Tribunals Ontario
Tribunaux décisionnels Ontario
Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE: March 04, 2022
Assessed Person(s): Manor Park Estates Inc.
Appellant(s): Manor Park Estates Inc.
Respondent(s): Municipal Property Assessment Corporation Region 03
Respondent(s): City of Ottawa
Property Location(s): 213-299 Coleford Place
Municipality(ies): City of Ottawa
Roll Number(s): 0614-010-401-27300-0000
Appeal Number(s): 3241062, 3290877, 3348021, 3396379 and 3439317
Taxation Year(s): 2017, 2018, 2019, 2020 and 2021
Hearing Event No.: 759865
Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31
APPEARANCES:
Parties Representative
Manor Park Estates Inc. Chantelle MacMillan
Municipal Property Assessment Corporation Mohammad El Dali
City of Ottawa Shen Bai
HEARD: January 12, 2022, by telephone conference call
ADJUDICATOR(S): Jennifer Griffith, Member
DECISION
BACKGROUND
1Manor Park Estates Inc. (the “Appellant”) filed an appeal with the Assessment Review Board (“Board”) respecting 213-299 Coleford Place, in the City of Ottawa for the 2017, 2018, 2019, 2020 and 2021 taxation years.
2Under the Assessment Review Board (“Board”)’s Rules of Practice and Procedure (the “Rules”), the appeals are being heard by way of General Proceeding, and the Board issued a Schedule of Events (“SOE”), outlining deadlines for various procedural steps in the appeal with a Commencement Date of December 16, 2019.
3The original due date for serving Statement of Issues (“SOI”) was May 10, 2020. Due to the COVID pandemic an Emergency Order was passed and the due date for the SOI was amended to August 24, 2020, for these appeals.
4Municipal Property Assessment Corporation (“MPAC”) submits that the Appellant was required to serve on all parties its SOI by the amended due date of August 24, 2020. The Appellant did not serve its SOI until October 27, 2021 and did not file it with the Board until January 4, 2022. As a result of the Appellant’s non-compliance, the Board has scheduled this peremptory default hearing, because the appeals were not resolved and the parties to the appeal did not file disclosure documents with the Board by the due date of November 22, 2021, as stated in the SOE.
5MPAC submits that it received an email from Scott Johnson, Altus Group on July 27, 2021, advising that the Altus Group was recently retained by the Appellant (“Appellant’s Representative”) and was requesting consent to file for an extension of the Commencement Date with the Board. MPAC submits that consent was given, however, MPAC did not receive notice from the Appellant that an Expedited Board Direction (“EBD”) Form was filed with the Board and neither did it receive notice from the Board of the outcome of the EBD request for an extension of the Commencement Date.
6On October 27, 2021, MPAC received an email from the Altus Group again stating that Altus Group had carriage of the appeals and attached to the email was the SOI dated October 27, 2021. MPAC states that it responded to the email on that same day asking if there was an amended SOE that he was not aware of and received no response to his inquiry. The due date at that time was August 24, 2020, which was already passed, and the Appellant was already in default of the Board’s Rules.
7On October 29, 2021, MPAC states that he sent a follow-up email to the Appellant requesting a copy of the SOE and asking if the EBD request which was consented by MPAC on July 27, 2021, was ever filed with the Board.
8On November 3, 2021, MPAC received a response by email from the Appellant which stated that the EBD is yet to be filed with the Board and asking for consent to submit the EBD request with the Board. On the same day, MPAC states that consent was given, and again, MPAC heard nothing from the Appellant, and it did not receive notice from the Board regarding the outcome of the EBD request.
9On December 9, 2021, MPAC filed a Dismissal Request with the Board which stated the reasons as non-compliance with the Board’s Rules, specifically, the SOI was due by August 24, 2020; and non-compliance with MPAC’s request for SOI and disclosure documents on September 3, 2020.
10On December 20, 2021, the Board received by email the Appellant’s objection to MPAC’s request to dismiss the appeals filed on December 9, 2021.
