Claridge Homes (Bank St) Inc. v. Municipal Property Assessment Corporation Region 03, 2021 CanLII 88690

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

ISSUE DATE: September 16, 2021

FILE NO.: RD 21-023

Assessed Person: Claridge Homes (Bank St) Inc.

Appellant: Claridge Homes (Bank St) Inc.

Respondent: Municipal Property Assessment Corporation Region 03

Respondent: City of Ottawa

Property Location: 4789 Bank Street

Municipality: City Ottawa

Roll Numbers: 0614-600-075-22501-0000

Appeal Numbers: 3423568, 3423567, 3423569, and 3423570

Taxation Years: 2017, 2018, 2019 and 2020

Legislative Authority: Rules 72-73 of the Assessment Review Board’s Rules of Practice and Procedure effective April 1, 2017 and amended May, 2019

Parties Claridge Homes (Bank St) Inc. Representative Chantelle MacMillan

Parties Municipal Property Assessment Corporation Representative Submissions not requested

Parties City of Ottawa Representative Submissions not requested

REQUEST FOR: A review of the Board’s Decision DM 168342 issued on March 4, 2021

HEARD: In writing

ADJUDICATOR: Jean-Paul Pilon, Member

DECISION

OVERVIEW

1Claridge Homes (Bank St) Inc. (the “Requestor”) requests a review of the Assessment Review Board’s (the “Board”) Decision DM 168342, dated March 4, 2021 (the “Decision”).

Background

2In the Decision, the Board denied the Requestor’s motion to withdraw its appeals for the 2017, 2018, 2019 and 2020 taxation years, the last three of which were deemed appeals pursuant to section 40(26) of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”), pertaining to its property at 4789 Bank Street in Ottawa.

3There were two broad issues that were determined in the Decision.

4The first issue was whether the Requestor could withdraw its appeals pursuant to Rule 72 of the Board’s previous Rules of Practice and Procedure in force at the time of the Decision which were effective April 1, 2017 and amended May, 2019 (the “Rules”). Rule 72 essentially provided that an appellant could withdraw its appeals on notice and as of right unless another party had given notice of its intention to seek a higher assessment than that returned by the Municipal Property Assessment Corporation (“MPAC”).

5The second issue was whether the Board should permit the Requestor to withdraw its appeals pursuant to Rule 73. Rule 73 essentially provided that if Rule 72 applied to prohibit a withdrawal of an appeal, the appellant could seek an order from the Board to permit that withdrawal.

6The Decision determined that the Requestor could not withdraw the appeals under Rule 72 and refused its request to withdraw the appeals pursuant to Rule 73.

Issues for the Review

7In its request for review, the Requestor set out the following four grounds of review:

1. That the Board made significant errors of law in finding first, that the notice in which it was indicated that the City of Ottawa (the “Municipality”) was seeking a higher assessment than that returned by MPAC (the “Notice”) was properly served, and second, that “appropriate communication for reinstatement was made, which operated as a bar to the (Requestor’s) right to withdraw;”

2. That the Board made a significant error of law in finding that Rule 40 was not ambiguous and that it only applied to summary proceedings;

3. That the Board made a significant error of law in finding that the Notice could operate to prevent the withdrawal of the appeals; and

4. That the Board made a significant error of law in finding that it did not have jurisdiction to enforce the Law Society of Ontario’s Paralegal Rules of Conduct “regarding valid service of notice on the (Requestor).”

8The overarching question to be determined in this request for review is whether “the Board made a significant error of law…such that the Board would likely have reached a different decision” pursuant to Rule 121(b).

Result

9For the reasons that follow, this request for review is dismissed.

Further Background

10The Requestor was represented by Altus Group Tax Consulting Paralegal Professional Corporation (“Altus”), and the other parties to the appeals had notice of that representation. The Municipality was represented by MTE Paralegal Professional Corporation (“MTE”).

11MTE sent the Notice to the Board, MPAC and the Requestor on July 31, 2020, but it did not send a copy to Altus.

12On September 9, 2020, Altus sent a letter to the Board to withdraw the appeals, and they were then withdrawn.

