Lafarge Canada Inc. v. Municipal Property Assessment Corporation Region 13, 2021 CanLII 80770

Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: August 26, 2021

FILE NO.: DM 172642

Assessed Person(s): Lafarge Canada Inc.

Appellant(s): Lafarge Canada Inc.

Respondent(s): Municipal Property Assessment Corporation Region 13

Respondent(s): Township of Uxbridge

Property Location(s): See Schedule A

Municipality(ies): Township of Uxbridge

Roll Number(s): See Schedule A

Appeal Number(s): See Schedule A

Taxation Year(s): See Schedule A

Hearing Event No.: 748964

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

Parties

Counsel*/Representative

Lafarge Canada Inc.

Stephen Longo* and Alexander Pletsch*

Municipal Property Assessment Corporation

Sarah Moll

The Corporation of the Township of Uxbridge

Cynthia Kuehl* and Lucy Sun*

REQUEST FOR: Amend Schedule of Events

HEARD: July 28, 2021 in writing

ADJUDICATOR(S): Carly Stringer

MOTION DECISION

OVERVIEW

1The Corporation of the Township of Uxbridge (“Uxbridge”) has brought this motion before the Assessment Review Board (the “Board”) seeking an order amending the Schedule of Events (“SOE”) to allow it to file Statements of Response (“SORs”).

2Lafarge Canada Inc. (the “Appellant”) and the Municipal Property Assessment Corporation (“MPAC”) oppose the motion and request its dismissal.

Result

3For the reasons that follow, the Board dismisses the motion.

BACKGROUND

4The Appellant commenced appeals before the Board for the 2017 taxation year relating to a number of properties in Uxbridge that are licensed to operate as gravel pits (the “Subject Appeals”). Pursuant to s. 40(26) of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”), the Board deemed appeals for the 2018 to 2021 taxation years.

5MPAC and Uxbridge are responding parties to the Subject Appeals.

6Pursuant to the SOE applicable to the Subject Appeals, Uxbridge was required to provide its SORs by September 28, 2020. Uxbridge did not provide its pleadings by this deadline.

7On March 29, 2021, the Board issued its decision in County of Wellington v Municipal Property Assessment Corporation, Region 22, 2021 CanLII 26723 (ON ARB) (“Wellington Decision”). The Wellington Decision addressed appeals relating to several gravel pits in southwestern Ontario, and considered MPAC’s methodology for determining the current value of licensed gravel pits, as well as classification.

8Following release of the Wellington Decision, Uxbridge served Notices of Increase and SORs for the Subject Appeals dated March 31, 2021.

ANALYSIS

Applicable Law

9Rule 40 of the Board’s Rules of Practice and Procedure (the “Rules”) provides that once the SOE has begun, “the Board will not alter any due date set out in the Schedule of Events other than in exceptional circumstances.” The underlying purpose of Rule 40 is to ensure the timely resolution of appeals, within the amount of time specified in the SOE: see General Motors of Canada Company v St. Catharines (City), 2021 CanLII 794 (ON ARB) at paragraph 29.

10Accordingly, if Uxbridge missed a deadline, it must convince the Board that there are exceptional circumstances before the Board can alter the timeline set out in the SOE. The Board has previously opined on what constitutes “exceptional circumstances.” Namely, “exceptional means, among other things, something that does not occur regularly, something unusual, or something atypical:” Mississauga (City) v Michalakos, 2018 CanLII 126632 (ON ARB) (“Michalakos”) at paragraph 10.

11If the Board determines there are exceptional circumstances, it must then consider whether the circumstances, including the balance of prejudice between the parties, favour granting an amendment to the SOE. If there are no exceptional circumstances, however, the analysis ends as “prejudice is only considered if exceptional circumstances exist”: see 2144944 Ontario Limited v Municipal Property Assessment Corporation Region 19, 2019 CanLII 47973 (ON ARB) at paragraph 24.

Issues

12Accordingly, the following issues must be decided on this motion:

Issue 1: Did Uxbridge fail to comply with the timelines prescribed in the SOE?

Issue 2: If the answer to Issue 1 is yes, has Uxbridge established exceptional circumstances?

Issue 3: If the answer to Issue 2 is yes, do those exceptional circumstances warrant granting an amendment to the SOE to permit Uxbridge to serve its SORs?