11In response to MPAC’s request for dismissal of the appeals filed with the Board on December 9, 2021, and the Appellant’s objection filed with the Board on December 20, 2021, the Board did not approve the request to dismiss the appeals and gave the following directives:
While the Appellant is in breach of the Board Rules, the Appellant has contested this Request to Dismiss an Appeal(s). Further, the case coordinator advises that the appeals have been set to a Peremptory Hearing on January 12, 2022. As such, this request to dismiss appeals is denied. Appellant is instructed to submit its SOI without further delay and the parties are instructed to proceed with the Peremptory Hearing.
12At the commencement of the hearing, MPAC moved to dismiss the appeals scheduled for 2017, 2018, 2019, 2020 and 2021 on the basis that the Appellant failed to serve its SOI by the due date of August 24, 2020, and as a result is in non-compliance with the SOE.
13The Appellant submits that the appeals should not be dismissed because the non-compliance was due to a cybersecurity attack on its representative, the Altus Group computer system (documents filed with the Board show the attack date of June 13, 2021) which disabled access to documentary evidence for many appeals filed with the Board including today’s appeal. As a result, the SOI was not filed by the due date August 24, 2020. The Appellant acknowledges the delay, however, feels that dismissing the appeals would be a drastic decision based on the circumstances.
14Shen Bai, Representative for the City of Ottawa (the “City”), submits that the appeals should be dismissed for non-compliance with the SOE and that compliance with the Board’s Rules is necessary for the resolution of the appeals.
RESULT
15The Board dismisses the appeals for non-compliance with the SOE by failing to file its SOI by the due date of August 24, 2020. Consequently, the Board dismisses the appeals for the 2017, 2018, 2019, 2020 and 2021 taxation years.
ANALYSIS
MPAC’s Submissions
16MPAC submits that it acted in good faith and consented to the EBD requests by the Appellant, even though the SOI was already past due even before the Altus Group Representative was retained on July 22, 2021, by the Appellant. MPAC also states that it received no copies of the requests consented to and no copies of the Board’s decisions in response to the requests.
Appellant’s Submissions
17The Appellant submits that Altus Group was retained (the Board’s record shows July 22, 2021) after the previous Appellant’s Representative no longer had carriage of the appeals (the Board’s record shows carriage with the previous Representative was over the period of January 14, 2020, to July 22, 2021). At that time, the client’s instruction was to proceed with the appeal and not to withdraw.
18The Appellant submits that after taking carriage of the appeals, a lot of effort was spent trying to get up to date with filing Request for Reconsideration with MPAC for other appeals and trying to comply with the SOE for this and other appeals with the Board. The Appellant also submits that a number of financial documents that were requested from the client prior to the cybersecurity attack were compromised by the attack and therefore not available.
19The Appellant submits that on October 26, 2021, an email was sent to MPAC to arrange for the scheduling a Mandatory Settlement Meeting on October 28, 2021, which was due to have taken place by the due date of October 25, 2021, by all parties to the appeals, as directed in the SOE. The Mandatory Settlement Meeting is an opportunity for parties to the appeals to try and resolve the appeals among themselves by the due date October 25, 2021, to avoid going to a full hearing. The Appellant submits that the SOI was served on the parties with the hope that the Mandatory Settlement Meeting would be scheduled on October 28, 2021. In response, MPAC emailed the Appellant advising that the due date of October 25, 2021, for holding the Mandatory Settlement Meeting was already past due and in default, and that the meeting would not be scheduled.
20The Appellant submits that on December 9, 2021, MPAC contacted the parties to retract consent given on July 27, 2021, for an EBD requesting an amendment of the Commencement Date to the proposed date of June 15, 2021.
21Regarding the Appellant’s email on November 3, 2021, to MPAC, requesting consent to file an EBD request with the Board seeking another extension of the Commencement Date, the Appellant states that the EBD request was never executed because the City did not consent to the request and indicated its intention to seek a dismissal of the appeals.
22The Appellant acknowledges the delays and delinquencies caused by the non-compliance and submits that they had put forth their best effort to getting the appeals resolved, but unfortunately, the cybersecurity attack created a major issue in getting the necessary information in a timelier manner. The Appellant offered no other explanation for not complying with the SOE deadline of August 24, 2020, for serving its SOI, even though the due date was many months prior to the cybersecurity attack which occurred on June 13, 2021.
