Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

January 21, 2022

FILE NO.:

RD 20-064A

AMENDING DECISION ISSUED ON: April 14, 2022

Assessed Person(s):

10198447 CANADA INC.

Appellant(s):

Corporation of The City of Ottawa

Respondent(s):

Municipal Property Assessment Corporation Region 03

Respondent(s):

10198447 CANADA INC

Property Location(s):

1509 -1531 Merivale Road

Municipality(ies):

Corporation of The City of Ottawa

Roll Number(s):

0614-120-540-11900-0000

Appeal Number(s):

3317187, 3346517, 3433677 and 3397594

Taxation Year(s):

2018, 2019 and 2020

Legislative Authority:

Rules 101-103 of the Assessment Review Board’s Rules of Practice and Procedure

APPEARANCES:

Parties

Counsel

10198447 CANADA INC.

Joe Jebreen Scott McAnsh

Municipal Property Assessment Corporation

Matthew Kanter Allyson Amster

Corporation of The City of Ottawa

Lindsay Hinch Jennifer Pereira

REQUEST FOR:

A review of the Board’s Decision Nos. 2815327, 2815328 and 2815330 issued on April 24, 2020

HEARD:

March 9, 2021

ADJUDICATOR(S):

Dirk VanderBent, Vice-Chair

AMENDING DECISION

AMENDED DECISION

In accordance with Rule 99 of the Assessment Review Board’s Rules of Practice and Procedure, effective April 1 2021, related to the correction of minor errors and in accordance with Rule 21.1 of the Statutory Powers and Procedure Act regarding the correction of errors, this Amended Decision is issued to correct error(s) in the Decision regarding a correction to paragraph [161]. The amendments have been underlined for ease of reference. There are no other changes in this Amended Decision.

OVERVIEW

1The Corporation of the City of Ottawa (the “City”) filed an appeal for the 2018 taxation year with the Assessment Review Board (the “Board”), pursuant to s. 40 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”) respecting the property located at 1509-1531 Merivale Road, Ottawa (the “Subject Property”), which is owned by 10198447 CANADA INC. (the “Owner”). This appeal challenges the value of the Subject Property as determined by the Municipal Property Assessment Corporation (“MPAC”) in conducting its general reassessment of the Subject Property, as it is required to do pursuant to s. 1 of the Act which states:

“general reassessment” means the updating of assessments as a result of the application of a new valuation day under subsection 19.2 (1);

2The following is an overview of the procedural history of this appeal proceeding. A more detailed description is provided below in this Review Decision.

3Because the City filed the appeal, the City was required to mail a copy of its appeal to the Owner so that the Owner would have notice of the appeal proceeding. It is not disputed that the City did so. However, although the Owner acknowledges that the City and MPAC used its correct mailing address, the Owner asserts that it has no record of receiving the appeal, or subsequent correspondence mailed to the Owner by both the City and the MPAC.

4Pursuant to Rule 39 of the Board’s former Rules of Practice and Procedure effective April 1, 2017, amended May, 2019 (“2017 Rules”) that were in force at the time, a party who has not filed a Statement of Response by the date set out in the schedule of events is deemed not to oppose any future settlement in the appeal proceeding. As the Owner had not filed a Statement of Response by that time, the City and MPAC then negotiated a resolution of the City’s appeal in November 2019.

5Pursuant to s. 40(26) of the Act, where an appeal has been filed with the Board and is not disposed of in the taxation year in which the appeal is filed, then an appellant is deemed to have brought the same appeal for the subsequent taxation year (“Deemed Appeal”).

6In December 2019, when the City filed the Minutes of Settlement with the Board, a Deemed Appeal had been created for the 2019 taxation year. For this reason, the Minutes of Settlement addressed both the 2018 and 2019 taxation years. The Minutes of Settlement were signed by the City and MPAC, and the City requested that the Board issue decisions for these two taxation years in accordance with the terms set out in the Minutes of Settlement.

7Because the Board did not process the City’s request to issue decisions until April 24, 2020, the Act required that the Board create an additional deemed appeal by the City for the 2020 taxation year (“City’s Deemed 2020 Appeal”). The Board then applied the Minutes of Settlement to all three taxation years, even though the Minutes of Settlement referred only to the 2018 and 2019 taxation years. Consequently, the Board issued Decision Nos. 2815327, 2815328, and 2815330 for the 2018, 2019 and 2020 taxation years, respectively (the “Decisions”) and sent Notices of Decision to all the parties.

8The Owner acknowledges receiving the Notices of Decision which were sent by the Board by ordinary mail. However, because the Owner asserts that it was unaware of the City’s appeal proceeding, the Owner retained a representative, who then submitted a Reinstatement by Request for Review, pursuant to Rule 122 of the 2017 Rules requesting that the Decisions be revoked. On August 21, 2020, the Board administratively rejected this Reinstatement by Request for Review on the basis that Rule 122 applies only to a dismissal or withdrawal of appeals. In this case, the Decisions had been issued.

9On October 14, 2020, the Owner then filed a Notice of Motion with the Ontario Divisional Court (the “Leave Proceeding”) requesting Leave to Appeal both the issuance of the Decisions and the Board’s administrative decision to reject the Owner’s Reinstatement by Request for Review.

10In November 2020, the Owner attempted to file its own appeal for the 2020 taxation year using the Board’s electronic filing system. This system rejected the Owner’s appeal on the basis that it was not filed by the due date provided in the Act. Upon receiving notice, the Owner’s legal representative contacted the Board to enquire if there was any way that the appeal could be filed. At that time, the Registrar’s staff member concluded that the Owner’s appeal was filed out of time. However, in an effort to assist, the staff member considered whether a deemed appeal for the 2020 taxation year should be created in respect of the City’s original 2017 appeal. Apparently, the staff member was not aware that the City’s Deemed 2020 Appeal had already been created (as described above). Therefore, the staff member created a second deemed appeal for the 2020 taxation year (the “City’s Additional Deemed 2020 Appeal”). However, it should be noted that it is not an appeal by the Owner. The process giving rise to the City’s Additional Deemed 2020 Appeal is described in greater detail in this Review Decision.

11The Leave Proceeding drew the Board’s attention to its disposition of the Owner’s Reinstatement Request. The Board decided to initiate a review of the Decisions, pursuant to Rule 123 of the 2017 Rules (the “Review”). The Board requested and received submissions from all parties. However, in its submissions, the Owner asserts that, as the Board has already considered and rejected the Owner’s Reinstatement by Request for Review, the Board does not have the legal authority to initiate a review or to conduct a second review of the Decisions.

12As noted above, the Owner takes the position that the Decisions should be set aside, on the basis that the Owner was not aware of the appeals. The Owner argues that fairness requires that ‘third party appeals’ (i.e. appeals brought by a person other than the property owner) can only be resolved with the consent of the property owner or through a merits-based decision issued by the Board, which did not occur in this proceeding. For this reason, the Owner argues that the Board should set aside the Decisions and assign a new Commencement Date and Schedule of Events, so that the Owner may fully participate in the appeal proceeding.

13The City and MPAC take the position that the Decisions for 2018 and 2019 should stand. For reasons explained in greater detail below, the City asserts that the 2020 Decision can and should be amended to show that the City’s Deemed 2020 Appeal has been withdrawn. The City also asserts that the City’s Additional Deemed 2020 Appeal should not have been issued, and, therefore, requests that it be withdrawn. In response, the Owner argues that the Board should either create the appeal that the Owner attempted to file in November 2020 on the basis that it was filed on time, or deny the City’s request to withdraw its 2020 appeals so that the assessment can be adjudicated for the 2020 taxation year.

ISSES FOR REVIEW

14The grounds for Review are set out in Rule 102. The Owner asserts that the Board, in issuing the Decisions, and in rejecting the appeal it attempted to file in November 2020, acted outside its jurisdiction and violated the rules of natural justice and procedural fairness. The Owner also argues that, because the Board rejected its Reinstatement by Request for Review, the Board cannot initiate a second review of the Decisions.

15In light of the grounds cited by the Owner in its submissions, six main issues emerge for the Board’s consideration in this Review Decision:

1. Does the Board have authority to initiate its own review pursuant to Rule 123?

2. Did the Owner receive notice of the City’s appeal?

3. Did MPAC and City fail to comply with Rule 9, and, if so, what should be the consequences of such non-compliance?

4. Is the Owner deemed not to oppose the settlement, pursuant to Rule 39?

i. Does the Board have the jurisdiction to impose Rule 39?

ii. If so, does “deem”, as this term is used in Rule 39, mean “deemed conclusively” or “deemed until the contrary is proven”?

iii. If it is the latter, has the Owner proved a contrary intention to oppose the settlement negotiated by MPAC and the City?

5. Should the Board cancel the Decisions and allow the Owner to respond to the City’s appeals?

6. Should the Board grant the City’s request to withdraw the City’s Deemed 2020 Appeal and the City’s Additional Deemed 2020 Appeal?

7. Was the Owner’s appeal for the 2020 taxation year filed on time?

RESULT

16The Board finds that it does have authority to initiate its own review of the Decisions, pursuant to Rule 123. The Owner did receive notice of the City’s appeal. MPAC and the City breached Rule 9, but in the circumstances of this case, it is unnecessary to impose any consequences for these breaches. The Board has the authority to impose Rule 39, and “deem” means “deemed conclusively”. The Owner’s request to set aside the Decisions is denied. The Board confirms the 2018, 2019 and 2020 Decisions. The City’s Additional Deemed 2020 Appeal is to be administratively closed. The Owner’s 2020 appeal was filed on time and, therefore, the Board will accept that appeal.

ANALYSIS AND FINDINGS

17The Board has reviewed and considered all the evidence and submissions of each party. Due to the volume of the submissions received, the Board, in this Review Decision, summarizes the salient submissions of the Owner and refers to other submissions made by MPAC and the City as the Board considers necessary.

18In this Review Decision, the Board references the Rules that were in effect on April 1, 2017 and amended in May 2019, as these were the Rules in force at the relevant times. The Board’s current Rules took effect April 1, 2021. The Board notes that the current Rules have made no substantive changes to any of the Rules referenced in this Decision.

Issue 1: Does the Board have authority to initiate its own review pursuant to

Rule 123?

19As noted above, the Owner submits that, because the Board has already considered and rejected the Owner’s Reinstatement by Request for Review, the Board does not have the legal authority to initiate a review of the Decisions or to conduct a second review. The Owner further submits Rule 120 limits who can seek a review of a final decision to “a party”, arguing that the Board is not a party to the proceeding, and, therefore, it is not an entity that can seek a review.

20The City and MPAC did not address this issue in their submissions.

Findings on Issue 1

21The relevant 2017 Rules are Rules 120, 121 and 123, which provide:

Request for Review

120. A party may request a review of any final decision of the Board, other than a decision pursuant to Rule 122, by filing a request in writing no more than 30 days after the decision was issued …

Grounds for Review

121. A request for review will not be granted unless the Board is satisfied that:

(a) the Board acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

(b) the Board made a significant error of law or fact such that the Board would likely have reached a different decision; …

Review Order

123. Upon consideration of a request for review, or on its own initiative, the Board may:

(a) dismiss the request;

(b) reinstate the appeal, with or without conditions; or

(c) after providing all parties an opportunity to make submissions,

i. confirm, vary, or cancel the decision,

ii. order a rehearing on all or part of the matter, or

iii. order a motion to decide the review. [Emphasis added.]

22Section 21.2(1) of Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) provides:

Power to review

21.2 (1) A tribunal may, if it considers it advisable and if its rules made under section 25.1 deal with the matter, review all or part of its own decision or order, and may confirm, vary, suspend or cancel the decision or order.

