Tribunals Ontario
Tribunaux décisionnels Ontario
Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE:
March 18, 2021
FILE NO.:
DM 2021M02
Assessed Person(s):
Xing Wang
Appellant(s):
Xing Wang
Respondent(s):
Municipal Property Assessment Corporation Region 09
Respondent(s):
City of Toronto
Property Location(s):
151 Dan Leckie Way, Suite 321
Municipality(ies):
City of Toronto
Roll Number(s):
1904-062-055-03767-0000
Taxation Year(s):
2012, 2013, 2014, 2015, 2016 and 2017
Hearing Event No.:
741074
Legislative Authority:
Section 40.1 of the Assessment Act, R.S.O. 1990, c. A.31
Parties
Counsel*
Xing Wang
Self-represented
Municipal Property Assessment Corporation
Matthew Kanter*
City of Toronto
Submissions not received
REQUEST FOR:
Late appeals
HEARD:
March 15, 2021 in writing
ADJUDICATOR(S):
Jean-Paul Pilon, Member
MOTION DECISION
OVERVIEW
1Xing Wang (the “Moving Party”) is the owner of a property at 151 Dan Leckie Way, Suite 321 in the City of Toronto (the “Subject Property”). The Moving Party filed this motion pursuant to section 40.1 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”) alleging that there are palpable errors in the assessment roll for the 2012 to 2017 taxation years.
2The motion alleges that the assessments for the Subject Property in those taxation years included a parking space and a locker that were not part of the legal description of the Subject Property. Municipal Property Assessment Corporation (“MPAC”) opposed the motion and the City of Toronto (the “Municipality”) did not participate in the motion.
Result
3For the reasons that follow, this motion is dismissed.
Evidence
Expedited Board Direction Form (“EBDF”) and Filing Deadlines
4The only documentation filed by the Moving Party in support of the motion was a series of emails and their attachments to and from representatives of MPAC, the Municipality and the Assessment Review Board (the “Board”).
5The Moving Party indicated in one of those emails that in September 2020, it came to the Moving Party’s attention that the assessments for the Subject Property for the 2012 to 2020 taxation years had taken into account a parking space and locker that were not part of the Subject Property. The Moving Party was able to resolve the errors for the 2018 to 2020 taxation years by other means, leaving only the remaining taxation years at issue in this motion. That led to the filing of an EBDF in which it was alleged that the roll contained these palpable errors.
6The Board responded to the EBDF in a direction (the “Direction”) that sent the issue to a written motion because the Moving Party had provided insufficient information for the request to be considered. The Direction specifically set out the questions below that the Board would need to answer in making its decision and suggested to the parties that they should review the Board’s jurisprudence prior to making their further submissions. In particular, the Direction referred the parties to the Board’s decision in Piggott v. Municipal Property Assessment Corporation, Region 28, 2019 CanLII 109527 (ON ARB) (“Piggott”) which addressed the exercise of the Board’s discretion to grant such motions. The Direction also said that “the evidence (to be submitted by the parties on the motion) should be sent in by affidavit.”
7Beyond the emails originally submitted with the EBDF, the Moving Party had until February 3, 2021 to file any additional documentation upon which the Moving Party intended to rely in support of the motion. No further documentation was received from the Moving Party by that date, while MPAC filed its submission on time on February 18, 2021.
8On March 5, 2021, the Moving Party contacted the Board’s staff by telephone because the Moving Party found the Direction in their spam email box, having missed the deadline. Two more emails were sent to the Board attaching the same documentation that had been filed with the EBDF, along with an indication that all of the documents that would be filed in support of the motion had been submitted. MPAC was given a further right of reply, which it then said it did not need. Neither party submitted any affidavit evidence in the motion.
Rule 64
9The Board directed the Moving Party to file affidavit evidence in the Direction because Rule 64 of the Board’s Rules of Practice and Procedure (the “Rules”) states that “evidence in a motion must be by affidavit…” Affidavit evidence is similar to sworn or affirmed testimony at a hearing. It is necessary in written motions to provide a reliable record of the factual circumstances underlying parties’ requests.
10In this situation, affidavit evidence was necessary for the Board to answer the two questions below that are applicable to all palpable error motions. The Rule provides no discretion on the point, where it says that evidence in a motion “must” be submitted by way of an affidavit.
