Tribunals Ontario / Tribunaux décisionnels Ontario

Assessment Review Board / Commission de révision de l’évaluation foncière

ISSUE DATE: January 18, 2022

FILE NO.: RD 20-039

Assessed Person(s): Peel Condominium Corporation No. 408 and Golf Links Ltd.

Appellant(s): Peel Condominium Corporation No. 408 and Golf Links Ltd.

Respondent(s): Municipal Property Assessment Corporation Region 15

Respondent(s): The Corporation of the City of Brampton

Property Location(s): 19-21 Kenview Boulevard

Municipality(ies): City of Brampton

Roll Number(s): 2110-150-107-13640-0000

Taxation Year(s): 1995-2011

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

Parties	Counsel*/Representative
Peel Condominium Corporation No. 408 and Golf Links Ltd,	Submissions not received
Municipal Property Assessment Corporation	Calvin Ho*
City of Brampton	Submissions not received

REQUEST FOR: A review of the Board’s Decision DM 2020M05 issued on April 22, 2020

HEARD: In writing

ADJUDICATOR(S): Dirk VanderBent, Vice-Chair

DECISION

OVERVIEW

119-21 Kenview Boulelvard, Brampton (the “Subject Property”), is owned by Peel Condominium Corporation No. 408 (the “Owner”). The western part of the Subject Property is occupied by 59 industrial condominiums owned by the Owner, and the eastern part of the Subject property is a golf course which the Owner has leased to Golf Links Canada Inc.

2On May 22, 2020, the Owner filed a written Request for Review with the Assessment Review Board (the “Board”) respecting the Board’s Decision, Municipal Property Assessment Corporation, Region 15 v. Peel Condominium Corporation No. 408 and Golf Links Canada Inc., 2020 CanLII 30605 (ON ARB on April 22, 2020 (the “Decision”).

3The Decision is in respect of an application filed by the Municipal Property Assessment Corporation (“MPAC”), pursuant to s. 40.1 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”), requesting correction of a palpable error on the Assessment Rolls for the taxation years 1995 to 2011. The municipality, the City of Brampton (“the City”), the Owner, and Golf Links Canada Inc. all supported the application. Consequently, the application was unopposed. The application was heard by a written motion hearing (“Motion Hearing”).

4The circumstances giving rise to the palpable error are as follows. When the Subject Property was converted to condominium ownership, new assessment roll numbers for the condominiums were created. However, for the taxation years in question, the former assessment roll number (the “parent” assessment roll number) remained on the Assessment Roll together with the condominium assessment roll numbers. As a consequence, as stated in the Decision, the golf course, which is owned in common by the Owner’s condominiums, was assessed twice: once through the parent assessment roll number, and once through the roll numbers assigned to individual condominium units.

5In his Decision, the Member found that the errors described in MPAC’s application qualified as palpable errors. MPAC based its application on s. 40.1(b) of the Act, which provides that, if correction of a palpable error involves alteration of assessed values or classification on the assessment roll, the correction must be determined through an appeal proceeding heard by the Board. Typically, the standard statutory deadline for filing an appeal with the Board will have expired. However, s. 40.1(b) provides that the Board may extend the time for filing appeals. Therefore, the Board has the discretion to determine whether it will allow the parties to proceed with an appeal, in order to correct the error.

6In exercising his discretion, the Member applied the approach, cited in previous Board decisions, that the Board should only extend the time for filing appeals if it would be unreasonable, unfair and highly prejudicial to enforce the statutory filing deadline. The Member found that, based on the facts of this case, the parties did not meet these criteria, and, therefore, the Member declined to exercise his discretion “to create the appeals to correct the palpable errors in the roll” (Decision, paragraph 35).

7In its Request for Review, the Owner asserts that, because the Member declined to exercise his discretion to correct the error, the Decision violates the rules of natural justice and makes a significant error in law or fact such that the Board would likely have reached a different decision. The Owner requests that the Board cancel the Decision or vary the Decision so that the Owner is not liable for the error, and, more specifically, is not exposed to liability for payment of the unpaid accrued interest and penalties. Alternatively, the Owner seeks an order rehearing part of the matter, focusing on the implications of the Decision on the Owner' s rights.

