Gurjit S. Grewal v. Municipal Property Assessment Corporation Region 15, 2021 CanLII 92523

Tribunals Ontario - Assessment Review Board

ISSUE DATE: September 23, 2021

FILE NO.: DM 173543

Assessed Person(s): 1299148 Ontario Inc.

Appellant(s): Gurjit S. Grewal

Respondent(s): Municipal Property Assessment Corporation Region 15

Respondent(s): City of Mississauga

Property Location(s): 75 Derry Road West

Municipality(ies): City of Mississauga

Roll Number(s): 2105-040-098-18200-0000

Appeal Number(s): 3238055, 3305846, 3359344, 3406012 and 3444625

Taxation Year(s): 2017 - 2021

Hearing Event No.: 751469

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

Parties	Representative
1299148 Ontario Inc.	Gurjit S. Grewal
Municipal Property Assessment Corporation	Joseph Fantetti
The City of Mississauga	Submissions not received

REQUEST FOR: Dismissal of Appeal(s)

HEARD: August 25, 2021 in writing

ADJUDICATOR(S): Carly Stringer, Member

MOTION DECISION

OVERVIEW

1The Municipal Property Assessment Corporation (“MPAC”) has brought this motion before the Assessment Review Board (the “Board”) seeking dismissal of appeals 3238055, 3305846, 3359344, 3406012and 3444625 (the “Subject Appeals”) relating to 75 Derry Road West in City of Mississauga, Ontario (the “Subject Property”) for the 2017 to 2021 taxation years.

2Gurjit S. Grewal (the “Appellant”) has not provided responding submissions. However, the Appellant has provided the Board with communications from which the Board infers that the Appellant opposes the motion.

3The Board has not received submissions from the City of Mississauga.

Result

4For the reasons that follow, the Board denies MPAC’s motion to dismiss.

BACKGROUND

5The Subject Property is a banquet hall located in the north end of Mississauga.

6The Board assigned the Subject Appeals a commencement date of December 15, 2019. Pursuant to the Schedule of Events applicable to the proceedings, the Appellant was required to provide MPAC with a Statement of Issues (“SOI”) by May 11, 2021.

7The Appellant provided the following SOI on January 30, 2021:

STATEMENT OF ISSUES

1. The subject property is a banquet hall located north end of Mississauga boundaries close to the City of Brampton

2. MPAC assessed the subject property using a gross area of 55,452 sq. ft. when in fact the gross area is less than that.

3. MPAC classified the building as a higher quality assembly hall when in fact the building is a average assembly hall.

4. MPAC classified the kitchen, office, meeting rooms, storage, garbage, mechanical and electrical rooms at a higher quality along with higher quality assembly hall when in fact this part of the building is a lower class assembly hall and steel frame warehouse.

5. MPAC calculations show assembly hall is 24’ high when in fact it is 23’ high.

6. MPAC calculations show kitchen, offices, meeting rooms, storage, garbage, mechanical and electrical rooms are 13.4’ high when in fact they are 12.5’ high.

7. The total parcel of land is 6.84 acres is assessed at $1,102,002.88 per acre, which is higher than the 7 acre parcels sales for the vicinity.

8. The subject banquet hall is assessed at $235.00 per square foot when in fact the similar banquet halls in the vicinity are assessed at a log less per square footage.

9. The estimated current value assessment for the 2016 base year is $9,981,000.

The appellant’s conclusions are preliminary. The appellant reserves the right to amend the Statement of Issues in response to information arising during the course of interlocutory proceedings.

8On February 2, 2021, MPAC advised the Appellant it would require an inspection of the Subject Property, and, in light of the pandemic, it would make the request when it is safe to do so.

