Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: March 30, 2022

FILE NO.: DM 2022M07

Assessed Person(s): Urbancorp Cumberland 2 LP c/o The Fuller Landau Group

Appellant(s): Urbancorp Cumberland 2 LP c/o The Fuller Landau Group

Respondent(s): Municipal Property Assessment Corporation Region 09

Respondent(s): City of Toronto

Property Location(s): Lisgar Street

Municipality(ies): City of Toronto

Roll Number(s): 1904-041-470-01171-0000 and 1904-041-470-01174-0000

Appeal Number(s): 3480166

Taxation Year(s): 2019, 2020 and 2021

Hearing Event No.: 762166

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

Parties	Representative
Urbancorp Cumberland 2 LP c/o The Fuller Landau Group	Chantelle MacMillan
Municipal Property Assessment Corporation	Shannon Smale Aidan Mailer
City of Toronto	Submissions not received

REQUEST FOR: Extension of time to bring late appeals

HEARD: March 8, 2022 in writing

ADJUDICATOR(S): Carly Stringer, Member

MOTION DECISION

OVERVIEW

1UrbanCorp Cumberland 2 LP care of a court-appointed monitor, The Fuller Landau Group Inc. (the “Moving Party”), brings this motion before the Assessment Review Board (the “Board”) pursuant to s. 40.1(b) of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”) for an order extending the time for bringing assessment appeals for the 2019 to 2021 taxation years; creating 2019 to 2021 taxation year appeals; and directing that the Municipal Property Assessment Corporation (“MPAC”) be the appellant. The Moving Party argues that there are palpable errors in the assessment roll and that this is an appropriate case in which to create late appeals.

2MPAC opposes the motion. MPAC says there are no palpable errors, and in any event, says that the Board should not exercise its discretion to extend time to create these appeals.

3The City of Toronto has not submitted material on this motion.

Result

4The Board finds that there are no palpable errors in the assessment roll, and therefore denies the motion.

Background

5This motion relates to a large office building known municipally as Lisgar Street in the City of Toronto (the “Subject Property”). The Subject Property is owned by the Moving Party.

6The Subject Property represents a severed portion of a property previously identified by Roll Number 1904-041-470-01171-0000 (“01171”). An assessment of $5,564,000 was returned relating to Roll Number 01171 for the 2017 to 2020 taxation years.

7The Subject Property was severed from the property identified by Roll 01171 on February 28, 2019.

8In July 2020, Roll Number 1904-041-470-01174-0000 (“01174”) was created and applied to the Subject Property.

9On October 8, 2020, MPAC issued a Property Assessment Change Notice to the Moving Party in relation to Roll Number 01174, updating the assessed value to $17,795,000 for the 2019 and 2020 taxation years (“2019 and 2020 Change Notice”).

10On November 17, 2020, MPAC issued a Property Assessment Notice to the Moving Party in relation to Roll Number 01174 for the 2021 taxation year (“2021 Notice”) indicating an assessed value for the Subject Property of $17,795,000.

11For the 2019 to 2021 taxation years, the Subject Property was assessed based on a total gross leasable area of 50,977 square feet.

12The total gross leasable area of the Subject Property is 38,936 square feet.

ISSUES

13The Act has a framework that permits the Board to extend statutory deadlines for bringing assessment appeals. The applicable statutory framework is set out in subsection 40.1 of the Act:

40.1 If it appears that there are palpable errors in the assessment roll,

(a) if no alteration of assessed values or classification of land is involved, the Board may correct the roll; and

(b) if alteration of assessed values or classification of land is involved, the Board may extend the time for bringing the appeals and direct the assessment corporation to be the appellant.

14This motion involves alteration of the assessed value on the roll. Therefore, s. 40(b) applies and there are two issues the Board must determine:

1. Are there palpable errors in the assessment roll relating to the Subject Property for the 2019 to 2021 taxation years?
2. If the answer to Issue 1 is “yes”, should the Board extend time for bringing appeals relating to the Subject Property for the 2019 to 2021 taxation years?

