Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

March 30, 2022

FILE NO.:

DM 176845

Assessed Person(s):

Riotrin Properties (Steeles)

Appellant(s):

Riotrin Properties (Steeles)

Respondent(s):

Municipal Property Assessment Corporation Region 09

Respondent(s):

City of Toronto

Property Location(s):

2061-2081 Steeles Avenue West

Municipality(ies):

City of Toronto

Roll Number(s):

1908-033-530-00221-0000

Appeal Number(s):

3215707, 3294305, 3351125, 3401061 and 3441331

Taxation Year(s):

2017, 2018, 2019, 2020 and 2021

Hearing Event No.:

763564

Legislative Authority:

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

Parties

Representative

Riotrin Properties (Steeles)

Jesse White

Municipal Property Assessment Corporation

Michael Amiro

City of Toronto

Submissions not received

REQUEST FOR:

Dismissal of appeals

HEARD:

February 28, 2022 in writing

ADJUDICATOR(S):

Carly Stringer, Member

MOTION DECISION

OVERVIEW

1The Municipal Property Assessment Corporation (“MPAC”) seeks to have appeals 3215707, 3294305, 3351125, 3401061 and 3441331 (the “Subject Appeals”) dismissed because Riotrin Properties (Steeles) (the “Appellant”) did not file a Statement of Issues (“SOI”) by September 14, 2020.

2The Appellant opposes MPAC’s request to dismiss. The Appellant asks that the Assessment Review Board (the “Board”) deny the motion and amend the Schedule of Events (“SOE”) to provide a new date for MPAC to serve its Statement of Response.

3The City of Toronto has not provided submissions on this motion.

Result

4For the reasons that follow, the motion to dismiss is granted.

Procedural Background

5The Subject Appeals relate to a small shopping centre at 2061-2081 Steeles Avenue West in the City of Toronto.

6The Subject Appeals were assigned a commencement date of January 15, 2020.

7In accordance with the SOE established by the Board, the Appellant was required to provide its SOI by September 16, 2020.

8The Appellant did not provide its SOI by September 16, 2020. The Appellant did not communicate with MPAC prior to this deadline to request an extension, nor did it bring a motion to the Board to alter this due date in the SOE.

9On September 22, 2020, MPAC communicated with the Appellant to advise it had not received the Appellant’s SOI by the deadline. MPAC told the Appellant that if its SOI was not received by September 29, 2020, MPAC would file a Request to Dismiss a General Proceedings Appeal for Failure to Serve a Statement of Issues (“Request to Dismiss”) with the Board.

10MPAC did not receive an SOI – or any response – from the Appellant by September 29, 2020.

11On October 26, 2020, MPAC filed a Request to Dismiss with the Board, copying the Appellant.

12The Appellant did not provide a response to MPAC’s Request to Dismiss.

13The Board failed to provide a decision on or otherwise respond to MPAC’s Request to Dismiss.

14On or about February 22, 2021, the Appellant retained a new representative. On February 23, 2021, the Appellant’s new representative sent an email to MPAC requesting an extension to deliver its SOI by March 9, 2021.

15The Appellant did not receive a response from MPAC.

16On February 26, 2021, the Appellant’s new representative called the MPAC representative directly to advise that she was retained.

17There is some dispute regarding what transpired on this call. The Appellant says that it asked to serve a late SOI for the Subject Appeals, and MPAC consented. MPAC says that this call was general in nature and did not explicitly address the Subject Appeals. MPAC says that it asked the Appellant to send an email with the list of properties for which an extension of the SOE timelines would be required, but did not otherwise consent to the Appellant serving a late SOI.

18That same day, a representative of the Appellant sent MPAC a SOI for the Subject Property. Later that same day, a second representative of the Appellant sent an email to MPAC requesting an extension to deliver a SOI for the Subject Property.

19MPAC responded to the Appellant’s email requesting an extension of time to deliver a SOI for the Subject Property. In its response, MPAC’s representative stated that “an SOI [for the Subject Appeals] has already been submitted by Karen. Let me know if you would like me to send a copy.” MPAC did not provide any additional information.

20On March 8, 2021, MPAC contacted the Board, copying the Appellant, to ask when the Board would render a decision on its October 2020 Request to Dismiss.