23The operative wording in Rule 123 is “or on its own initiative”. Rule 123 clearly allows the Board to consider a request for review submitted by a party and then make any of the dispositions set out in (a) (b) and (c), or the Board, on its own initiative, may review the decision and similarly make any of the dispositions set out in (a) (b) and (c). Therefore, the Board does not accept the Owner’s submission that the Board is not an entity that can initiate a review of a Board decision. This conclusion is further supported by s. 21.2(1) of the SPPA, in which there is no requirement that a review can only be conducted at the request of a party.

24The Board also does not accept the submission that the Board has already conducted a review pursuant to Rule 122 (Reinstatement by Request for Review), and, therefore, does not have authority to conduct a second review. Rule 122 states:

Reinstatement by Request for Review

122. Notwithstanding Rule 120, a party to a former proceeding may seek an order from the Board to reinstate an appeal by filing an affidavit with the Board, copied to all parties, no more than 30 days after the appeal was dismissed or withdrawn by the Board setting out that:

(a) the appeal was withdrawn, removed or dismissed in error;

(b) a party failed to appear at a hearing event through no fault of their own; or

(c) natural justice or procedural fairness require that the appeal be reinstated.

25It is clear that a Board Member did not conduct a review when the Owner requested a Reinstatement by Request for Review because Rule 122 did not apply. It was correctly administratively rejected by the Board Registrar on this basis. Only a Board Member may make an order under Rule 122, and in this case, a Board Member did not do so. Therefore, the Board finds that it is not conducting a second review of the Decisions.

26However, it is clear, that the Appellant could have requested a review of the Decisions pursuant to Rule 120.

27In deciding to initiate a review under these 2017 Rules, the Board has considered the communications between Sehaj Gill, (a paralegal retained by the Owner as its representative) and the Board’s Case Coordinator. On May 22, 2021, Mr. Gill e-mailed the Case Coordinator to advise that the Owner had no knowledge of the appeals and asked if the Case Coordinator could advise him as to whether there is any recourse for the Owner. The Case Coordinator responded by suggesting that Mr. Gill review Rule 122 – Reinstatement by Request for Review. However, no legal advice or direction was provided.

28Nevertheless, the Board finds that the Owner’s clear intention was to request a review of the Decisions. As no such review occurred, the Board concludes that procedural fairness warrants a review, particularly because the Owner asserts that it had no knowledge of the City’s appeal proceeding. Consequently, the Board has initiated this Review of the Decisions pursuant to Rule 123.

Issue 2: Did the Owner receive notice of the City’s appeal?

Procedural History

29In order to understand the matters to be addressed in determining this issue, it is necessary to first provide a full chronological procedural history of what transpired in this appeal proceeding. As previously noted, the City, MPAC and Board all used a mailing address that the Owner acknowledges is its correct mailing address.

Chronology

30The chronology is as follows:

1. April 3, 2018: The City filed its appeal with the Board, which was mailed to the Owner the same day.

2. October 22, 2018: The City’s representative mailed a Request for Additional Disclosure to the Owner.

3. February 11, 2019: The City’s representative mailed, by express post, a copy of its Statement of Issues and a Notice of Higher Assessment to the Owner. On February 14, 2019, the City received a “bill of lading” provided by Canada Post which confirms the tracking details for the delivery of this correspondence. It shows that on February 14, 2019, the package was accepted by an individual named Mr. Enfantino.

4. April 8, 2019: Canada Post returned the City’s Request for Additional Disclosure which had been mailed on October 22, 2018. A hand-written note on the envelope states “not at this address”.

The City’s legal representative then contacted the City for the Owner’s address information. The City of Ottawa has an on-line system to view property tax bills. To register for this system, the property owner must provide an e-mail address. For the Subject Property, the City provided its legal representative with the e-mail address for Maurice Kamwa, a Controller at Katasa Groupe.

5. April 10, 2019: The City’s representative sent an e-mail to Mr. Kamwa, copying MPAC's representative, which attached the City’s Notice of Appeal, Statement of Issues, Notice of Higher Assessment, and a photo of the returned envelope.

The Owner acknowledges that this e-mail was delivered to Mr. Kamwa’s e-mail inbox, but states that Mr. Kamwa inadvertently failed to forward it to Jean-Pierre Michon, who is the Katasa Groupe’s Real Estate Manager responsible for property tax matters.

6. August 5, 2019: This is the due date for the respondents (MPAC and the Owner) to serve their Statements of Response in the City’s appeal proceeding.

7. August 14, 2019: MPAC's representative serves its Statement of Response by e-mailing it to the City and mailing it to the Owner.

8. September 15, 2019: As neither the City nor MPAC had received a Statement of Response from the Owner, they began settlement discussions, ultimately arriving at a settlement.

9. November 25, 2019: The Board’s Rules require that, after the parties attempt to negotiate a settlement of the appeals, they must file a form entitled “Mandatory Meeting Form” to advise the Board whether the appeal proceeding is resolved. MPAC's representative e-mailed the completed Form to the Board by the required due date, copying the City. The e-mail states that this Form was mailed to the Owner.

On November 25, 2019, the Board’s Case Coordinator replied to MPAC's e-mail, indicating that the Board Rules provide that the parties have up to 97 days in which to file executed minutes of settlement.

10. November 29, 2019: MPAC sent a copy of the Minutes of Settlement to the Owner by ordinary mail.

11. December 19, 2019: MPAC's representative e-mailed the Board, attaching the Minutes of Settlement executed by MPAC and the City. MPAC only copied the City’s representative on this e-mail. MPAC’s e-mail further states that the Owner had not participated in the appeal proceeding and further indicated that, on November 29, 2019 MPAC had mailed a copy of the Minutes of Settlement to the Owner. A copy of this letter was attached to the e-mail.

12. January 29, 2020: MPAC mailed to the Owner an Amended Property Assessment Notice for the 2020 taxation year. In its evidence, the Owner acknowledges that this Notice was sent by MPAC, and provides a copy of this Notice which was stamped as received on February 10, 2020 (affidavit of Mr. Michon, sworn January 12, 2021, paragraph 31 and Exhibit W)

13. March 27, 2020: The City’s representative e-mailed the Board, copying MPAC's representative, noting that the Board had not yet issued a decision in accordance with the Minutes of Settlement, and requested that the Board do so. The Owner was not copied on this e-mail.

14. April 24, 2020: The Board issued the Decisions, mailing a copy of them to all three parties. The Owner acknowledges receiving the mailed copy of the Decisions.

31Regarding other documents mailed to the Owner, MPAC points out that the Owner filed a request for reconsideration with MPAC in March 2018 (discussed in greater detail below), which was in response to a Property Assessment Notice mailed to the Owner.

Relevant Legislation and Rules respecting service of documents

32Section 40(9) of the Act states:

Where appeal concerns another person

(9) Where the appeal concerns the assessment of another person,

(a) the notice of appeal shall state a name and address where notices can be given to the person; and

(b) the appellant shall deliver or mail a copy of the notice of appeal to the person within the time limited by subsection (6), (7) or (8), as the case may be.

33Rules 27 to 30 of the 2017 Rules provide as follows:

Form of Service

27. Documents must be served on any person in one of the following ways:

(a) personal delivery;

(b) regular or registered mail to the last known address of the person or their representative;

(c) fax, but only if the document is less than 30 pages in length or with consent of the person being served;

(d) courier;

(e) email; or

(f) any other way agreed upon by the parties or directed by the Board.

Service on Corporations

28. Service on a corporation may be made, in accordance with Rule 27, on the registered office of the corporation.

Deemed Receipt

29. Where a document is served by a person, filed with the Board, or sent by the Board, receipt is deemed to have occurred when served or sent by:

(a) personal delivery, when given to the party;

(b) regular mail, on the fifth day after the postmark date;

(c) fax, when the person sending the document receives a confirmation of successful transmission;

(d) courier or registered mail, on the confirmed delivery date; or

(e) email, on the day sent.

Deemed Receipt Exception

30. Rule 29 does not apply if the person for whom the document was intended establishes that through absence, accident, illness or other cause beyond that person’s control, the document was not received until a later date or not at all.

Submissions

34The Owner submits that it did not receive notice of the appeal and that the Owner should not be deemed to have received such notice pursuant to Rule 29.

35The Owner submits that the City and MPAC did have an e-mail address for the Owner which they could and should have used. In this regard, the Owner observes that the April 10, 2019 e-mail sent by the City to Mr. Kamwa stated that the City copied MPAC on the e-mail to ensure that MPAC had the Owner’s e-mail address for its records in order to avoid any mail returns. In this regard, the Owner further notes that, when MPAC issued its general reassessment of the Subject Property, the Owner then filed a request for reconsideration. The Owner notes that, in the course of the reconsideration process, MPAC had contacted the Owner’s corporate president at his e-mail address, but subsequently, in the appeal proceeding, MPAC never sent any of its documents to the Owner at this e-mail address.

36The Owner further submits that the “deemed” receipt rule must be rebuttable. In that regard, the Owner argues that Rules must not only comply with legislation, they must comply with core common law principles. The Owner submits that deeming is usually rebuttable, and must be in this case, given the core common law rights the deeming purports to remove. In support of this submission, the Owner relies on a decision of the Divisional Court in Nobody v Ontario Civilian Police Commission, 2016 ONSC 7261 (“Nobody”), at paragraph 15, where the Court stated that while:

… the use of the word ‘deem’ can give rise to an irrebuttable presumption, that is not always the case. Context matters. The purpose of the deeming provision is a crucial consideration.”

37The Owner further asserts that this submission is in line with the reasons of Justice Cartwright in Gray v. Kerslake, 1957 CanLII 21 (SCC), [1958] SCR 3 (“Gray”) where the Court cites with approval the statement that reading “deemed” as “deemed until the contrary is proven”, “will not only save the legislation from being unjust but also from being absurd.”

38Regarding Rule 30 - Deemed Receipt Exception, the Owner submits that the Rule sets a low bar for removing deemed service, and that it need only establish that an “accident” resulted in the document not being received. The Owner asserts that it does not know why the documents mailed to it did not come to its attention, just that they did not, although the Owner concedes that the causes of this lack of awareness are likely, in part, due to administrative inadvertence. The Owner further emphasizes that actions of the City and MPAC in failing to copy the Owner on e-mails were outside of the Owner’s control. In summary, the Owner maintains that its evidence is sufficient to rebut the deemed receipt of any documents mailed in the course of this appeal proceeding.

39Regarding the matter of overlooking the City’s April 10, 2019 e-mail, the Owner argues that humans make mistakes, and that its mistake, which the Owner characterizes as an “accident”, as this term is used in Rule 30, resulted in the Owner remaining unaware of the appeals. The Owner maintains that it cannot be said that it had control of an accident. For this reason, the Owner submits that these facts fall within the ambit of Rule 30, when liberally read, and, therefore, deemed receipt of the mailed correspondence should be rebutted here.

40The Owner submits that it is also unclear what documents were actually sent to it. The Owner observes that MPAC does not provide evidence that its disclosure letter, its disclosure documents, its Statement of Response, or the settlement letter were served on the Owner by mail or at all. The Owner emphasizes that, in each case, MPAC’s affiant only refers to what is stated in the e-mails that were sent to the City or the Board. The Owner acknowledges that the evidence of the City is less ambiguous regarding what was sent, but the Owner, nevertheless, maintains that its evidence is clear that it cannot find in its records any of the documents related to these appeals.

