Ugenyi Holdings Corp. v. Municipal Property Assessment Corporation Region 15, 2022 CanLII 32874

Tribunals Ontario

Assessment Review Board

ISSUE DATE: April 19, 2022

FILE NO.: DM 2022M10

Assessed Person: Ugenyi Holdings Corp.

Appellant: Ugenyi Holdings Corp.

Respondent: Municipal Property Assessment Corporation Region 15

Respondent: City of Brampton

Property Location: 10095 Bramalea Road Suites 210, 211 and 212

Municipality: City of Brampton

Roll Numbers: 2110-070-008-00662-0000, 2110-070-008-00663-0000 and 2110-070-008-00664-0000

Taxation Year: 2020

Hearing Event No.: 763674

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

APPEARANCES:

Parties	Representative
Ugenyi Holdings Corp.	Innocent Chukwudumebi Okafor
Municipal Property Assessment Corporation	Roger Leroux
City of Brampton	Kumar Sapkota

REQUEST FOR: Late Appeal

HEARD: April 12, 2022, in writing

ADJUDICATOR: Jean-Paul Pilon, Member

MOTION DECISION

OVERVIEW

1Ugenyi Holdings Corp. (the "Moving Party") is the owner of units 210, 211 and 212 at 10095 Bramalea Road in Brampton (the "Subject Properties").

2The Moving Party filed a motion requesting that the Assessment Review Board (the "Board") accept its late appeals for each of the units in the Subject Properties for the 2020 taxation year after the time set out in the Assessment Act, R.S.O. 1990, c. A.31 ("the "Act"). This motion was filed pursuant to Rule 26(b) of the Board's Rules of Practice and Procedure (the "Rules").

Result

3The Moving Party has not satisfied the requirements of Rule 26(b). Its motion is therefore denied.

Evidence

4There were two affidavits before the Board in this motion: one filed by the Moving Party sworn by Innocent Chukwudumebi Okafor on April 28, 2021, and one from the Municipal Property Assessment Corporation's ("MPAC") employee Christeen Mattat sworn on March 23, 2022.

5In his affidavit, Mr. Okafor identified himself as the owner of the Subject Properties "under the business name" of the Moving Party. He wrote that he did not receive notices of assessments for the Subject Properties from MPAC, that he submitted a singular Request for Reconsideration ("RfR") for the three units comprising the Subject Properties "last year" on the advice of an employee of the City of Brampton (the "City"), and that he "never received the outcome of that reconsideration request." His affidavit closed with a statement that he was the person entitled to receive notices of assessment for the Subject Properties but did not receive those notices.

6Ms. Mattat's affidavit noted that the Subject Properties were commercial condominiums and the property assessment notices exhibited to her affidavit showed that they were returned in the commercial property class. She wrote that property assessment notices for the Subject Properties were sent to the same address that the Board has on file for the Moving Party on October 18, 2016.

7Ms. Mattat's affidavit further stated that an RfR was filed by the Moving Party on June 9, 2020 for only one of the three units of the Subject Properties, unit 212, and that the RfR also included a new mailing address for the Moving Party. The affidavit said that MPAC then issued proposed Minutes of Settlement for that single unit on July 14, 2020, but they were sent to the unchanged mailing address MPAC had for the Moving Party. Finally, Ms. Mattat wrote that Mr. Okafor contacted MPAC on April 23, 2021 for two reasons: to inquire as to the status of the RfR(s) and to change the mailing address for all units in the Subject Properties.

8Also appended to Ms. Mattat's affidavit as exhibits were notes of MPAC's contacts with Mr. Okafor, the single RfR that MPAC received from Mr. Okafor, and the cover letter which enclosed Minutes of Settlement generated after MPAC received the RfR.

9In determining this motion, the Board also considered the written argument and reply submitted by the Moving Party in support of the motion, as well as the written argument in opposition to the motion filed by MPAC and the City.

ANALYSIS

10This motion was filed pursuant to Rule 26(b) which provides as follows:

26. The Board may accept an appeal received after the time set in the Assessment Act only if the appellant satisfies the Board, by way of affidavit evidence, that:

(b) the appellant is a person entitled to receive a notice of assessment who did not receive notice, and filed the appeal with the Board within 30 days of becoming aware of the assessment or classification that is the subject of the appeal.

11The use of the word "and" between the second and third requirements in subsection (b) means that all three requirements need to be met for an appellant (more accurately, a potential appellant) to succeed in such a motion. This was confirmed in Cherry Beach Sailing Clubs v Municipal Property Assessment Corporation, Region 09, 2018 CanLII 107727 at para. 8 where the Board determined that relief could only be granted in such a motion if all three requirements are met.

12There are, in fact, four issues to be determined in this motion. The first issue below addresses the introductory passage of Rule 26 and determines what the deadlines were for appealing in the various scenarios presented by the factual narrative above. Next are the three issues to be determined in subsection (b) of Rule 26: first, was the appellant entitled to receive notice of the assessment?; second, did the appellant receive that notice of assessment?; and third, was the appeal filed with the Board within 30 days of awareness of that assessment?

Issue 1 – What was/were the last day(s) for appealing?

13The evidence before the Board is conflicting as to whether RfRs were filed for all units of the Subject Property as stated by the Moving Party, or for just one unit as stated by MPAC. The Board's analysis therefore considers both scenarios.

