Ed Seguin & Sons Trucking & Paving Ltd. v. Municipal Property Assessment Corporation Region 28, 2021 CanLII 23936

Tribunals Ontario / Tribunaux décisionnels Ontario

Assessment Review Board / Commission de révision de l’évaluation foncière

ISSUE DATE: March 25, 2021

FILE NO.: WR 169142

Assessed Person(s): Ed Seguin & Sons Trucking & Paving Ltd.

Appellant(s): Ed Seguin & Sons Trucking & Paving Ltd.

Respondent(s): Municipal Property Assessment Corporation Region 28

Respondent(s): The Municipality of West Nipissing

Property Location(s): 106 Bay Street

Municipality(ies): The Municipality of West Nipissing

Roll Number(s): 4852-010-005-00920-0000

Appeal Number(s): 3068937, 3093206, 3160212, 3384777, and 3410785

Taxation Year(s): 2014, 2015, 2016, 2019 and 2020

Hearing Event No.: 739473

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

APPEARANCES:

Parties	Representative
Ed Seguin & Sons Trucking & Paving Ltd.	No one appeared
Municipal Property Assessment Corporation	Justin Johnstone
Municipality of West Nipissing	No one appeared

HEARD: March 1, 2021 by video conference

ADJUDICATOR(S): Caroline King, Vice-Chair

DECISION

OVERVIEW

1Ed Seguin & Sons Trucking & Paving Ltd (the “Appellant”) filed appeals relating to a property located at 106 Bay Street in the Municipality of West Nipissing. The property consists of a 73,541 square foot warehouse located on a site area of 5.0 acres.

2The Appellant appealed on the basis that Municipal Property Assessment Corporation’s (“MPAC”) assessment of the property was too high and did not reflect the correct current value.

3MPAC’s legal representative and MPAC’s witness attended the video hearing for these appeals promptly at the scheduled time, 1:30 p.m., March 1, 2021. No one appeared for the Appellant. MPAC, MPAC’s witness and I all waited until 1:50 p.m., then, as no one had appeared for the Appellant, I delivered an oral decision dismissing the appeals.

4On March 10, 2021, I received a request for written reasons for my oral decision to dismiss the appeals. These are my reasons.

Issues for the Hearing

5When an appellant does not attend a hearing, the key question to be determined is whether the Appellant had a reasonable opportunity to participate in the hearing.

Result

6Based on the information before me, I find that the Appellant did have a reasonable opportunity to participate in the hearing.

7As the Appellant did not appear at the hearing, the appeals are dismissed.

ANALYSIS

Did the Appellant have a reasonable opportunity to participate in the hearing?

Notice of Hearing

8The Assessment Review Board (the “Board”) provided advance notice of the 1:30 p.m. March 1, 2021 video conference hearing to the parties three ways:

1. in a Case Management Report and Order, DM 167096, issued on November 23, 2020 (the “CMRO”);
2. in a Notice of Hearing dated December 9, 2020 (the “Notice of Hearing”) emailed by the Board to the parties on December 9, 2020; and
3. in a calendar invitation with the link to the video conference emailed by the Board to the parties’ representatives on December 9, 2020 (the “Calendar Invitation”).

9The CMRO was issued after the November 18, 2020 telephone conference call which the Appellant’s representative, Gerald Rouleau from G. A. Rouleau Real Estate, and MPAC’s representative both attended. It is important to note that the 1:30 p.m. March 1, 2021 video hearing date and time was set at the November 18, 2020 telephone conference call on the consent of the parties and was confirmed in writing to the parties in the CMRO. The CMRO was sent out to all parties’ representatives by the Board via email.

10The Notice of Hearing was sent to all parties’ representatives by the Board via email on December 9, 2020.

11The Board Calendar Invitation emailed by the Board to all parties’ representatives on December 9, 2020 included tips for downloading Microsoft Teams. The parties were advised to download the Microsoft Teams application at least one day prior to the hearing.

12The Board communicates with parties and their representatives by email. Therefore, it is critical that the parties provide the Board with their correct email address.

13At the March 1, 2021 Video Hearing, I asked MPAC’s representative if MPAC received each of: the CMRO; the Notice of Hearing; and, the Calendar Invitation by email. MPAC confirmed that it received all three by email without any technical difficulties.

14I then asked questions about the Appellant’s representative’s email address. I confirmed with MPAC’s representative that the Appellant’s representative’s email address used by the Board was the same one used by MPAC. MPAC confirmed that both the Board’s records and MPAC’s records had the same email address for the Appellant’s representative and that MPAC had successfully communicated with the Appellant’s representative using same email address used by the Board. Based on this information, I find it likely that the Board used the correct email address for the Appellant’s representative.