23The Appellant submits that dismissing the appeals is a harsh measure and that there is little or no prejudice to MPAC and the City due to the circumstances of the cybersecurity attack. In support of this argument, the Appellant cited Kitchener (City) v CP REIT Ontario Properties Ltd, 2020 CanLII 30640 (ONARB) paragraph 30 which states:
Although a party’s failure to provide a SOI in accordance with the prescribed timeline may be a valid basis for dismissal, there must be more than non-compliance. This Board has held that the primary consideration on a dismissal motion will be the prejudice to the parties: Municipal Property Assessment Corporation, Region 14 v Upper Keele Inc., 2018 CanLII 126632 (ON ARB), 2018 CanLII 248 (ON ARB) at Paragraph 10.
The City’s Submissions
24The City’s Representative states that he agrees with MPAC’s submissions, and submits the following:
I. The City never consented to any EBDs filed with the Board.
II. The City received a copy of the Board’s response to the Appellant’s EBD request that was filed with the Board on July 27, 2021, which was denied. The request stated that “Altus has just recently been retained to act as the representative for this property’s outstanding 2016 CVA appeals. The previous representative is in default of the SOI submission, which was past due August 24, 2020. Altus is seeking a revised commencement date so that a fulsome review of the property can be performed, and a SOI can be filed in a compliant manner pursuant to the Board revised SOE. The Appellant is requesting to have the commencement date of the Property owner appeals adjusted to a proposed commencement date of June 15, 2021, so all parties may deliver their pleadings in accordance with the new SOE.”
In response, the Board denied the requests and stated that “This is a request to alter the commencement date for these appeals which is opposed by the City of Ottawa. This request correctly quotes Rule 40 which states that the Board will not alter any due date set out in the SOE other than in exceptional circumstances. It goes on to argue that there would be no negative impact on the Board of the other parties if the request was granted. It does not however, set out any exceptional circumstances that would justify the request (and it makes no mention of Altus’ recent data breach). The request acknowledges that “the previous representative is in default of their SOI submission”, but it provides no explanation for the default. That is not an exceptional circumstance, it is a failure to comply with the Rules. This request is Denied.”
III. The City received a copy of the Board’s response to the Appellant’s EBD request dated August 5, 2021, in which the Appellant stated that “Due to a cyberattack on June 13, 2021, it was requesting a 12-week extension to be added to all SOE dates from June 2021 forward for all appeals, where Altus Group is the Appellant in the General Stream.”
On August 6, the Board approved the request, and stated that “This is an uncontested request for a 12-week extension to be added to all SOE dates from June 2021 forward for the appeals listed in the attached document ASP-03-SOE-General Stream. The request is granted. The Board is satisfied that the Cybersecurity attack on Altus on June 13, 2021, resulting in a loss of access to their systems and files constitutes an exceptional circumstance. A 12-week extension is added to all SOE dates from June 2021 forward for the appeals listed in attached document ASP-03-SOE-General Stream.”
IV. The City received emails on September 28, 2021, and again on October 27, 2021, from the Appellant seeking consent to amend the SOE, which the City declined to give.
25Based on the above submissions, the City submits that the appeals should be dismissed for non-compliance of the Board’s Rules by failing to serve its SOI by the due date of August 24, 2020. The City further submits that compliance with the Board’s Rules is necessary towards the resolution of the appeals.
Findings
26Reviewing the above submissions by the parties, the Board finds that there is no dispute that the parties were provided with the Board’s Amended SOE with a revised Commencement Date of December 16, 2019, because there are no submissions to the contrary. The Board posts a copy of all SOE for appeals filed with the Board on the Board’s Website where representatives have access to the SOE. For this appeal, a copy of the amended SOE was also mailed to parties on December 30, 2021.
27Rule 40 provides that, after the Commencement Day set out in Rule 39 as the start of the proceedings, the Board will not alter any due date set out in the Schedule of Events, other than in exceptional circumstances.
