Skyline Commercial Real Estate Holdings Inc. v. Municipal Property Assessment Corporation Region 27, 2021 CanLII 98528

Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: October 07, 2021

FILE NO.: RD 20-056

Assessed Person(s): Skyline Commercial Real Estate Holdings Inc.

Appellant(s): Skyline Commercial Real Estate Holdings Inc.

Respondent(s): Municipal Property Assessment Corporation Region 27

Respondent(s): City of Windsor

Property Location(s): 599 Sprucewood Avenue Unit 1-4

Municipality(ies): City of Windsor

Roll Number(s): 3739-080-850-01600-0000

Appeal Number(s): 3249322 and 3313802

Taxation Year(s): 2017 and 2018

Legislative Authority: Rules 104-105 of the Assessment Review Board’s Rules of Practice and Procedure

Parties

Representative

Skyline Commercial Real Estate Holdings Inc.

Amanda Myers

Municipal Property Assessment Corporation

Submissions not received

City of Windsor

Robert J. Heil

REQUEST FOR: Reinstatement of appeal(s) 3249322 and 3313802

HEARD: In writing

ADJUDICATOR(S): Vincent Stabile, Member

DECISION

OVERVIEW

1The City of Windsor (the “Requester”), is requesting the Assessment Review Board (“Board”) to reinstate appeals 3249322 and 3313802 by way of a request for reinstatement pursuant to Rule 104 of the Board’s Rules of Practice and Procedure (the “Rules”). The appeals were withdrawn, and the Board issued administrative decision 2822191 in respect to both appeals on August 7, 2020.

2Further the Requester is requesting a review of decision 2822191 of the Board issued August 7, 2020 pursuant to Rules 120, 121, 122 and 123 of the Board’s former Rules, now Rules 101, 102 and 103.

BACKGROUND

3The Board’s former Rules of Practice and Procedure effective April 1, 2017 were amended May, 2019 and further amended effective April 1, 2021.

4The Requester submits that the Board misapplied Rule 72(b) and acted contrary to Rule 121(a) of the Board’s former Rules, now Rules 27(b) and 102(a), respectively.

5As is readily apparent, the Requester is combining a request to reinstate with a request for review where the appeals were withdrawn and the Board processed the request by way of an administrative decision and not a decision issued at a hearing event.

Issues for the Review

6The issues to be considered in this application are:

1. Which Rule(s) should be considered?

2. What is defined as a ‘hearing event’ and should it include procedural steps to be taken by the parties set out in a Schedule of Events (SOE)?

3. Did the Board violate the rules of natural justice or procedural fairness?

Result

7For reasons set out below, the request to reinstate appeals 3249322 and 3313802 is denied.

ANALYSIS

Issue 1 – Which Rule(s) should be considered?

Withdrawal of an Appeal

8Rule 27 states: “An appellant may withdraw an appeal unless:

a. Another party has given notice pursuant to these Rules of its intention to request a higher assessment or higher tax rate property class; or

b. a hearing has commenced.

Request to Reinstate an Appeal

9Rule 104 states: “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:

c) natural justice or procedural fairness require that the appeal be reinstated.

10Due to COVID-19, the Province of Ontario enacted the Provincial Declaration of Emergency Under the Emergency Management and Civil Protection Act (“EMCPA”).

11The restrictions following the EMCPA were communicated by the Board to the City of Windsor and other stakeholders on March 26, 2020. As a result of the EMCPA hearing events were suspended from March 26, 2020 to September 28, 2020.

Requester’s Submissions

12In its comprehensive written submissions, the Requester acknowledges receiving notices from the Appellant withdrawing the subject appeals on January 9, 2020 and formally processed by the Board on August 7, 2020.

13The Requester submits that at all material times it intended to serve a notice seeking a higher assessment but did not do so because of the suspension of the Schedule of Events (“SOE”) following the EMCPA.