8Both the City and MPAC were offered the opportunity to file submissions. The City had also submitted a request to review the Decision in which the City provided its submissions. However, this request was filed after the 30-day due date for filing a request for review. Consequently, the Board has not proceeded with the City’s request for review, but it has considered the City’s submissions in adjudicating the Owner’s Request for Review. MPAC filed a brief submission stating its position that there is a palpable error, but expressly declining to make submissions on the Board’s exercise of discretion under s. 40.1(b) of the Act.

Issues for the Review

9Section 40.1 of the Act states:

Correction of errors

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

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

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

10As noted above, it is not in dispute that the error is a palpable error. Therefore, the only issue raised by the Owner in its Request for Review is the Member’s exercise of his discretion under s. 40.1 to decline to correct the error.

11In considering this Request for Review, the Board notes that both MPAC's application and the Decision did not address the question whether clause (a) of 40.1, applies in the circumstances of this case. As discussed below, this distinction has some relevance, because, if clause s. 40.1(a) applies, the Board has the jurisdiction to correct the assessment roll without the requirement to extend the time for bringing an appeal proceeding to correct the error.

12Accordingly, in this Review, there are two issues to be decided:

1. Which clause in s. 40.1 of the Act applies in the circumstances of this case, clause (a) or (b)?

2. In exercising his discretion under s. 40.1, did the Member fail to apply a balanced approach, because the Member failed to account for the financial consequences to the Owner? If so, does this constitute an error of law such that the Board would likely have reached a different decision or violate the rules of natural justice? If so, should the Board, in this Review, cancel or vary the Decision as requested by the Owner?

Result

13The Board concludes that s. 40.1(a) of the Act applies in the circumstances of this case. The Board varies the Decision to order that, pursuant to s. 40.1 of the Act, the Assessment Roll for the taxation years 1995 to 2011 are to be corrected as agreed by the parties.

ANALYSIS and findings

Legal Test

14In considering whether to grant a Request for Review submitted pursuant to Rule 101, the test to be applied is whether the requester has established any of the grounds set out in Rule 102 of the Board’s Rules of Practice and Procedure (the “Rules”) which states:

Grounds for Review

102. 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;

c) the Board heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or

d) there is new evidence that could not have reasonably been obtained earlier and have affected the result.

15If the request is granted, Rule 103 sets out the disposition the Board may make:

Review Order

103. Upon considering a request for review, or on its own initiative, the Board may:

(a) dismiss the request; or

(b) after providing all parties an opportunity to make submissions:

i. confirm, vary, or cancel the decision; or

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

Issue 1: Which clause under s. 40.1 of the Act applies in the circumstances of this case, (a) or (b)?

Section 40.1 Requirements

16There are four steps to be taken when determining whether to grant a request made pursuant to s. 40.1 of the Act to correct an error on the Assessment Roll. The first step is to determine whether there is error in the information reported on the Assessment Roll. In this regard, the Board notes that, when applying s. 40.1, it is important to note that the error is the incorrect information on the Assessment Roll, not the taxation or other consequences that may flow from the incorrect information on the Roll.

17The classes of information to be included in the Assessment Roll are prescribed by s. 14(1) of the Act, which states:

Assessment roll

Contents

14 (1) The assessment corporation shall prepare an assessment roll for each municipality, for each locality and for non-municipal territory and the assessment roll shall contain the following information as well as the information required under subsections (1.1) and (1.2):

1. The name and surnames, in full, if they can be ascertained, of all persons who are liable to assessment in the municipality or in the non-municipal territory, as the case may be.

2. The amount assessable against each person who is liable to assessment, opposite the person’s name.

3. A description of each property sufficient to identify it.

4. The number of acres, or other measures showing the extent of the land.

5. The current value of the land.

6. The value of the land liable to taxation.

7. The value of land exempt from taxation.

8. The classification of the land.

9. Such other information as may be prescribed by the Minister.

18Consequently, the error must be erroneous information falling within any of these nine classes, (or the additional information required under subsections (1.1) and (1.2), neither of which pertain to the circumstance of this case).

19The second step is to determine whether the error is “palpable.” As noted below, there is no dispute in this case that the error is palpable.

