Pioneer Hay Sales Ltd. v. Municipal Property Assessment Corporation Region 23, 2022 CanLII 3296

Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: January 19, 2022

FILE NO.: DM 2022M01

Assessed Person: Pioneer Hay Sales Ltd. c/o Brett Fleming

Appellant: Pioneer Hay Sales Ltd. c/o Brett Fleming

Respondent: Municipal Property Assessment Corporation Region 23

Respondent: Municipality of Dutton/Dunwich

Property Location: 29913 Chalmers Line

Municipality: Municipality of Dutton/Dunwich

Roll Number: 3429-000-005-05900-0000

Taxation Year: 2021

Hearing Event No.: 758083

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

Parties	Representative
Pioneer Hay Sales Ltd.	Brett Fleming
Municipal Property Assessment Corporation	Douglas Keyes
Municipality of Dutton/Dunwich	No submissions received

REQUEST FOR: Late Appeal

HEARD: January 10, 2022 in writing

ADJUDICATOR: Jean-Paul Pilon, Member

MOTION DECISION

OVERVIEW

1Brett Fleming is the Vice President of Pioneer Hay Sales Ltd. (the “Moving Party”) which owns a property at 29913 Chalmers Line in Dutton/Dunwich (the “Subject Property”). On behalf of the Moving Party, Mr. Fleming brought this motion requesting that the Assessment Review Board (the “Board”) accept the Moving Party’s appeal for the 2021 taxation year after the time set out in the Assessment Act, R.S.O. 1990, c. A. 31 (the “Act”).

2This motion was filed pursuant to Rule 26(b) of the Board’s Rules of Practice and Procedure (the “Rules”), although it is also considered as a request to extend time to file a Request for Reconsideration (“RfR”) due to extenuating circumstances pursuant to section 40(4) of the Act.

Result

3For the reasons that follow, this motion is denied.

Factual Background

4In his affidavit sworn on September 15, 2021, Mr. Fleming wrote that the Subject Property was “incorrectly assessed as residential rather than agricultural/farm,” and that it was “strictly agricultural in nature and should be so assessed.”

5He wrote that the Moving Party “received correspondence from Agricorp denying its request for reconsideration of its assessment” on February 5, 2021 and that he had been advised by Agricorp that it would be “able to update the assessment of the property without (the Moving Party) being required to file an appeal with the (Board).”

6Mr. Fleming wrote that he forwarded further written material to Agricorp on June 4, 2021 after discussions with the Moving Party’s accountants and lawyer, but that Agricorp then advised that an appeal would have to be filed with the Board. Mr. Fleming’s affidavit concluded saying that he was preoccupied with the arrival of a new baby in December 2021 and that he had been relying on information that had been provided to him by Agricorp.

7Mr. Fleming’s affidavit did not explain how or why Agricorp would have had any jurisdiction to consider and then deny the Moving Party’s RfR of an assessment when that responsibility belongs to MPAC pursuant to section 39.1(1) of the Act. In addition, documentation that was referred to in the affidavit which might have clarified this question was not exhibited in his affidavit.

8The Municipal Property Assessment Corporation (“MPAC”) relied on the affidavit of its employee Montanna Hill-Sooley affirmed on December 14, 2021. She wrote that MPAC received no RfR from the Moving Party and that the first correspondence MPAC received from the Moving Party was its motion material just before 7:00 p.m. on December 3, 2021. Ms. Hill-Sooley’s affidavit noted that the assessed value of $405,000 returned by MPAC for the Subject Property was apportioned as follows: $28,200 or 6.96% in the vacant residential property class and the remaining $376,800, or 93.04% in the farm land property class.

Issues for Determination

9Two additional issues were raised by MPAC in this motion, beyond the Moving Party’s submission that the Board should accept the Moving Party’s appeal for the 2021 taxation year pursuant to Rule 26(b). The Moving Party submitted no reply submission to respond to these issues even though it had the opportunity to do so.

10First, MPAC argued that the Moving Party’s submissions in the motion were not properly before the Board because they were submitted late. Second, MPAC argued that the motion should be denied because the Moving Party was required to first file an RfR with MPAC which it did not do.

ANALYSIS

Issue 1 – Should the Board accept the Moving Party’s late filing in the motion?

11This motion was set by the Board in a letter dated November 19, 2021. This gave the Moving Party until December 3, 2021 to file its motion material. The Moving Party completed its filing on that day, but not until 6:56 p.m.

12Rule 11(e) provides that a “filing after 5:00 PM, or on a holiday, is deemed to be made on the next day that is not a holiday.” MPAC argued that late acceptance by the Board of the motion material from the Moving Party would be a “miscarriage of justice” because the Moving Party “has not substantially complied with the appeal’s process from the outset.”

13The Board agrees that the Moving Party’s motion material was filed late but by less than two hours on a Friday night. However, Rule 6 provides that “substantial compliance with the requirements of these Rules is sufficient.” Rule 3 provides that “these Rules shall be liberally interpreted to ensure the just, most expeditious and least expensive determination of every proceeding.”