41The Owner submits that it was effectively excluded from the appeal because, once the City and MPAC had identified the Owner’s e-mail address on April 10, 2019, neither of them used this e-mail address for any subsequent correspondence, choosing instead to send the correspondence by mail. The Owner submits that the result of not using the two e-mail addresses was to effectively exclude the Owner from participating in the appeal proceeding, which the Owner asserts is fundamentally unfair. The Owner claims that their failure to communicate by e-mail indicates that the City and MPAC did not want the Owner involved in the appeals.

42The City’s asserts that, although it did send correspondence by e-mail on one occasion, it did not receive a response from the Owner, and, therefore it was reasonable to conclude that it would be unsafe to continue to use the e-mail address. In response, the Owner argues that the City does not explain how an e-mail registered with the City by the Owner poses that risk, or why sending the same documents through post removes that risk. The Owner also argues that, with only one e-mail sent, the City also fails to explain why it could not follow up by telephone call or e-mail to ensure receipt, a practice that is routinely used by professionals.

Findings on Issue 2

43In adjudicating this issue, there are two main questions to be addressed. The first question is whether the documents sent by MPAC and City were delivered to the Owner, and, if so, the second question is whether the Owner has established that Rule 30 – Deemed Receipt Exception applies. In addressing these questions, the Board must consider the following:

• Did the City comply with s. 40(9) of the Act?

• Does the deeming provision in Rule 30 mean “deemed until the contrary is proven”?

• Were the Appeal Documents sent to the Owner?

• Were the mailed documents delivered by Canada Post to the Owner’s mailing address?

• Did the Owner fail to receive the appeal documents through “accident” or “other cause beyond its control”?

• Does overlooking the e-mail sent on April 10, 2019 qualify as an accident?

• Were the City and MPAC required to deliver documents to the Owner by e-mail?

• Should the City and MPAC have sent correspondence to the Owner by e-mail?

• Did the communications sent by MPAC and City give the Owner notice of the City’s appeal?

Did the City comply with s. 40(9) of the Act?

44Section 40(1) of the Act provides that any person, including a municipality, may appeal the assessment of a property. Section 40(9) applies when a person, other than the person whose assessment is the subject of the appeal (i.e. the property owner), appeals in writing to the Board. This subsection requires that the appellant shall deliver or mail a copy of the notice of appeal to the assessed person.

45Consequently, the first question is whether the City’s appeal was properly served on the Owner. While this question was not raised in the party’s submissions, it is appropriate to address this issue, as the requirement to mail a copy of the appeal to the assessed person, is a statutory pre-condition to filing an appeal, not a requirement of the Board’s Rules. The evidence confirms that the City did comply with the requirement in s. 40(9) of the Act to deliver or mail a copy of the notice of appeal to the person, and, as previously noted, the Owner does not assert that the address was incorrect.

46It is important to note that s. 40(9) of the Act does not include a deemed receipt exception. All that is required is that the notice of appeal shall state a name and address where notices can be given to the assessed person, and that it be mailed to that person.

Does the deeming provision in Rule 29 mean “deemed until the contrary is proven”?

47Rule 29 provides that when a document is served, service is deemed to have occurred. Rule 30 provides an exception to this deeming provision:

Deemed Receipt Exception

30. Rule 29 does not apply if the person for whom the document was intended establishes that through absence, accident, illness or other cause beyond that person’s control, the document was not received until a later date or not at all.

The Owner relies on the decisions in Nobody and Gray, which indicate that the term “deem” may not be absolute, and, therefore, in appropriate cases, “deem” may be interpreted as meaning “deemed until the contrary is proven”. The Board finds that these decisions provide no further assistance in respect of this particular issue, as Rule 30 already incorporates the “deemed until contrary is proven” principle.

Were the Appeal Documents sent to the Owner?

48Regarding MPAC's submissions, the Owner notes that the evidence filed by MPAC in this Review proceeding are e-mails which state that documents are attached. However, the attached documents, themselves, have not been provided to the Board. Therefore, the Owner submits that it is unclear what documents were actually sent by MPAC. The Board does not accept this submission. MPAC provided a sworn affidavit confirming that the e-mails which MPAC sent to the Owner were sent and attached a copy of the e-mails. Each e-mail references a specific document, and states that the document was mailed to the Owner. There is nothing in the evidence provided to the Board to indicate that MPAC's evidence is false. Respecting the documents sent by the City, the Owner concedes that the City’s evidence is “less ambiguous”. The City mailed its Notice of Appeal to the Owner on April 3, 2018 and other appeal documents on February 11, 2019. It is important to note, as well, that while the Owner states that it has no record of receiving the documents, the Owner does not suggest that the documents were not mailed by MPAC and the City. Consequently, the Board finds that the City and MPAC did mail all the documents as stated in their evidence. Respecting the City’s April 10, 2019 e-mail, the Owner does not dispute that it received this e-mail.

49As the Board has found that the appeal documents were sent to the Owner by mail, and then again by e-mail on April 10, 2019, they are deemed to be received in accordance with Rule 29, unless the Owner can establish that an exception to deemed receipt applies pursuant to Rule 30.

Were the mailed documents delivered by Canada Post to the Owner’s mailing address?

50The Board observes that it is possible that a document sent by mail may not be delivered by the postal service. However, the Board does take notice that Canada’s postal service is reliable, otherwise tribunals and courts would not provide that delivery by mail can be substituted for personal service. It is expected, therefore, that the failure to deliver mailed correspondence is an infrequent exception rather than the rule. It is also expected that, if mailed correspondence cannot be delivered, that it will be returned to the sender provided that a return address is provided. In this case, this is what occurred when the City’s mail sent on October 22, 2018, was returned as undeliverable.

51The evidence clearly indicates that documents were mailed by ordinary mail to the Owner’s correct mailing address a total eight times over a three-year period from April 2018 to April 2021. Only one document, mailed by the City, was returned with a hand-written note on the envelope that states “not at this address”. No other mail was returned.

52The Board concludes that it becomes increasingly unlikely that Canada Post would have failed to deliver all seven mailings without providing the senders with a notice that each mailing was undeliverable. The Board also notes that the Owner acknowledges that it did receive the Board’s mailing sent on April 24, 2020, which enclosed the Board’s Decisions, as well as the Amended Property Assessment Change Notice sent by MPAC on January 29, 2020. Based on this evidence, the Board finds that, not only was the mail sent by the other parties, each of the seven mailings was delivered to the Owner’s correct mailing address.

Did the Owner fail to receive the appeal documents through “accident” or “other cause beyond its control”?

53The central question in determining whether the deemed receipt exception in Rule 30 applies is whether the Owner has established that it did not receive any of the appeal documents – including the documents sent by regular mail, express post delivery, and the April 10, 2019 e-mail – “through absence, accident, illness or other cause beyond that person’s control”.

54Turning first to the test to be applied, clearly the burden rests on the person seeking the benefit of the exception to establish that Rule 30 applies. The Owner submits that Rule 30 “sets a low bar for removing deemed service”. The Board does not accept this submission. Allowing for service by mail or other means is a well-established principle adopted by both courts and administrative tribunals. Its purpose is to ensure efficiency in the administration of justice. Documents sent by mail are presumed to be received. Therefore, clear evidence must be provided to displace this presumption. That being said, the Board recognizes, as noted in Laptev v Municipal Property Assessment Corporation, Region 27, 2019 CanLII 55269 (ON ARB) (“Laptev”), a request for review decision issued by the Associate Chair of the Board, that “Rule 30 turns on control and fault and, as a practical matter, it may fall to the responding parties to point out fault when deemed receipt is at issue” (see para. 12). The Board in Laptev also noted, at para. 10, that it is also necessary to consider that there may be difficulty in proving a negative, i.e. that the person did not receive the mailed document.

55Under Rule 30, the cause by which a person does not receive the document may vary (absence, accident, illness or other cause), but, whatever the cause, it must be beyond that person’s control. The term “accident” must be interpreted in this context. Therefore, the cause of the accident must be external to the person’s control. Using the control/fault terms referenced in Laptev, if the failure to receive the document is due the person’s error, the cause is not beyond that person’s control. To hold otherwise would mean that any person could meet the requirements of the deemed exception rule simply by failing to read a document when it was received. For this reason, the Board does not accept the Owner’s submission that a person’s mistake or error can be characterized as an accident over which the person has no control.

56Finally, as a determination of the application of Rule 30 is evidence based, each case must be determined on its own merits.

57Turning now to the application of the test in this case, it is incumbent on the Owner to demonstrate that, through causes beyond its control, it did not receive the mail that was delivered to it. While the Board remains mindful that it may be difficult to prove a negative, with seven mailings being delivered, some rational explanation is required to substantiate that the Owner did not receive the delivered mail. In this case, the Owner only asserts that it searched its records and could not find any record that it received these documents. As the City observed in its submissions, the Owner has not provided evidence as to its mail tracking and cataloging procedures, or internal policies and procedures to ensure that mail, potentially including important legal documents, is directed to the appropriate responsible employee. The Board also notes that the Owner has not explained how the documents would not have come to its attention if its office procedures were followed. In this regard, the Board further notes that, in its submissions, the Owner concedes that the causes of its lack of awareness of these mailed documents are likely due, in part, to its own administrative inadvertence. Therefore, on this evidence alone, the Board would find that the Owner has failed to establish that it did not receive the documents due to causes beyond its control.

58Regarding the City’s mail which sent by express post, the evidence indicates that a real estate management firm, known as the Katasa Groupe, acts as agent for the corporate Owner. The Owner states that a person named Mr. Infantino is employed as a Project Manager by the Katasa Groupe. When the express post was delivered, Canada Post obtained a receipt which it subsequently provided to the City. Although the name of the person who signed the receipt is shown as Mr. Enfantino, the Board finds that it is highly improbable that someone other than Mr. Infantino signed the receipt for the express post delivery. While the evidence is that Mr. Infantino states that he has no recollection of signing for the mailed package, that does not mean that he didn’t receive it. Consequently, the Board finds this mail was delivered to the Owner’s agent who received it. If, as the Owner states, this mail was overlooked and did not come to the immediate attention of the Owner, this clearly is an error which was within the Owner’s control.

Does overlooking the e-mail sent on April 10, 2019 qualify as an accident?

59The Board now turns to the Owner’s submission that the Owner did not receive the April 10, 2019 e-mail through accident, the Owner’s evidence being that the e-mail recipient, Mr. Kamwa overlooked the e-mail. The Board does not accept that this is an accident within the meaning of Rule 30. Overlooking this e-mail clearly is an error that was in the Owner’s control, and, therefore, does not qualify as an accident.

Were the City and MPAC required to deliver documents to the Owner by e-mail?

60Rule 27 provides that documents must be served in one of several ways, including regular or registered mail. This Rule does not mandate that any one of the enumerated methods of service must be employed in certain circumstances. For this reason, the Board does not accept the Owner’s submissions that either the City or MPAC were required to serve documents by e-mail, once they obtained an e-mail address for the Owner.

Should the City and MPAC have sent correspondence to the Owner by e-mail?

61The Owner points out that in the process of its reconsideration which it filed in 2018, it provided MPAC with the e-mail address of its corporate President, and that MPAC successfully communicated with the President by e-mail at that time. The Owner also notes that MPAC was copied on the April 10, 2019 e-mail sent by the City, in which the City states that it copied MPAC to ensure that MPAC had the e-mail address as well. The Owner submits that, regardless of their intentions, the result of not using these e-mail addresses was to effectively exclude the Owner from participating in the appeal proceeding. The Owner further asserts that it was not included in any communications or negotiations that took place between MPAC and the City. The Owner argues that this is fundamentally unfair.