20The third step is to determine whether the class of information to be changed relates to one of two classes prescribed in s. 40.1(b): the value of the property (i.e. assessed value) or the property classification. If not, s.40.1(a) applies.

21Regarding this third step, the question arises whether the Board is required to conduct an appeal proceeding if s. 40.1(a) applies. A principle of statutory interpretation is that each part of a legislative provision must be assumed to have its own purpose, and, therefore, should not be interpreted to make another part of the legislative provision redundant. Therefore, in this case, if the Legislature had intended that a hearing also be conducted for classes of errors that did not involve alteration of assessed value or classification, then there would be no need to distinguish between classes under s. 40.1 clauses (a) and (b). This would make s. 40.1(a) redundant. Accordingly, the clear intent of s. 40.1 is to restrict the requirement for bringing an appeal only to errors involving alteration of a property’s assessed value or classification.

22The above observation raises the question why s. 40.1 draws a distinction between errors which involve assessed value or classification, and errors that do not. Where errors do not involve assessed value or classification, the change required to correct the error will usually be self-evident. The error here is a case in point. All that is required to correct the error is to delete the parent assessment roll number from the Assessment Rolls (discussed in greater detail below). However, where the error involves assessed value or classification, additional evidence may be required to determine what changes, if any, must be made to the assessed value or classification shown on the Assessment Roll, in order to correct the error. For this reason, clause (b) allows the Board to exercise its discretion to correct the error, by directing that the Board may extend the time for bringing an appeal, so that the Board, in the appeal proceeding, can hear evidence and submissions in order to determine the necessary correction.

23The fourth step is to determine whether the Board should exercise its discretion to correct the error. Section 40.1 provides that the Board may correct the error (clause a) or may extend the time for bringing an appeal (clause b). Consequently, under either clause, the Board has the discretion to decide whether a palpable error should be corrected on the Assessment Roll.

The Palpable Error in this case

24The facts respecting the error are not in dispute. There is no dispute that the error on the Assessment Rolls is that the parent assessment roll number remains on each of the Assessment Rolls. This information falls under s. 14(1)3, “A description of each property sufficient to identify it.”

25The Member found that the inclusion of the parent assessment roll number on the Assessment Rolls constitutes a palpable error. This finding is not challenged in this Request for Review.

Which applies in this case - s. 40.1 clause (a) or (b)?

26The correction to be applied to the Assessment Roll is to remove the parent roll number from the Assessment Roll. This is confirmed in paragraph 7 of the Decision, where the Member confirms that MPAC corrected the same error on the Assessment Roll for the 2013 tax year by deleting the parent assessment roll number from the Roll. None of the parties have asserted that either the assessed value or classification reported for the parent assessment roll number were in error. Therefore, based on the nature of the palpable error in this case, s. 40.1(b) does not apply. As s. 40.1(a) applies by default, the Board is not required to extend the time for bringing appeals.

Issue 2: In exercising his discretion under s. 40.1, did the Member fail to apply a balanced approach, because the Member failed to account for the financial consequences to the Owner? If so, does this constitute an error of law such that the Board would likely have reached a different decision or violate the rules of natural justice? If so, should the Board, in this Review, cancel or vary the Decision as requested by the Owner?

Relevant Considerations when applying s. 40.1 of the Act

27In determining whether to correct an error on the Assessment Roll, it is important to note that s. 40.1 of the Act requires that the Board make two findings. The first is to determine whether the party requesting the correction has established the statutory precondition that an error is palpable, and, if so, the second is to determine if the Board should exercise its discretion to correct the error.

28The Board’s approach to the exercise of its discretion is guided by the policy objectives underlying the Act. In Toronto (City) v Municipal Property Assessment Corp, 2013 ONSC 6137 (“Toronto City”), the Divisional Court noted that a legislative provision should be given a strict or liberal interpretation depending on the purpose underlying it, and that purpose must be identified in light of the context of the statute, its objective and the legislative intent. The Divisional Court describes this as a teleological approach, which indicates that the meaning of a statutory provision is determined by its purpose.

29Regarding the interpretation of s. 40.1 in particular, in a review decision, Hopper v Municipal Property Assessment Corporation, 2016 CanLII 24421 (ON ARB) (“Hopper”), at paragraph 13, the Board’s Associate Chair observed that the Board has consistently held that the relief in s. 40.1 of the Act is an extraordinary remedy to be used sparingly or the balance of the Act will be undermined, and that the relief should only be applied in the clearest of circumstances.