14As to MPAC’s reference to the Moving Party’s compliance from the outset, the Moving Party’s failure to file its appeal on time, which was the basis of the motion, should have no bearing on whether the Board should accept the Moving Party’s late motion material. No reason for the late filing was provided by the Moving Party, but MPAC provided no evidence that it was at all prejudiced by the late filing. Parties are expected to comply with the Rules and file their documents on time, and there will clearly be situations where it would be not be appropriate to extend time when material is filed late. However, in this instance the documents were only minimally late, were not urgent and the late filing was inconsequential. As a result, the motion is not denied on that ground.

Finding on Issue 1

15MPAC’s request for the Board to reject the Moving Party’s late filing in this motion filed late is denied.

Issue 2 – Was it a precondition for the Moving Party to have filed an RfR prior to an appeal?

16MPAC argued that the Moving Party’s motion should be denied because the Moving Party was required to file an RfR before it could file an appeal. It was uncontested that MPAC did not receive an RfR from the Moving Party.

17Section 40(3) of the Act provides that “if a property is in the residential, farm or managed forests property class…no appeal may be brought to the Assessment Review Board…if the person has not made the request within the time required under (section 39.1(1.1) of the Act)),” which was March 31, 2021. The Subject Property was returned as being in both the residential and farm property classes, therefore an RfR was a precondition to filing an appeal.

18Section 40(4) of the Act provides that “if, in the Board’s opinion, there are extenuating circumstances explaining why a request for reconsideration in respect of a property was not made” on time, the Board can extend time to file an RfR if the request was made in the same taxation year, which this request was. The only submission on this point was in Mr. Fleming’s affidavit where he stated that “my wife and I had our second child in December 2020 and were preoccupied with this change in the early part of 2021.”

19The term “extenuating circumstances” is not defined in the Act, but the Board is not of the view that the circumstances in this case rise to that level. This is because Mr. Fleming received correspondence from Agricorp on February 5, 2021 and discussed the issue with the Moving Party’s accountant and lawyer “immediately after receipt of the February 5, 2021 correspondence” despite that preoccupation. All of this occurred well before an RfR would have been due on March 31, 2021.

20It is not clear why Mr. Fleming would have relied on representations that Agricorp could assist him with an RfR, if that in fact occurred. If that did occur, then he relied on those representations at his peril because the notice of assessment which he would have received would have been clear that an RfR should have been filed and by when.

Findings on Issue 2

21The Board cannot accept the Moving Party’s late appeal because the Moving Party did not comply with the precondition of filing an RfR set out in section 39.1(1.1) of the Act. In addition, the Board finds that there are no extenuating circumstances that would justify an extension of time to file an RfR.

Issue 3 – Would the Moving Party have met all three requirements of Rule 26(b)?

22If the Board cannot accept this late appeal because a precondition was not met and there are no extenuating circumstances present which would permit the satisfaction of that precondition, then this motion must be denied. However, since this motion specifically referenced Rule 26(b) and the late filing of an appeal, the Board addresses whether the motion would have succeeded but for its determination in Issue 2 above.

23Rule 26(b) provides that the Board may accept a late appeal if: “(1) the appellant is a person entitled to receive notice of the assessment (2) who did not receive notice, and (3) filed the appeal with the Board within 30 days of becoming aware of the assessment (numbering added).”

24The use of the word “and” between the first and second requirements above means that all three requirements need to be met for an appellant (or 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 (ON ARB) at para. 8, where the Board determined that relief could only be granted in such a motion if all of the three requirements are met.

25In this case, the Moving Party would only have met the first requirement of Rule 26(b), as being the person entitled to receive notice of the assessment. The second requirement would have been that the Moving Party did not receive notice of the assessment, which was not stated as a fact in Mr. Fleming’s affidavit. In any event, Mr. Fleming was in communication with Agricorp on February 5, 2021 and likely earlier to discuss the assessment, therefore the Board would have found that he had received notice of it. The Moving Party would also not have met the third requirement of Rule 26(b). This is because its first communication with the Board was by way of a letter dated August 26, 2021, more than 30 days after it would have become aware of the assessment, with communications on the subject taking place much earlier in the year. As a result, all three requirements of Rule 26(b) would not have been met.

Findings on Issue 3

26Even if the Board did have jurisdiction to accept a late appeal from the Moving Party, it would not have done so because the Moving Party did not meet all three requirements of Rule 26(b).

CONCLUSION

27The Board does not accept MPAC’s submission that this motion should be denied because it was filed late. However, the motion itself is denied because the Moving Party did not comply with the precondition of filing an RfR with MPAC, and the Board is not of the opinion that there were extenuating circumstances to allow for the late filing of an RfR. Finally, even if the Board had jurisdiction to consider the Moving Party’s request pursuant to Rule 26(b), the motion would have been denied in any event as the Moving Party did not meet all three of the requirements in Rule 26(b).

ORDER

28The Board orders that this motion is denied.