14The Requester submits that it was entitled to notice from the Board if it considered processing the Notices of Withdrawal and further states that the Appellant was required to bring a Motion seeking leave of the Board to withdraw as required by former Rule 73, now Rule 29.

15The Requester relies on the Board’s definitions of “hearing event” and “proceeding” as provided in the Board’s Rules and purports to include all the procedural steps the parties must complete and the due date for completing each step set out in the SOE for each appeal.

Appellant’s Submissions

16In response, the Appellant states that it served and filed its notices to withdraw both appeals on January 9, 2020. No party had given notice of its intention to request a higher assessment prior to that date.

17Further, the Appellant submits that no hearing or hearing event had commenced as of January 9, 2020, as contemplated in Rule 27(b).

18The Appellant therefore submits that it could withdraw the appeals as of right pursuant to Rule 27(b).

19The Appellant further submits that reinstating the appeals would be prejudicial to the Appellant.

Findings on Issue 1

Which Rule should be considered?

20This is a request to reinstate appeals withdrawn by the Appellant.

21The decision of the Board processing the withdrawal notice is an administrative decision and not one following a hearing, motion or other hearing event.

22Rules 101, 102 and 103 have no application to this request.

23For purposes of this decision the governing Rules are 27(b) and 104(c).

Issue 2 - What is the definition of a “hearing event”?

Requester’s Submissions

24The central argument advanced by the Requester focuses on the interpretation of the definitions of “hearing event” and “proceeding” in the Board’s Rules.

25The Requester argues that those definitions should include the procedural steps set out in the SOE.

Appellant’s Submissions

26The Appellant relies on its submissions set out in paragraphs 16 – 19 above.

27The Appellant submits that it could withdraw the appeals as of right because no party had given notice seeking a higher assessment prior to the service and filing of its notice to withdraw.

28The Appellant relied on Rule 28 which provides support and clarity to this proposition. Rule 28 states: A party is deemed to have given notice of its intention to seek a higher assessment or higher tax rate property class where:

(a) the party has included its request in its Statement of Issues or Statement of Response; or

(b) the party delivers a separate written notice of its request, which is served on all parties and filed with the Board at any time prior to the date due in the Schedule of events for serving its Statement of Issues or Response.

Case Law Considered

29The Requester relies on the Board’s decision in Merivale-Gilmour Manor Ltd. v Municipal Property Assessment Corporation, Region 3, 2020 CanLII 28326 (ON ARB), (“Merivale”) now confirmed by Justice Muszynski in Merivale-Gilmour Manor Ltd. v Municipal Property Assessment Corporation Region No. 3 et al, 2021 ONSC 6240 (“Merivale ONSC”). The decision is instructive for the proposition that an appellant is entitled to notice where another party, such as the Requester here, intends to take the position that the correct current value is higher than MPAC’s assessed value.

30More significantly, Merivale holds the it is the content of a document, not the form, that is important. This is especially significant and goes directly against the Requester’s argument that it “intended to seek a higher assessment in its Statement of Response”. There was no need to wait for the service of its Statement of Response.

31The Requester also relies on Loblaw Properties Limited v Municipal Property Assessment Corporation, Region 09, 2020 CanLII 30601 (ON ARB) (“Loblaw”). In that case, on a Motion by the Municipal Property Assessment Corporation (“MPAC”), the Board reinstated an appeal after processing a notice to withdraw. The Board found that MPAC had given notice seeking a higher assessment prior to the Appellant filing a notice to withdraw.

32Loblaw does not assist Requester as no notice had been served prior to January 9, 2020.

Appellant Case Law

33The Board accepts and applies the principles set out in Via Rail Canada and Municipal Property Assessment Corp., Region 27, Re, 2020 CarswellOnt. 12436 (“Via Rail”), relied upon by the Appellant. That was a decision of the Board having processed a withdrawal after receiving notice from MPAC objecting to the withdrawal.

34The Board found that the notice to withdraw had been served and filed prior to any notice seeking a higher assessment from MPAC.