21The Appellant’s representative replied to this communication to say that she was just recently retained and was not aware of the outstanding Request to Dismiss. The Appellant asked that MPAC withdraw its Request to Dismiss and/or that the Board consider the Appellant’s default cured and allow the Subject Appeals to proceed.

22On March 9, 2021, MPAC confirmed that it did not consent to a late filing of the SOI and that it awaits the Board’s determination of its dismissal motion.

23On April 29, 2021, the Board provided the parties with notice that it was scheduling a motion in writing on the issue of dismissal of the Subject Appeals.

ANALYSIS

Issue 1 – Did the Appellant fail to comply with the Rules of Practice and Procedure (the “Rules”) when it failed to deliver its SOI by the deadline required by the SOE?

Applicable Rules

24MPAC is seeking dismissal pursuant to Rule 24(e), which permits dismissal without a hearing if “the appellant has not complied with the statutory requirements or these Rules.”

25Therefore, the first issue to be determined by the Board is whether the Appellant has failed to comply with the Rules.

Submissions of the Parties

26The Appellant acknowledges that it delivered its SOI late. The parties are in agreement on this fact.

Findings on Issue 1

27The Appellant was required to provide its SOI by September 16, 2020. The Appellant did not seek or otherwise obtain an extension to this deadline. The Appellant provided its SOI to MPAC on February 26, 2021.

28Accordingly, the Board finds that the Appellant failed to comply with a deadline prescribed by the SOE, and therefore failed to comply with the Rules.

Issue 2 – Does this failure to comply with the Rules warrant dismissing the Subject Appeals?

Applicable Rules and Law

29Rule 7 provides that the Board will determine the appropriate consequences of non-compliance with the Rules. As noted above, Rule 24(e) permits dismissal as one such consequence.

30The Board’s determination of an appropriate consequence is guided by Rule 3, which provides that “the Rules shall be liberally interpreted to ensure the just, most expeditious and lease expensive determination of every proceeding.” Rule 4 is also instructive, and provides that the Rules “shall be applied in a manner proportionate to the importance and complexity of the issues in a proceeding and with a view to resolving appeals within the assessment cycle.”

31In determining an appropriate consequence for failure to comply with the Rules, the Board will consider the circumstances surrounding the non-compliance, as well as prejudice to all parties: SGS Lakefield Research Ltd. v Municipal Property Assessment Corporation, Region 07, Region, 2020 CanLII 48629 (ON ARB) (“SGS Lakefield”) at paragraphs 21-26; Kitchener (City) v CP REIT Ontario Properties Ltd, 2020 CanLII 30640 (ON ARB) (‘CP REIT”) at paragraphs 30 to 35. Overall, each case will be decided on its own facts: Orlando Corporation v Municipal Property Assessment Corporation, Region 15, 2021 CanLII 8253 (ON ARB) at paragraph 24, leave to appeal denied Amazon.com v. The City of Brampton, 2022 ONSC 297 (Div Ct).

Submissions of the Parties

32MPAC submits that the Appellant has not provided any justification for not providing its SOI until five and a half months after the SOI due date. MPAC submits that it filed a Request to Dismiss in October 2020 and the Appellant did not respond, therefore the Request to Dismiss should have been processed by the Board. MPAC submits that the Appellant is a sophisticated party and a frequent assessment Appellant who had legal representation via an in-house paralegal at the applicable time. MPAC submits the Appellant must have been aware of the due dates, as MPAC sent both a reminder notice and a Request to Dismiss; yet, the Appellant responded to neither. MPAC submits it did not consent to the Appellant serving a late SOI. MPAC submits there are no exceptional circumstances warranting an extension to the timelines in the SOE to permit late service of the SOI. Finally, MPAC submits that late service of the SOI has caused prejudice to MPAC, including costs associated with communicating with the Appellant regarding the SOI; preparing the Request to Dismiss; and preparing this motion to dismiss. MPAC has also experienced delay in the proceedings.

33The Appellant submits that dismissal is the harshest penalty possible for non-compliance with the Rules and should be reserved for the clearest of cases. The Appellant submits this is not one of those cases. The Appellant points to the fact that it cured its breach of the SOE two months prior to the Board scheduling this dismissal motion and demonstrated a clear intent to proceed with the Subject Appeals.