ANALYSIS

Issue 1 - Are there palpable errors in the assessment roll relating to the Subject Property for the 2019 to 2021 taxation years?

Applicable Law

15The Act does not explain what makes an error in the roll a palpable error. However, in York Condominium Corporation No. 60 v Municipal Property Assessment Corporation, Region 09, 2019 CanLII 39632 (ON ARB) (“York Condominium”) at paragraphs 9 and 11, the Board determined that for an error to be a palpable error, it must be of conspicuous magnitude, plain, evident, and easy to understand.

Submissions of the Parties

16The Moving Party submits that the gross leasable area was overstated in the assessment roll by 12,041 square feet. The Moving Party submits that this is a palpable error that is unintentional, plain, obvious, and easy to understand. The Moving Party submits that an overstatement of the size by more than 30% is an error of conspicuous magnitude.

17MPAC submits that the Board has consistently found that valuation and calculation errors are not palpable errors. MPAC relies on Scott v. Municipal Property Assessment Corp. Region No. 15, [2015] O.A.R.B.D. No. 64 (“Scott”); Hopper v Municipal Property Assessment Corporation, Region 15, 2016 CanLII 24421 (ON ARB) (“Hopper”) and Zakrzewski v Municipal Property Assessment Corporation, Region 9, 2018 CanLII 58335 (ON ARB) (“Zakrzewski”), where the Board has found that errors recording lot size are not palpable errors in the roll. MPAC submits that the error on this motion is a square footage data error, which is not an error that mischaracterizes the fundamental nature or legal character of the property such that it is not a palpable error.

Findings on Issue 1

18The error at issue is that MPAC overstated the gross leasable area of the Subject Property by 12,041 square feet. This represents just over 31% of the actual gross leasable area.

19In reviewing the case law provided, it is clear that the Board has found that errors in measurement and square footage are not palpable errors where the errors are not large enough to be plain and obvious: see Scott, supra and Hopper, supra. In Zakrzewski, supra, the error was recording the lot as approximately 50% larger than it actually was. The Board found that this was a measurement error that was not plain on its face – it did not “jump out” to the owner or MPAC. For that reason, the Board found the error to be a reasonable calculation error and not a palpable error in the assessment roll. The Board noted at paragraph 24 of Zakrzewski that “[a] number of decisions of this Board have considered measurement errors as palpable errors and show that only very large measurement errors can be considered palpable.”

20With respect to large measurement errors, in Brockville (City) v. Municipal Property Assessment Corporation, 2016 ONSC 5752 (Div. Ct.) (“Brockville”), the Divisional Court granted leave to appeal from a Board decision where the Board had found there was no evidence of a palpable error. In that case, MPAC had erred in recording a building as being 923 feet high when it was actually 12 feet high. The Divisional Court stated that “an error of this magnitude resulting from a simple, straightforward and significant data-entry error falls within the ordinary meaning of the word palpable”: see Brockville at paragraph 14.

21In Municipal Property Assessment Corporation v Guelph Eramosa Township, 2018 CanLII 263 (ON ARB) (“Guelph Eramosa”), the Board found a palpable error where MPAC recorded lot sizes as up to 146 times larger than they actually were. The Board found that the errors were palpable because they would be “plain and obvious to anyone that took even a cursory look at the properties”: see Guelph Eramosa at paragraphs 8 and 9.

22The Board finds that an error in lot size or measurement may be a palpable error when it is of sufficient magnitude, being conspicuous, plain and obvious. On the facts before the Board on this motion, the error is not an error of multiples of sizes, as in Brockville and Guelph Eramosa. This is an error that is more similar in size to the error in Zakrzewski. Considering the Board’s jurisprudence and the circumstances of this case, the Board finds the error at issue on this motion is not an error of sufficient magnitude that is plain and obvious so as to amount to a palpable error.

CONCLUSION

23The Board finds that the error in this instance is not a palpable error in the assessment roll. Since a palpable error is a statutory precondition to the exercise of discretion to grant an extension of time and create late appeals, the Board’s analysis ends.

ORDER

24The Board orders that this motion is denied.