62The City argues that, since it received no response to its e-mail sent on April 10, 2019, it would have been unsafe to continue to use the e-mail address without having received a response from the Owner. The Owner replies that this does not explain how an e-mail, which was registered with the City by the Owner, poses that risk, or why sending the same documents through post removes that risk. The Owner further argues that, with only one e-mail sent, the City has also failed to explain why it could not follow up by telephone call or e-mail to ensure receipt, a practice that the Owner asserts is routinely used by professionals.

63In addressing this submission, the Board notes that the evidence is unclear as to whether MPAC was aware that it had an e-mail address which was different from the e-mail address obtained by the City. As for the decision by the City and MPAC to send documents by ordinary mail after the Owner failed to respond to the City’s April 10, 2021 e-mail, the Board has already observed that only one mailing was returned as undeliverable. Therefore, in these circumstances, it was not unreasonable for them to conclude that the best approach would be to use ordinary mail. There is no evidence to indicate that a telephone follow-up is a best practice. Furthermore, while it may be a courtesy for the City and MPAC to engage in a “follow-up” communication with the Owner, the Board’s Rules do not oblige parties to provide this type of assistance. Appeal proceedings before the Board are adversarial in nature. In this context, a party is not expected to assist another party in managing its case.

64The Board also does not accept the Owner’s submission that the result of not sending correspondence by e-mail, other than the April 10, 2019 e-mail, was to effectively exclude the Owner from participating in the appeal proceeding. The documents were mailed and delivered to the Owner. When the October 22, 2018 mail was returned to the City in April 2019, the City acted promptly to obtain an e-mail address for the Owner and to e-mail the correspondence to the Owner. If anything, this evidence indicates that the City and MPAC continued to respect the Owner’s role as a statutory party in the City’s appeal proceeding.

65In any event, the determinative factor is found in Rule 27 which provides that documents may be served by any one of the methods listed in this Rule. This Rule does not provide that service must by e-mail, or even that service by e-mail is the preferred method of service.

Did the communications sent by MPAC and City give the Owner notice of the City’s appeal?

66The Board has found that the Owner has failed to establish that, other than the October 22, 2018 mailing, it did not receive any of the delivered correspondence due to causes beyond the Owner’s control.

67It is important to note that, in the circumstances of this case, the substantive issue is whether the Owner received notice of the existence of the City’s appeal proceeding. The Board’s decision must be based on the totality of the evidence. In this context, the most compelling evidence is (i) the April 10, 2019 e-mail sent to the Owner, receipt of which is acknowledged by the Owner, that attached the City’s Notice of Appeal, Statement of Issues, and Notice of Higher Assessment; and (ii) the express post mail sent February 11, 2019, where there is a written acknowledgment of the acceptance of the mailing which included the City’s Statement of Issues and a Notice of Higher Assessment. Added to those is the unlikelihood that none of the mailings sent to the Owner’s correct mailing address by regular mail reached their intended destination. Any one of the mailed documents would have brought this proceeding to the Owner’s attention, providing sufficient notice to the Owner of the proceeding to permit an adequate opportunity to respond and ensure procedural fairness. To hold otherwise, would mean that any party who received a mailed document or an e-mail could avoid its responsibility to comply with the Board’s Rules simply by saying that he or she missed reading it. If multiple parties in an appeal proceeding acted in the same manner, it would be impossible for the Board to control its process to ensure procedural fairness and to efficiently and fairly complete an appeal proceeding. The Board finds that this would constitute an abuse of the Board’s process. While a party has the opportunity to be heard, it also has a responsibility to manage its own affairs in order to meet its obligation to participate in an appeal proceeding in accordance with the Board’s Rules.

Summary

68The Board has found that all of the mailings but one were delivered by Canada Post and received by the Owner, and the one that was not received was subsequently e-mailed to the Owner. The Board has also found that, to the extent that the Owner was unaware of any of the mailings or the e-mail sent by the City, it is due to causes in its control, and, therefore the Deemed Receipt Exception provided in Rule 30 does not apply. Furthermore, the Board has found correspondence that was sent clearly provided the Owner with notice of the City’s appeal proceeding in advance of the due date set under the Schedule of Event for the Owner to file its Statement of Response.

Issue 3: Did MPAC and City fail to comply with Rule 9, and, if so, what should be the consequences of such non-compliance?

69Rule 9 states:

Communication with the Board

9. All communication with the Board in relation to any proceeding must be copied to, or in the presence of, all other parties to the proceeding.

70It is clear that the Owner was not copied, either by mail or e-mail, on: (i) MPAC's December 19, 2019 e-mail to the Board which attached the Minutes of Settlement; and (ii) the City’s March 27, 2020 e-mail to the Board requesting that the Board proceed to issue decisions in accordance with the Minutes of Settlement. As Rule 9 requires that a party must copy all other parties when corresponding to the Board, MPAC and the City clearly breached Rule 9. The fact that the Owner did not file a Statement of Response does not vitiate its status as a statutory party in the appeal proceeding.

71As the Owner has pointed out, Rule 8 provides that the Board will determine the appropriate consequences of non-compliance with these Rules. The question, therefore, is what should be the consequences in the circumstances of this case?

72The City argues that there should be no consequences. In support of this argument, the City asserts that, later in 2020, the Owner committed a similar breach of Rule 9 when it contacted the Board regarding its attempt to file its own appeal for the 2020 taxation year, without copying MPAC and the City on its communication. The City submits that it is a well-known principle of common law that a party seeking a remedy before a judicial decision-maker “should come to the court with ‘clean hands’”.

73In addressing this submission, the Board notes that it has found that the Owner did not breach Rule 9 (see Issue 5 below). However, even if the Owner had breached Rule 9, this does not excuse the City and MPAC from the consequences of their breach of this Rule. Therefore, the Board does not accept the City’s argument.

74The Owner argues that the appropriate consequence for the breach is that the Decisions be set aside, asserting that the settlement was made by effectively excluding the Owner from discussions regarding the appeal.

75In addressing the Owner’s argument, the Board finds that an appropriate consequence must be commensurate with the impact of the breach, as measured in the context of the circumstances of the individual case. Furthermore, fairness requires that the Board consider prejudice to any of the parties, as well as the efficiency of the Board’s process. In this case, MPAC's e-mail confirmed that it had mailed the Minutes of Settlement to the Owner. Therefore, the only impact of the breach is that the Owner would have been unaware that MPAC had sent the Minutes of Settlement to the Board. Similarly, the only impact of the City’s breach, is that the Owner would have been unaware that the City had asked the Board when the decisions would be issued. The Board does not accept the Owner’s assertion that this would effectively exclude it from discussions regarding the appeal, as the negotiation of the agreement and the delivery of written Minutes of Settlement to all parties occurred before the breaches of Rule 9.

76The question, therefore, is what impact did these breaches have on the Owner’s position in the proceeding at the time the breaches occurred? By the time the breaches had occurred, the Owner had already failed to serve its Statement of Response by the deadline, and, therefore, Rule 39 applied. Consequently, MPAC and the City were permitted to file the Minutes of Settlement with the Board, and request that decisions be issued. Had the Owner been copied on those e-mails, it is true that the Owner could have raised its objection at that time. However, the Owner also could, and has, raised the same objection once the Decisions were issued. Therefore, the only impact of the breaches was a short delay before the Owner raised its objection. The City and MPAC have not argued that this delay is a relevant consideration. Therefore, the Board finds that the breaches have had no impact on the Owner’s position.

77For these reasons, the Board finds that it is appropriate to impose no consequences for the breaches by MPAC and the City in the circumstances of this case. Any prejudice to the Owner stemming from the breaches has been rectified by the current review of the Decisions.

Issue 4: Is the Owner deemed not to oppose the settlement, pursuant to Rule 39?

i. Does the Board have the jurisdiction to impose Rule 39?

ii. If so, does “deem”, as this term is used in Rule 39, mean “deemed conclusively” or “deemed until the contrary is proven”?

iii. If it is the latter, has the Owner proved a contrary intention to oppose the settlement negotiated by MPAC and the City?

Relevant Legislation and Rules

78The SPPA provides:

Liberal construction of Act and rules

2 This Act, and any rule made by a tribunal under subsection 17.1 (4) or section 25.1, shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.

Disposition without hearing

4.1 If the parties consent, a proceeding may be disposed of by a decision of the tribunal given without a hearing, unless another Act or a regulation that applies to the proceeding provides otherwise.

Abuse of processes

23. (1) A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

Rules

25.1 (1) A tribunal may make rules governing the practice and procedure before it.

Application

(2) The rules may be of general or particular application.

Consistency with Acts

(3) The rules shall be consistent with this Act and with the other Acts to which they relate.

79Rules 39, 69, 70, and 82 provide as follows:

Deemed Consent

39. A party that does not serve a statement of response in a general proceeding on or before the day set out in the schedule of events is deemed not to oppose any future settlement in that proceeding.

Schedule for Completion of Minutes of Settlement

69. Minutes of settlement must be completed as follows, unless the Board directs otherwise:

(a) MPAC, or the municipality, if MPAC is not a party to the appeal, must draft the written minutes of settlement, and serve those minutes on all other parties, within 60 days of any party advising the Board that the appeal has been resolved;

(b) all other parties must execute the minutes of settlement, and return them to MPAC or the municipality, as the case may be, within 90 days of advising the Board the that the appeal has been resolved; and

(c) MPAC, or the municipality, as the case may be, must file the fully executed minutes of settlement with the Board within 7 days of receipt of the fully executed minutes of settlement.

Decision to Issue

70. The Board may issue a decision in accordance with minutes of settlement that are not fully executed if:

(a) the minutes of settlement are executed by all parties but one;

(b) the time set in Rule 69 for executing minutes has passed; and

(c) a party has requested that the Board issue the decision.

Dates Fixed

82. After the day set in Rule 33 as the start of a proceeding the Board will not alter any timeline set out in the schedule of events, other than in exceptional circumstances.

Introduction

80As the Board has found that the Owner did receive notice of this appeal proceeding and that the deemed receipt exception in Rule 30 does not apply, the Owner has failed to comply with the requirements set out in the Schedule of Events.

81As the Owner has not filed a Statement of Response by the date set out in the Schedule of Events, Rule 39 provides that the Owner is deemed not to oppose the settlement negotiated by MPAC and the City. Accordingly, the other parties are entitled to negotiate a resolution of the appeal, file written minutes of settlement executed by them, and then request that the Board issue a decision in accordance with the Minutes of Settlement.

82The Owner, however, has made submissions which, in substance, challenge the Board’s jurisdiction to impose Rule 39.

Issue 4(i): Does the Board have the jurisdiction to impose Rule 39??

Submissions

83The Owner submits that the Board’s Rules cannot remove the basic common law requirement that an order must either have the consent of all parties or adjudicative oversight. In support of this submission, the Owner cites several decisions, in addition to Nobody and Gray, which the Board addresses in its findings below.

84The Owner states that the ground on which it relies for this Review is Rule 121(a) - the Board acted outside its jurisdiction or violated rules of natural fairness. The Owner challenges the Board’s jurisdiction to impose Rule 39, arguing that a decision made without the consent of all parties, and without a judicial determination cannot stand.

85Regarding the Owner’s request for reconsideration, the Owner submits that this indicates that the Owner clearly disagreed with MPAC's assessed value of the Subject Property.

86The Owner emphasizes that, upon receiving the Decisions, it diligently acted on a timely basis to retain a legal representative and submit a Reinstatement by Request for Review of the Decisions.