34The Appellant further submits that it would be severely prejudiced if the Subject Appeals are dismissed in their entirety, as it would be precluded from appealing assessments for the five taxation years under appeal. The Appellant submits that any prejudice to MPAC caused by the late delivery of the SOI can be undone by amending the SOE. The Appellant submits that any prejudice to MPAC cannot outweigh the prejudice that would be suffered by the Appellant in dismissing the Subject Appeals.

35Although the Appellant has not explicitly asked the Board to grant an extension to the SOE for late service of its SOI, the Appellant consents to an extension of the SOE to permit MPAC to file its Statement of Response late. The Appellant submits there are exceptional circumstances in this case, including:

a. The late retainer of legal representation and immediate efforts to identify and cure any non-compliance with the SOE. The Appellant submits that being retained on a file, identifying issues, and delivering a SOI within four days does not occur regularly.

b. That it corrected its non-compliance two months before the Board sets down a dismissal motion; and

c. The ongoing COVID-19 pandemic.

Findings on Issue 2

Circumstances Surrounding Non-Compliance

36In deciding whether to dismiss the appeals, the Board considers the totality of the circumstances. The following circumstances weigh in favour of dismissal:

a. The Appellant is a sophisticated party. The Appellant has not provided evidence to contest MPAC’s evidence that the Subject Appeals were filed by the Appellant’s in-house paralegal, indicating that the Appellant had legal representation.

b. The Board provided clear notice and directives regarding applicable deadlines, including the SOE which required service of the SOI by September 14, 2020.

c. When the Appellant did not provide its SOI by the deadline, MPAC sent a reminder letter and provided an opportunity for the Appellant to cure its default by September 29, 2020. The Appellant did not cure its default, or seek an extension, or otherwise respond.

d. MPAC served the Appellant with and filed a Request to Dismiss on October 26, 2020. The Appellant did not respond to this Request to Dismiss, despite notice that “Where no response is filed, the Board will proceed to issue a decision on the request without providing further procedural directions to the Parties.” While the Appellant suggests the Request to Dismiss is now moot given that its non-compliance has been cured, the Board finds the Request to Dismiss is still relevant as part of the factual matrix.

e. There is no evidence that the Appellant made any attempts to comply with the SOE, or to otherwise communicate with MPAC and/or the Board during the relevant timeframe, until late February 2021, almost six months after its SOI was due.

f. The Appellant did not obtain an extension to the SOE;

g. The Appellant’s non-compliance is entirely attributable to it; and

h. There is no evidence to explain the Appellant’s failure to comply with the SOI, nor is there evidence to explain the Appellant’s failure to respond to MPAC’s September 22, 2020 letter or the Request to Dismiss. The Appellant has provided almost no evidence regarding what transpired before it retained a new representative in late February 2021.

37The following circumstances weigh against dismissal:

a. The Appellant retained a new representative in late February 2021 and provided an SOI on February 26, 2021. Therefore, the Appellant eventually cured its non-compliance.

38The parties dedicated a significant portion of their evidence and submissions to whether MPAC did or did not consent to late service of the SOI when the parties spoke on the phone on February 26, 2021. Ultimately, the Board finds that even if MPAC consented to the late filing on February 26, 2021, this fact does not weigh for or against dismissal. MPAC acted promptly when faced with the Appellant’s non-compliance with the SOE in September 2020 and demonstrated a clear intent to have the Subject Appeals dismissed for non-compliance as early as October 2020. The phone call between MPAC and the Appellant occurred almost six months after the SOI was due. Even if MPAC did consent to late service on this call, MPAC had already sought dismissal months earlier and very obviously withdrew consent in short order, by no later than its email on March 9, 2021. Ultimately, even if MPAC did consent to late service on February 26, 2020, the Appellant was not prejudiced in relying on such consent as it was significantly passed the SOE deadline.

39The Appellant has also made submissions that there are exceptional circumstances that warrant consideration, pointing to the late retainer of its representative in February 2021 and efforts to cure its breach of the SOE at that time. While exceptional circumstances are not required on a dismissal motion, the Board finds there is no evidence of exceptional circumstances in the sense of something atypical or out of the ordinary. It is not unusual for a party to retain a representative throughout the course of a proceeding, nor is it atypical or unusual that the Appellant eventually quickly cured its breach in February 2021. Moreover, the act of retaining a new representative in February 2021 is not a circumstance relating to the Appellant’s non-compliance starting in September 2020. With respect to the Appellant’s reference to COVID-19, the Appellant has provided no evidence regarding the impact of the pandemic, if any, on its non-compliance with the SOE. Accordingly, even though exceptional circumstances are not required on this dismissal motion, the Board finds there are none.

