Amazon.com v. Municipal Property Assessment Corporation Region 15, 2021 CanLII 8253

Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: February 3, 2021

FILE NO.: DM 167442

Assessed Person(s): Orlando Corporation

Appellant(s): Amazon.com

Respondent(s): Municipal Property Assessment Corporation Region 15

Respondent(s): City of Brampton

Property Location(s): 8050 Heritage Road

Municipality(ies): City of Brampton

Roll Number(s): 2110-080-012-07700-0000

Appeal Number(s): 3284962, 3284963, and 3284964

Taxation Year(s): 2016

Hearing Event No.: 736160

Legislative Authority: Rule 24(e) of the Assessment Review Board’s Rules of Practice and Procedure

Parties

Counsel

Amazon.com

Jack A. Walker

Municipal Property Assessment Corporation

Karey Lunau

City of Brampton

John O’Kane

REQUEST FOR: Dismissal of Appeals

HEARD: November 25, 2020 in writing

ADJUDICATOR(S): Carly Stringer, Member

MOTION DECISION

OVERVIEW

1The Corporation of the City of Brampton (“Brampton”) seeks to have appeals 3284962, 3284963 and 3284964 (the “Subject Appeals”) dismissed because Amazon.com (the “Appellant” or “Amazon”) failed to provide a Statement of Issues (“SOI”) by July 21, 2020.

2The Subject Appeals pertain to an Amazon distribution warehouse located at 8050 Heritage Road in Brampton. The property is owned by Orlando Corporation and occupied by the Appellant. The Appellant and Orlando Corporation oppose the motion to dismiss, while the Municipal Property Assessment Corporation (“MPAC”) supports Brampton’s request.

Issue

3The issues to be determined are:

1. Did the Appellant fail to comply with the Rules of Practice and Procedure (“Rules”) when it failed to deliver its SOI by the deadline required by the Schedule of Events?

2. If the answer to (a) is yes, does the failure to comply with the Rules warrant dismissing the Subject Appeals?

Result

4I have carefully reviewed and considered all of the evidence and authorities submitted by the parties and, for the reasons that follow, the motion to dismiss is granted.

Procedural Background

5Some procedural background is warranted to contextualize the analysis.

6The Appellant has a number of appeals before the Assessment Review Board (“Board”) including appeals relating to:

a. the Subject Property at 8050 Heritage Road in Brampton (appeal numbers 3284962, 3284963, 3284964, 3284571, 3306838 and 3358258);

b. a second property at 7995 Winston Churchill Boulevard in Brampton, geographically close to the Subject Property (appeal numbers 3288407 and 3359466); and

c. a third property at 6363 Millcreek Drive in Mississauga (appeal numbers 3284572 and 3305073).

7In March 2019, the Board granted a consent request from the parties to combine certain appeals relating to 8050 Heritage Road (3284571 and 3306838), 7995 Winston Churchill Boulevard (3288407 and 3284572) and 6363 Millcreek Drive (3305073). The consent request from the parties did not address the Subject Appeals.

8In November 2019, the Board issued public notice of procedural changes to be implemented in January 2020. Specifically, all complaints for assessment cycles prior to the 2016 cycle would be “de-coupled” from appeals in the General Proceeding stream and designated as “Legacy Appeals.” The Board confirmed that Legacy Appeals would be provided with accelerated timelines under new Schedules of Events, and there would be an expedited process in place for dismissal of Legacy Appeals for non-compliance with the Schedule of Events and the Rules.

9The Subject Appeals were pre-2016 assessment cycle and were therefore treated as Legacy Appeals. The Board issued a new Notice of Commencement Date to the parties on February 21, 2020 for the Subject Appeals. This Notice confirmed a March 23, 2020 Commencement Date for the Subject Appeals, requiring the Appellant provide its SOI on April 20, 2020. There is no dispute that this notice was received by all parties.