30While one might argue that the integrity of the Assessment Roll should make the correction of errors an absolute requirement, this is not the case. Decisions of the Divisional Court indicate that there are also competing, and somewhat contradictory considerations regarding timing and fairness, as well as finality. As stated in Kensington, at paragraph 18:

18. …The relevant jurisprudence has recognized the need to balance questions of timing and fairness with the need for correction and the integrity of the assessment roll: see Montevallo Developments Ltd. v. Municipal Property Assessment Corp., Region No. 9 (2008), 2008 CanLII 69580 (ON SCDC), 305 D.L.R. (4th) 618 (Ont. Div. Ct.), at para. 32; 584952 Ontario Ltd. v. Municipal Property Assessment Corp., Region No. 9, [2008] O.J. No. 3688 (Ont. Div. Ct.), at paras. 22-24; Home Depot Holdings Inc. v. Markham (Town), 2010 ONSC 1466 (Ont. Div. Ct.), at para. 17; and Ontario Property Assessment Corp. v. Nelson Steel (2001), 2001 CanLII 38751 (ON SC), 57 O.R. (3d) 330 (Ont. Div. Ct.), at para. 12. Timing and finality must be weighed with the objective of correctness of the assessment roll in achieving a balanced approach under the legislation: see Toronto (City) v. Municipal Property Assessment Corp., 2013 ONSC 6137 (Ont. Div. Ct.). [emphasis added]

Integrity of the Assessment Roll

31The primary purpose of s. 40.1 is to correct errors on the Assessment Roll that have not been otherwise corrected pursuant to s. 32, 33, and 34 of the Act, or corrected by the Board in a s. 40 appeal proceeding, in order to ensure the integrity of the Assessment Roll (see Kensington Foundation v Municipal Property Assessment Corp, 2013 ONSC 7694 (“Kensington”) at paragraph 18. Integrity of the Assessment Roll ensures fairness in the taxation system by ensuring that each taxpayer pays their fair share of taxes, and that a municipality can levy and receive the taxation revenues to which it is entitled.

Finality

32Finality refers to the ability of both the property owner and the municipality to rely on the Assessment Roll, as the information on the Assessment Roll is used to determine the amount of municipal taxes to be paid and received. The municipality and the taxpayer require certainty respecting the amount of taxes payable, so they both can arrange their financial affairs accordingly.

33In the context of the Act, finality is achieved through two mechanisms. The first mechanism is limitation periods – the Act provides for deadlines for filing appeals in a taxation year. The second, is the provision in s. 41 of the Act, which provides that the Assessment Roll is valid and binding “despite any defect or error committed in or with regard to the roll…”

34Piggott v Municipal Property Assessment Corporation, Region 28, 2019 CanLII 109527 (ON ARB) (“Piggott”) is another Review Decision of the Associate Chair, in which the Board provides a more detailed description of the considerations giving rise to the summary of the test described above (‘unreasonable, unfair, and highly prejudicial to penalize parties’), stating, at paragraph 30:

30The Board agrees with MPAC that [the] test enunciated in Conservation Authority

Grand River is the governing or applicable test. In that case, the Board stated in

paragraph 11:

Section 40.1 is unique in the Act in that is not has no limitation period.

Everything else in the Act favours finality after a specific period of time. The

legislature must have intended that the section be rarely used. A frequent

reliance on s. 40.1 would obviously undermine the limitation scheme that

dominates the Act. That is likely why the legislature created some barrier in its use in making the appearance of a palpable error in the assessment role a statutory precondition to the exercise of my discretion. It also means that I must carefully exercise my discretion, to limit the application of this powerful remedy only to cases truly deserving of relief.

The exercise of any discretion must be principled and should rely on clear

factors. … [emphasis added]

35The concern respecting the limitation scheme under the Act is that a party who fails to file an appeal on time will use s. 40.1 as a mechanism to obtain an extension of the time to file its appeal, thereby circumventing the limitation period prescribed by the Act. This is a recurring theme in Board decisions respecting s. 40.1. While this is a relevant consideration, it must be applied in context. In this regard, the Board makes two observations. First, clause (a) of s. 40.1 does not provide for the extension of the time to bring an appeal, and none of the decisions cited addressed a request made under clause (a).

