Samiy Retail Inc. v. Municipal Property Assessment Corporation Region 13, 2021 CanLII 69900

Tribunals Ontario

Assessment Review Board

ISSUE DATE: July 27, 2021

FILE NO.: DM 2021M10

Assessed Person(s): Samiy Retail Inc.

Appellant(s): Samiy Retail Inc.

Respondent(s): Municipal Property Assessment Corporation Region 13

Respondent(s): City of Oshawa

Property Location(s): 1900 Simcoe Street North

Municipality(ies): City of Oshawa

Roll Number(s): 1813-070-003-11816-0000

Taxation Year(s): 2020

Hearing Event No.: 745164

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

Parties	Representative
Samiy Retail Inc.	Saqib Qureshi
Municipal Property Assessment Corporation	Shelby Roper
City of Oshawa	No one appeared

REQUEST FOR: Late Appeal(s)

HEARD: June 10, 2021 in writing

ADJUDICATOR(S): Joanne Laws, Member

MOTION DECISION

OVERVIEW

1Dr. Saqib Qureshi, Director of Samiy Retail Inc. (the “Moving Party”), is seeking permission from the Assessment Review Board (the “Board”) to file a late appeal for the 2020 taxation year. This motion was filed pursuant to Rule 26 of the Board’s Rules of Practice and Procedure (“Rules”). The property subject to this motion is 1900 Simcoe Street North, Oshawa.

2The Municipal Property Assessment Corporation (“MPAC”) opposes the motion for a late appeal.

3The City of Oshawa did not respond to the motion.

Result

4For the reasons outlined below, the motion is denied.

The Evidence

5Rule 26(b), produced below, requires an appellant to satisfy the Board by way of affidavit evidence that it meets the requirements of the Rule.

6The Moving Party filed an affidavit of Dr. Saqib Qureshi, Director of Samiy Retail Inc., affirmed on April 17, 2021.

7The Moving Party’s affidavit evidence references a 2020 notice without qualifying which notice is at issue. Consequently, the Board will address both notices for the 2020 taxation year in this decision.

8There were two assessment notices issued by MPAC affecting the 2020 taxation year.

a. The first was a Property Assessment Notice (“PAN”) dated November 13, 2019. The property was assessed as vacant commercial land. The deadline to file a 2020 taxation year appeal for a property in the vacant commercial land class was March 31, 2020, s. 40.(6) of the Assessment Act, R.S.O. 1990, c. A.31 (“Act”).

b. The second was a Property Assessment Change Notice (“PACN”) issued on October 8, 2020 for an omitted assessment relating to the 2018, 2019 and 2020 taxation years. The PACN indicates that the property was developed and was assessed as Commercial (New Construction) effective December 1, 2018. The deadline to appeal the PACN was February 5, 2021, 120 days from the October 8, 2020 notice date (s. 40.(8) of the Act).

9The Board acknowledged that on April 19, 2021 it received the Moving Party’s request to file a late appeal.

10Dr. Qureshi’s affidavit evidence is that:

a. The Moving Party did not receive 2020 property assessment notice(s) from MPAC for the property.

b. He opens all mail for the property.

c. The office staff said they have not seen 2020 assessment notice(s).

d. Despite not receiving assessment notice(s) for the property, the Moving Party had received MPAC’s assessment notices for an adjacent property, 1800 Simcoe Street North, Oshawa.

e. The Moving Party’s mailing address is 7800 Kennedy Road, Unit 303B, Markham Ontario.

11MPAC filed an affidavit of Charmaine Siddle, a Case Management Analyst for MPAC, affirmed on May 20, 2021.

12Ms. Siddle’s affidavit evidence is that MPAC mailed both the PAN and PACN to 7800 Kennedy Road, Unit 303B, Markham Ontario, the same address identified in Dr. Qureshi’s affidavit, on or about the dates marked on those notices.

13MPAC submitted copies of both the PAN and the PACN.

ISSUES

14Has the Moving Party satisfied the Board that it meets the requirements of Rule 26(b)?

ANALYSIS

Rule 26(b)

15Rule 26(b) of the Board’s Rules sets out the Board’s authority to accept a late appeal. It provides that:

26. The Board may accept an appeal received after the time set out in the Assessment Act only if the appellant satisfies the Board, by way of affidavit evidence, that:

(b) the appellant is a person entitled to receive a notice of assessment who did not receive notice and filed the appeal with the Board within 30 days of becoming aware of the assessment or classification that is the subject of the appeal.

Entitled to Receive Notice

16There is no dispute that the Moving Party is a person entitled to receive a notice of assessment. Therefore, the first test of Rule 26(b) has been met.

Did not Receive Notice

17Dr. Qureshi’s affidavit evidence is that the Moving Party did not receive “a written MPAC assessment” notice for 2020 despite receiving a notice for another property located at 1800 Simcoe Street North, Oshawa. MPAC’s affidavit evidence is that it sent assessment notices to the Moving Party’s mailing address, 7800 Kennedy Road, Unit 303B, Markham Ontario. MPAC argued that it is unlikely that assessment notices were not received for both properties

18The Board does not find that sending a notice to a correct address is proof that the notice was received. Accordingly, the Board accepts Dr. Qureshi’s affidavit evidence that the Moving Party did not receive assessment notices for 2020.

Filed within 30 Days of Becoming Aware of the Assessment

19The Moving Party did not provide affidavit evidence as to when it first became aware of the assessment or classification that would be the subject of the appeals related to the PAN or the PACN, only that it did not receive the notices (emphasis added).

20A request to file a late appeal can only be granted if the Moving Party meets all the three tests set out in Rule 26(b) as determined by the Board in Cherry Beach Sailing Clubs v. Municipal Property Assessment Corp., Region 9, [2018] O.A.R.B.D. No. 291 At paragraph 8 of that decision the Board found:

8The Sailing Club has only proven that it meets one of the three legal requirements set out in Rue 26(b). I can only grant a late appeal if all three conditions are met. I must, therefore, dismiss the Sailing Club’s motion to file a late appeal of the 2017 taxation year assessment of the property at 1 Cherry Street in the City of Toronto.

21Because no affidavit evidence was provided as to when the Moving Party became aware of the assessment or classification that would be the subject of the appeal(s), the Board cannot find that the third test is satisfied. Therefore, the motion to file late appeals is denied.

CONCLUSION

22Having received no affidavit evidence as to when the Moving Party first became aware of the assessment or classification that would be the subject of the appeals for the PAN dated November 13, 3019 or the PACN dated October 8, 2020, the Moving Party has not satisfied the Board that all three tests for accepting a late appeal pursuant to Rule 26(b) have been met.

ORDER

23Accordingly, the motion to file a late appeal is denied.