35In Via Rail, the Board also found that the procedural steps in the SOE were not a hearing event as defined in the Rules. At paragraph 31 the Board stated: “A hearing event had not commenced because the appeals were withdrawn….before any pleadings were exchanged on or before the date prescribed in the SOE and before the hearing commenced.”

36Via Rail is instructive and fully supports the actions of the Board and the submissions of the Appellant.

Findings on Issue 2

37“Hearing event” under the new Rules uses similar language as the former Rules, with the exception of making no reference to mediation. In all other respects it is similar. It states that a “hearing event” means a procedure held by the Board at any stage of a proceeding, and includes a hearing, settlement conference and motion hearing…..”.

38The definition does not include any of the procedural steps to be taken by the parties as set out in the SOE.

39A “proceeding” is defined as “meaning an appeal before the Board, including all hearing events related to the appeal”.

40Those procedural steps do not engage the Board in a hearing event as defined.

41A “proceeding” is not referred to in Rule 27(b).

42The SOE cannot be interpreted as the “commencement of a hearing or hearing event”. To do so would render Rule 27(b) moot as soon as an appeal is filed with the Board and a SOE prepared. Via Rail, supra, supports this finding.

43The suspension following EMCPA commenced with written notice by the Board on March 26, 2020.

44The suspension had no impact on the Requester’s right to give notice, in any written form, from the date the appeals were originally filed to January 9, 2020.

45The Appellant was at liberty to withdraw its appeals on January 9, 2020 as of right, under Rule 27(b). Taking away that right would result in prejudice and denial of natural justice to the Appellant.

Issue 3 - Did the Board violate the rules of natural justice or procedural fairness?

46The authority of the Board is derived from the Assessment Act R.S.O. 1990, c. A.31. The Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA’) gives the Board authority to make rules governing its practice and procedure (see Merivale ONSC).

47The Board therefore has authority to control its own process. Accordingly, the Board has implemented rules respecting the appeal process by directing parties to follow specific steps and timelines once an appeal is filed with the Board.

48The Board had discretion to process the notices to withdraw considering the clear provisions of its Rules and its authority to control its own process. This included the Board’s discretion as to the date and time the notices to withdraw were processed, once served and filed by the Appellant.

49This is supported by another case relied on by the Requester, Ontario Property Assessment Corp. v. Nelson Steel, 2001 CanLII 38751 (ON SC) (“Nelson”), a decision of Justice Cameron. Justice Cameron was considering a decision of the Board permitting a complainant to withdraw its complaint after the deadline for filing complaints without the consent of the other parties to the complaint.

50The complaints were withdrawn after the deadline for filing complaints and before MPAC had served a notice of its intention to seek a higher assessment.

51Justice Cameron considered the submissions at a time when the Board Rules were silent on withdrawal of appeals (see in para. 4 of the Nelson’s decision).

52Nelson is instructive as Justice Cameron found at para. 9, notwithstanding the provision of specific Rules respecting withdrawal, “the ÀRB has the power under SPPA….to make orders approving withdrawals of complaints without hearing the whole complaint.”

53This is of no assistance to the Requester. It merely confirms the discretion the Board has under the SPPA, regardless of specific Rules.

54The Board properly applied Rule 27(b).

55The Board has already found that the procedural steps set out in the SOE did not constitute the “commencement of a hearing” as provided in Rule 27(b) and that the Board properly applied the Rule.

56The Board has already found that it had authority to process the notices to withdraw, filed by the Appellant as of right.

57Further, the Board has already found that the rules of natural justice favored the Appellant.

Findings on issue 3

58Given the findings, as set out above, the Board did not violate the rules of natural justice or procedural fairness.

CONCLUSION

59The Board finds that it properly applied Rule 27(b) and that it acted within its jurisdiction. Further, the Board finds that it did not violate the rules of natural justice or procedural fairness.

ORDER

60The Board orders that the request to reinstate appeals 3249322 and 3313802 is denied.