36Secondly, where clause (b) applies, none of the decisions cited speak to the parameters of what may be appealed, if the Board extends the time to bring an appeal. As noted above, in extending the time to bring an appeal under s. 40.1(b), the sole purpose of bringing the appeal is to address the issues and evidence required to determine what change should be made to the assessed value or classification in order to correct the error. Therefore, s. 40.1 clearly does not permit a party to raise any other issue it wishes under any of the grounds of appeal enumerated in s. 40(1) of the Act. This finding is further reinforced by clause (b) itself, as this clause expressly requires that the Board direct MPAC to be the appellant, regardless of who initiated the request to correct the error, or the positions of the municipality and property owner on whether the request should be granted. In this regard, the Board notes that, in any appeal proceeding, it is the appellant who determines the grounds of appeal.

37In further support of the above conclusion, the Board notes that this interpretation follows the approach directed in Toronto City, i.e. it applies a strict interpretation of s. 40.1 in light of its purpose, which, as stated in Hopper, is an extraordinary remedy to be applied in only the clearest of circumstances so as not to undermine the balance of the Act.

38When considered in the context described above, it is not readily apparent that granting an extension to hear an appeal of this nature would undermine the limitation scheme of the Act. Consequently, the Board finds that the process of determining whether an error is palpable does give due consideration of the finality of the assessment roll, and the limitation scheme of the Act.

Timing and Fairness

39Timing and fairness refer to any delay in correcting an error which, in turn, may create unfair consequences for one or more of the parties. The circumstances giving rise to the Decision are a case in point. The Owner assumed that the Assessment Roll correctly described its property and the Owner conducted its affairs accordingly. Because the Owner did not pay taxes levied in respect of the parent assessment roll number erroneously left on the Assessment Roll, and because the Decision does not correct the error, the Owner remains liable to pay for several years of municipal taxes. As the Owner has not paid these taxes, the Owner must also pay additional costs in the form of interest and penalties.

40Considering timing and fairness is the second requirement stated in Kensington. The Board must give due consideration to this requirement when determining whether to exercise its discretion to correct a palpable error on the assessment roll, pursuant to either clause (a) or (b) of s. 40.1.

41The Decision states that the test to be met in determining whether to correct an error on the Assessment Roll is summarized in Piggott, namely, that the Board should only exercise its discretion to correct palpable errors if “it would (be) unreasonable, unfair and highly prejudicial to enforce the statutory filing deadlines in light of the palpable error.”

42In light of its strong wording, this test could arguably be interpreted as creating a rebuttable presumption that the Board should not exercise its discretion to correct a palpable error on the Assessment Roll. However, such an interpretation would be incorrect. The Divisional Court decisions cited in Kensington make it clear that the correct test is to weigh the relevant factors of timing, fairness and finality with the objective of correctness in achieving a balanced approach under the Act. Furthermore, this test cannot be interpreted so stringently as to effectively deny all requests to correct an error, as this would defeat the primary purpose of s. 40.1, which is to allow for correction of errors after an appeal filing deadline has expired.

43Regarding possible prejudice, the Divisional Court, in Kensington, at paragraph 17, confirms that possible prejudice is also a factor that must be weighed. In addressing the decision under appeal in Kensington, the Divisional Court found that, in weighing possible prejudice, the financial consequences to the taxpayer should have been taken into account. The Divisional Court concluded that the Board’s failure to do so constituted a failure to engage in the required balancing exercise, ruling that this is an error in law. The Court, therefore, found that that the decision under appeal was both incorrect and unreasonable.

Is there a significant error in law in the Decision?

44The Decision, at paragraph 21, indicates that the submissions provided by the parties indicated that the Owner “faces significant prejudice as does the Municipality “due to automatic tax levies and interest that were applied to the property.” However, in his analysis of whether the Board should exercise its discretion to correct the palpable error, the Member does not address the financial consequences to the Owner. His analysis, including his citations of prior Board decisions, focuses solely on the conduct of the Municipality. As such the Decision fails to engage in the required balancing exercise, which, as the Divisional Court in Kensington has ruled, is an error of law.

