Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: March 30, 2022

FILE NO.: DM 176843

Assessed Person(s): APR (1811 Bank and 2 Laser); 2600337 Ontario Inc.

Appellant(s): Ogilvie Realty Ltd.; City of Ottawa

Respondent(s): Municipal Property Assessment Corporation Region 03

Respondent(s): City of Ottawa

Property Location(s): 0 Gurdwara Road

Municipality(ies): City of Ottawa

Roll Number(s): 0614-120-505-20440-0000

Appeal Number(s): 3424556, 3424557, 3424558, 3424559, 3415224, 3396334, 3439081, 3439152

Taxation Year(s): 2017, 2018, 2019, 2020, 2021

Hearing Event No.: 763565

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

Parties

Counsel*/Representative

Ogilvie Realty Ltd.

Robert Butterworth*

Jack A. Walker*

Municipal Property Assessment Corporation

Makael Nur

City of Ottawa

Guy Tudino

REQUEST FOR: Withdrawal of Appeal(s)

HEARD: February 28, 2022 in writing

ADJUDICATOR(S): Dirk VanderBent, Vice-Chair

MOTION DECISION

OVERVIEW

1Ogilvie Realty Ltd. (“the Appellant”) is the owner of the property located at 0 Gurdwara Road in Ottawa (“the Subject Property”) and has filed an appeal pursuant to s. 40 of the Assessment Act, S.O. 1990, c. A.31 (the “Act”) for the 2017 taxation year. The ground of this appeal is that the current value of the Subject Property, which was determined by the Municipal Property Assessment Corporation (“MPAC”) in the general reassessment (“General Reassessment Value”), is incorrect and should be a lower value. Pursuant to the deeming provision under s. 40(28) of the Act, appeals have been deemed for the 2018 to 2021 taxation years. Pursuant to s. 40(11) of the Act, MPAC and the Municipality (the City of Ottawa) are parties to this appeal proceeding. The Municipality did not file its’ own appeal for the 2017 to 2019 taxation years.

2In overview, the Appellant decided to withdraw its appeals and filed a notice of withdrawal with the Board. As discussed in greater detail below, the Municipality has served a notice on the other parties that it is requesting that the Board find that correct General Reassessment Value should be a higher value (“Notice of Higher Assessment”). Under the Assessment Review Board’s (“Board”) Rules of Practice and Procedure (“Rules”), an appellant may withdraw an appeal without requiring the Board’s permission to do so, i.e. withdraw as of right, if no notice of higher assessment has been served. In this case, because the Municipality has served its Notice of Higher Assessment, the Board has not accepted the Appellant’s withdrawal. The Board’s Rules also provide that the Appellant may request that the Board grant the Appellant permission to withdraw the appeals, if an Appellant cannot withdraw its appeal as of right.

3The Appellant has filed a motion requesting the Board find that the Appellant can withdraw its appeals as of right, or, alternatively, that the Board grant the Appellant’s request to withdraw its appeals. MPAC and the Municipality oppose these requests.

RESULT

4The motion is dismissed.

ISSUES

5The issues to be addressed in this Motion Decision are:

1. Is the Appellant permitted to withdraw its appeal as of right?

2. If not, should be Board grant the Appellant’s request to withdraw its appeal?

6While the Board has reviewed all the parties’ submissions in detail, for purposes of this Motion Decision, the Board provides a synopsis of only the most salient submissions.

ANALYSIS

Issue 1 - Is the Appellant permitted to withdraw its appeal as of right?

Applicable Rules

7The Board introduced a new version of the Rules effective April 1, 2021. However, as the previous version of the Rules was in effect at the time the Municipality’s notice was served, the Board will apply the previous version of the Rules. However, the Board notes that there is no substantive difference the current version and the previous Rules as it relates to the issues to be addressed in this motion.

8Rule 72 and 73 state:

Withdrawal of Appeal

72. An appellant may withdraw an appeal, with notice to the other parties to the appeal and the Board, 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 event has commenced.

Motion to Withdraw

73. An appellant may seek an order from the Board, by motion, to withdraw an appeal that is prohibited by Rule 72 and the Board may:

a) grant the request to withdraw, with or without conditions; or

b) refuse the request to withdraw and

(i) proceed immediately to hear the appeal, or

(ii) adjourn the proceeding.

9Merivale-Gilmour Manor Ltd. v Municipal Property Assessment Corporation, Region 03, 2020 CanLII 28326 (ON ARB) is a Review Decision of the Board issued on April 20, 2020 (“Merivale”) where the Board stated at paragraph 21:

21In summation, in a General Proceeding appeal, a written notice of an intention to request a higher assessment may be made at any time prior to the applicable due date set out in the Schedule of Events for serving the Statement of Issues or Response. The written notice must be included as an issue set out in the Statement of Issues or Response, but, for purposes of Rule 72, notice may also be given by way of a separate written document served prior to the applicable Schedule of Events due date. This means that, under Rule 72, an appellant may withdraw an appeal as of right only if no notice of higher assessment has been given to the appellant. Where a notice has been given, the appellant cannot withdraw its appeal as of right, and, instead, must bring a motion, pursuant to Rule 73, requesting the Board’s permission to withdraw the appeal. [emphasis added]

10The appellant in Merivale sought leave to the appeal this decision, which was refused (see: Merivale-Gilmour Manor Ltd. v. Municipal Property Assessment Corporation Region No. 3 et al, 2021 ONSC 6240 (“Merivale - Div. Ct.”).