13On October 5, 2020, MTE requested the reinstatement of the appeals because the Notice had been filed on July 31, 2020. This request was not copied on the Requestor or Altus.

14On October 16, 2020, the Requestor was advised by the Board that the appeals had been reinstated because of the Notice that had not been copied on Altus. Altus then filed the motion that is the subject of this request for review to withdraw the appeals.

ANALYSIS

Issue 1 - The Issue of Notice

15As noted above, Altus was not copied on either the Notice or MTE’s request to reinstate the appeals, although the Requestor, Altus’ client, was copied on the former document. The request for review alleged that it was an error of law for the Board to have found that MTE served “proper notice” (its words) of its intention to seek a higher assessment than that returned by MPAC which consequently operated as a bar to the Requestor’s right to withdraw the appeals.

16The request for review first cited Rule 16.01(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 which, to further quote from the request for review, “requires that any party represented by a lawyer be served the documents pertaining to the matter.”

17There was no indication in the request for review that this was an argument before the Board in the underlying motion. However, even if had been, Rule 1.02(1) of those rules provides that they “apply to all civil proceedings in the Court of Appeal and the Superior Court of Justice,” subject to a number of exceptions. They do not necessarily apply to Board proceedings because the Board has enacted its own rules pursuant to section 25.1(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. Moreover, any previous reference in the Board’s rules to the Rules of Civil Procedure, such as Rule 56 cited at para. 35 of Hemingway v Municipal Property Assessment Corporation Region 24, 2015 CanLII 54413 (ON ARB), has been long since deleted.

18That said, there may be situations in which it is appropriate for the Board to refer to the Rules of Civil Procedure. An example is in disclosure motions before the Board, where the Rules of Civil Procedure have been frequently referenced for their principles of proportionality, as in the Board’s decision Walmart Canada Corporation and Target Canada Corporation v Municipal Property Assessment Corporation, Region 01, 2018 CanLII 67789 (ON ARB). Paragraph 18 of that decision noted that “Rule 45 (on disclosure) does not include specific criteria to address proportionality,” a term used in Rule 5 directing the Board as to the manner in which the Rules should be interpreted.

19The situation here is entirely different because the Rules prescribed a complete code addressing service issues that was slightly different from those set out in the Rules of Civil Procedure. Unlike in disclosure motions, however, the Board’s Rules on service required no resort to external sources for their interpretation. As to the Notice, the Board correctly determined that none of Rules 27, 28 and 29 required service of a document on a representative, where service on the party itself was sufficient. There was no evidence before the Board in the motion to suggest that the Requestor was not aware of the Notice which was served on it.

20Rule 9, however, required all communication with the Board to be copied to all parties which was not done in the case of the request to reinstate the appeals. In addition, that was a specific requirement in the case of requests for reinstatement pursuant to Rule 122.

21The Requestor argued that “the real test was if the parties are made aware (their emphasis) of the issuance of such notice,” citing the Board’s decision in 50 Charles Street Limited v Municipal Property Assessment Corporation, Region 09, 2020 CanLII 104731 (ON ARB) (“Charles”).

22The problem with that submission is that the issue in the Charles decision was whether an appellant had notice of an assessment to determine whether they could file late appeals, which was different from the situation here. In any event, there was no statement before the Board in the single affidavit filed in support of the motion of Michael Hupfau sworn December 7, 2020 stating that Altus or its client were, in fact, unaware of either document. There was no evidence before the Board of that specific allegation.

23The Board agreed with the Requestor at para. 36 of the Decision that the Municipality ought to have copied the Requestor on the request to reinstate in accordance with Rule 122. However, the Decision was also correct in determining that it happened well after the Notice was filed, and the result was that the Board reinstated the appeals to correct its clerical error as it was entitled to do for the reasons cited in the Decision. None of this points to any significant error of law in the Decision.

Finding on Issue 1

24The Board is not satisfied that Issue 1 in the request for review sets out any significant error of law pursuant to Rule 121(b).