87The Owner asserts that when no interest is taken in an appeal by a responding party, Rule 39 permits the appeal to be processed without a hearing by deeming consent to minutes that are not fully executed. However, the Owner submits that if a party objects to a settlement, Rule 39 cannot be used as a weapon to keep that party out of an appeal or force it to consent when it expressly does not. In support of this submission, the Owner relies on Nobody, where the Divisional Court stated, at paragraph 19, that “the deeming provision cannot be employed as a weapon to deprive…” a party of rights. The Owner argues that similar reasoning applies to the use of Rule 39.

88MPAC and the City argue that the Board does have the authority to impose Rule 39 pursuant to Rule 25.1 of the SPPA.

Findings on Issue 4(i)

Introduction

89The Board begins by first examining the purpose, function, and rationale for Rule 39, as this information provides relevant context for the Board’s analysis and findings in respect of Issue 4(i)(ii) and (iii).

Purpose, function, and rationale for Rule 39

90Pursuant s. 25.1 of the SPPA, the Board may make rules governing the practice and procedure before it. To understand the Board’s Rules, particularly the purpose of Rule 39, it is necessary to understand the practical constraints in regulating the practice and procedure for the appeal proceedings within the Board’s jurisdiction.

91Section 40 of the Act provides that an assessment appeal respecting a particular property may be filed by any person, irrespective of whether that person owns the property. Section 40 further provides that several persons are statutory parties: the assessed person (i.e. the property owner); the municipality in which the property is located; and MPAC. They are each automatically made parties irrespective of whether they wish to participate in the appeal proceeding. As discussed below, some statutory parties choose not to participate in an appeal proceeding (“non-participating party”). Consequently, the Board’s Rules must address the procedural implications of non-participating statutory parties.

92In the past, the Board experienced significant chronic delays in completing appeal proceedings, some proceedings taking literally years to be resolved. One contributing factor was a practice where a party would delay its participation in a proceeding while it waited for the other parties to negotiate a settlement. It they did, and the party disagreed with the settlement, the party would then seek to actively participate in the proceeding, which would require that the parties repeat the pre-hearing processes for exchange of pleadings (Statement of Issues, Response and Reply) and further exchange of disclosure. Similarly, a non-participating responding statutory party may have delayed its participation in an appeal proceeding due to administrative mismanagement, and, subsequently seek to participate in the proceeding, which would again require that the pre-hearing process of exchanging pleadings and disclosure should be repeated. This system problem impaired and delayed the parties’ ability to proceed to complete their pleadings and exchange of disclosure on a timely basis, and, most importantly, to engage in timely negotiations to resolve the appeal proceeding.

93The circumstances described above were common. There are 444 municipalities in Ontario. The majority of these municipalities elect not to participate in appeal proceedings for any of the properties located in their municipality, choosing to leave it to MPAC to respond to an appeal. In other cases, a municipality may choose to participate in some property appeal proceedings (typically, higher value properties) but not in others. Consequently, there was no clear way for other parties to identify if a municipality intended to actively participate in any particular proceeding. Furthermore, if the responding parties did negotiate an agreement, a non-participating party was under no obligation to respond to any request to approve the minutes of settlement. Also, where a non-participating municipality did not participate in the settlement, it was also often reluctant to endorse an agreement negotiated by the other parties. All that could be said is that the municipality did not oppose the settlement. In some cases, this uncertainty discouraged participating parties from engaging in meaningful settlement negotiations. The Board hastens to point out, that the same problems existed where the non-participating responding party was someone other than a municipality, although such cases were relatively infrequent.

94Needless to say, these practices resulted in an abuse of the Board’s process and did not result in the most expeditious or cost-effective determination of the appeal proceeding. The Board’s operations were inefficient, as it was unable to effectively control the completion of appeal proceedings on a timely basis. To rectify this system problem, the Board introduced Rule 39. The purpose of Rule 39 is to require that a statutory responding party must file a Statement of Response, in order to identify that it intends to actively participate in the appeal proceeding. If a responding statutory party does not file a Statement of Response by the required due date, then the other participating parties may proceed to negotiate a resolution of the appeals on their own. If they are successful in negotiating a resolution, they may then proceed to file minutes of settlement with the Board.

95The Board observes that, if a non-participating party’s consent is necessary, but is not provided, this would require that the Board schedule and conduct a hearing. Given the large volume of appeal proceedings that are resolved through a negotiated settlement, this would require that the Board schedule literally tens of thousands of uncontested hearings over a four-year assessment cycle. A very significant amount of additional time and resources would be unnecessarily expended by both the participating parties and the Board. Clearly, this would not secure the most expeditious and cost-effective determination of these appeal proceedings, nor would it permit the Board to be efficient in its operations.

96The Owner has argued that the purpose of Rule 39 is to “bolster” the requirements of Rules 69 and 70, which set out the requirements for completing and filing written minutes of settlement once a settlement has been negotiated. Rule 70 provides:

Decision to Issue

70. The Board may issue a decision in accordance with minutes of settlement that are not fully executed if:

(a) the minutes of settlement are executed by all parties but one;

97The purpose of Rule 70 is to address the circumstance where all participating parties have agreed to the settlement, but one of them fails to provide its signature on the minutes of settlement within the timeline set out in Rule 69. To avoid delay, Rule 70 waives the requirement that one required signature, i.e. a participating party’s signature, be shown on the minutes of settlement, so that the minutes of settlement can be filed in compliance with the timelines set out in Rule 69. Therefore, the purpose of Rule 39 is not to “bolster” the requirements of Rules 69 and 70. Rule 39 has its own purpose, namely, to identify that a non-participating party’s consent to a settlement is not required. This interpretation of the Board’s Rules is made clear in 3242795 Nova Scotia Limited v Municipal Property Assessment Corporation, Region 22, 2019 CanLII 25954 (ON ARB) (“Nova Scotia”) (discussed in greater detail below).

Common law requirement that an order must either have the consent of all parties or be judicially determined by the Board

98The Owner submits that the Board’s Rules cannot remove the basic common law requirement that an order must either have the consent of all parties or adjudicative oversight. In addressing this submission, the Board first makes two preliminary observations. First, the Owner's submission refers to the common law jurisdiction of the civil court system, i.e. the Superior Court of Justice. The second is that the status of a responding party in a Board proceeding is functionally equivalent to the status of a defendant in a Superior Court proceeding. Both are parties who respond to the issues raised in an appellant’s appeal. In this regard, from a procedural perspective, the requirement that a defendant serve a Statement of Defence is functionally equivalent to the Board’s requirement that a responding party serve a Statement of Response.

99The Owner has cited two decisions of the Ontario Superior Court (discussed below) which indicate that a party’s consent to a settlement is required for a consent judgment to be issued. Similarly, s. 4.1 of the SPPA states: “If the parties consent, a proceeding may be disposed of by a decision of the tribunal given without a hearing, unless another Act or a regulation that applies to the proceeding provides otherwise.” Therefore, where the consent of a party to a Court or Board proceeding is required, but not given, any Court or tribunal decision issued without an adjudicated hearing cannot stand. However, that is not is not the issue in this case. The issue is whether the Board’s Rules can dispense with the required consent. In this regard, the Board notes that s. 4.1 of the SPPA is silent on this issue.

100As the Owner has submitted that there is a basic common law requirement that an order must have the consent of all parties, by implication, the submission is that the consent cannot be waived. Therefore, it is necessary to consider whether this is true, i.e. does the Superior Court’s process provide that a defendant’s right to consent cannot be waived where the defendant does not serve and file a Statement of Defence. The Board notes that this analysis is relevant to the decision the Board must make in this Review. Parties in a Court proceeding are entitled to natural justice and procedural fairness, just as the parties to a tribunal proceeding. If the Court’s Rules of Civil Procedure provide that a defendant’s consent can be waived, this is clear confirmation that the common law right to consent to settlement is not absolute.

101The question, therefore, is whether the Superior Court's Rules of Practice of Procedure impose any limits on the right of a defendant to participate in a Superior Court proceeding, where the defendant has failed to comply with the due date for serving its Statement of Defence? Rules 19.01 and 19.02 of the Rules of Civil Procedure, state:

DISPOSITION WITHOUT TRIAL

RULE 19 DEFAULT PROCEEDINGS

NOTING DEFAULT

Where no Defence Delivered

19.01 (1) Where a defendant fails to deliver a statement of defence within the prescribed time, the plaintiff may, on filing proof of service of the statement of claim, or of deemed service under subrule 16.01 (2), require the registrar to note the defendant in default.

CONSEQUENCES OF NOTING DEFAULT

19.02 (1) A defendant who has been noted in default,

(a) is deemed to admit the truth of all allegations of fact made in the statement of claim; and

(b) shall not deliver a statement of defence or take any other step in the action, other than a motion to set aside the noting of default or any judgment obtained by reason of the default, except with leave of the court or the consent of the plaintiff. R.R.O. 1990, Reg. 194, r. 19.02 (1).

(2) Despite any other rule, where a defendant has been noted in default, any step in the action that requires the consent of a defendant may be taken without the consent of the defendant in default. [emphasis added]

Furthermore, once a defendant has been noted in default, the Court Registrar, at the request of the plaintiff in the court proceeding, must issue a default judgement respecting certain types of claims (see. Rule 19.04), and for all other types of claims, the plaintiff may submit a motion for default judgement.

102In overview, where a defendant fails to serve its Statement of Defence ("Defaulting Defendant") by the required due date and does not obtain an extension of the due date, the Defaulting Defendant cannot take any other step in the proceeding. More importantly, Rule 19.02(2) expressly provides that the other parties do not require the consent of the Defaulting Defendant in order to take further action in the proceeding. Rule 76.08 expressly requires that the parties meet to attempt to negotiate a settlement. Therefore, this is an action that must be taken in the proceeding. Therefore, it is clear that the other parties may proceed to negotiate a settlement of the court proceeding without requiring the consent of the Defaulting Defendant.

103Turning to the Board’s jurisdiction to make rules governing the practice and procedure before it, s. 25.1 of the SPPA provides that the Board may make rules governing the practice and procedure before it. This section does not place any restriction on the Board's authority to make rules, other that s. 25.1(3), which states that the Rules must be consistent with the SPPA and any other Acts to which the Rules relate (in this case, the Assessment Act). The Owner has not asserted that a provision of any other legislation prevents the Board from imposing Rule 39. Furthermore, s. 23(1) of the SPPA also provides that the Board may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

104Section 2 of the SPPA also requires that the SPPA and the Board’s Rules be liberally construed “to secure the just, most expeditious and cost-effective determination of every proceeding on its merits” [emphasis added]. Section 1 of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, Chap. 33 (“ATAGAA”) confirms that tribunals are to be efficient in their operations. The Act itself requires that assessment appeals be resolved on a timely basis. Section 36(5) states:

Duty re appeals

(5) As soon as practicable after the return of the assessment roll for a municipality or for non-municipal territory, as the case may be, the Assessment Review Board shall hear and dispose of all appeals respecting assessments for the year for which the roll is returned.

105Both the SPPA and ATAGAA are generic statutes, i.e. they apply to a number of administrative tribunals having different substantive jurisdictions under their enabling statutes. Therefore, the administrative operation and rules of practice and procedure for each tribunal will vary, depending on the nature of the tribunal’s jurisdiction.

