2725397 Ontario Inc. v. Municipal Property Assessment Corporation Region 23, 2022 CanLII 21302

Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: March 14, 2022

FILE NO.: DM 2022M06

Assessed Person: 2725397 Ontario Inc.

Appellant: 2725397 Ontario Inc.

Respondent: Municipal Property Assessment Corporation Region 23

Respondent: City of Woodstock

Property Location: 805 Dundas Street

Municipality: City of Woodstock

Roll Number: 3242-020-010-02400-0000

Taxation Year: 2021

Hearing Event No.: 762678

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

Parties	Counsel*/Representative
2725397 Ontario Inc.	Marc Kemerer*
Municipal Property Assessment Corporation	Douglas Keyes
City of Woodstock	Submissions not received

REQUEST FOR: Late Appeal

HEARD: March 14, 2022 in writing

ADJUDICATOR: Jean-Paul Pilon, Member

MOTION DECISION

OVERVIEW

12725397 Ontario Inc. (“397”) is the owner of a property at 805 Dundas Street in the City of Woodstock (the “Subject Property”). Inderpal (Paul) Dhillon is an Officer and Director of 397.

2Mr. Dhillon filed this motion for the Assessment Review Board (the “Board”) to accept 397’s appeal for the 2021 taxation year after the time set out in the Assessment Act, R.S.O. 1990, c. A. 31. This motion was filed pursuant to Rule 26(b) of the Board’s Rules of Practice and Procedure (the “Rules”).

Result

3For the reasons that follow, this motion is granted.

Factual Background

4Mr. Dhillon filed three affidavits in support of the motion. The Municipal Property Assessment Corporation’s (“MPAC”) written argument opposing the motion was not supported by any affidavit evidence, and the City of Woodstock (the “Municipality”) did not participate in this motion.

5Mr. Dhillon’s first affidavit was sworn on October 26, 2021. In it, he wrote that on September 13, 2021, he received a tax bill from the Municipality at which time he “became aware that the property taxes on the (Subject) Property had increased.” He continued saying that after having a discussion with staff of the Municipality, he submitted a request to extend time to file a Request for Reconsideration (“RfR”) to the Board on October 1, 2021.

6Mr. Dhillon’s second affidavit was sworn on February 8, 2022 and was included with an Expedited Board Direction Form in which the scheduling of this motion was requested. In that affidavit, Mr. Dhillon added that the Board advised him by email on October 1, 2021, the day he filed his request to extend time to file an RfR, that his request would instead be treated as a request to file a late appeal. He wrote that the Board acknowledged receipt of the request to file a late appeal on December 10, 2021, and that the Board set the motion on January 26, 2022 in a letter indicating due dates for submissions in the motion.

7Mr. Dhillon’s third affidavit sworn on February 28, 2022 responded to MPAC’s written argument which suggested that Mr. Dhillon might have been aware of the assessment earlier than as indicated in his first two affidavits. Mr. Dhillon clarified that 397 became aware of the assessment not because it received a tax bill, but because the Municipality’s regular monthly withdrawal for taxes in September, 2021 “was much higher than previous payments.” He also wrote that 397’s experience was that tax bills were sent out twice a year, in January and August, but that “in the last two years 397 has only received the tax bill sent out in January.” Finally, Mr. Dhillon stated in this affidavit that “had 397 been provided with a tax bill in August of 2021 reflecting the Assessment (sic) (he) would have moved to have filed an appeal at that time.”

ANALYSIS

8This motion was filed pursuant to Rule 26(b). In essence, Rule 26(b) provides that the Board may accept a late appeal if: “(1) the appellant is a person entitled to receive notice of the assessment (2) who did not receive notice, and (3) filed the appeal with the Board within 30 days of becoming aware of the assessment (numbering added).”

9The use of the word “and” between the first and second requirements above mean that all three requirements need to be met for an appellant (or more accurately, a potential appellant) to succeed in such a motion. This was confirmed in Cherry Beach Sailing Clubs v Municipal Property Assessment Corporation, Region 09, 2018 CanLII 107727 at para. 8, where the Board determined that relief could only be granted if all of the three requirements are met.

Issue 1 – Was the appellant a person entitled to receive the notice of assessment?

10It was not disputed that as an Officer and Director of 397, which owns the Subject Property, Mr. Dhillon was entitled to receive the notice of assessment in question.