Issue 2 - Ambiguity and Rule 40

25Rule 40 required parties to summary proceedings to give notice to all other parties within 30 days of the commencement date established pursuant to Rule 33 that the party intended to seek a higher assessment than that returned by MPAC.

26Paragraph 29 of the Decision indicated that the Requestor was taking the position that Rule 40 required that the Notice be submitted within 30 days of the commencement date which was September 15, 2020. It went on to say that the Municipality instead filed the Notice 46 days before the commencement date “and therefore 16 days outside the acceptable time limit dictated in the Rules.”

27In the request for review the Requestor acknowledged that the appeals were general and not summary proceedings. It said, however, that “absent any specific instructions regarding submitting a Notice of Higher Assessment for general proceedings, one must result to Rule 40, and Rule 40’s cross-reliance on Rule 33, for guidance.”

28There was no significant error in the Board’s determinations on this point. The wording of Rule 40 was entirely clear that it applied only to summary proceedings, and these were not summary proceedings. Instead, Rule 38(7) governed situations where a party was seeking a higher assessment than that returned by MPAC in general proceedings before the Board. In that case, that party’s intention would be set out in statements of issues and responses due much later in the process as set out in the Schedule of Events given to the appeals. The statement in the request for review that “rather than a deadline of 30 days from the commencement date provided in the Rules, the Decision erroneously creates a deadline of 46 weeks from the commencement date” is simply not correct because Rule 40 did not apply.

29MTE acting for the Municipality could have waited until it was time for it to serve its Statement of Response to indicate that it was seeking a higher assessment than that returned by MPAC. Instead, it served and filed the Notice indicating its position on that point earlier in the process, which it was entitled to do. At that point, Rule 72 operated to prevent the withdrawal of the appeals, and it was a clerical error, later reversed, for the Board to have allowed those appeals to be withdrawn.

30The request for review went on to say that the Decision is in error at paragraph 33 where it “relied on Merivale-Gilmour Manor Ltd. v Municipal Property Assessment Corporation, Region 03, 2020 CanLII 28326 (ON ARB) (“Merivale”) for determining the applicability of Rule 40 to general proceedings.” This was not, in fact, the case because the Decision at para. 33 confirmed that “Rule 40 applies only to a summary appeal proceeding.”

31The request for review then said that “this reading down of Rule 40 by the presiding Member ignores…Brampton (City) v. Municipal Property Assessment Corporation, Region No 15, 2005 CarswellOnt 8923, 52 OMBR 116 (ONARB) (“Brampton”) which supports the decision that the legislated deadline for the (municipality) to appeal the assessment has passed.”

32The Board is not clear on the relevance of the Brampton decision because it involved a municipality that had filed complaints alleging that assessments were too low and then decided to withdraw its complaints. There was no notice that it was seeking a higher assessment, and it was able to withdraw its appeals as of right under the rules applicable at the time. Here, however, the Municipality was a statutory party pursuant to section 40(11)3 of the Act, and its filling of any appeal was not a prerequisite to its participation as would have been the case for a non-statutory party.

33The Requestor argued in the request for review that the Requestor “is prejudiced by the failure to provide Altus notice and Board’s Decision (sic) erred in extending the timelines for submission of NOHA (notice of higher assessment).” The Board does not agree first, because the Notice was served on the Requestor but not its representative; second, because there was no requirement for a separate notice pursuant to Rule 40; and, third, because the Board did not extend any timelines. In fact, the Notice was provided well before the time notice was required to be given in the Municipality’s Statement of Response pursuant to Rule 38(7).

34Finally on this point, the request for review made reference to the Board’s new Rules of Practice and Procedure effective April 1, 2021 which set out a new process for parties seeking assessments higher than those returned by MPAC. Even if the new rules provide a new process, that process was not in effect at the time in question. They are not, therefore, relevant to this request for review.

35There was neither any ambiguity in the Board’s interpretation of the Rules, nor any error of law on this point.

Finding on Issue 2

36The Board is not satisfied that Issue 2 in the request for review sets out any significant error of law pursuant to Rule 121(b).