106Each tribunal must impose rules of practice and procedure to ensure that the tribunal satisfies the requirements to be efficient in its operations and to provide a cost-effective determination of every proceeding on the merits. This requires that the tribunal’s rules must consider and address practical constraints in the administration of its processes, particularly in regulating practices for preparing for a hearing, which includes any necessary requirements governing the exchange of pleadings and disclosure. Furthermore, the parties’ ability to negotiate a resolution of an appeal proceeding, thereby avoiding the need for a costly hearing, promotes efficiency in operations and allows for the cost-effective determination of proceedings on their merits. Accordingly, the tribunal’s rules should enable and promote the parties’ ability to negotiate a settlement of an appeal proceeding on a timely basis.

107The purpose, function, and rationale of Rule 39, as discussed above, clearly establishes that this Rule is necessary to achieve the most expeditious and cost-effective determination of appeal proceedings before the Board, and to ensure that the Board is efficient in its operations. For these reasons, the Board finds that Rule 39 is consistent with a liberal interpretation s. 25.1 (the Board’s authority to make Rules) and s. 23(1) (the Board’s authority to control its own process).

108Based on the above analysis, the Board concludes that the common law right to consent to settlement is not absolute, and the Board has the jurisdiction, pursuant to a liberal interpretation of the provisions of the SPPA, to impose Rule 39. Therefore, the Board does not accept the Owner's submission that the Board’s Rules cannot remove a basic common law requirement that an order must either have the consent of all parties or adjudicative oversight.

109In reaching this conclusion, the Board has considered two cases advanced by the Owner, Bougadis, Chang LLP v. Papastamoulis, 2018 ONSC 1796, and D’Onofrio v. Advantage Car & Truck Rentals Limited, 2017 ONCA 5 (“D’Onofrio”). However, neither of these cases involved the circumstance where a defendant in the court proceeding failed to deliver its Statement of Defence in the prescribed time. Therefore, these cases are of no assistance in determining the issue before the Board.

110The Owner also relies on Nova Scotia, a Board Review Decision issued by the Board’s Associate Chair. However, the facts in Nova Scotia are significantly different from the facts in in this case. In Nova Scotia, the municipality was a responding party to an appeal proceeding, and it had filed a Statement of Response. At paragraph 14 the Board stated:

There can be no resolution of any appeal without the agreement of all of the parties to the appeal. A dispute amongst three parties is not settled if two of the three agree. The only exception from the requirement for all parties’ consent is Rule 39, which deems consent to a future settlement if a party does not serve a Statement of Response. That Rule does not apply here. [emphasis added]

111The Owner cites the first part of paragraph 14, arguing that this statement aligns with its submission that the consent of all parties is required. While the Associate Chair accepted this principle as a starting point, he went on to expressly state that the consent of a party is not required if Rule 39 applies. Clearly, Rule 39 did not apply, as the municipality had filed a Statement of Response. Therefore, the Board’s decision in Nova Scotia does not support the Owner’s submission.

Summary

112Based on the above analysis and findings, the Board concludes that it has the jurisdiction to impose Rule 39, as common law right to consent to settlement is not absolute and that the imposition of this Rule is consistent with a liberal interpretation of the legislative provisions of the SPPA.

Issue 4(ii): Does “deem”, as this term is used in Rule 39, mean “deemed conclusively” or “deemed until the contrary is proven”?

Issue 4(iii): If it is the latter, has the Owner proved a contrary intention to oppose the settlement negotiated by MPAC and the City?

Owner’s Submissions

113The Owner argues that Rule 39 has the effect of removing all other parties from the litigation process for purposes of administrative expediency. In this regard, the Owner maintains that this is the implication of decisions such as Corporation of the City of Pickering v Municipal Property Assessment Corporation, Region 13, 2019 CanLII 122356 (ON ARB) (“Pickering”). The Owner remonstrates that any number from $1 to $100,000,000 proposed by the City could not be opposed by a respondent if the deeming in Rule 39 is absolute. The Owner submits that this result would be unjust.

114The Owner further argues that the deeming provision in Rule 39 cannot be irrebuttable given the important common law principle that it aims to suppress and that its goal is simply to create an administrative efficiency. The Owner asserts that can be rebutted, and that there should be a very low bar for rebuttal, given the context.

115The Owner submits, therefore, that the deeming provision in Rule 39 is not absolute, arguing that it should properly be read as “deemed until the contrary is proven”. The Owner asserts that the contrary has been proven here. In this regard, the Owner submits that it clearly objects to the settlement reached between the City and MPAC. The Owner also emphasizes that: (i) it retained a paralegal to set aside the Decisions soon after it was aware of the appeals, and before the deadline set in the Rules to seek a review; and (ii) it also retained a law firm to have the matter reviewed by Divisional Court. The Owner asserts that any notion that it consented to the settlement has been thoroughly rebutted.

116The Owner further argues that it does not make sense to apply this Rule to a party that is not aware of the appeal proceeding. The Owner submits that this provision is rebutted when that party is not aware of the appeal.

117In response to MPAC’s submission that the Board’s decision in Municipal Property Assessment Corporation, Region 09 v Toronto (City), 2020 CanLII 103262 (ON ARB) (“Toronto (City)”) stands for the broad proposition that there is an absolute deeming if a respondent fails to serve its Statement of Response by the due date in the Schedule of Events, the Owner submits that such a broad proposition would contravene the principles in Gray and Nobody. The Owner argues that Rule 39 is not that broad in scope, and its deeming is rebutted by evidence of lack of consent.

Findings on Issues 4(ii) and (iii)

118The Board first notes that there is, of necessity, some overlap in the parties’ submissions respecting Issues 4(i), (ii) and (iii). Therefore, the Board has considered these submissions, in their entirety, respecting these issues.

The application of the Gray/Nobody principle when interpreting Rule 39

119As noted earlier in this Decision, the Divisional Court in Nobody and the Supreme Court of Canada in Gray state that, when interpreting the term ‘deemed’, this term can give rise to an irrebuttable presumption, but that is not always the case. The term ‘deemed can be interpreted as “deemed until the contrary is proven”. Context matters. As stated in Gray, the purpose of the deeming provision is a crucial consideration. In Nobody, the Divisional Court, at paragraph 17, stated that the object of the deeming provision was of “central importance” when determining whether a deeming provision was absolute.

120Toronto (City) and Pickering, cited in the Owner’s submissions, are both Board decisions in which a responding party acknowledged that it failed to serve its Statement of Response by the required due date. In each case, the Board first found that there were no exceptional circumstances to warrant extending this due date. Therefore, in each decision, the Board found Rule 39 applied, notwithstanding that the responding party argued that it opposed the settlement negotiated by the other parties. In effect, the Board treated the Rule 39 deeming provision as absolute. The findings in Nova Scotia also suggest the same conclusion. However, in each of these cases, the parties’ submissions did not refer to Gray or Nobody.

121In light of the Nobody and Gray decisions, the Board accepts it must determine whether the Rule 39 deeming provision is absolute. In making this determination, the object of the deeming provision is of central importance.

Is the deeming provision in Rule 39 absolute?

122In light of its purpose, function, and rationale, Rule 39 achieves five objects of central importance, the first four being: (i) that non-participating parties must serve a Statement of Response in order to give notice to the other parties and the Board that they intend to participate in the appeal proceeding; (ii) participating parties should be encouraged to engage in meaningful settlement negotiations; (iii) that a party’s failure to participate in a proceeding should not interfere with the participating parties’ ability to negotiate a settlement of an appeal proceeding; and (iv) a non-participating party’s approval of the settlement should not be required, as this would necessitate that the Board conduct a hearing where one would not otherwise be required.

123The fifth object of Rule 39 is to ensure the timely negotiation of settlements. In light of the large number of appeals filed with the Board, the timely resolution of each appeal proceeding is of central importance in ensuring that the Board fulfills its statutory obligation to ensure an efficient, expeditious and cost-effective determination of each appeal proceeding. This, in turn, requires that the parties must conduct their settlement negotiations on a timely basis. To this end, the Schedule of Events for each proceeding includes a specific time-period in which the parties are directed to meet to discuss settlement and, hopefully, resolve the appeal proceeding. The parties are then required to advise the Board whether the appeal proceeding is resolved, and, if not, the Board immediately schedules a mediative settlement conference to provide further assistance to the parties in attempting to negotiate a resolution of the proceeding before a hearing is scheduled.

124In light of its objects of central importance, the Board finds that the deeming provision in Rule 39 is absolute.

125In further support of this conclusion, the Board notes that, if the deeming provision in Rule 39 were not absolute, but “deemed until proven otherwise”, the exercise of “proving otherwise” would fall outside the timelines set under the Schedule of Events, thereby delaying the timely resolution of the appeal proceeding. In this regard, the Board notes that a non-participating party could raise an objection at any late stage in a proceeding, even, as in this case, after the Board has issued a decision in accordance with filed minutes of settlement. This would further exacerbate delay in completing appeal proceedings and would also create uncertainty whether a Board decision, once issued, is, in fact, final. It could also discourage participating parties from engaging in timely and meaningful settlement discussions, because they would be uncertain whether any settlement that they negotiated would ultimately be accepted by the Board.

126Based on the above analysis, the Board finds that interpreting the deeming provision in Rule 39 to mean “deemed until proven otherwise” does not support any of this Rule’s five objects of central importance. Consequently, the Board finds that the deeming provision in Rule 39 is absolute.

Assuming the deeming provision in Rule 39 means “deemed until proven otherwise”, has the Owner “proven otherwise” in this case?

127The above finding disposes of the question whether the deeming provision in Rule 39 is absolute. However, the Board will alternatively consider the Owner’s submission that it has “proven otherwise”, in the event that the deeming provision in Rule 39 is interpreted as a rebuttable presumption.

128The Owner’s submission is outlined in para. 33 of Mr. Michon’s affidavit, which states:

At all materials times, the Company intended to challenge the assessment of the Property for the 2018 and subsequent tax years. The March 29, 2018 request for reconsideration states the Company's position that the assessed value exceeds the market value. As soon as the Company became aware of the City's appeal by receiving the Board decision on or around May 6, 2020, it immediately retained a representative to contest the assessment.

129The Board notes that there is difference between opposing MPAC's assessment and opposing the City’s appeal. The distinction is important. The Owner may have disagreed with MPAC's assessment and may have wanted to challenge it. However, what the owner must establish here, is that it intended to participate in the City’s appeal proceeding. Nonetheless, the Board accepts that evidence of an intention to challenge MPAC's assessment is relevant to the question of whether the Owner intended to participate in the City’s appeal proceeding.

130However, the Board does not accept the Owner’s submission that, at all material times, it intended to challenge MPAC’s assessment of the Subject Property, because the Board finds that this submission is not supported by the evidence. The Owner does not dispute MPAC's evidence that, following its review of the Owner’s request for reconsideration of its assessment for the 2018 taxation year, MPAC did not change its assessed value of the Subject Property. The Owner also maintains that it was unaware that the City had filed an appeal for the 2018 taxation year. Therefore, in 2018, the Owner’s understanding would have been that no appeal had been filed with the Board. Consequently, if the Owner had wanted to challenge MPAC's assessment, the Owner’s only course of action would be to file its own appeal. Yet, the Owner did not do so for either the 2018 and 2019 taxation years, (or attempt to do so for the 2020 taxation year until after the Decisions were issued). The Board finds the fact that the Owner chose not to do so, indicates either that the Owner did not have an intention, at all material times, to challenge the assessment, or if the Owner had initially formed this intention, the Owner decided not to act on it, or failed to act on it due to its own administrative mismanagement.