Finding on Issue 1

11The Board finds that 397 met the first requirement of Rule 26(b).

Issue 2 – Did 397 receive the notice of assessment?

12In his affidavits, Mr. Dhillon wrote that he did not receive the notice of assessment. This was also not contested by MPAC.

Finding on Issue 2

13The Board finds that 397 met the second requirement of Rule 26(b).

Issue 3 – Did 397 file an appeal within 30 days of becoming aware of the assessment?

14The evidence before the Board is that Mr. Dhillon became aware of the assessment on September 13, 2021 and filed his request to extend time to file an RfR on October 1, 2021, 18 days later, which the Board treated as a request to file a late appeal.

15MPAC did not argue in this instance, as it has several times in the past, that the appellant had not filed an appeal with the Board as required by Rule 26(b) because it was a request to extend time to file an RfR. That argument was rejected by the Board in 12502488 Canada Inc. v Municipal Property Assessment Corporation, Region 23, 2022 CanLII 5448 and in the cases cited in para. 43 of that decision. The filing of the request to extend time to file an RfR by Mr. Dhillon was the appeal contemplated by Rule 26(b), and the Board adopts those previous reasons.

16Instead, MPAC argued that Mr. Dhillon must have known about the assessment earlier than September 13, 2021 and did not meet the requirement of filing an appeal within 30 days of becoming aware of the assessment.

17To support that assertion, MPAC argued that a quarterly tax payment would have had been due on August 31, 2021 according to the Municipality’s website, and that pursuant to section 343 of the Municipal Act, 2001, S.O. 2001, c. 25, a tax bill must have been sent 21 days prior to that due date. In this case, that date would have been August 10, 2021.

18From this, MPAC argued that 397 must have been aware of the assessment as of August 10, 2021. As a result, and because Mr. Dhillon did not contact the Board until September 13, 2021, MPAC argued that the appeal was filed more than 30 days after Mr. Dhillon became aware of the assessment.

19The Board does not agree for two reasons.

20First, the mandatory language in Rule 69 provides that “evidence in support of a motion must be provided in an affidavit.” In its argument, MPAC said that the Municipality’s website indicated that a quarterly tax payment would have been due on August 31, 2021, but this was unsupported by affidavit evidence as required by Rule 69.

21Mr. Dhillon, on the other hand, filed affidavit evidence which complied with Rule 69 where he stated the following:

a. At para. 6 of his first affidavit, that he did not receive the notice of assessment and first became aware of an increase in property taxes on September 13, 2021;

b. At para. 6 of his third affidavit, that his awareness of the assessment did not come from a tax bill but from a bank withdrawal, correcting what appeared to have been a misstatement of fact in his first affidavit that he received a tax bill on that date;

c. At para. 6 of his second affidavit, that this awareness came because “the amount the (Municipality) was withdrawing for the property taxes for the Subject Property had jumped dramatically;”

d. At para. 11 of the same affidavit, that he filed the request to extend time to file an RfR within 30 days of becoming aware of the assessment; and

e. At para. 7 of the third affidavit, that 397 had in the previous two years only received tax bills in January, and that he “did not follow up with the (Municipality’s) staff on the absence of the August 2021 tax bill as the previous withdrawal amounts were consistent” with the previous assessment of the property.

22Apart from the issue of Rule 69 compliance, MPAC acknowledged the weakness of its own submission writing that “MPAC does not have any knowledge of the tax billing practices of the (Municipality).” It continued that “we cannot verify that a tax bill was sent, when exactly it was sent, or the method/manner in which it was sent, and understand our position is based on logical conclusions.”

23The first step in MPAC’s analysis was based on an allegation of fact not properly before the Board and was, as described in in the third affidavit, “conjecture.” Mr. Dhillon’s evidence, on the other hand, was that he only became aware of the assessment because of an elevated monthly bank withdrawal and filed his request to extend time to file an RfR within 30 days of that awareness.

24The Board finds that 397 met the third requirement of Rule 26(b).

CONCLUSION

25The Board finds that 397 has met all three requirements of Rule 26(b) and that the Board may accept its late appeal for the 2021 taxation year.

ORDER

26The Board orders that 2725397 Ontario Inc.’s appeal for the 2021 taxation year is accepted pursuant to Rule 26(b).