Bank of Nova Scotia v. Municipal Property Assessment Corporation Region 16, 2021 CanLII 8260

Assessment Review Board

Tribunals Ontario Tribunaux décisionnels Ontario Assessment Review Board Commission de révision de l’évaluation foncière

ISSUE DATE: February 1, 2021 FILE NO.: RD 19-051 Assessed Person(s): Supertrin Properties Inc Appellant(s): Bank of Nova Scotia Respondent(s): Municipal Property Assessment Corporation Region 16 Respondent(s): City of Barrie Property Location(s): 44 Collier Street Municipality(ies): City of Barrie Roll Number(s): 4342-022-010-03701-0000 Appeal Number(s): 3237422, 3308695 and 3362619 Taxation Year(s): 2017, 2018 and 2019 Hearing Event No.: 714566 Legislative Authority: Rule 122 of the Assessment Review Board’s Rules of Practice and Procedure

Parties Counsel/Representative*

Bank of Nova Scotia Jamie G. Walker*

Municipal Property Assessment Corporation David Zhao

City of Barrie Submissions not received

REQUEST FOR: A review of the Board’s Decision WR 160593 issued on June 14, 2019 HEARD: In writing ADJUDICATOR(S): Maureen Helt, Acting Associate Chair

DECISION

OVERVIEW

1The Subject Property is located at 44 Collier Street on the northwest corner of Collier Street and Owen Street in Barrie, Ontario. It is comprised of a two-storey, mixed-use property with a gross leasable area of 24,929 square feet.

2The Subject Property is currently used as a retail bank on the ground floor and office space on the second floor. The assessed owner of the Subject Property is Supertrin Properties Inc. ("Supertrin").

3Effective April 1, 2017, the Subject Property appeals were assigned a Commencement Date by the Assessment Review Board (the "Board") of December 15, 2017 under the General Stream pursuant to the Board's amended Rules of Practice and Procedure ("Rules"). Since this time, the Municipal Property Assessment Corporation ("MPAC") and the City of Barrie ("City") have been working together to determine a correct current value of the Subject Property for the 2017 through 2020 taxation years.

4A Settlement Conference was scheduled for May 23, 2020. Iqbal Nasser, Senior Manager of Tax Assessments & Appraisals at Bank of Nova Scotia, failed to attend on behalf of the Appellant to this proceeding and the Board dismissed the appeals relating to the Subject Property. This ruling was delivered orally by the Board, granting MPAC’s request to dismiss the Appellant’s 2017, 2018 and 2019 appeals for lack of compliance with the Rules¹. MPAC submits that it suffers prejudice due to this breach.

5The Appellant requests reinstatement of the appeals under Rule 122, on the grounds that the appellant failed to appear at a hearing event through no fault of his own; or natural justice or procedural fairness require that the appeals be reinstated.

6MPAC consents to this motion. The City takes no position as no submission was filed.

Result

7The appeals are to be reinstated.

Background

8A Settlement Conference was scheduled to be heard on May 23, 2019. At the commencement of the Settlement Conference, all the representatives of MPAC were present. Pam Childs was observing on behalf of the Municipality. Iqbal Nasser, the Appellant’s representative was not present.

9The Board requested that David Zhao, MPAC’s representative contact Mr. Nasser regarding his attendance at the hearing event. Mr. Zhao advised the Board that at 9:40 a.m., he sent an e-mail to Mr. Nasser to inquire about his participation. Mr. Nasser responded stating that he was at a meeting and was not aware of the Settlement Conference

10The Board confirmed that on April 4, 2019, Notice of this hearing event was sent to all the parties and Mr. Nasser by regular mail. Under the Board’s Rules, a document is considered served five days after regular mailing.

11At the hearing MPAC requested that the Board dismiss these appeals submitting that it had suffered prejudice as a result of the Appellant’s non-compliance with the Rules. The prejudice raised was that MPAC had to expend resources in preparation for the hearing event.

12MPAC further submitted that Rule 24(e) provides:

A Board Member may dismiss an appeal without holding a hearing event, or after a hearing event, if: … (e) the appellant has not complied with statutory requirements or these Rules.

13As noted in the Board’s decision, Rule 57 makes it clear that a party’s appearance at the Settlement Conference mandatory. The Notice of the Settlement Conference call clearly states:

…if you do not participate and are not represented at the start of the hearing (09:30 am), the Board may proceed in your absence and may dismiss your appeal(s) and you will not be entitled to any further notice of the proceedings…

14The facts are clear that the Board waited for 33 minutes, to afford Mr. Nasser the opportunity to call in for the hearing event. Mr. Nasser did not further communicate with the Board on the day of the Settlement Conference to explain his non-appearance. There was no request from Mr. Nasser to adjourn the Settlement Conference. On the basis of non-appearance, the Board dismissed the Appellant’s appeals for the 2017, 2018 and 2019 taxation years.

15In this affidavit, Mr. Nasser states that he did not receive Notice of the Settlement Conference.

16In his evidence, Mr. Nasser advised the Board that in submitting the Notice of Mandatory Meeting Form to the Board, the parties indicated that they wished to proceed to a Settlement Conference by way of telephone conference in May or June 2019.

17Mr. Nasser further states and confirms that the Appellant's materials for the Settlement Conference were delivered to the Board on March 22, 2019 in accordance with the requirements set out in the Mandatory Meeting Form. The Appellant delivered to the Board its Statement of Issues and Valuation Report.

18MPAC's materials for the Settlement Conference were delivered to the Board on March 22, 2019. The City did not deliver any materials to the Board prior to the Settlement Conference.

ANALYSIS

Legal Test

19Rule 122

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.

Did the Appellant Receive Notice?

20In determining whether or not the appeals were dismissed in error, the question which needs to be determined is whether or not the Appellant did in fact receive Notice of the mandatory Settlement Conference.

21Based on the facts set out in the Affidavit of Mr. Nasser, the service and filing of a Statement of Issues, a Valuation Report, a Mandatory Meeting Form, there is no reason to believe that the Appellant would not have attended had he received communication or Notice from the Board indicating the date, time or dial-in information for the Settlement Conference by way of telephone conference on May 23, 2019 at 9:30 a.m.

22It is on this basis that the Board finds that the Appellant has established that he failed to attend the Settlement Conference through no fault of his own as he did not receive Notice of the Settlement Conference.

ORDER

23The Board grants the request to reinstate the appeals 3237422, 3308695 and 3362619.

Footnotes

1. 1Supertrin Properties Inc. v Municipal Property Assessment Corporation, Region 16, 2019 CanLII 55295 (ON ARB) WR 160593