Considering Prejudice

45In Piggott, at paragraph 37, the Associate Chair accepted that:

“reasonableness” and “fairness” relates to conduct of the parties with respect to whether they acted appropriately or reasonably to correct the error. The consideration of what is reasonable and fair must always be considered in the context of the facts of the case, including the size or seriousness of the error, the actions or inactions of the assessed throughout the process of identifying the palpable error and the conduct of the other parties.

46This finding reinforces that engaging in the balancing exercise requires that the Board must consider possible prejudice to each one of the parties.

47In considering prejudice, it is clear that a party cannot rely on its own carelessness when alleging prejudice. In Wellington (County) v Municipal Property Assessment Corporation, Region 22, 2018 CanLII 32198 (ON ARB) (“Wellington”) at paragraph 33, 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, 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.).

As noted at paragraph 34 of the Decision, the Board, in Canadian National Railway v Municipal Property Assessment Corporation, Region 19, 2019 CanLII 114732 (ON ARB), also reached a similar conclusion.

Order to be made in this Request for Review

48As noted earlier in this Review Decision, Rule 103 provides that the Board may confirm, vary, or cancel the decision, or the Board may order a rehearing on all or part of the matter. In considering this matter, the Board concludes it is unnecessary to order a rehearing, because the facts are not in dispute, the parties all agree that the palpable error should be corrected, and, because s. 40.1(a) applies, the Board is not required to consider whether it should extend the time for bringing an appeal.

49In this case, the Owner was not responsible for the palpable error. The error is due to MPAC's oversight in not removing the redundant parent assessment roll number from the Assessment Rolls for the taxation years in question.

50In support of its Request for Review, the Owner submitted an affidavit which contains both evidence and submissions. There is no indication that the evidence was before the Member in the motion to correct the errors, and this evidence was available and could have been filed by the Owner in respect of this motion. In a request for review, the Board will only consider new evidence if it could not have reasonably been available at the original hearing. For this reason, the Board has not considered this evidence in this Review Decision.

51However, the Owner submits that the Decision does not mention anything that the Owner did wrong or find that the Owner was careless, as a justification for declining to correct the palpable errors. The Owner further submits that the Decision does not state that the Owner had notice of the errors at any relevant time. In addressing this submission, the Board notes there is no mention in the Decision of any evidence respecting the Owner’s conduct, or when the Owner had notice of the errors. For this reason, the Board accepts the Owner’s submission above. Consequently, the Board finds that there is no indication that the Owner’s action or inaction throughout the process of identifying the palpable error contributed to the delay in submitting the request to the Board to correct the error. Similarly, there is nothing in the Decision to suggest that the Owner is disingenuously attempting to use s. 40.1 to avoid the consequence of failing to file a s. 40 appeal on time.

52Obviously, there was considerable delay in bringing the application to correct the errors. This raises the question whether the delay, in and of itself, is sufficient reason for the Board to decline to correct the error. In addressing this question, the Board notes that there is no indication that re-opening the Assessment Rolls to correct the errors, would create any systemic problems in the administration of the taxation system. Therefore, the only gravamen of excessive delay in bringing a s. 40.1 application is any resulting prejudice to one or more of the parties.

53In addressing the issue of excessive delay, the Decision only addresses the question of prejudice to City if the errors are not corrected, and, in that context, finds that the City’s conduct constitutes mismanagement. The Member then concludes that, due to this form of carelessness, that it would be neither unreasonable nor unfair for the Board to decline to exercise its discretion to correct the palpable error.

54The Board observes that, where a party claims that it has been prejudiced, it is appropriate to consider any conduct of the party, including carelessness or mismanagement, that may have caused the prejudice.

55However, in this case, none of the parties claimed that they would be prejudiced if the errors are corrected. Regarding the City, in the Decision, the Board Member acknowledges the City’s stated position that it was not claiming that it would be prejudiced if the error is corrected. However, the Board Member does not address this position. Instead, the Board Member focus on the fact that the City failed to file s. 40 appeals on a timely basis due to its own mismanagement, and, for this reason, declined to exercise the discretion to correct the error. Hence, the Decision focusses solely on the consideration of timing, which is evaluated based on the conduct of only one of the parties.