Prejudice to the Parties

40The Board finds that the Appellant will be prejudiced if the Subject Appeals are dismissed, as it will be entirely precluded from pursuing its case. That said, the Appellant has provided no evidence to explain the circumstances surrounding its non-compliance with the SOE. Accordingly, the Board finds that any prejudice to the Appellant is of its own making.

41The Appellant suggests that the non-compliance that gave rise to prejudice for MPAC has been cured, such that any prejudice to MPAC does not outweigh prejudice to the Appellant. The Board disagrees. As noted by this Board in 857529 Ontario Inc. Magna International Inc. Municipal Property Assessment Corporation, Region 15, 2019 CanLII 133074 (ON ARB) supra at paragraph 28, “… it should be well understood by parties that failure to meet timelines both inherently impacts other parties to a proceeding who prepare and provide required information on time and impacts the Board’s ability to manage and deal with its caseload.” Furthermore, MPAC has had to incur costs chasing down the SOI in September 2020; filing a Request to Dismiss; and preparing materials on this dismissal motion. The Board finds there is prejudice to MPAC.

Appropriate Consequence for the Breach

42Although this Board has held that dismissal “is an extreme remedy and should only be granted in the clearest of cases”, it has also held that “[t]he clearest of cases are those where there are willful breaches of the Board’s orders or Rules that are entirely attributable to the taxpayer”: see Municipal Property Assessment Corporation, Region No 7 v Cherry, 2018 CanLII 60392 (ON ARB) at paragraph 10. In this instance, the breach of the SOE is entirely attributable to the Appellant, and the Appellant has provided no explanation. The Board has also been clear that “the Board will strictly enforce the new Rules, and expects compliance”: Municipal Property Assessment Corporation, Region No. 9 v 234900 Ontario Ltd., 2018 CanLII 248 (ON ARB), 2017 CanLII 74719 (ON ARB) at paragraphs 8 and 9. Parties that appear before the Board have been made well aware that the Board will strictly enforce its Rules, and it expects compliance with the timelines prescribed in the Schedule of Events: see CP REIT, supra at paragraph 34; Orlando Corporation, supra at paragraph 38. As noted in SGS Lakefield, supra at paragraph 19, “[t]he Board has an interest in ensuring that Parties adhere to schedules to avoid delays and to achieve its mandate to justly and expeditiously resolve the appeals before it.”

43The Appellant relies heavily on the Board’s decision in CP REIT, supra to suggest that the Board should not dismiss in this case, but rather alter the SOE to give MPAC additional time to complete its Statement of Response. The Board finds the facts of this motion are distinguishable from CP REIT To highlight but one distinguishing fact, in this case the Appellant did not communicate at all with MPAC despite MPAC’s various attempts to reach out. Here, the Appellant has not provided any evidence regarding why it missed its deadline, or why there was no communication at all until almost six months past the SOI due date.

44Permitting the Subject Appeals to continue allows the Appellant to obtain an extension to the SOE without having to bring a motion to amend the timelines, and without having to satisfy the Board of “exceptional circumstances” warranting such an amendment. In the circumstances enumerated above, and considering prejudice to all parties, the Board finds that granting an extension to the SOE to permit MPAC to provide its SOR is not an appropriate consequence for the Appellant’s non-compliance with the Rules.

45Each case will be determined on its own facts. In the totality of the circumstances, weighing prejudice to all parties, the Board finds that the Appellant’s non-compliance with the Rules warrants dismissal of the Subject Appeals.

CONCLUSION

46This Board will strictly enforce its Rules. It expects compliance with the timelines prescribed in the SOE, and parties will face consequences for non-compliance where the circumstances warrant it.

47The Board finds that the Appellant failed to provide its SOI in accordance with the timelines prescribed by the SOE. The Board has considered all of the circumstances, has weighed prejudice, and determines that dismissal is appropriate.

ORDER

48The Board grants the motion, and orders the Subject Appeals are dismissed.

"Carly Stringer"

CARLY STRINGER

MEMBER

Assessment Review Board

Website: www.tribunalsontario.ca/arb