10On March 26, 2020, the Board temporarily suspended the timelines prescribed by Schedules of Events due to COVID-19 and Emergency Order Ontario Regulation (“O. Reg.”) 73/20.

11Following this temporary suspension, the Board issued an Amended Schedule of Events for the Subject Appeals on April 7, 2020. This Amended Schedule of Events confirmed a May 1, 2020 Commencement Date, requiring the SOI be provided on May 29, 2020. There is no dispute that this Amended Schedule of Events was received by all parties.

12The Board issued a further Amended Schedule of Events for the Subject Appeals on May 7, 2020. This further Amended Schedule of Events confirmed a June 23, 2020 Commencement Date, requiring the SOI for the Subject Appeals be provided on July 21, 2020. There is no dispute that this further Amended Schedule of Events was received by all parties.

13The Appellant failed to deliver its SOI for the Subject Appeals on July 21, 2020.

14On August 18, 2020, Brampton engaged the Board’s expedited process for dismissing Legacy Appeals, requesting dismissal of the Subject Appeals due to the Appellant’s failure to provide its SOI on July 21, 2020.

15The Appellant delivered its SOI for the Subject Appeals on August 26, 2020, along with a response asking the Board to deny Brampton’s request to dismiss.

16Brampton’s request to dismiss was scheduled for this motion before the Board.

ANALYSIS

Issue 1 – Did the Appellant fail to comply with the Rules when it failed to deliver its SOI by the deadline required by the Schedule of Events?

17Rule 8 of the Board’s Rules provides that the Board will determine the appropriate consequences of non-compliance with the Rules. Rule 24(e) permits dismissal without a hearing if “the appellant has not complied with the statutory requirements or these Rules.” Therefore, a party’s failure to comply with a deadline prescribed by the Schedule of Events is a valid basis for dismissal, if deemed appropriate by the Board, in a given case.

18The Appellant admits it did not provide its SOI for the Subject Appeals on July 21, 2020, as required by the Schedule of Events.

19The Appellant has explained the circumstances surrounding its non-compliance on the basis of “inadvertence” and “misunderstanding.” Overall, the Appellant attributes its failure to comply to: i) the multiple Commencement Dates assigned to the Subject Property; ii) administrative disruptions caused by COVID-19; and iii) the Appellant’s unfamiliarity with the separate scheduling for Legacy Appeals and General Proceeding appeals.

20The Appellant eventually provided its SOI on August 26, 2020, over a month past the deadline in the Schedule of Events.

Findings in Issue 1

21The Appellant failed to comply with the deadline prescribed by the Schedule of Events, and therefore failed to comply with the Board’s Rules.

Issue 2 – If the answer to Issue 1 is yes, does the failure to comply with the Rules warrant dismissing the Subject Appeals?

22The answer to Issue 1 is yes, therefore I must consider whether failure to comply with the Rules warrants dismissal in this case.

23In determining an appropriate consequence for failure to comply with the Rules, the Board has routinely considered the circumstances surrounding the non-compliance, as well as prejudice to all parties: SGS Lakefield Research Ltd. and Municipal Property Assessment Corp., Region 07, Re, 2020 CarswellOnt 10309 (“SGS Lakefield”) at paragraphs 21-26; Kitchener (City) v CP REIT Ontario Properties Ltd, 2020 CanLII 30640 (ON ARB) (‘CP REIT”) at paragraphs 30 to 35.

24The parties have assisted this Board by providing cases where the Board has grappled with whether or not to dismiss appeals. What is clear from the case law is that individual circumstances and details matter to the analysis, and that the Board will consider prejudice to all parties.

25The facts before me today can be distinguished in many ways from the cases the Parties have provided as authorities. First, none of the authorities cited by the Parties address dismissal of Legacy Appeals. The Subject Appeals are Legacy Appeals. The Board has a particular interest in ensuring that Parties adhere to the accelerated timelines of Legacy Appeals to avoid delays and to achieve its mandate to justly and expeditiously resolve these matters. The Board even developed an expedited process to dismiss Legacy Appeals for non-compliance with the Schedule of Events and the Rules. There is a clear expectation of strict compliance with the timelines prescribed in Legacy Appeals.