9On May 7, 2021, MPAC advised the Appellant that its SOI was not sufficient and does not meet the requirements of the Board. MPAC asked the Appellant to supply the following items, stating “Please let us know by Friday May 14, 2021”:

a. a drawing of the Subject Property with the dimensions and area being claimed;

b. a list of comparable properties in relation to the Appellant’s statement that the land is being assessed higher than “the 7 acre parcels sales for the vicinity”;

c. a list of comparable properties in relation to the Appellant’s statement that “similar banquet halls in the vicinity are assessed at a log [sic] less per square footage”; and

d. images of the interior, including the kitchen, office, meeting rooms, storage, garbage, mechanical and electronical rooms.

10On June 4, 2021, the Appellant responded to MPAC, stating that the items requested would be confirmed at the inspection of the Subject Property. The Appellant confirmed its understanding that MPAC was not conducting inspections due to the COVID-19 pandemic, but it was hoped the lockdown would be lifted as of June 14, 2021. The Appellant asked MPAC to pick a date for any time after that and confirm. The Appellant also stated it would provide the comparables the following week.

11On June 7, 2021, MPAC responded to the Appellant, stating “[y]ou failed to follow the rules of the [B]oard with an insufficient SOI. MPAC gave you an opportunity to rectify this on May 7 with a deadline of may [sic] 14. To date you still have not submitted valid [sic] SOI. MPAC will be requesting to the [B]oard that these appeals be dismissed.”

12MPAC filed its motion to dismiss with the Board later that afternoon on June 7, 2021.

13On June 8, 2021, the Appellant contacted MPAC indicating that it had provided its SOI on January 30, 2021 and it was waiting for the inspection request from MPAC once the lockdown was lifted. The Appellant asked MPAC not to proceed with the motion to dismiss.

14On June 8, 2021, the Board denied MPAC’s request to schedule a motion to dismiss. Without considering the merits of the motion, the Board provided the Appellant until June 22, 2021 to provide a SOI that complies with Rule 43. The Board advised MPAC that it could seek to refile the motion if the Appellant failed to comply.

15On June 12, 2021, the Appellant provided MPAC with a list of three comparable properties in relation to land value for the Subject Property.

16On June 14, 2021, MPAC confirmed receipt of the list of comparable land sales, and advised the Appellant it still required a drawing of the Subject Property confirming the dimensions and area being sought by the Appellant; a list of similar banquet halls in the vicinity; and images of the interior of the Subject Property.

17On June 21, 2021, the Appellant advised MPAC it does not have drawings of the Subject Property.

18On June 21, 2021, MPAC asked the Appellant to confirm:

a. How it determined the gross floor area is less than 55,452 square feet, or if it is dropping this issue;

b. How it determined that similar banquet halls in the vicinity are assessed at less than $235 per square foot, or if it is dropping this issue; and

c. If it is dropping the issue of the interiors of the Subject Property being a lower class.

19The Appellant did not provide a revised SOI by June 22, 2021, as per the Board’s order of June 8, 2021.

20On June 23, 2021, MPAC contacted the Appellant again stating that it had not received a response to its June 21, 2021 information request. MPAC asked the Appellant to advise if it is pursuing the issues and, if so, to provide the information requested.

21On June 24, 2021, the Appellant sent MPAC an email stating “If you come up with revised reasonable land value based on my submission, then I will not proceed with building inspection and my comparable. Otherwise, I have three Banquet halls One Chandni Banuet [sic] Hall, second Embassy Banquet Hall. Third Speranza Banquet hall. Thanks.”

22On June 24, 2021, MPAC repeated its request for information and advised the Appellant it would move forward with a motion for dismissal if it did not receive responses by June 28, 2021.

23On June 28, 2021, the Appellant contacted MPAC, stating “I have provided you Land Sales which you have ignored. I need a few days to response [sic] you regarding the comparable properties. Thanks for your cooperation.”

24On June 28, 2021, MPAC advised the Appellant it would be filing the motion to dismiss.

PRELIMINARY MATTERS

25The Appellant has not provided responding submissions to the Board. On July 17, 2021, the Appellant sent the Board a number of email communications as between its representative, MPAC, and the Board’s Case Coordinator dated from January 30, 2021 to July 4, 2021. The Appellant did not provide these documents as part of a sworn affidavit in support of its response to this motion.