131The above finding is also supported by the evidence respecting the Amended Property Assessment Notice dated January 29, 2020. The Owner does not dispute that MPAC mailed this Notice, and the Owner’s own evidence shows that it was received. This Notice indicates that MPAC had amended the Subject Property’s value from $4,649,000 to $7,350,000, the latter value being the value agreed upon by the City and MPAC for the 2018 and 2019 taxation years (this process is explained in greater detail under Issue 6). To challenge this change, the Owner’s only recourse would be either to first request that MPAC reconsider its assessment (which is optional), or, alternatively, to immediately proceed to file an appeal. Yet the Owner did not pursue either of these options prior to the issuance of the Decisions, and, in fact, did not attempt to file an appeal until November 2020 (discussed below). This inaction again indicates that the Owner did not have an intention, at all material times, to challenge the assessment.

132As noted above, the Owner emphasizes that it retained legal representation to first request a Board Reinstatement by Request for Review and then instituted a review by the Divisional Court. The Owner further asserts that it did not make a conscious decision to ignore the City’s appeal, arguing that it “would not be in the Owner’s interest to put all of the effort it has into setting aside the Decision, when it could have just participated in the appeal.” The Board finds the evidence in support of this assertion to be equivocal. The Owner’s action in challenging the Decisions is arguably more consistent with the view that the Owner was only moved to participate in the appeal proceeding once the Owner was apprised of a decision that the Owner did not like.

133In assessing whether the Owner had an intention to oppose the settlement, the question arises as to what point in time this intention should have existed. Rule 39 suggests that this point in time is the due date for filing the Owner’s Statement of Response (“SOR Due Date”), as this is the date on which the deeming would occur. However, even if the relevant time was the date MPAC and the City reached their agreement, or the date they filed the Minutes of Settlement with the Board, the Owner has not established an intention to oppose the settlement. The Owner has only established an intention to challenge the Decisions after they were issued.

134Based on the above analysis and findings, the Board concludes that the Owner has not proven, either as of the SOR Due Date, or at any time prior to the issuance of the Decisions, that it intended to challenge MPAC's assessment. Consequently, even if the deeming provision of Rule 39 were not absolute, the Owner would still be deemed not to oppose the settlement negotiated by MPAC and the City, because the Owner has not proven a contrary intention to oppose the settlement.

Should the Board apply Rule 39 if the Owner was unaware of the City’s appeal?

135In arriving at this conclusion, the Board has considered the Owner’s argument that it does not make sense to apply this Rule to a party that is not aware of the appeal proceeding, or, if it does apply, this provision is rebutted when that party is not aware of the appeal.

136In support of this submission, the Owner first points out that MPAC was in breach of Rule 39 as it did not serve its Statement of Response on the City until August 14, 2019, a full 9 days after the August 5, 2019 deadline. Therefore, the Owner submits that Rule 39 creates an absurd result in this case, because both the City and MPAC are deemed not to oppose a settlement. The Owner argues that this has the effect of removing all other parties from the litigation process for purposes of administrative expediency.

137The Board does not accept this submission. If an appellant files an appeal, and none of the responding parties choose to oppose the appeal, then the appellant is free to proceed with its case as an uncontested matter. Therefore, Rule 39 does not create an absurd result for purposes of administrative expediency. As an ancillary observation, the Board notes that the City could have proceeded on the basis that its appeal was uncontested, but chose not to do so, because MPAC did, in fact, serve a Statement of Response and consent to a settlement.

Summary

138In summary, the Board has found that the deeming provision in Rule 39 is absolute, and, even if it was not absolute, the Owner has failed to prove that it had a contrary intention to oppose the City’s appeal. The Owner cannot be exempt from the application of Rule 39 on the basis that it was unaware of the appeal proceeding. While this outcome for the Owner is regrettable, it is not unfair, as the Owner is the author of its own misfortune due to its own carelessness.

Issue 5: Should the Board cancel the Decisions and allow the Owner to respond

to the City’s appeals?

Submissions

139The Owner provides several reasons for its argument that the Decisions should be set aside and that the Owner should be permitted to respond to the City’s appeals.

140First, the Owner observes that the settlement negotiated by the City and MPAC increases the assessed value of the property, and, consequently, the Owner’s tax liability will increase by 64%. The Owner asserts that the Board cannot simply accept the value proposed by MPAC and the City and implicitly trust their determination of value.

141Second, the Owner submits Rules must not only comply with legislation, they must comply with core common law principles. The Owner argues that Rule 39 is fundamentally unfair when applied to a taxpayer, because such a directly impacted party is entitled to express its consent, or lack thereof, or have the matter judicially determined by the Board. Furthermore, the Owner also submits that it does not make sense to apply Rule 39 to a party that is unaware of the appeal proceeding. For these reasons, the Owner submits that the Board should not apply Rule 39 in the circumstances of this case.

142Third, the Owner argues that natural justice was breached in this case, and that the Owner was denied procedural fairness because the Decisions were solely based on the consent of two parties who are opposed to the Owner, and, as stated above, were made without any adjudicative oversight. The Owner also argues that a party who takes no position cannot be said to have given consent, and that silence from a party who is not aware of an appeal is even more clearly a lack of consent.

143In response to the City’s argument that it would be prejudiced if the Decisions are set aside, the Owner submits that it is difficult to see what meaningful prejudice the City would be exposed to, as the City has already filed the appeal and prepared and served its Statement of Issues. The Owner emphasizes that the City and MPAC have not prepared for or attended a hearing, which is the only meaningful step that setting aside the Decision would impose. The Owner maintains that the only work that the City would throw away is the negotiation of a settlement with MPAC. The Owner argues that this is not significant and likely involved only a series of e-mails between those parties, to the exclusion of the Owner. Therefore, the Owner submits that the prejudice to the City is minimal.

Findings on Issue 5

144In a request for review of a final decision, Rule 123 provides that the Board may confirm, vary, or cancel the decision under review. However, Rule 121 provides that a request for review will not be granted unless one or more of the grounds set out in Rule 121 have been satisfied. The Board has already found that the Board has the authority to impose Rule 39, and that it applies in this case. Therefore, the Board did not act outside its jurisdiction. The Board’s findings under Issues 2, 3, and 4 establish that here has been no significant error of fact or law such that the Board would likely have reached a different decision (Rule 121(b)).

145Consequently, the remaining ground advanced by the Owner is that the Board has violated rules of natural justice and procedural fairness. Procedural fairness requires that the Owner be provided with an adequate opportunity to respond to the appeal. In addressing this ground, the Board has already noted that the inclusion of Rule 39 does not constitute an infringement of a common law right.

146The Board understands the Owner’s argument that it did not comply with the requirement to serve a Statement of Response because it was unaware of the appeal proceeding. Implicit in this submission is the argument that a responding party who is aware of the appeal proceeding, makes a choice whether it will participate in the proceeding by filing a Statement of Response, whereas a party that is not aware of the appeal proceeding cannot make that choice. Therefore, the Owner argues that the Board violated the rule of natural justice in issuing the Decisions without the Owner’s consent.

147In addressing this argument, the Board first observes that, if a party receives no notice of an appeal, then the Board agrees that issuing a decision may constitute a breach of procedural fairness. However, that is not what happened here. The Owner received notice of the appeal on multiple occasions but failed to take any action due to its own mismanagement of the documents served.

148Regarding the violation of natural justice, the law is clear that the Board may consider the conduct of a party who claims relief based on a denial of natural justice. As stated by the Board’s Associate Chair in Talon International Development Inc. v Toronto (City), 2018 CanLII 8115 (ON ARB) at para. 17:

Natural justice cannot be engaged when a party is at fault for its failure to receive notice. There is nothing unfair about a party bearing the foreseeable consequences of its failure to act.

149Similar findings have been made in other Board decisions, for example, Winners Merchants International LP v Municipal Property Assessment Corporation, Region 13, 2018 CanLII 78260 (ON ARB) at para. 18, where the Board stated:

… parties must take reasonable steps in order for natural justice and procedural fairness to aid them. There is generally no breach of natural justice if the party harmed by the process is at fault for that harm.

See also Wellington (County) v Municipal Property Assessment Corporation, Region 22, 2018 CanLII 32198 (ON ARB) at para. 33, where the Board stated that “It is not unfair to leave the assessment roll as it is when a party fails to file appeals in a timely way due to their own negligence.” This principle has also been applied by the Ontario Divisional Court in its review of Board decisions. In 217-225 Richmond Street West Ltd. v. Ontario (Assessment Review Board), 1997 CanLII 26465 (ON CTGD), [1998] O.J. No. 35, 105 O.A.C. 231, [1998] 2 C.T.C. 304, a majority of the Court stated:

A complainant cannot rely on its own carelessness: Regional Assessment Commission, Region No. 15 v. Braun Assessment Review Board (Ont.) et al. (1996), 90 O.A.C. 246 (Div. Ct.).

150Applying this principle in this case, the Board does not accept the Owner’s submission that the Board violated the rules of natural justice, because, in this case, the Owner received notice of the appeal and took no action due to its own carelessness.

Issue 6: Should the Board grant the City’s request to withdraw the City’s Deemed

2020 Appeal and the City’s Additional Deemed 2020 Appeal?

Background

151The City wishes to withdraw two “deemed appeals” that the Board created for the 2020 taxation year. The Owner filed its own appeal for 2020 but, in the event that this appeal is not accepted by the Board, the Owner argues that the City’s deemed appeals should continue so that the assessment for 2020 can be adjudicated.

The Act’s provision for Deemed Appeals

152In order to understand this issue, it is first necessary to explain the Act’s provision for “deemed appeals”. Section 40(26) of the Act states:

Deemed appeals, 2009 and subsequent years

(26) For 2009 and subsequent taxation years, an appellant shall be deemed to have brought the same appeal in respect of a property,

(a) in relation to the assessments under sections 32, 33 and 34 for the year; and

(b) in relation to the assessment, including assessments under sections 32, 33 and 34, for a subsequent taxation year to which the same general reassessment applies, if the appeal is not finally disposed of before March 31 of the subsequent taxation year or, if an assessment has been made under section 32, 33 or 34, before the 90th day after the notice of assessment was mailed.

This provision is best explained by an example. In this case a s. 40 appeal was filed for the 2018 taxation year and was not disposed of by March 31, 2019. Consequently, the Act deems that the City brought the same appeal for the 2019 taxation year. Furthermore, as the s. 40 appeal was still not disposed of by March 31, 2020, the Act deems that the City brought the same appeal for the 2020 taxation year.

How the City and MPAC approached the change in the value of the Subject Property

153As noted above the City and MPAC executed Minutes of Settlement which changed MPAC's general reassessment value of the Subject Property for the 2018 and 2019 taxation years. They then filed the Minutes of Settlement with the Board, requesting that the Board issue decisions for these two taxation years in accordance with the Minutes of Settlement. They were aware that, upon issuing the Decisions for the 2018 and 2019 taxation years, the general reassessment value of the Subject Property ($4,649,000) would be changed to $7,350,000 for these taxation years. However, as they anticipated that the Board would not address the 2020 taxation year, MPAC exercised its authority, pursuant to s. 32 of the Act, to issue a corrected assessment for the 2020 taxation year to change the value on the assessment roll to $7,350,000.

How the Board responded to the City’s request to issue decisions in accordance with the Minutes of Settlement.

154Due to administrative delay, the Board did not proceed to issue the Decisions until April 24, 2020. Therefore, as the City’s s. 40 appeal for the 2018 taxation year was not disposed of by March 31, 2020, s. 40(26) deemed appeals for both the 2019 and the 2020 taxation years.