Issue 3 – Error of Law Preventing the Requestor’s Withdrawal of its Appeals

37In this part of the request for review, the Requestor simply repeated points made elsewhere in the request. It made reference to Rule 40 which did not apply and argued that the Municipality’s appeals were late where the Municipality was a statutory party to the appeals. None of this points to any error of law or fact in the Decision.

Finding on Issue 3

38The Board is not satisfied that Issue 3 in the request for review sets out any significant error of law pursuant to Rule 121(b).

Issue 4 – Paralegal Rules of Conduct

39In the Decision, the Board determined that it did not have jurisdiction to enforce issues relating to the Paralegal Rules of Conduct. In the request for review, the Requestor alleged that this was an error of law because the Rules contradicted the Paralegal Rules of Conduct. It said that the Board had an obligation to not only apply but enforce those rules.

40Rule 27(b) provided that “documents must be served on any person in one of the following ways…(b) by regular or registered mail to the last known address of the person or their representative.” As noted above, the Board found that service of the Notice had been compliant with that Rule because the Notice was served on the Requestor.

41Rule 7.02(4) of the Paralegal Rules of Conduct, however, provides that a paralegal representing a client is required to communicate with an opposing party’s representative instead of the party itself. In the request for review, the Requestor stated that this was contradictory.

42The Board finds that if Rule 27(b) contradicted Rule 7.02(4) of the Paralegal Rules of Conduct, it would be inconsistent, requiring something completely different to be done. In fact, the effect of Rule 7.02(4) of the Paralegal Rules of Conduct was to extend Rule 27(b) which would have required service on a representative rather than the person or their representative.

43However, the primary issue in this part of the request for review is at para. 23 of the Decision where it was determined that “the Board does not have jurisdiction to enforce issues relating to the Paralegal Rules of Conduct.” It went on to say that, in any event, there was no breach of those rules because “the (Municipality’s) representative sent a copy of the Notice of Higher Assessment by mail to the corporation (emphasis in the Decision) at its registered address, in accordance with the Board’s Rules” and that “it did not communicate with a person named at Rule 7.02(4)(a) to (d) of Paralegal Rules of Conduct.”

44The Requestor cited the Board’s decision in Municipal Property Assessment Corporation, Region 15 v Huddlestone, 2019 CanLII 9700 (ON ARB) (“Huddlestone”) at para. 38, where it was determined that “statutory tribunals have the power to look beyond their enabling statutes in order to apply the whole law to a matter properly before them.” In that case, the issue before the Board was specified just below, where it found that “the statutory regulation of who may act as representative, and whether a representative may also testify as a witness, is part of the whole law which the Board must consider in deciding this Motion.”

45The Board does not agree with the Requestor because, as determined above, the Rules and Rule 7.02(4) of the Paralegal Rules of Conduct were not in conflict. Had they been in conflict or had the Board been considering the issue in the context of a quasi-constitutional statute like the Ontario Human Rights Code, as the Supreme Court of Canada did in Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513 (“Tranchemontagne”), the case cited for the Board’s statement in Huddlestone, the Board’s disposition in this request for review might have been different. Moreover, absent any obvious contradiction between the two, there was no reason that they could not be different. Otherwise, the logical conclusion would be an absurdity because one public body’s set of rules could not be different from any others.

46As to the argument that the Board should have somehow enforced the Paralegal Rules of Conduct, the Board refers to para. 94 of Tranchemontagne where it was determined that “jurisdiction would have to be found in the enabling statute of the tribunal.” There is nothing in the Act or the Assessment Review Board Act, R.S.O. 1990, c. A.32 conferring that jurisdiction on the Board. Therefore, it was not an error for the Board to have found that it had no jurisdiction to enforce those rules.

Finding on Issue 4

47The Board is not satisfied that Issue 4 in the request for review sets out any significant error of law pursuant to Rule 121(b).

CONCLUSION

48The Board is not satisfied that the Decision contains any significant error of law such that the Board would likely have reached a different decision pursuant to Rule 121(b).

ORDER

49The Board orders that this request for review is dismissed.