28Pursuant to Rule 40, the Board approved an EBD request dated August 5, 2021, in which the Appellant was requesting a 12-week extension to be added to all SOE dates from June 2021 forward for all appeals, due to a cybersecurity attack on June 13, 2021, which compromised the Appellant’s system and files where all access was lost. The EBD request received by the Board shows that MPAC did not take any position in regard to giving consent, and the City did not consent to the request. The EBD request was approved on August 6, 2021, allowing for a 12-week extension to be added to all SOE dates from June 2021 forward for the appeals. The Board finds that the extension was not requested for dates prior to June 2021, therefore, the 12-week extension was not applicable to the SOI due date of August 24, 2020.
29With the 12-week extension approved by the Board for all SOE dates from June 2021 forward for all appeals, the Appellant was required to serve its SOI on or before August 24, 2020, and failed to comply, because the Appellant did not request a 12-week extension for dates prior to June 2021. The Board finds that although the SOI was served on October 27, 2021, it was well past the due date of August 24, 2020. The SOI was only filed with the Board on January 4, 2022, after the Request for Dismissal was filed by MPAC on December 9, 2021. The Board finds that there is no evidence that the Appellant sought any further extension of time that would satisfy compliance.
30The Board finds that the Appellant’s failure to comply with the SOE continued well into 2021, even after MPAC contacted the Appellant by emails on three separate occasions on July 27, 2021, July 29, 2021, and again on November 3, 2021, inquiring whether the EBD requests that MPAC consented to were actually filed with the Board and whether the requests were approved or denied. The Board finds that MPAC’s email communication with the Appellant, should have raised awareness that the Appellant was seriously in default of the SOE and most importantly was not in compliance with serving its SOI by the due date of August 24, 2020.
31The Board also finds that MPAC acted in good faith by consenting to the Appellant’s many EBD requests seeking extension of the due dates in the SOE. Despite MPAC’s efforts and cooperation, the Board finds that the Appellant failed to comply with the amended dates in the SOE and is in default of serving its SOI by the due date of August 24, 2020.
32The Board finds that the Appellant had more than ample time to serve its SOI or to communicate with the Board and the parties to the appeal to explain the circumstances surrounding the continued default and to discuss other alternative processes that could have led to the resolution of the appeals and failed to do so.
33The Board accepts the submissions of the negative impact the cybersecurity attack had on the Appellant’s ability to access its computer system and files. The Board finds that the Appellant was appropriately accommodated, because the Board approved the Appellant’s request on August 6, 2021, for a 12-week extension for all SOE dates from June 2021 forward for all appeals to ensure that the process was fair in the interest of natural justice and cooperation.
34The Board finds that the extension was not applicable to the SOE dates prior to June 21, which means that the SOI date of August 24, 2020, remained unchanged and the Board finds that the Appellant fails in its obligations of complying with the Board’s Rules by not serving its SOI on all parties to the appeals by the due date of August 24, 2020.
35The Board also disagrees with the Appellant that its non-compliance with the Board’s Rules have little prejudicial impact on MPAC and the City. The Board finds that failure to comply with the Board’s Rules negatively impacts the fiscal management and other resources of MPAC and the City, due to the fact that the appeals are not settled and until then, MPAC and the City continues to communicate with all parties to the appeals and continue to prepare for the final resolution of the appeals. This finding addresses the Board’s determination in Kitchener (City) v CP REIT Ontario Properties Ltd, 2020 CanLII 30640 at paragraph 30 that prejudice to the parties is the primary consideration on a dismissal motion.
CONCLUSION
36For the above reasons, the Board finds that the Appellant failed to comply with the Amended SOE and failed to serve its SOI by the due date of August 24, 2020. The Board finds that the appropriate consequence for the non-compliance is dismissal. Therefore, the Board dismisses the appeals for the 2017, 2018, 2019, 2020 and 2021 taxation years.
ORDER
37Appeals 3241062, 3290877, 3348021, 3396379 and 3439317 for the 2017, 2018 2019, 2020 and 2021 are dismissed.
“Jennifer Griffith”
JENNIFER GRIFFITH MEMBER Assessment Review Board Website: www.tribunalsontario.ca/arb