15I asked MPAC’s representative if there were any problems using the link to join the Video Hearing at 1:30 p.m. March 1, 2021. MPAC said that they had no problems using the link to get access to the Video Hearing. I confirmed that the Board had encountered no technical difficulties using the link to commence the Video Hearing.

16I find that it is likely that the link sent out for the 1:30 p.m. March 1, 2021 Video Hearing was operational.

17As the parties participated in choosing the 1:30 p.m. March 1, 2021 Video Hearing date, and this hearing date, time, and electronic mode of hearing were confirmed with all parties via email three times, I find that the Appellant knew, or ought to have known, of the hearing date, time, and electronic mode (video).

What happens if an appellant does not appear at a hearing?

18Procedural rules are considered to determine what happens if an appellant does not appear at a hearing after receiving notice of a hearing.

19The Board is required to follow its Rules of Practice and Procedure (the “Rules”) and the Statutory Powers and Procedures Act, R.S.O. 1990, c. S.22 (the “SPPA”).

20Rule 104 states:

If a party fails to appear at a hearing event, the Board may proceed with the hearing event, or take any other steps that it deems appropriate.

21This is consistent with section 7(1) of the SPPA which states that if a party does not attend a hearing after notice has been given, a tribunal can proceed without that party, “…and that party is not entitled to any further notice in the proceeding”.

22In this case, in addition to considering the Rules, I took into account that the Appellant had been given notice of what could happen if the Appellant did not attend the hearing on time.

23The CMRO states in paragraph 13:

If a party or their representative, if any, fail to attend the hearing, the Board may proceed in their absence and may make any decision deemed appropriate. If the Appellant does not appear at the hearing, the Board may dismiss the appeals in their absence. [my emphasis]

24The Notice of Hearing for these appeals states in part:

If you do not participate and are not represented at the start of the hearing (01:30 pm ) the Board may proceed in your absence and may dismiss your appeal(s) and you will not be entitled to any further notice of the proceedings.

25As video hearings are a new process for many parties appearing before the Board, the Board (and MPAC) waited an additional 20 minutes for the Appellant to attend the Video Hearing. The Appellant did not attend.

26Therefore, based on my findings that: 1) the Appellant had notice of the Video Hearing; 2) the Appellant was informed that the Board could proceed in the absence of the Appellant if the Appellant (or representative) was not present at the start of the hearing and dismiss the appeals; 3) the video link to the Video Hearing was operational; and 4) the Appellant did not attend the Video Hearing, I find that the Appellant had a reasonable opportunity to participate in the Video Hearing. The appeals are dismissed as the Appellant did not attend the Video Hearing.

Lack of Appellant’s Evidence Considered

27The Appellant did not file any evidence or documents with the Board in advance of the hearing in accordance with the Schedule of Events. This is evidence which supports a finding that the Appellant abandoned the appeals, so even if the appeals were not dismissed for the reasons set out in paragraph 26 above, abandoning the appeals is also grounds for them to be dismissed.

28Rule 37 makes it mandatory that each party file all documentary materials they intend to rely upon at a hearing event according to the Schedule of Events. The Appellant is directed to file its statement of issues, documentary evidence, witness statements and any expert reports. While the Appellant identified Mr. Claude Seguin as a witness at the hearing, no documents were filed. The Appellant did not file any documents with the Board despite the fact that the Calendar Invitation specifically reminded parties that: “…All documentary evidence must be received by the Board in accordance with your Schedule of Events.”

29In general, the significance of this failure to file documents with the Board, can be found in Rule 48. Appellants’ evidence plays an integral role at a hearing. Only in exceptional circumstances will the Board allow documents that have not been submitted properly to be admitted as evidence at a hearing. The absence of any such documents being filed in accordance with the Rules is indicative that the party may not intend to continue with the appeal process.

30Based on the Appellant’s non-attendance at the hearing, considered together with the Appellant’s inaction (the failure to submit evidence and documents as required by the Rules), I find that it is likely the Appellant abandoned the appeals and dismiss them for this reason.

CONCLUSION

31Based on the non-attendance of the Appellant at the agreed upon Video Hearing after the Notice of Hearing was served, the appeals are dismissed.

32In addition, the Appellant’s inaction in not submitting any documents or evidence to be relied upon in the hearing, considered in conjunction with the Appellant’s non-attendance at the Video Hearing, leads me to find it likely that the Appellant has abandoned the appeals. The appeals are dismissed.

ORDER

33Appeals 3068937, 3093206, 3160212, 338477, and 3410785 are dismissed.