Issue 1 – Did Uxbridge fail to comply with the timelines prescribed in the Schedule of Events?

Submissions

13The parties agree that Uxbridge failed to comply with the timeline prescribed in the SOE. The parties agree that Uxbridge was required to provide its SORs by September 28, 2020. Uxbridge provided its SORs on March 31, 2021.

Findings on Issue 1

14The Board finds that Uxbridge failed to comply with the timelines prescribed in the SOE for providing its SORs.

Issue 2 - Has Uxbridge established exceptional circumstances?

Submissions

15Although Uxbridge appears to suggest that administrative challenges as a result of the Covid-19 pandemic contributed to it not serving SORs by the deadline, the heart of Uxbridge’s submission is that the release of the Wellington Decision amounts to exceptional circumstances and it “now wishes to participate fully in the Appeals to ensure that the Wellington Decision of this Board is properly applied.” Uxbridge submits that the Wellington Decision decided issues of the classification and valuation methodology of gravel pits which are central to the issues in the Subject Appeals. Uxbridge submits, as an example, that the valuation methodology used by MPAC for the gravel pits in the Subject Appeals is the same as the valuation methodology that was rejected by the Board in the Wellington Decision. Uxbridge submits that the release of this significant decision following the due date for Uxbridge to file a response under the SOE is an unusual and atypical occurrence. Uxbridge submits that it was not a party nor a participant in the Wellington Decision; it did not know about the Wellington Decision or its applicability to Uxbridge’s position in the Subject Appeals prior to its release; and Uxbridge was only aware of the Wellington Decision and its applicability to the Subject Appeals on March 30, 2021.

16Both the Appellant and MPAC submit that Uxbridge has failed to show exceptional circumstances that justify granting an amendment to the SOE.

Findings on Issue 2

17The Board finds that Uxbridge has not established exceptional circumstances for the following reasons:

a. The Board finds that Uxbridge has not provided sufficient evidence to support its assertion that “administrative challenges” from the pandemic prevented it from meeting the September 28, 2020 deadline. Although Uxbridge generally stated that it experienced a shortage of staff, challenges in coordinating remote work schedules, and the closing and opening of municipal facilities, it did not explain how these elements may have contributed to its non-compliance with the SOE. Moreover, Uxbridge’s evidence is that it faced challenges from the pandemic between March and September 2020 – there is no explanation as to the gap between September 2020 and March 31, 2021 when Uxbridge eventually served its SORs;

b. In fact, Uxbridge stated that it “originally did not intend to participate in the Appeals.” Uxbridge largely attributed this decision to it being a small municipality without the resources to respond to appeals by owners. Uxbridge stated that it “usually relies on MPAC to respond” to appeals. This statement reflects an ordinary and conscious decision by Uxbridge not to participate in the Subject Appeals rather than atypical or unusual circumstances resulting from the pandemic;

c. Uxbridge did not evidence any intent to participate in the Subject Appeals until March 31, 2021, several days after the release of the Wellington Decision. The Board finds, on the evidence, that Uxbridge did not intend to participate in the Subject Appeals until after the Wellington Decision was released.

d. The Board is not satisfied that the release of a Board decision – even a meaningful, precedent-setting one that may impact a pending appeal – is either unusual or atypical. Uxbridge has not provided the Board with any case authorities supporting its proposition that the release of a Board decision, roughly six months after an SOE deadline has been missed, can amount to an exceptional circumstance justifying an amendment to the SOE. Although the Wellington Decision may have a particular impact on gravel pit valuation and the Subject Appeals, the Board releases decisions on a daily basis that have an impact on other pending appeals before the Board. There is nothing unusual or atypical about such a circumstance.

18For these reasons, the Board does not accept that Uxbridge has proven that “exceptional circumstances” exist in this case to alter the SOE to allow it additional time to serve its SORs.

19Given the Board’s findings on Issues 1 and 2, particularly the finding that no exceptional circumstances exist, the Board will not consider Issue 3.

CONCLUSION

20Uxbridge’s request to amend the SOE to extend the due date for serving its SORs is denied because there are no exceptional circumstances that would justify such relief.

ORDER

21The Board dismisses the motion.