26Rule 69 of the Board’s Rules of Practice and Procedure (the “Rules”) provides that evidence in a motion hearing must be by affidavit.

27Given the lack of sworn evidence, the Board will not accept the Appellant’s documents as evidence in support of its position on this motion.

ANALYSIS

28The following issues must be determined on this motion:

1. Was the SOI compliant with Rule 43?

2. If the answer to Issue 1 is no, what is the appropriate consequence for the Appellant’s non-compliance with the Rules?

Issue 1 – Was the SOI compliant with Rule 43?

Applicable Law

29Rule 43 sets out the content requirements for SOI and Responses, which are the pleadings before the Board. The applicable section of Rule 43 provides as follows:

Statements of Issues and Responses must contain:

a. If the issue is current value:

i. the current value requested and how it is calculated;

ii. a full statement of every issue that the party intends to raise, including identification of comparable property(ies) to be referred to, if any; and

iii. a list of all facts, legal grounds and documents that the party relies on in support of its position

30Rule 6 provides that substantial compliance with the requirements of the Rules is sufficient. The parties are not held to a standard of perfection.

Submissions

31MPAC submits the Appellant has not fully complied with Rule 43(a)(ii). MPAC submits that paragraph 7 SOI references “7 acre parcels sales for the vicinity” and paragraph 8 references “similar banquet halls in the vicinity.” MPAC submits that since serving its SOI, the Appellant has identified three comparable land properties by their municipal addresses in relation to paragraph 7, and three comparable improved properties by their business name only, without roll numbers or municipal addresses, in relation to paragraph 8.

32MPAC further submits that the Appellant has not fully complied with Rule 43(a)(iii). MPAC submits that Appellant has listed the facts that are in dispute in paragraphs 2 to 6 of the SOI, including total building area, quality of different areas within the building, and building heights. However, the Appellant has not provided any documentation that it relies on in support of its position on the issues.

33The Appellant has not provided responding submissions.

Findings on Issue 1

34A plain reading of the SOI makes clear that the Appellant has not i) identified how the current value requested of $9,981,000 was calculated; ii) identified the comparable properties referred to in paragraph 7; iii) identified the vicinity or the similar properties referred to in paragraph 8; and iv) has not listed the documents on which it relies to support its position. Although the Appellant provided limited information in subsequent communications with MPAC, the Board finds this information was insufficient and, in any event, providing limited information in an email sent months after serving the SOI does not bring the pleading into compliance with Rule 43.

35Accordingly, the Board finds the Appellant’s SOI is not fully compliant with Rule 43. That said, the Rules do not demand perfection, as Rule 6 confirms substantial compliance is sufficient.

36As stated in Wellings of Corunna Inc. v Municipal Property Assessment Corporation, Region 26, 2021 CanLII 49278 (ON ARB) at paragraph 26, “[t]he purpose of pleadings is to lock the issues in place and ground further work on appeals, while giving the opposing party a fair opportunity to understand the case it must meet and comprehensively prepare its case.” The Board may determine substantial compliance with Rule 43 where the SOI is sufficient to satisfy this purpose.

37On a plain reading of the SOI, it is clear that the Appellant takes the following positions:

a. The gross area is less than the 55,452 square feet used in MPAC’s assessment;

b. The building is an average assembly hall and not higher quality as classified by MPAC;

c. The rooms are lower class and not higher quality as classified by MPAC;

d. Building heights are less than those stated by MPAC;

e. The land is assessed higher than land sales in the vicinity;

f. The banquet hall is assessed higher than similar banquet halls in the vicinity are assessed; and

g. The January 1, 2016 current value assessment is $9,981,000.

