Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: September 24, 2021

FILE NO.: DM 2021M12

Assessed Person: Israel Shoel Rosenhek

Appellant: Israel Rosenhek

Respondent: Municipal Property Assessment Corporation Region 27

Respondent: City of Windsor

Property Location: 623 Lake Trail Drive

Municipality: City of Windsor

Roll Number: 3739-070-144-11100-0000

Taxation Year: 2016

Hearing Event No.: 752670

Legislative Authority: Rule 26(b) of the Assessment Review Board’s Rules of Practice and Procedure

Parties	Representatives
Israel Shoel Rosenhek	Self-represented
Municipal Property Assessment Corporation	Submissions not received
City of Windsor	Submissions not received

REQUEST FOR: Late Appeal

HEARD: September 20, 2021 in writing

ADJUDICATOR: Jean-Paul Pilon, Member

MOTION DECISION

OVERVIEW

1Israel Shoel Rosenhek (the “Moving Party”) was the owner of a property located at 623 Lake Trail Drive in the City of Windsor, Ontario (the “Subject Property”) during the 2016 to 2018 taxation years.

2Prior to the deadline for filing an appeal for the 2016 taxation year, the Moving Party said that he was told by staff of the Assessment Board Review (the “Board”) that it was not necessary to file an appeal of the assessment for the Subject Property for the 2016 taxation year because an appeal for the 2017 taxation year had already been filed. This was not correct and there was no appeal for the 2016 taxation year before the Board. As a result, the Moving Party brought this motion requesting that the Board accept his late appeal for the 2016 taxation year.

3Rule 26(b) of the Board’s Rules of Practice and Procedure (the “Rules”) sets out the circumstances in which the Board may accept late appeals. It provides that the Board may accept a late appeal if the Board is satisfied that the appellant is a person entitled to receive notice of assessment who did not receive notice, and filed an appeal within 30 days of becoming aware of the assessment.

4The Moving Party was the party entitled to receive the notice of assessment for the 2016 taxation year. However, the Moving Party did not state that he did not receive notice of the assessment, nor did he state when he became aware of the assessment although he was granted an extension of time to file a request for reconsideration (“RfR”) of his assessment for the 2016 taxation year on August 16, 2016. Although the Moving Party also received tax bills for 2016 prior to that date, the Board assumes the Moving Party became aware of the assessment by the date that he requested the RfR.

5This motion was filed on August 21, 2021, more than 30 days after the Moving Party became aware of the assessment.

Result

6The Moving Party does not meet the requirements of Rule 26(b). This motion is therefore dismissed.

BACKGROUND

Affidavits

7The Moving Party filed two affidavits in support of his motion.

8The first affidavit was not properly dated but it appended exhibits with covering pages indicating that the affidavit had been sworn on June 10, 2021 (the “Affidavit”). The second affidavit was sworn on August 16, 2021 and included the same exhibits with the same indication that they were appended to an affidavit sworn on June 10, 2021. The only difference between the Affidavit and the second affidavit was that the second affidavit included additional information as to the merits of the prospective appeal which were not relevant to this motion to extend time to file an appeal. The Board therefore relied entirely on the Affidavit in its determination of the motion.

9Neither the Municipal Property Assessment Corporation (“MPAC”) nor the City of Windsor submitted any response to the motion. Therefore, all of the facts referred to in this decision were taken from the Affidavit.

Facts

10As noted above, the Moving Party was granted an extension of time to file an RfR for the 2016 taxation year, and on August 29, 2017 he received the results of that reconsideration. The Moving Party then rejected MPAC’s offer to settle presented by way of draft minutes of settlement and correctly understood that the deadline to file an appeal for that taxation year was November 27, 2017.

11The Moving Party received later correspondence from MPAC in September, 2017 acknowledging receipt of the RfR for the 2016 taxation year which the Moving Party indicated “did not make sense…since I had already received the results of the RfR for the 2016 property tax year.” The Board finds it is most likely that this further correspondence was the result of a clerical error. In any event, it is not material to the issue in this motion.

12The Moving Party had already filed an appeal for the 2017 taxation year on June 22, 2017 and he expected that he would need to file another appeal for the 2016 taxation year. However, he wrote that “to the contrary, I was informed by an employee of the Board with whom I spoke that since I had already filed an appeal for 2017, since the supporting documentation and relevant reasons and grounds for the appeal for 2016 were identical to those for 2017, it was not necessary” to file a further appeal. He wrote that “it was my unequivocal understanding that the appeal filed for 2017, along with supporting documentation and filing fee for 2017, would cover both years,” and that they would be heard at the same time by the Board.

13The Moving Party had subsequent discussions with an employee of MPAC who was also under the impression that an appeal had been filed for the 2016 taxation year but who later determined that the single outstanding appeal was for the 2017 taxation year. The Moving Party also noted that the Board’s eventual decision in the 2017 appeals included an appeal for the 2018 taxation year even though no appeal for that taxation year had been filed.

14The Moving Party’s appeals for the 2017 and 2018 taxation years were heard on August 22, 2018 and were resolved by the Board on consent. The Moving Party indicated in the Affidavit that he settled those appeals on consent “provided and on the condition that this settlement on consent that day would not prejudice my right to file a late appeal for the 2016 year.”

15Finally, the Moving Party provided further information in the Affidavit as to personal issues he experienced in 2019 and 2020 that prevented him from filing this motion earlier.