56In the context of the balancing exercise, considerations of whether a party’s conduct constitutes carelessness or mismanagement should not be determined solely on the on the basis that the party failed to file a request to correct the error on a timely basis, or failed to file s. 40 appeals on time. As noted above in Piggott, the Board must consider the party’s entire course of conduct, not just one aspect of the party’s conduct. In this regard, the Decision does appear to give due consideration to the fact that the City had made earlier efforts to correct the errors. The undisputed evidence is that the City had communicated with MPAC over multiple years to attempt get the error corrected.

57In any event, the Decision only addresses the merits of the City’s case in support of its request that the errors be corrected. It does not address the prejudice to the Owner.

58Consequently, the Board finds that this is not a case where the s. 40.1 application can be characterized as an attempt to circumvent the limitation scheme under the Act. Furthermore, there is clear evidence that, if the error is not corrected, the Owner will suffer the financial consequences of having to pay municipal taxes twice for the Subject Property, as well as paying additional interest and penalties. It would be difficult to envision a more unfair financial consequence than this.

59In deciding whether to exercise the discretion to correct a palpable error, the primary consideration is to weigh the prejudice each party would experience if the error is corrected, or not corrected, in the context of the required balancing exercise. In this case, the City, as noted above, is not claiming prejudice if the error is corrected. In fact, as pointed out in its submissions, the City indicates that it would be prejudiced if the palpable errors are not corrected. Affidavit evidence filed in the Motion Hearing indicated that the City was required by statute to remit the upper tier and education portions of the taxes levied, even though the City was not actually collecting the taxes from the Owner. The Board notes, however, that it is unclear how significant this prejudice would be, as the submission does not address whether the City could recoup the amounts paid by enforcing payment of the tax arrears against the Owner.

60MPAC's submission in this Review proceeding, is that it takes no position on whether the Board should exercise its discretion to correct the error. Consequently, MPAC also does not assert any prejudice.

61Consequently, in weighing the prejudice to the parties, there is no ‘counter-balancing’ prejudice to the City or MPAC if the error is corrected, whereas there is significant prejudice to the taxpayer if the error is not corrected. Absent any evidence of systemic prejudice to the administration of the municipal taxation system, the Board finds that considerations of prejudice clearly indicate that the Board should exercise its discretion to correct the error.

CONCLUSION

62In summary, based on the above analysis and findings, the Board concludes that the Decision contained a significant error in law because it failed to engage in the required balancing exercise, which includes consideration of the financial consequences to the Owner. In this case, the factors of timing, fairness and finality do not outweigh the objective of correctness in achieving a balanced approach under the Act. Therefore, the Board exercises its authority under Rule 103 to vary the Decision to provide that the errors on the Assessment Rolls for the taxations years from 1995 to 2011, be corrected pursuant to s. 40.1 clause (a) of the Act.

63When submitting a request to the Board to correct an error pursuant to s. 40.1 of the Act, the parties should provide a copy of the entry on the Assessment Roll for the Subject Property for each taxation year in question, identify the specific wording in each entry to be corrected, and provide the specific wording of the proposed correction. This information is necessary, so that it can be forwarded to the clerk of the municipality to correct the Assessment Rolls in question, should the Board decide that a correction is required.

Order

64In accordance with s. 40.1(a) of the Act, the Board corrects each Assessment Roll for the taxation years from 1995 to 2011 taxation, by removing the parent roll number for the Subject Property.

65In order to facilitate these corrections, within 14 days of the issuance of this Review Decision, the parties are directed to provide the Board with a copy of the entry to be corrected for the Subject Property on each of the Assessment Rolls for the 1995 to 2011 taxation years, together with a written statement of the specific correction to be made for each entry (collectively referred to as “The Corrections for the Subject Property”).

66Once the Board receives the Corrections for the Subject Property, the Board directs the Registrar to advise the City that the clerk of the Corporation of the City of Brampton shall make the corrections on the Assessment Rolls in accordance with this Review Decision.

"Dirk VanderBent"

DIRK VANDERBENT

VICE-CHAIR

Assessment Review Board

Website: www.tribunalsontario.ca/arb