Facts

11The parties submitted an agreed statement of facts, the relevant facts being:

• The Appellant’s appeal was filed with the Board on March 29, 2017.

• On July 19, 2019, the Municipality serve a written notice stating that it was seeking a higher value for the General Reassessment Value.

• Based on the assigned Commencement Date and applicable Schedule of Events, the Appellant was required to serve its Statement of Issues by May 11, 2021.

• On September 29, 2020, the Appellant filed its notice of withdrawal with the Board.

Submissions

12The Appellant’s original submissions filed in support of its Motion preceded the issuance of the Board’s review decision in Merivale. At that time, the Appellant submitted that, to permit a municipality that did not file an appeal to file a Notice of Higher Assessment prior to receiving a Statement of Issues, would be tantamount to extending the statutory limit for filing an appeal. The Appellant also maintained that to do so would offend the Act and the rules of natural justice and procedural fairness as well as the requirement for harmony, coherence, and consistency. The Appellant further asserted that it removed the “level playing field” concept that should be respected in all matters before the Board and creates an unfair advantage for the municipality over taxpayers.

13The Appellant also submitted that a higher assessment is a special remedy to be used sparingly, arguing that a challenge to this notion would result in a taxpayer appealing under the cloud of receiving a Notice of Higher Assessment at any time from a municipality, most notably before the taxpayer has received initial disclosure.

14The Board notes that the parties to this Motion were afforded an opportunity to file additional submissions following the issuance Merivale – Div. Ct.

15The Appellant’s additional submission is that the circumstances of this case differ significantly from the circumstances in Merivale, as, in this case, the Municipality served its notice of higher assessment before the time allowed under the Schedule of Events for MPAC to provide its initial disclosure to the Appellant. The Appellant emphasizes that, in Merivale, the appellant, had received the initial disclosure, thereby enabling it to make the decision whether it wished to proceed with the appeal.

16In response, MPAC and the Municipality assert that the findings in Merivale and Merivale – Div. Ct. address the submissions made by the Appellant, thereby supporting their position that the Appellant cannot withdraw its appeals as of right.

Findings on Issue 1

17The Board does not accept the Appellant’s submission that permitting a municipality to file a Notice of Higher Assessment prior to receiving a Statement of Issues, is tantamount to extending the statutory limit for filing an appeal. This issue was addressed in Merivale at paragraph 29, where the Board stated:

29In addressing this issue, the Board notes that Merivale’s submission does not refer to s. 44(1) of the Act, which provides that, upon an appeal on any ground against an assessment, the Board may reopen the whole question of the assessment. Additionally, s. 44(3)(a) of the Act requires that the Board determine the correct current value of the land. Therefore, it is clear that the Board’s jurisdiction, when adjudicating an appeal under s. 40 of the Act, is not restricted to only considering whether the current value of a property is lower than the value assessed by MPAC. The Board must also consider whether the current value is the same as MPAC's assessed value or higher. For this reason, the Board does not accept Merivale’s submission that a responding party who maintains that the correct current value should be higher, can only advance this claim by filing its own appeal. It follows, therefore, that the Board also does not accept Merivale’s submission that the Board’s Rules are inconsistent with the Board’s jurisdiction under the Act.

18The Appellant has submitted that, prior to the Municipality serving its Notice of Higher Assessment, the Appellant did not have sufficient information to decide whether it would proceed with its appeal. The Board finds that this is not a relevant consideration. In Merivale, the Board expressly found that a responding party may serve a written notice of Higher Assessment prior to the due date for serving its Statement of Response. Once an appeal has been filed, the Appellant can choose at any time prior to the commencement of the hearing to seek to withdraw its appeal. As stated in Merivale, at paragraph 20, a responding party has an equal right, at any time prior to the due date for serving its Statement of Response, to serve a written notice that it will be seeking a higher assessment.

Findings on Issue 1

19For the above reasons, the Board finds that the Appellant cannot withdraw its appeals as of right.

Issue 2- Should be Board grant the Appellant’s request to withdraw its appeal?

Findings on Issue 2

20The Appellant’s submissions are focused on Issue 1, addressing its position that, under the Act, a responding party should be not permitted to seek a higher assessment. Therefore, although the Appellant’s submissions were made in respect of both issues, these submissions do not disclose any specific grounds to support a finding that the Board should grant an order permitting the Appellant to withdraw its appeals. As the Appellant has not provided any basis on which to grant its request made pursuant to Rule 73, this request is also denied.

21There has been a significant delay in completing this Motion, due to the fact that the parties were waiting for the issuance of the Merivale Div. Ct. decision. The submissions provided in the written Motion Hearing do not address whether, as a result of this delay, an amendment to any of the due dates in the Schedule of Events is required. If so, any of the parties may submit a request for such amendment through the Board’s Expedited Board Direction process

ORDER

22The Appellant’s Motion is dismissed.

23If necessary, any of the parties may, through the Board’s Expedited Board Direction process, submit a request to amend a due date in the Schedule of Events, subject to the condition that such request should be made no later than 30 days from the date of issuance of this Motion Decision.