11In the absence of any affidavit evidence to support the motion from the Moving Party, the motion must be dismissed. Even if the documentation filed in support of the motion had been in the form of an affidavit, the motion would have been dismissed in any event.
Issues to be Determined
12As was indicated to the parties in the Direction, there are two issues to be determined in motions filed pursuant to section 40.1(b) of the Act: whether it appears that there are palpable errors in the assessment roll and, if so, whether the Board should exercise its discretion to create late appeals.
ANALYSIS
Issue 1 – Are there palpable errors in the assessment roll relating to the Subject Property for the 2012 to 2017 taxation years?
13MPAC conceded in its filing in the motion that there may be errors in the roll. The question to be determined, however, is more than whether there are simply errors in the roll: it is whether “there is a palpable error in the roll that was inadvertent, unintentional, obvious and plain,” as was set out in Rodenbury Investments Limited v. Municipal Property Assessment Corporation, Region 15, 2020 CanLII 104729 (ON ARB) at paras. 12 and 26. The Direction alerted the parties to the fact that the Board would need to consider this question, but it was not specifically addressed in the Moving Party’s collection of emails.
14The emails reveal that the errors were a surprise to the Moving Party when they were discovered in October, 2020. However, this correspondence lacked any background information explaining how the errors might have been inadvertent and unintentional, or how or why MPAC was at fault as the Moving Party alleged in one of them. Without any of that background or any submissions on these questions, the Board could not determine that these errors were inadvertent, unintentional, obvious or plain errors where the Moving Party had the burden of proof.
Finding on Issue 1
15The Board finds that there are no palpable errors in the roll.
Issue 2 – Had there been errors in the roll, would the Board have exercised its discretion to create appeals for the 2012 to 2017 taxation years?
16Had the Board determined that there were palpable errors in the roll, it would then have had to consider whether it would have exercised its discretion to grant the relief requested by the Moving party in the motion.
17The Direction also alerted the parties that the Board would be considering this issue. It said that “if the Board determines that there is a palpable error,” that the Board would then have to determine “whether the Board should exercise its direction to grant the request for a late appeal (e.g. when and how the error was discovered, what actions were taken to remedy the error, when these actions were taken).” The Direction also referred the parties to the Piggott decision which, at para. 31, said that:
… the Board’s discretion to grant a palpable error motion should only be exercised when it is clear that it would be unreasonable, unfair and highly prejudicial to penalize the parties for not meeting their statutory obligation in a timely manner.
18The emails submitted by the Moving Party do not explain why the errors were not discovered earlier or why appeals could not have been filed in the ordinary course in a timely way for any of the taxation years in question. As with the earlier questions, it was the Moving Party’s responsibility to explain why it would be unreasonable or unfair if the request was not granted, which the written submissions failed to do.
19Similarly, the emails did not explain how it would be highly prejudicial for the request to be denied or what the actual prejudice might be, where these inflated amounts of tax were presumably paid over time without complaint. Moreover, the Board determined in York Condominium Corporation No. 60 v. Municipal Property Assessment Corp., Region 9, 2019 CanLII 39632 (ON ARB) at para. 23 that simple inadvertence, which may have been the issue here, was insufficient, and that the Board should only exercise its authority to grant these requests “rarely and extraordinarily.” These are all things that the Moving Party would have had to explain in the submission to have been successful in this motion.
20In summary, the documentation filed in this motion provides none of the information that would have been necessary to justify the Board’s exercise of discretion to create appeals in this instance.
Finding on Issue 2
21The Board would not have exercised its discretion to create appeals in these circumstances.
CONCLUSION
22The documentation filed by the Moving Party in support of the motion cannot be considered pursuant to Rule 64. Even if that documentation had been properly before the Board, the Board would have determined that there was insufficient evidence to find that there were any palpable errors in the roll. Finally, had there been any evidence before the Board to consider and had the Board found there to have been palpable errors in the roll, the Board would not have exercised its discretion to create appeals so that they could be corrected.
ORDER
23The Board orders that this motion is dismissed.
"Jean-Paul Pilon"
JEAN-PAUL PILON
MEMBER
Assessment Review Board
Website: www.tribunalsontario.ca/arb
Telephone: 416-212-6349 Toll Free: 1-866-448-2248```