2029861 Ontario Limited v. Municipal Property Assessment Corporation Region 09, 2021 CanLII 32332

Tribunals Ontario / Tribunaux décisionnels Ontario

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

ISSUE DATE: April 14, 2021 FILE NO.: DM 2021M05

Assessed Person(s): 2029861 Ontario Limited Appellant(s): 2029861 Ontario Limited Respondent(s): Municipal Property Assessment Corporation Region 09 Respondent(s): City of Toronto

Property Location(s): 200 Victoria Street Municipality(ies): City of Toronto Roll Number(s): 1904-066-230-01108-0000 Taxation Year(s): 2015, 2016, 2017, and 2018

Hearing Event No.: 742895 Legislative Authority: Section 40.1 of the Assessment Act, R.S.O. 1990, c. A.31

APPEARANCES:

Parties	Representative
Municipal Property Assessment Corporation	Jaime Shevchuk
2029861 Ontario Limited	Submissions not received
City of Toronto	Submissions not received

REQUEST FOR: Late Appeals HEARD: March 23, 2021 in writing ADJUDICATOR(S): Jean-Paul Pilon, Member

MOTION DECISION

OVERVIEW

1The Municipal Property Assessment Corporation (“MPAC”) filed this motion for an order pursuant to section 40.1(b) of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”) to extend the time for bringing appeals for the 2015 to 2018 taxation years and for a direction that MPAC be the appellant in those appeals.

2The only submission received in this motion was from MPAC, which was filed with the affidavit of its employee, Kallie White, sworn remotely on January 20, 2021.

Background

3The palpable errors alleged appear in roll number 1904 066 230 01108 (the “Subject Roll Number”), but the contents of another roll number, 1904 066 230 00982 (the “Other Roll Number”), are also relevant to this motion for the reasons that follow.

4For the 2015 to 2019 taxation years, the Subject Roll Number was assessed as a parking unit with the legal description TSCP 1611 Level B Unit 51 PKG and was owned by 2029861 Ontario Limited (the “Owner”). The assessed value of the property in the Subject Roll Number was $25,000 for the 2015 and 2016 taxation years and $27,000 for the 2017 to 2019 taxation years.

5On April 26, 2019, the controller of the Owner contacted MPAC to indicate that the legal description in the Subject Roll Number was not correct. MPAC then determined that the property was, in fact, a storage locker and not a parking unit, and it amended its legal description appropriately. MPAC was also able to adjust the assessment of the Subject Roll Number for the 2017, 2018 and 2019 taxation years to a value of $2,000 by other means.

6On October 24, 2019, the Owner’s controller then advised MPAC that it did not own the property described in the Subject Roll Number, at which time MPAC determined it had been included in the property described in the Other Roll Number. It then reduced the assessment in the Subject Roll Number to $0 for the 2019 taxation year and deleted the Subject Roll Number for future years. However, for there to be any change to the roll for the other taxation years, 2015 to 2018, there would have to be a determination of palpable errors in the Subject Roll Number.

7The property described in the Other Roll Number was owned by a different party and had a legal description of Level 30, Unit 10. In 2014, prior to the years at issue in this motion, MPAC determined that the legal description for the Other Roll Number did not take the same storage locker into account, and it was corrected.

8In short, that same storage locker had already been accounted for in the Other Roll Number for the taxation years in question in this motion, resulting in double taxation.

Result

9This motion is granted.

ANALYSIS

10Section 40.1(b) of the Act provides that “if it appears that there are palpable errors in the assessment roll… if alteration of assessed values or classification of land is involved, the (Assessment Review) Board (the “Board”) may extend the time for bring appeals and direct the assessment corporation to be appellant.”

11MPAC correctly set out the determinations to be made by the Board in its motion record that are summarized here.

12The first step is to determine whether the errors are truly inadvertent and unintentional errors and whether they are, in fact, palpable errors (Municipal Property Assessment Corporation Region 09 v Chew, 2015 CanLII 78969 (ON ARB) at para. 19). Palpable errors are “error(s) of conspicuous magnitude: plain, evident, obvious and easy to understand” (Brockville (City) v. Municipal Property Assessment Corp., [2016] O.J. No. 4871 (Div. Ct.) at para. 14).

13The second step is to determine whether the Board should exercise its discretion to grant the relief requested. This “power should only be exercised…when it is clear that it would be unreasonable, unfair and highly prejudice to penalize parties for not meeting their statutory obligation to file in a timely manner” (Municipal Property Assessment Corporation v Guelph Eramosa Township, 2018 CanLII 263 (ON ARB) at para. 16).

Palpable Errors

14Ms. White’s affidavit indicates that the errors came to light when MPAC was contacted by Owner in 2019, at which time MPAC confirmed the incorrect legal description in the Subject Roll Number and the inclusion of the same property in the Other Roll Number. The Board finds that the errors were of conspicuous magnitude, plain, evident, obvious and easy to understand because it was then clear that what turned out to be a locker in the Subject Roll Number had been misdescribed, and that it had already been included as part of the Other Roll Number for the relevant years.

15As to whether the errors were palpable errors, the Board determined in Canadian Tire Corporation Limited v Municipal Property Assessment Corporation, Region 15, 2017 CanLII 3661 (ON ARB) at para. 9 that “an incongruity between the assessment roll and the legal description of land is a common basis for a finding that there is a palpable error.” It also found in Municipal Property Assessment Corporation, Region 09 v 153598 Canada Inc., 2017 CanLII 31049 (ON ARB) at para. 11 that a mischaracterization of “the fundamental nature or legal character of the property” including double assessment must be a palpable error.

16Having met these criteria, the Board finds that the errors in the roll are, in fact, palpable errors in the roll.

Discretion

17As noted above, after determining there are palpable errors in the roll, the Board then has to decide whether it should exercise its discretion to create appeals pursuant to section 40.1(b) of the Act.

18MPAC makes three points with which the Board concurs on the issue of the exercise of discretion. First, it notes that the Owner was assessed for property that it did not own that had been captured in the Other Roll Number. Second, it cites what is stated in Ms. White’s affidavit, that the City of Toronto consented to the relief requested, effectively waiving any prejudice to which it might have been subject had the request been granted. Finally, it cites Municipal Property Assessment Corporation, Region 09 v 153598 Canada Inc., 2017 CanLII 31049 (ON ARB), a case in which the City of Toronto was also a party. At para. 14 of that decision, the Board determined that “the balance of prejudice favour(ed) the creation of the appeals” in similar and unopposed circumstances because “there is really no prejudice to the City of Toronto” where the taxpayer “clearly benefits from the creation of the appeals and MPAC has an interest in a correct tax roll.”

19The Board therefore finds these to be circumstances where it should exercise its discretion to create the appeals requested.

CONCLUSION

20The Board finds that there are palpable errors in the roll and that it should exercise its discretion to create appeals for the 2015 to 2018 taxation years.

ORDER

21Pursuant to section 40.1(b) of the Act, the Board extends the time for bringing appeals for the 2015 to 2018 taxation years and directs that MPAC be the appellant.