Jason Lionel Patry and Terry Sterling Dixon v. Municipal Property Assessment Corporation Region 02 and Township of Leeds and the Thousand Islands, 2022 CanLII 34933

Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: April 20, 2022

FILE NO.: RR 19-058A

AMENDED DECISION ISSUED: April 25, 2022

Assessed Person(s): Terry Sterling Dixon

Moving Party(s): Jason Lionel Patry

Respondent(s): Municipal Property Assessment Corporation Region 02

Respondent(s): Township of Leeds and the Thousand Islands

Property Location(s): 697 Thousand Islands Parkway

Municipality(ies): Township of Leeds and the Thousand Islands

Roll Number(s): 0812-812-025-27402-0000

Appeal Number(s): 3231060

Taxation Year(s): 2016

Legislative Authority: Rules 104 of the Assessment Review Board’s Rules of Practice and Procedure

Parties

Counsel/Representative*

Jason Lionel Patry

Roberto Aburto* Michelle Cicchino*

Terry Sterling Dixon

Self-represented

Municipal Property Assessment Corporation

Damian Bernacik

Township of Leeds and the Thousand Islands

Submissions not received

REQUEST FOR: Reinstatement of a withdrawn appeal and to commence an appeal

HEARD: In writing

ADJUDICATOR(S): Christopher Voutsinas, Vice-Chair

AMENDED DECISION

In accordance with Rule 99 of the Assessment Review Board’s Rules of Practice and Procedure, effective April 1, 2021, and in accordance with Rule 21.1 of the Statutory Powers and Procedure Act, this Amended Decision is issued to add co-counsel for the Moving Party to the Appearances section on page 1. The amendment has been underlined for ease of reference. There are no other changes in this Amended Decision.

BACKGROUND

1Jason Lionel Patry requests that the Assessment Review Board (the “Board”): (i) reinstate a previously withdrawn 2016 taxation year appeal (appeal #3231060); (ii) issue an order of the Board to allow late filing of an appeal for the 2017 taxation year; and (iii) to combine these two appeal proceedings.

2The appeals in question relate to the residential property located at 697 Thousand Islands Parkway, in the Township of Leeds, and the Thousand Islands (the “Subject Property”).

3In 2016, the owner of the Subject Property was Terry Dixon until he sold the Subject Property to Mr. Patry on May 16, 2016.

4Before this sale occurred, Mr. Dixon submitted a Request for Reconsideration to the Municipal Property Assessment Corporation (“MPAC”) pursuant to s.39.1 of the Assessment Act (”Act”) in respect of the 2016 taxation year. As MPAC ultimately did not change its position on the current value of the property, Mr. Dixon filed an appeal with the Board on March 2, 2017. Consequently, Mr. Dixon’s appeal was filed with the Board approximately 9.5 months after he sold the property to Mr. Patry.

5A little over a year later, on April 27, 2018, Mr. Dixon withdrew his appeal for the 2016 taxation year.

6On June 1, 2018, Mr. Patry reached out to MPAC and discovered that Mr. Dixon had withdrawn his appeal. On the same day, Mr. Patry filed an affidavit with the Board discussing the circumstances of the withdrawal of the 2016 taxation year appeal. In his affidavit, he made three requests. The first was that the Board re-instate the 2016 appeal proceeding.

7The second request requires some additional background information. Because Mr. Patry had become the owner of the Subject Property prior to the return of the assessment roll for the 2017 taxation year, Mr. Patry was the assessed person shown on the assessment roll for the 2017 taxation year. As Mr. Patry had not made a Request for Reconsideration for the 2017 taxation year, the due date for Mr. Patry to file an appeal was March 31, 2017. Mr. Patry did not file an appeal by this due date. Therefore, Mr. Patry’s second request was that the Board accept late filing of an appeal for the 2017 taxation year appeal. In this regard, the Board observes that Mr. Patry did not attempt to file an appeal prior to making this request. Therefore, his request to file an appeal was made approximately 14 months after the appeal filing due date.

8Mr. Patry’s third request was that the Board should combine the appeal proceedings for the 2016 and 2017 taxation years. However, he did not explain why they should be combined.

9Five days later, on June 6, 2018, Mr. Dixon filed an affidavit with the Board requesting that the Board reinstate his 2016 appeal proceeding because he had withdrawn his appeal in error.