155Typically, in such circumstances, it is the parties’ intention that their settlement apply to the deemed appeals for all taxation years. For efficiency purposes, the Board issues a Decision for each taxation year, on the assumption that the Minutes of Settlement filed is intended to apply to all taxation years under appeal, i.e. the original appeal and all deemed appeals, not just for the taxation years referenced in the Minutes of Settlement. Therefore, in this case, the Board issued the Decision for the 2020 taxation year in accordance with the Minutes of Settlement, even though the Minutes only addressed the 2018 and 2019 taxation years.

156This turn of events resulted in the situation where MPAC had already changed the value of the Subject Property on the assessment roll for the 2020 taxation year, and the Board issued the 2020 Decision which also made the same change for the 2020 taxation year. For this reason, the City e-mailed the Board on August 24, 2020 to advise that the City did not require the Decision for the 2020 taxation year, further requesting that the Decision for the 2020 taxation year be amended to show that the appeal was withdrawn.

157Because the Owner had filed its Leave to Appeal motion with the Court, and because the Board had decided to initiate this Review proceeding, the Registrar has not taken any action in response to City's request to amend the Decision for the 2020 taxation year, pending the completion of the Board’s Review.

158There was also an additional complication. In November 2020, the Owner’s legal representative contacted the Board respecting filing its own appeal for the 2020 taxation year (discussed under Issue 7). For reasons that are unclear, the Board’s Case Coordinator determined that it was appropriate to create the City’s Additional Deemed Appeal. Again, the Registrar has taken no action in scheduling this deemed s. 32 appeal.

Submissions

159As the submissions of the parties are brief, they are discussed in the Board’s findings below.

Findings on Issue 6

The City’s Deemed 2020 Appeal and the 2020 Decision

160Regarding the Decision respecting the 2020 taxation year, MPAC does not oppose the City’s request that this Decision be amended to show that the City has withdrawn the appeal. The Owner submits that this Decision should not stand.

161Although it is the Board’s administrative practice to apply Minutes of Settlement to all outstanding deemed appeals, this practice assumes that this is the parties’ intention. The City has indicated that this is not its intention. For this reason, the Board grants the City’s request to withdraw this appeal. Therefore, the Registrar is directed to amend the 2020 Decision to indicate that is has been withdrawn.

The City’s Additional Deemed 2020 Appeal

162Regarding the City’s Additional Deemed 2020 Appeal, the City submits that this deemed appeal was created in error, noting that it was issued without notice to the City and MPAC. The City requests that the Board dismiss or otherwise close this appeal. MPAC does not oppose the City’s request. The Owner’s submissions do not address this issue.

163In addressing the City’s submissions, the Board first notes that the issuance of the 2020 Decision in April 2020 means that there was no outstanding City appeal as of November 2020, and, consequently, there was no basis under the Act to create the City’s Additional Deemed 2020 appeal. Therefore, the Board directs the Registrar to administratively close this appeal.

Issue 7: Was the Owner’s appeal for the 2020 taxation year filed on time?

Background

164As previously noted in the chronology under Issue 2, on January 29, 2020, MPAC mailed to the Owner an Amended Property Assessment Notice for the 2020 taxation year. This Notice was issued pursuant to s. 32 of the Act. Pursuant to s. 40(8), the Owner had 120 days from the date printed on the Amended Property Assessment Notice, issued under s. 32, to file an appeal, which in this case was May 28, 2020.

165On November 11, 2020, the Owner’s legal representative e-mailed the Board’s Registrar to advise that the Owner had, on this date, attempted to e-file an appeal for the 2020 taxation year and had received a message that the filing deadline had passed. While the date of this attempted filing is obviously well beyond the May 28, 2020 filing deadline, there was a suspension of filing deadlines pursuant to the Province of Ontario Regulation 73/20 (“O. Reg. 73/20”) which suspended limitation periods due to the COVID-19 emergency. This Regulation was in force on May 28, 2020.

166On November 20, 2020, one of the Registrar’s administrative staff responded by e-mail, advising that, rather than accepting the Owner’s appeal, it appeared that the Board should have created the City’s Additional Deemed 2020 Appeal. For this reason, the e-mail also stated that “There is no need to file an appeal nor pay the filing fee at this time.” The Board then proceeded to create the City’s Additional Deemed 2020 Appeal. However, this action created a deemed appeal for the City, not the Owner.

167The Owner did not copy either MPAC or the City on its e-mail correspondence to the Board, nor did the Registrar’s staff member copy them on her e-mail response to the Owner.

Submissions

168The Owner submits that it made efforts to appeal the 2020 assessment when it attempted to file an online appeal of the assessment on November 11, 2020. The Owner asserts that the appeal was made in time but was not created by the Board. The Owner states that the Board instead created the City’s Additional Deemed 2020 appeal. On this basis, the Owner states that it was satisfied that an appeal existed and that a Schedule of Events would be set for the 2020 tax year.

169The Owner submits that its appeal for the 2020 taxation year was filed on time. In support of this submission the Owner states that O. Reg. 73/20 suspended limitation periods due to the COVID-19 emergency, which has the effect of extending the appeal filing due date. Further details of this submission are discussed in the Board’s findings below.

170MPAC asserts that the Owner’s appeal was not filed in time and, therefore, should not be accepted by the Board. This submission is also described in greater detail below.

171MPAC and the City have also raised an issue that the Owner e-mailed the Board respecting the filing of the 2020 appeal, without copying MPAC and the City. They submit that, in doing so, the Owner has breached Rule 9. In response, the Owner states that its communication was in respect of its attempt to file an appeal with the Board. The Owner submits that, generally, copying the other statutory parties is not required in such circumstances.

Findings on Issue 7

Did the Owner Breach of Rule 9?

172The Board first addresses the issue of whether the Owner has breached Rule 9. The Board observes that, pursuant to s. 40(1) of the Act, any person is entitled to file an appeal under the Act for any given taxation year. Therefore, even though a decision had been issued for the 2020 taxation year in respect of the City’s appeal, the Owner was entitled to file an appeal with the Board for this taxation year, provided that it was filed in time. Rule 9 states that all communications must be copied to or in the presence of all other parties to a proceeding. However, a proceeding does not commence until an appeal is filed. Therefore, Rule 9 does not apply in these circumstances.

Was the Owner’s Appeal Filed on time?

173The Board now turns to the Owner’s argument that the appeal it attempted to file for the 2020 taxation year was filed on time. The Board begins by considering the filing deadline specified in the Act before the application of O. Reg. 73/20.

174As described above in Issue 4, MPAC issued the Amended Property Assessment Notice to correct the assessment of the Subject Property for the 2020 taxation year.

175There are special provisions in the Act which govern the date that an appeal of a s. 32 correction must be filed. Section 35(1) of the Act provides:

Notice of corrections, etc.

35 (1) The person against whom land is assessed shall be notified by mail if any of the following occur:

1. The assessment of the land is corrected under section 32.

176Section 40(8) of the Act provides:

Omitted or supplementary notice

(8) If a notice of assessment has been mailed under subsection 35 (1) for a property, the last day for appealing for a taxation year after 2016 for a person who has not made a request for reconsideration in respect of the property under section 39.1 and is not required to do so as a precondition of appeal under subsection (3) is 120 days after the issuance date printed on the notice. [emphasis added]

177As the Owner did not submit a request for reconsideration with MPAC for the 2020 taxation year pursuant to s. 39.1 of the Act, the application of s. 35(1) and s. 40(8) dictates that the Owner’s appeal must be filed within 120 days of the January 29, 2020 issuance date. The Board finds that this clearly establishes a limitation period under the Act for filing this appeal. Therefore, the due date for filing the appeal would have been May 28, 2020. However, in March 2020 the COVID-19 emergency intervened.

The Suspension imposed by O. Reg. 73/20

178As noted above, in response to the COVID-19 emergency, the Province of Ontario enacted O. Reg. 73/20 under the Emergency Management and Civil Protection Act, R.S.O. 1990 c. E.9, which was then continued under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17. O. Reg. 73/20 suspended limitation periods as of March 16, 2020 until it was revoked on September 14, 2020. Sections 1 and 2 and 6 of O. Reg. 73/20 provide:

Limitation periods

1. Any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any limitation period shall be suspended, and the suspension shall be retroactive to Monday, March 16, 2020.

Period of Time, Steps in a Proceeding

2. Any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any period of time within which any step must be taken in any proceeding in Ontario, including any intended proceeding, shall, subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding, be suspended, and the suspension shall be retroactive to Monday, March 16, 2020. [emphasis added]

End of temporary suspension

6. For greater certainty, any limitation period or period of time within which a step must be taken in a proceeding that is temporarily suspended under this Regulation resumes running on the date on which the temporary suspension ends and the temporary suspension period shall not be counted.

Parties’ Positions on the correct filing deadline for the Owner’s 2020 appeal

179The Owner submits that:

Section 1 of Limitation Periods suspended the limitation period set out in

subsection 40(8) from March 16, 2020 through September 14, 2020.

March 16, 2020 is 46 days after January 29, 2020. The filing deadline then

became 74 days after September 14, 2020, which is November 27, 2020. The

Company [Owner] attempted to file the appeal on November 11, 2020 and the Board created the appeal on November 20, 2020.

To further clarify the Owner’s submission, the Owner has pointed out that 46 days of the 120-day period had expired as of March 16, 2020, the date when the suspension was implemented. Therefore, once the suspension was lifted on September 14, 2020, the Owner had the remaining 74 days (120 – 46 = 74) in which to file its appeal. Consequently, the final deadline for filing its appeal was November 27, 2020. Therefore, the Owner submits that the Board should have accepted its appeal of the Amended Property Assessment Notice for the 2020 taxation year when the Owner attempted to file its appeal on November 11, 2020.

180The City did not provide a submission on this issue. In response, MPAC submits that the Board does not have the jurisdiction to accept the Owner’s appeal for the 2020 taxation year because the Owner did not file its appeal on time. MPAC asserts that the due date for filing an appeal with the Board is May 28, 2020.

181The Board notes that MPAC's submission does not address the impact of O. Reg. 73/20.

BOARD’S ANALYSIS

182The Board concludes that the disposition of this issue is straight forward. The Owner’s calculations clearly follow the directions set out in s. 6 of O. Reg. 73/20. The Board has verified that the dates stated by the Owner are accurate. Therefore, the Board accepts the Owner did file its appeal for the 2020 taxation year by the required filing due date, because this due date was adjusted by the application of O. Reg. 73/20.

CONCLUSION

183In light of the above analysis, the Board finds the Registrar’s staff member erroneously rejected the Owner’s 2020 taxation year appeal, and, therefore, the Board directs the Registrar to accept the Owner’s appeal filed pursuant to s. 40 of the Act. As of the date of this Review Decision, the Board’s records show that the Owner has filed an appeal for the 2021 taxation year, which the Registrar has accepted. A Commencement Date and Schedule of Events has been assigned for the Owner’s 2021 appeal. The Board directs that the same Commencement Date and Schedule of Events should be assigned to the Owner’s 2020 appeal, on the assumption that it is appropriate to have the appeal proceedings for both of these taxation years proceed on the same schedule. However, if this assumption is incorrect, the parties may apply to the Board to amend the Commencement Date and/or Schedule of Events for either of these two appeal proceedings.

ORDER

184The Board confirms the Decisions for the 2018, 2019, and 2020 taxation years.

185The Registrar is directed to administratively close the City’s Additional Deemed 2020 Appeal.

186The Registrar is directed to accept the Owner’s appeal respecting the Subject Property for the 2020 taxation year, and to assign the same Commencement Date and Schedule of Events as has been assigned to the Owner’s appeal for the 2021 taxation year.