122 of the Board’s Rules.

50Rule 122 provides as follows:

122. Notwithstanding Rule 120, a party to a former proceeding may seek an order from the Board to reinstate an appeal by filing an affidavit with the Board, copied to all parties, no more than 30 days after the appeal was dismissed or withdrawn by the Board setting out that:

(a) the appeal was withdrawn, removed or dismissed in error;

(b) party failed to appear at a hearing event through no fault of their own; or

(c) natural justice or procedural fairness require that the appeal be reinstated.

51The Appellant submits that it was not copied on communications from the City to the Board regarding the reinstatement request, and only learned of the reinstatement after the Board processed it. The Appellant submits that procedural fairness demands that it had a right to be heard on the issue of reinstatement, and that it is prejudiced by the added time and expense related to dealing with the Subject Appeals that were properly withdrawn.

52I do not agree with the Appellant’s submissions. First, as noted above, the Board does have capacity, in certain circumstances, to reinstate withdrawn appeals that were closed because of its own clerical error. In my view, the Board committed a clerical error when it permitted the Subject Appeals to be withdrawn despite the NOHA in the file. The Board was correcting its clerical error by reinstating the Subject Appeals.

53While I have found that the City failed to comply with Rule 9 when it requested reinstatement, that alone does not prejudice the Appellant to the degree that it is sufficient grounds for this Board to grant the request to withdraw. The Appellant was provided proper notice of the intent to seek a higher assessment in July 2020, and therefore was not entitled to withdraw its appeal as-of-right in September 2020. Notwithstanding this fact, the Appellant did not bring a motion pursuant to Rule 73 at that time. It would not be fair to hold the City to the requirements of Rule 122 while allowing the Appellant’s September letter of withdrawal to stand. I cannot find there is prejudice to the Appellant from the reinstatement without finding corresponding prejudice to the City and MPAC from the Appellant’s September 2020 withdrawal. Fairness demands a return to the status quo that existed before the Appellant’s letter of withdrawal in September 2020, with the Appellant seeking the Board’s permission to withdraw in accordance with Rule 73.

54This ground fails.

NOHA and the Right to Withdraw Appeals

55The Appellant submits that even if it had been given notice of the City’s intent to seek a higher assessment, a NOHA cannot be used to take away its right to withdraw its appeals. The Appellant argues the legislated deadline for the City to appeal the Subject Property’s assessment had passed. The Appellant submits the City cannot be allowed to effectively become the complainant in the Subject Appeals where the Appellant no longer has an issue with the assessments and has made the decision not to pursue the appeals.

56The Appellant raises Brampton (City) v. Municipal Property Assessment Corporation, Region No. 15, 2005 CarswellOnt 8923, 52 OMBR 116 (ON ARB) (“Brampton”) in support of its position. I do not agree this case is applicable. In Brampton, the municipality was seeking a withdrawal after it had filed complaints alleging the assessment was too low. The Board noted that the Rule preventing an automatic right to withdraw in the face of a notice of intent to seek a higher assessment is to give a chance to the party seeking the increase to argue the withdrawal should be refused. In Brampton, there was no prejudice to the assessed person, as the municipality was no longer seeking to increase the assessments. Overall, the facts were very different than the case before me.

57In contrast, the Board considered and rejected the argument being advanced by the Appellant in Merivale-Gilmour, supra. I will not repeat that analysis here but will refer the parties to paragraphs 23 to 29 of that decision. For the reasons enumerated in paragraphs 23-29 of Merivale-Gilmour, supra, I do not agree with the Appellant’s submission.

58This ground fails.

Most Expeditious and Least Expensive Determination of the Proceeding

59Finally, the Appellant submits the Rules were designed in a way to ensure they are interpreted to ensure the “just, most expeditious and least expensive determination of every proceeding.” It is the Appellant’s position that the most expeditious and least expensive determination of this proceeding is the withdrawal of the Subject Appeals.

60I do not agree. While permitting the Appellant’s withdrawal might be the most expeditious outcome, I am not convinced it would be just. The City properly provided its NOHA. There is no evidence before me explaining the Appellant’s desire to withdraw, or the timing of the withdrawal. The evidence does not suggest that either the Appellant or its representative Altus Group was unaware of the NOHA at the time the September 9, 2020 letter of withdrawal was submitted to the Board. The evidence is glaringly silent on that point. Overall, I find there is insufficient evidence before me to grant the Appellant’s request, particularly in the face of the City’s notice of an intent to seek a higher assessment.

Findings on Issue 2

61The Board is not satisfied the Appellant has established appropriate grounds for the Board to exercise its discretion and grant its request to withdraw the Subject Appeals.

CONCLUSION

62The Board finds that the Appellant may not withdraw the Subject Appeals pursuant to Rule 72. The Board refuses the Appellant’s request to withdraw the Subject Appeals in accordance with Rule 73.

ORDER

63The Board denies the Appellant’s motion to withdraw the Subject Appeals.

64The Schedule of Events for the Subject Appeals will require amendment to accommodate this motion. The Appellant was required to provide its disclosure and Statement of Issues to all other parties by February 9, 2021, which has passed.

65As a result, in view of the exceptional circumstances caused by the delay in resolving this motion and pursuant to Rule 82, the Board orders the Schedule of Events for the Subject Appeals will resume, where the date for the Appellant to provide its disclosure and Statement of Issues in each Schedule of Events is to be extended 10 weeks after the date of this decision. Further events in the Schedule of Events for the Subject Appeals will follow that timeline, and an amended Schedule of Events will follow the release of this decision.