38Although some of the Appellant’s issues are clear, the Board finds there is not enough information in the Appellant’s SOI to allow MPAC to understand the entirety of the case it must meet. The biggest problem is that the SOI does not state how the Appellant calculated its current value. This is compounded by the fact that the SOI does not state the comparable sales the Appellant will refer to, nor does the Appellant identify the vicinity or the similar lands. Further, the Appellant has not listed documents it relies on in support of its position, such that MPAC is at a disadvantage in identifying necessary disclosure that would allow it to flesh out the Appellant’s case. Although the Appellant provided some information in emails sent months after serving its SOI, subsequent communications do not render a pleading substantially compliant with Rule 43.

39Accordingly, the Board finds that the SOI is not compliant, substantially or otherwise, with Rule 43.

Issue 2 – What is the appropriate consequence for the Appellant’s non-compliance with the Rules?

Applicable Law

40Rule 7 provides that the Board “will determine the appropriate consequences of non-compliance with these Rules.”

41There are several other Rules that inform the Board’s determination of the appropriate consequence for a party’s non-compliance.

42First, Rules 3 and 4 are generally relevant. Rule 3 provides that the Rules “shall be liberally interpreted to ensure the just, most expeditious and least expensive determination of every proceeding.” Rule 4 provides that the Rules “shall be applied in a manner proportionate to the importance and complexity of the issues in a proceeding and with a view to resolving appeals within the assessment cycle.”

43The Rules do not articulate a specific consequence for failure to satisfy the requirements of Rule 43. That said, Rules 48 and 49 are relevant. Rule 48 provides that:

A document, including an expert report, may only be admitted into evidence at a hearing event if it has been served on all other parties and filed with the Board, in accordance with these Rules, unless the Board determines that there are exceptional circumstances.

44Rule 49 provides that:

An issue can only be raised at a hearing event if it has been set out in the Statement of Issues and Response which have been served on all other parties and filed with the Board in accordance with these Rules, unless the Board determines that there are exceptional circumstances.

45Accordingly, unless a party can satisfy the Board that exceptional circumstances exist, that party is limited to using only documents it has provided, and arguing only issues it has raised, in accordance with the Rules.

46Finally, Rule 24 governs dismissal of a proceeding before the Board. Rule 24 provides as follows:

The Board may dismiss a proceeding without holding a hearing, or after a hearing, if:

(a) the Board is satisfied that it is without jurisdiction to hear the appeal;

(b) the Board is of the opinion that the proceeding is frivolous or vexatious, is commenced in bad faith or only for the purpose of delay;

(c) the Board is of the opinion that the reasons set out in the appeal do not disclose any apparent statutory ground on which the Board can make a decision;

(d) the appellant has not responded to a request by the Board for further information within the time specified by the Board;

(e) the appellant has not complied with the statutory requirements or these Rules; or

(f) the appellant has abandoned the appeal.

Submissions

47MPAC submits that the Subject Appeals should be dismissed based on the Appellant’s non-compliance with Rule 43.

48MPAC submits it has been prejudiced by the Appellant’s failure to file a compliant SOI and will continue to suffer prejudice should these appeals be permitted to continue subsequent to the Appellant’s failure to file a compliant SOI. MPAC submits that failure by appellants to comply with the requirements set out in the Board’s Rules puts MPAC’s ability to manage its own resources and comply with the Board’s expectations at risk. MPAC submits that where an appellant fails to file a compliant SOI, MPAC is unable to provide a fulsome response in accordance with the SOE and Rules. MPAC submits that, in a position of uncertainty, it is forced to take steps to determine whether the eventual receipt of a compliant SOI or additional information from an appellant is likely. MPAC submits that it has already spent time on initial disclosure, tracking and follow-up correspondence with the Appellant, before incurring the further expense of preparing materials for the motion to dismiss. MPAC submits this puts significant strain on MPAC’s ability to meet its appeal management obligations.

49The Appellant has not provided responding submissions.

Findings on Issue 2

50The Board will first consider MPAC’s request that the Subject Appeals be dismissed.