26The Appellant relies on CP REIT, supra in support of its position that the Subject Appeals should not be dismissed. The facts, however, are clearly distinguishable. In CP REIT, the appellants obtained MPAC’s consent to provide their SOI late. The appellants cured their breach not only by filing their SOI in a timely way, but also providing comprehensive expert reports at the same time. Perhaps most importantly, the appeals at issue in that case were not Legacy Appeals.

27In both Municipal Property Assessment Corp., Region No. 9 and 234900 Ontario Ltd., Re, 2018 CanLII 248 (ON ARB), 2017 CanLII 74719 (ON ARB) and Municipal Property Assessment Corp., Region No 7 and Cherry, 2018 CarswellOnt 10876 (“Cherry, supra”), the Board did not dismiss the appeals because both appellants and respondents had caused delays and were in breach of the Board’s Rules. The Board determined that where both parties have been in breach, it would be fundamentally unfair to only punish one party. This is different than the motion before me, as neither MPAC nor Brampton bears any responsibility– the breach is entirely attributable to the Appellant.

28In Municipal Property Assessment Corp., Region 14 v Upper Keele Inc., 2018 CanLII 126632 (ON ARB), 2018 CanLII 248 (ON ARB), the Board did not dismiss the appeal. The Board considered it impossible to justify a dismissal in the absence of prejudice to the requesting party, particularly given there was a single, plain breach, which was the common practice at the time under the old Rules. This is distinct from the current case, as the parties currently before me have been operating under the “new” Rules for some time. The new Rules were developed, in part, with the intention of keeping proceedings on schedule and avoiding delays.

Circumstances Surrounding the Appellant’s Non-Compliance

29Overall, the Appellant attributes its failure to comply to: i) the multiple Commencement Dates assigned to the Subject Property; ii) administrative disruptions caused by COVID-19; and iii) the Appellant’s unfamiliarity with the separate scheduling for Legacy Appeals and General Proceeding appeals.

30I find this explanation unsatisfying – the Appellant is a sophisticated party. It had ample opportunity to retain counsel if it felt unfamiliar with the Board’s processes. The Appellant has not sufficiently particularized the nature of its administrative challenges, so the Board is left guessing, without a clear picture of the specific challenges and whether or how the Appellant attempted to address them. The Appellant has not provided evidence as to why it did not seek clarity from the Board, MPAC, or Brampton, if it was confused at any stage. There is no evidence explaining what the Appellant thought the Board’s multiple notices pertained to, if not a pending deadline for the appeals listed on the correspondence. The Appellant filed over a month after the deadline, well after two other much earlier deadlines had been extended. This suggests that the Appellant did not put much effort into working towards earlier deadlines. In my view, the Appellant has provided very little detail or information to satisfactorily explain its breach.

31That said, in deciding whether to dismiss the appeals today, I must consider the totality of the circumstances. The following circumstances weigh in favour of dismissal:

a. The Board provided clear notices and directives respecting the Legacy Appeals process;

b. The Legacy Appeals process is an accelerated one, designed to resolve pre-2016 appeals in a timely way;

c. The Legacy Appeals process has an expedited dismissal process for non-compliance with the Rules;

d. Between February and June 2020, the Appellant received three (3) written notifications from the Board advising of deadlines and the importance of complying with the timelines in the Schedule of Events;

e. The Appellant did not take steps to clarify any confusion, if any, it had over these three (3) notices;

f. The Appellant’s timeline for providing the SOI was extended;

g. The Appellant is a sophisticated global retailer and could have retained counsel to manage its appeals;

h. Appeal information is available on the Board’s public website; and

i. The Appellant’s explanation for its failure to comply is insufficient and unsatisfactory.

