C.G. v. City of London, 2021 CanLII 80772

Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: August 26, 2021

FILE NO.: RR 21-011

Assessed Person(s): C.G.

Applicant: C.G.

Respondent(s): City of London

Property Location(s): Address Withheld

Municipality(ies): City of London

Roll Number(s): Roll Number Withheld

Application Number(s): 3393156

Taxation Year(s): 2019

Legislative Authority: Rule 122 of the Assessment Review Board’s Rules of Practice and Procedure (effective April 1, 2017)

Parties

C.G. Self-represented

City of London No one appeared

REQUEST FOR: Reinstatement of Application 3393156

HEARD: In writing

ADJUDICATOR(S): Joanne Laws, Member

DECISION

OVERVIEW

1C.G., (the “Requester”) is requesting the Assessment Review Board (the “Board”) to reinstate application 3393156 (the “application”). This request for reinstatement was filed with the Board on December 23, 2020.

Background

2On September 16, 2020 the Board conducted a pre-hearing conference and, on consent of the parties, a hearing was scheduled to commence at 9:30 am on November 24, 2020.

3The Requester did not attend the hearing and the application was dismissed. The Board released the dismissal decision on January 15, 2021.

4The Requester’s affidavit evidence is that he did not attend the hearing because he was ill and bed-ridden for three days during and prior to the hearing date and was advised he should not seek medical assistance due to the COVID pandemic.

5The City of London took the position that the application ought not to be reinstated because the Requester failed to meet the burden of proof to succeed in that initial application.

Issues for the Review

6At issue in this proceeding is:

1. Has the threshold of requirements for a request for reinstatement been met?

2. Are the grounds for reinstatement established?

a. Was the application dismissed in error?

b. Did the party fail to appear at the hearing event through no fault of his own?

c. Does natural justice or procedural fairness require that the application be reinstated?

Result

7For the reasons set out below, the request to reinstate application number 3393156 is granted.

ANALYSIS

8Rule 122¹ provides:

Reinstatement by Request for Review

122. Notwithstanding Rule 120, a party to a former proceeding may seek an order from the Board to reinstate an appeal by filing an affidavit with the Board, copied to all parties, no more than 30 days after the appeal was dismissed or withdrawn by the Board setting out that:

(a) the appeal was withdrawn, removed or dismissed in error;

(b) a party failed to appear at a hearing event through no fault of their own; or

(c) natural justice or procedural fairness require that the appeal be reinstated.

9Rule 123 provides, in part:

Review Order

123. Upon consideration of a request for review, or on its own initiative, the Board may:

(a) dismiss the request:

(b) reinstate the appeal, with or without conditions.

Issue 1 – Have the threshold requirements for a request for reinstatement been met?

10Pursuant to Rule 122, there are three threshold requirements that must be met before the grounds for the reinstatement request can be considered. These are:

a. The Requestor was a party to the dismissed proceeding, i.e. the application.

b. The Requestor filed an affidavit with the Board, copied to all parties, and,

c. The request must be made no more than 30 days after the application was dismissed.

11There is no dispute that the Requestor was a party to the dismissed proceeding. The Requestor submitted an affidavit, affirmed on December 23, 2020, in support of his request for a reinstatement and there is no dispute that he provided a copy of the affidavit to the City of London which is the only other party to the application. The request for reinstatement was received on December 23, 2020, which is within 30 days of the dismissal.

Findings on Issue 1

12Based on the above, the Board finds that the Requester has met all three threshold requirements.

Issue 2 - Are the grounds for reinstatement established?

Issue 2.a. Was the application dismissed in error?

13The Requester attended the September 16, 2020 pre-hearing conference at which the parties consented to a hearing date of November 24, 2020. Despite agreeing to the hearing date, the requester failed to attend the hearing; he did not notify the Board as to why he could not attend, nor did he seek an adjournment.

14Due to his non-attendance at the hearing, the Board dismissed the application in accordance with Rules 24(e) and 104.

Finding on Issue 2.a.

15The Board finds that the application was not dismissed in error. Rule 24(e) provided that “A Board Member may dismiss an application without holding a hearing event, or after a hearing event, if…the appellant has not complied with statutory requirements of these Rules.” Rule 104 provided that “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.”

Issue 2.b. Did the party fail to appear at the hearing event through no fault of his own?

16The affidavit evidence is that the Requester could not attend the hearing because he was too ill to do so.

Finding on Issue 2.b.

17Although the Requester ought to have notified the Board of his inability to attend the hearing, the evidence is that he failed to appear at the hearing due to illness. The Board finds that illness satisfies the test that his failure to attend the hearing was no fault of his own.

Issue 2.c. Does natural justice or procedural fairness require that the application be reinstated?

18The Board is concerned that the Requester took no steps to explain his non-appearance at the hearing until he sought to reinstate his application. As noted previously, he did not advise the Board that he was too ill to attend, nor did he seek an adjournment to another date.

19However, the Board’s records show that prior to the hearing the Requester attended the pre-hearing conference, submitted evidence in support of his application and communicated with both the Board and the City of London. In other words, until the hearing date, the Requester took an active role in his application.

20The City argues that the application should not be reinstated because the Requestor did not meet the burden of proof, that the Requester did not file sufficient evidence for the initial application to succeed. The City did not argue that the Requester failed to meet the requirements of Rule 122.

Finding on Issue 2.c.

21There must be good reasons to deny a reinstatement if the conditions of the reinstatement are met.

22The City of London’s arguments do not address whether the conditions of reinstatement were met, only whether the application would have succeeded had the application been heard. The Board’s determination on the application is not a condition which the Board must consider when determining a request for reinstatement (see Rule 122).

23Having considered the principles of natural justice and procedural fairness, the Board determines that the application be reinstated. If the request to reinstate the application were not granted, prejudice to the requestor, who took an active role in the application process but was ill at the time of the hearing, would outweigh any prejudice to the City of London. The balance of prejudice engages natural justice and requires that the application be reinstated.

ORDER

24Pursuant to Rule 123(b) the Board reinstates the application. A new hearing date will be set on consent of the parties. The new hearing date is peremptory.

Footnotes

1. 1For the purpose of this Decision, the Board’s Rules referenced and relied upon are those that were in place at the time of the original application, the hearing events and the dismissal.