Gloucester Chambers Limited v. Municipal Property Assessment Corporation Region 03, 2021 CanLII 19614

Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: March 09, 2021

FILE NO.: DM 168595

Assessed Person(s): Gloucester Chambers Limited; 2646020 Ontario Inc.

Appellant(s): Gloucester Chambers Limited, c/o Huntington Properties Group Inc.

Respondent(s): Municipal Property Assessment Corporation Region 03

Respondent(s): City of Ottawa

Property Location(s): 100 Gloucester Street

Municipality(ies): City of Ottawa

Roll Number(s): 0614-041-801-12700-0000

Appeal Number(s): 3432958, 3432959, 3432960 and 3432961

Taxation Year(s): 2017, 2018, 2019 and 2020

Hearing Event No.: 739687

Legislative Authority: Rule 73 of the Assessment Review Board’s Rules of Practice and Procedure

APPEARANCES:

Parties

Representative

Gloucester Chambers Ltd. c/o Huntington Properties Group 2646020 Ontario Inc.

Chantelle MacMillan

Municipal Property Assessment Corporation

Laura Kelleher

City of Ottawa

Victoria Gowans

REQUEST FOR: Withdraw appeal(s)

HEARD: February 17, 2021 in writing

ADJUDICATOR(S): Carly Stringer, Member

MOTION DECISION

OVERVIEW

1Gloucester Chambers Limited, c/o Huntington Properties Group Inc., (the “Appellant”) brings this motion to withdraw pursuant to Rule 73 of the Assessment Review Board’s (“Board”) Rules of Practice and Procedure (the “Rules”).

2MPAC 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 100 Gloucester Street in the City of Ottawa. The Appellant brought appeals relating to the Subject Property pursuant to s. 40 of the Assessment Act for the 2017, 2018, 2019 and 2020 taxation years (the “Subject Appeals”).

5The Subject Property was assigned a commencement date of August 17, 2020.

6On July 19, 2019, the City delivered a Notice of Higher Assessment (NOHA), reflecting an intention to seek an increase in the assessment of the Subject Property from $2,912,000 to $6,750,000. This NOHA was received by the Appellant’s representative on the same day.

7On October 15, 2020, the Appellant filed a letter with the Board to withdraw the Subject Appeals. This letter was processed by the Board, and the Subject Appeals were withdrawn.

8On December 2, 2020, the City requested reinstatement of the Subject Appeals given it had filed the NOHA in July 2019.

9On December 4, 2020, the Board advised the parties that the Subject Appeals would be reinstated with new appeal numbers.

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

ANALYSIS

Issue 1 - Can the Appellant withdraw the Subject Appeals pursuant to Rule 73 of the Rules?

11Rule 73 provides as follows:

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.

12The Appellant submits the Board should grant it permission to withdraw. The Appellant has raised many issues and arguments on this motion. I have carefully reviewed and considered the evidence, submissions, and case law provided; however, for the sake of brevity, in this decision I may not materially refer to each and every submission.

13To summarize, the Appellant raises several arguments in support of its request to withdraw the Subject Appeals:

a. The Appellant submits that Rule 40 requires the NOHA be submitted within 30 days of the Commencement Date. The Appellant submits the City filed the NOHA on July 19, 2019, much more than 30 days before the Commencement Date of August 17, 2020.

b. The Appellant submits that even if it was 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. 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 Subject Appeals.

c. The Appellant submits the City did not take the appropriate steps to reinstate the Subject Appeals pursuant to Rule 122, and the Appellant is prejudiced.

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

14The Board will consider each argument in turn.

Timing of the NOHA

15The Appellant argues that Rule 40 requires the NOHA be submitted within 30 days of the Commencement Date. According to the Appellant, the City’s filing of the NOHA on July 19, 2019 was 395 days before the Commencement Date of August 17, 2020, therefore the City breached Rule 40.

16Rule 40 provides as follows:

Special Notices

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 returned by the MPAC;

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

(d) the doctrine of issue estoppel.

17The 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. It is the Appellant’s position that a taxpayer ought to be able to rely on the plain and ordinary meaning of the words set out in the Board’s Rules, and since Rule 40 specifically indicates timing for filing a NOHA, a taxpayer ought to be able to know that a party to the appeal has 30 days before or after the Commencement Date to provide notice of an intent to seek a higher assessment.

18I 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 clearly speaks to summary proceedings only.

19The 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.

20Rule 40 does not apply. The evidence establishes that the City properly filed its NOHA on July 19, 2019. Therefore, this ground fails.

NOHA and the Right to Withdraw Appeals

21The 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 substantive right to withdraw its appeals and allow the City to effectively become the complainant in the Subject Appeals.

22The Appellant raises Brampton (City) v. Municipal Property Assessment Corp., Region No. 15, 2005 CarswellOnt 8923, 52 O.M.B.R. 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.

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

24This ground fails.

Reinstatement of the Subject Appeals

25The 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.

26Rule 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) a 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.

27The Appellant argues that Rule 122 required the City to seek its reinstatement no more than 30 days after the appeal was withdrawn, and therefore the City was too late seeking reinstatement on December 2, 2020. Further, the Appellant argues that the City was required to request reinstatement with an Expedited Board Direction Form and affidavit copied to all parties. The Appellant’s position is that procedural fairness demands the Appellant has a right to be heard on the issue of reinstatement. The Appellant’s position is that it suffered prejudice by the City’s failure to comply with Rule 122.

28I do not agree with the Appellant’s submissions. First, the 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 Corp., 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 had 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 therefore confirmed that, in limited circumstances, withdrawn appeals can be reinstated if they were closed because of the Board’s own clerical error.

29In my view, the Board committed a minor clerical mistake in processing the Appellant’s withdrawal despite a NOHA having been filed. The Board ought not to have allowed the withdrawal, given that the City’s NOHA was provided in accordance with the Rules. The Board was properly correcting its clerical error in reinstating the Subject Appeals.

30As a final point, it is worth noting that in October 2020, the Appellant did not bring a motion pursuant to Rule 73 for withdrawal of its appeals, despite the NOHA having been properly filed therefore precluding it from a withdrawal “as of right” in accordance with Rule 72(a). It would not be fair to hold the City to the requirements of Rule 122 while allowing the Appellant’s 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 October 2020 withdrawal. Fairness demands a return to the status quo that existed before the Appellant’s letter of withdrawal on October 15, 2020, with the Appellant seeking the Board’s permission to withdraw in accordance with Rule 73.

31This ground fails.

Most Expeditious and Least Expensive Determination of the Proceeding

32Finally, 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.

33I do not agree. While permitting the Appellant’s withdrawal would be the most expeditious outcome, I am not convinced it would be just. The Appellant has provided no explanation for the length of time between the City’s filing of the NOHA in July 2019 and its withdrawal on October 15, 2020. Indeed, the Appellant has provided virtually no evidence to explain its withdrawal at this stage. There is insufficient evidence before me to grant the Appellant’s request, particularly in the face of the City’s longstanding notice of an intent to seek a higher assessment.

Findings on Issue 1

34The 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

35The Board refuses the Appellants request to withdraw the Subject Appeals in accordance with Rule 73.

36An amendment to the Schedule of Events is required to accommodate this motion. The Appellant was directed by the Board in its Expedited Board Direction Form dated December 17, 2020 to include in its submissions any request to extend the service due date for the Statement of Issues. The Appellant did not comply with this direction. Therefore, the Board will make its own determination regarding a reasonable amendment to the Schedule of Events.

ORDER

37The Board refuses the Appellant’s request to withdraw the Subject Appeals.

38In 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 eight (8) 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.