ISSUES IN THE MOTION

16The Moving Party raised two issues or questions in this motion. First, the Appellant did not understand why an appeal was deemed or created for the 2018 taxation year but not the 2016 taxation year. The second and primary issue in this motion is whether the Board should accept a late appeal for the 2016 taxation year pursuant to Rule 26(b).

ANALYSIS

Issue 1 – Why was an appeal created for the 2018 taxation year and not the 2016 taxation year?

17Section 40(26) of the Assessment Act, R.S.O. 1990, c. A.31 (“Act”) provides that “an appellant shall be deemed to have brought the same appeal in respect of a property…for a subsequent (emphasis added) taxation year to which the same general reassessment applies if the appeal is not finally disposed of before March 31 of the subsequent taxation year...”

18The hearing of the Moving Party’s appeal for the 2017 taxation year did not take place until August 22, 2018 and the deeming date pursuant to section 40(26) of the Act above was March 31, 2018. Therefore, the appeal for the 2018 taxation year was created as a deemed appeal by operation of the statute. Although not material to the issue at hand, it is worth noting that the reference to “general reassessment” in section 40(26) of the Act means that appeals can only be deemed within the same assessment cycle which began with the 2017 taxation year. Had an appeal been filed for the 2016 taxation year, for example, an appeal would not have been deemed for the subsequent 2017 taxation year because 2017 was the first year in a new taxation cycle.

19There is no provision in the Act to support deeming backwards or retrospectively as appears to have been the impression of the unnamed Board employee the Moving Party spoke to by telephone. This was particularly unfortunate when the Moving Party’s conversation with that employee took place prior to November 27, 2017, the deadline for the Moving Party to have filed an appeal for the 2016 taxation year. That was the deadline because section 40(5.1) of the Act provides that “the last day for the person to appeal for a taxation year is 90 days after the notice” sent by MPAC for the 2016 taxation year where an RfR was filed, which in this case was August 29, 2017.

20As a result, the Board finds that no appeal was filed, nor would one have been statutorily created for the 2016 taxation year.

Findings on Issue 1

21An appeal was created by operation of statute for the 2018 taxation year. There is no provision of the Act which would have created an appeal for the 2016 taxation year in these circumstances and no appeal was filed for that taxation year.

Issue 2 – Does the Moving Party meet the requirements of Rule 26(b)?

22Rule 26(b) provides that:

the Board may accept an appeal received after the time set out in the Assessment Act only if the appellant satisfies the Board, by way of affidavit evidence, that…(1) the appellant is a person entitled to receive a notice of assessment who (2) did not receive notice, and (3) filed the appeal with the Board within 30 days of becoming aware of the assessment or classification that is the subject of the appeal (numbering added).

23In Cherry Beach Sailing Clubs v Municipal Property Assessment Corporation, Region 9, 2018 CanLII 107727 (ON ARB), the Board confirmed what is evident in a plain reading of the Rule, that all three requirements must be met to be successful on a motion to file a late appeal.

24The Moving Party submitted no written reasons from the hearing on August 22, 2018, when he said he was told his consent in the 2017 and 2018 appeals “would not prejudice his right to file a late appeal for the 2016 year.” There was also no indication in the Affidavit that the Board considered the Rule for filing late appeals in force at the time, which was identical to the current version. Moreover, that permission could not have been provided prospectively in the absence of an actual appeal or motion like this one which requires affidavit evidence pursuant to Rule 26(b). It was simply not open for the Board to have made such a ruling absent consideration of the Rules.

25As a result, the Board finds that the reference to filing a late appeal must have been interpreted by the Board that day as a request to file a late appeal like the one considered in this motion.

26Returning to Rule 26(b), the first question to be determined is whether the Moving Party was the party entitled to receive notice. Nothing in the Affidavit suggested otherwise, therefore the Moving Party met the first requirement of Rule 26(b).

27The Moving Party did not meet the second and third requirements of Rule 26(b) because there was no evidence that he did not receive the notice of assessment, nor did he file an appeal within 30 days of becoming aware of the assessment. The Moving Party must both received and have been aware of the assessment when he requested an extension of time to file the RfR on August 11, 2016. As mentioned earlier, this motion was not filed until August 21, 2021, well beyond 30 days later.

28In Werzberger v Municipal Property Assessment Corporation, Region 09, 2018 CanLII 107717 (ON ARB), 2018 CanLII 73665 (ON ARB), the Board determined that a notice of assessment and a notice of reconsideration (which was the result of the RfR and included the offer to settle from MPAC) are two different things, and that Rule 26(b)’s identically worded predecessor did not apply to a notice of reconsideration. This means that the operative date for Rule 26(b) remained the date that the Moving Party became aware of the assessment, not the date of the decision in the RfR and not that it would have made any difference.

29The Affidavit indicated that there were extenuating circumstances that prevented the earlier filing of this motion. However, Rule 26(b) provides no discretionary authority to alter the timeline it sets out.

30As a result, the Board finds that the Moving Party cannot be successful in his request to extend time pursuant to Rule 26(b).

Finding on Issue 2

31The Moving Party does not meet the requirements of Rule 26(b).

CONCLUSION

32The Board cannot create a late appeal for the 2016 taxation year because the Moving Party did not meet the second and third requirements of Rule 26(b).

ORDER

33The Board orders that the Moving Party’s motion is dismissed.