14At the outset, the Board finds that had the Subject Properties been in the residential, farm or managed property classes, the filing of an RfR would have been a precondition to filing an appeal pursuant to section 40(3) of the Act. In this case however, where the assessments of the Subject Properties were not returned in any of those property classes, the filing of an RfR was not a precondition to an appeal.

15Section 40(5) of the Act applies in these circumstances, where an RfR was filed without it a precondition to an appeal. That subsection sets out two further scenarios that could apply here: first, if MPAC mailed a notice of reconsideration after receiving an RfR, and second, if it did not.

RfR Filed

16The first scenario set out in section 40(5)1 of the Act is if MPAC mailed a notice of reconsideration as a result of receiving an RfR. In this case, the deadline would have been "90 days after the issuance date printed on the notice mailed by (MPAC)." The second scenario in section 40(5)2 of the Act is if MPAC did not mail a notice of reconsideration after receiving the RfR. If this was the case, the deadline would have been "90 days after the notice should have been mailed by (MPAC)." That latter date is set out in section 39.1(7) of the Act as "no later than 180 days after the request is made."

17MPAC mailed its notice of reassessment in the form of its Minutes of Settlement on July 14, 2020 but to the wrong address. Assuming this means that MPAC did, in fact, mail the notice of reassessment even though it was sent to the wrong address, the last day to file an appeal would have been 90 days after July 14, 2020 or October 12, 2020. Under the second scenario, assuming that MPAC did not mail the notice of reassessment because it was sent to the wrong address, the deadline would have been a total of 270 days (90 days plus 180 days) after the request was made. Since the Moving Party filed its RfR on June 9, 2020, the last day for appealing in this scenario would have been March 6, 2021.

18In this case the Board need not consider whether MPAC in fact mailed its notice of reconsideration to the Moving Party because it was sent to the wrong address. This is because even if the deadline was determined to be the later of the two, that date, March 6, 2021, passed before the Moving Party completed its filing at the Board on April 29, 2021.

RfR Not Filed

19As noted above, the filing of an RfR was not necessary because the Subject Properties were in the commercial property class. If, in fact, an RfR was not filed for two of the three units of the Subject Property as MPAC said, section 40(6) of the Act applies. This states that "if a person has not made a request for reconsideration in respect of a property... and is not required to do so as a precondition of appeal..., the last day for the person to appeal for a taxation year is March 31 of the taxation year." However, due to extraordinary circumstances at the outset of the pandemic, this deadline was extended to May 29, 2020, a date that has also since passed.

Findings on Issue 1

20The deadlines for appealing in these circumstances were as follows:

a. If an RfR was filed and MPAC mailed a notice of reconsideration, the deadline was October 12, 2020;

b. If an RfR was filed and MPAC did not mail a notice of reconsideration, the deadline was March 6, 2021; and

c. If no RfR was filed, the deadline was May 29, 2020.

21As all of these deadlines passed, and the Board finds that the Moving Party's appeals in the form of this motion were received after the time set in the Act. As a result, the Board finds that the Moving Party's recourse was this motion in Rule 26(b) and turns to consideration of whether the Moving Party met the requirements of the Rule.

Issue 2 – Was the appellant a person entitled to receive the notice of assessment?

22Mr. Okafor's relationship to the Moving Party was not clear in his statement that he owned the Subject Properties "under the name of" the Moving Party. However, MPAC acknowledged that the Moving Party met the first test under Rule 26(b) and was entitled to receive the notice of assessment.

Finding on Issue 2

23The Board finds that the Moving Party met the first requirement of Rule 26(b).

Issue 3 – Did the Moving Party receive the notice of assessment?

24In his affidavit, Mr. Okafor stated that he did not receive the notice of assessment. In its written argument in the motion, MPAC stated that it took no position on the question.

Finding on Issue 3

25The Board finds that the Moving Party met the second requirement of Rule 26(b).

Issue 4 – Did the Moving Party file the 2020 appeal with the Board within 30 days of becoming aware of the assessment?

26It is on this issue that the motion fails because the Moving Party did not file the appeal within 30 days of becoming aware of the assessment.

27In Solar Ship v Municipal Property Assessment Corporation, Region 20, 2019 CanLII 44275 at para. 17, the Board said this:

Knowing the value of the assessment or the nature of the classification makes a person aware of it. This is consistent with the existing jurisprudence of this Board. In March v. Municipal Property Assessment Corporation, Region 09, 2018 CanLII 89425 (ON ARB), at paragraph 12, the Board held that the awareness requirement in Rule 26(b) "does not require receipt of the actual notice of assessment, and can be imputed from municipal tax invoices, which include assessment information."

28Mr. Okafor did not state in his affidavit when he became aware of the assessment, nor did he include a statement that he met the third requirement of Rule 26(b) as he did for the other two requirements of the Rule. He did say in his affidavit, however, that he "submitted a request for reconsideration of the above 3 units last year based on the advise from a Brampton Taxes representative (sic)."

29The Board finds that Mr. Okafor must have been aware of the assessment to have known to file the RfR contesting the assessments even if he had not received the notice of the assessment. Further, the Board finds that he must have become aware of the assessment at some point prior to June 9, 2020 because that is when he filed the RfR.

30This motion was filed on April 29, 2021 more than 30 days from the latest date that Moving Party became aware of the assessment, June 9, 2020.

Finding on Issue 4

31The Moving Party did not meet the third requirement of Rule 26(b).

CONCLUSION

32The Board finds that the Moving Party has not met all three requirements of Rule 26(b) for the 2020 taxation year.

ORDER

33The Board orders that this motion is denied.