51The Board may dismiss an appeal in accordance with Rule 24(e) on the basis that an appellant has not complied with its statutory requirements or the Rules. Accordingly, it is open for the Board to consider dismissal on the basis of the Appellant’s non-compliance with Rule 43.

52MPAC has not provided the Board with authorities supporting its view that dismissal is an appropriate consequence for non-compliance with Rule 43.

53The Board considered whether failure to comply with the Rules warrants dismissal in the case of Orlando Corporation v Municipal Property Assessment Corporation, Region 15, 2021 CanLII 8253 (ON ARB).

54In that case, the Board stated that, in determining an appropriate consequence for failure to comply with the Rules, the Board routinely considers 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.

Totality of the Circumstances

55In deciding whether to dismiss the appeal, the Board must consider the totality of the circumstances. The following circumstances in this case weigh in favour of dismissal:

a. The Rules provide a clear directive respecting the content of an SOI;

b. The Appellant is represented by a licensed paralegal who is expected to be familiar with the Board’s Rules;

c. The Appellant had ample opportunity to provide a compliant SOI, including pursuant to the Board’s order of June 8, 2021; and

d. There is no explanation as to why the Appellant failed to provide a compliant SOI.

56The following circumstances weigh against dismissal:

a. The Appellant provided an SOI in January 2021, reflecting an intent to proceed with the appeal;

b. The Appellant engaged in a great deal of communication with MPAC and the Board leading up to this motion, reflecting a responsive party with a clear intent to proceed with the appeal;

c. The Appellant provided information to MPAC after serving its SOI, including how it calculated its proposed current value; a chart listing its proposed comparables; and confirmation that it does not have a drawing of the Subject Property. Accordingly, the only outstanding information that MPAC has requested that it does not have is a list of properties in accordance with paragraph 8 of the SOI and images of the interior; and

d. MPAC did not take advantage of all other procedural steps at its disposal to secure information, such as a disclosure motion, before seeking dismissal.

Prejudice to the Parties

57The Board finds there would be some degree of prejudice to the Appellant if the Board were to dismiss its appeals. The Appellant would be entirely precluded from pursuing the Subject Appeals.

58The Board accepts MPAC’s evidence and finds there is prejudice to MPAC resulting from the Appellant’s non-compliance with Rule 43.

59Overall, there is prejudice to both sides, and this is not a circumstance where the prejudice to one side significantly outweighs the prejudice to the other.

Appropriate Consequence for Non-Compliance

60In the totality of the circumstances, and in the absence of authorities supporting MPAC’s request for dismissal, the Board is not satisfied that dismissal is the most appropriate consequence to address the Appellant’s non-compliance with Rule 43.

61The Board finds the more appropriate consequence for the Appellant’s non-compliance with Rule 43, in this case, is found in Rules 48 and 49. Pursuant to those Rules, if the Appellant cannot satisfy the Board that there are exceptional circumstances, the documents it can present at a hearing will be restricted to those served in accordance with the Rules, and the issues it can raise at the hearing will be restricted to the issues articulated the SOI which it has served on the other parties. The application of Rules 48 and 49 will appropriately address any prejudice to MPAC of the Appellant attempting to introduce information other than what has already been disclosed to MPAC.

CONCLUSION

62The Board finds the Appellant’s SOI fails to meet the requirements of Rule 43. The Board declines to grant the relief requested by MPAC. The Board finds that, in this case, the application of Rules 48 and 49 will provide an appropriate consequence for the Appellant’s non-compliance.

ORDER

63The Board denies MPAC’s motion to dismiss.

64MPAC’s materials do not include a request to amend the SOE to accommodate this motion. Accordingly, no amendment is ordered and the SOE will proceed with each party who responds to the Appellant required to provide its Statement of Response and any additional supporting disclosure by November 2, 2021, and the Appellant to provide its statement of reply and any additional disclosure to support its reply by November 30, 2021.