32The following circumstances weigh against dismissal:

a. The Appellant had numerous appeals relating to the Subject Property and others;

b. The Appellant was managing the Subject Appeals from its office in Seattle, Washington;

c. The Appellant did not have local legal counsel retained at the time;

d. The Board’s notices were received during the first several months of a global pandemic;

e. The Appellant cured its breach by providing its SOI on August 26, 2020.

Prejudice to the Parties

33When it comes to prejudice, indeed there would be prejudice to the Appellant if the Board were to dismiss its appeals. The Appellant would be prejudiced by being precluded from pursuing the Subject Appeals.

34Although the Appellant suggests there is little to no prejudice to Brampton, I do not agree. As noted by this Board in Magna International Inc. v. Municipal Property Assessment Corp., Region 15, 2019 CanLII 133074 (ON ARB) supra at paragraph 28, “… it should be well understood by parties that failure to meet timelines both inherently impacts other parties to a proceeding who prepare and provide required information on time, and impacts the Board’s ability to manage and deal with its caseload.”

35I am satisfied, on the evidence before it, there is prejudice to Brampton from the Appellant’s failure to provide its SOI on the required due date.

36Overall, there is prejudice to both sides, and this is not a circumstance where the prejudice to one side significantly outweighs prejudice to the other.

Appropriate Consequence for the Breach

37Rule 8 confirms that the Board will determine the appropriate consequence for non-compliance with the Rules.

38Although this Board has held that dismissal “is an extreme remedy and should only be granted in the clearest of cases”, the Board has also been clear that “the Board will strictly enforce the new Rules, and expects compliance” : Municipal Property Assessment Corp., Region No. 9 and 234900 Ontario Ltd., Re, 2018 CanLII 248 (ON ARB), 2017 CanLII 74719 (ON ARB) at paragraphs 8 and 9. Although dismissal puts a final stop to an appeal, and in that regard may be considered an “extreme” remedy, this does not mean dismissal will not be granted in appropriate circumstances. Parties that appear before the Board have been made well aware that the Board will strictly enforce its Rules, and it expects compliance with the timelines prescribed in the Schedule of Events: see CP REIT, supra at paragraph 34. As noted in SGS Lakefield, supra at paragraph 19, “[t]he Board has an interest in ensuring that Parties adhere to schedules to avoid delays and to achieve its mandate to justly and expeditiously resolve the appeals before it.”

39The case before me involves Legacy Appeals with expedited timelines, so the context is different than the authorities referenced by the Parties. I agree with Brampton’s argument that permitting the Subject Appeals to continue without consequence allows the Appellant to obtain an extension to the Schedule of Events without having to bring a motion to amend the expedited timelines, and without having to satisfy the Board of “exceptional circumstances” warranting such an amendment.

40The Appellant caused delay in these Legacy Appeals. The Board provided multiple notices respecting pending timelines. If at all confused, the Appellant did not seek clarity from the Board, MPAC or Brampton. The Appellant did not retain counsel to advise it of the Board’s processes, if it felt confused and unfamiliar. The Appellant failed to provide a SOI, failed to comply with the Schedule of Events, and did not take reasonable responsibility of the Subject Appeals.

41Each case will be determined on its own facts, and dismissal is warranted on the facts before me.

Findings on Issue 2

42In the totality of the circumstances, the Appellant’s non-compliance with the Rules warrants dismissal of the Subject Appeals.

CONCLUSION

43This Board will strictly enforce its Rules. It expects compliance with the timelines prescribed in the Schedule of Events, and parties will face consequences for non-compliance where the circumstances warrant it.

44The Board finds that the Appellant failed to provide its SOI in accordance with the timelines prescribed by the Schedule of Events. The Board has considered all of the circumstances and has weighed prejudice and determined that dismissal is appropriate.

ORDER

45The Board grants the motion, and orders the Subject Appeals are dismissed.