10Mr. Patry, Mr. Dixon, and MPAC have provided submissions to the Board. The Township of Leeds, and the Thousand Islands did not.

Issues for the Hearing

11At issue in this proceeding are the following:

1. Should the Board grant Mr. Patry’s request for reinstatement of the 2016 appeal?

2. Should the Board grant Mr. Dixon’s request for reinstatement of the 2016 appeal? If so, should Mr. Patry be added as a party to this appeal proceeding?

3. Should the Board accept late filing of an appeal by Mr. Patry for the 2017 taxation year?

4. If the Board reinstates the 2016 appeal proceeding and allows Mr. Patry to file a late appeal for the 2017 taxation year, should these two appeal proceedings be combined?

Result

12The Board denies Mr. Patry’s request to reinstate the 2016 appeal. The Board grants Mr. Dixon’s request to reinstate the 2016 appeal and adds Mr. Patry as a party to this appeal proceeding. The Board denies Mr. Patry’s request to accept late filing of an appeal for the 2017 taxation year. As the Board has allowed only the 2016 appeal proceeding to continue, it is unnecessary to address the question of whether the 2016 and 2017 appeal proceedings should be combined.

ANALYSIS

13As the Board’s current Rules of Practice and Procedure (“Rules”) in force as of April 1, 2021, are the same as the previous version of the Rules of Practice and Procedure in force at the time the requests were made, the Board will refer to the current Rule numbers.

14The Board’s Rule 104, Request to Reinstate an Appeal, states that:

104. 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.

[emphasis added]

15As applied to this case, Rule 104 requires that Mr. Dixon or Mr. Patry satisfy the following requirements:

1. He is a former party to the proceeding;

2. He filed his request on time, or, alternatively, has satisfied the Board that it should grant leave to extend the filing due date; and

3. He withdrew his appeal in error; or

4. Natural justice or procedural fairness require that the appeal should be reinstated.

Issue 1: Should the Board grant Mr. Patry’s request for reinstatement of the 2016 appeal?

16Only a party to a proceeding may request a reinstatement. For the reasons that follow, the Board concludes that Mr. Patry was not party to the 2016 taxation year appeal proceeding. Therefore, he cannot make a request to reinstate this appeal proceeding.

17Section 40(11) of the Act states:

The following persons are parties to an appeal:

1. The assessment corporation.

2. All persons appealing and all persons whose assessment is the subject of the appeal.

3. The municipality in which the land is located or, if the land is located in non-municipal territory, the Minister.

18Further, Section 14(1) 1 of the Act states:

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.

19Under the Act, a taxation year is the calendar year. Section 36 of the Act provides that assessments of land for a taxation year (“Assessment Roll”) shall be made annually at any time between January 1 and the second Tuesday following December 1 of the calendar year preceding the taxation year. In practice, the date chosen by MPAC is the second Tuesday following December 1. Therefore, in this case, the Assessment Roll for the 2016 taxation year was returned in December 2015.

20In returning the Assessment Roll, MPAC must report the correct information as of the date of the return of the roll. If ownership of a property changes after the date of the return of the assessment roll, but during the taxation year, the correct name of the assessed person is the former owner (see Williams v. Regimbal, 1935 CanLII 91 (ON CA), [1935] O.R. 199). Therefore, in this case, Mr. Dixon is the assessed person, as of the December 2015 date for the return of the Assessment Roll for the 2016 taxation year, as he did not sell the Subject Property to Mr. Patry until May 16, 2016.

21As such, the Board notes that Mr. Patry did not become a party to the 2016 appeal proceeding when he purchased the Subject Property. Therefore, Mr. Patry is not a former party to the 2016 appeal proceeding. Consequently, he has no status to request a reinstatement of the 2016 proceeding. For this reason, the Board denies Mr. Patry’s request to reinstate the 2016 appeal.

Issue 2: Should the Board grant Mr. Dixon’s request for reinstatement of the 2016 appeal? If so, should Mr. Patry be added as a party to this appeal proceeding?

Is Mr. Dixon a former party to the 2016 appeal proceeding?

22As Mr. Dixon filed the 2016 appeal, he clearly is a former party to the proceeding, so he is entitled to request a re-instatement of the subject appeal.

Did Mr. Dixon withdraw his appeal in error?

23Mr. Dixon states that he withdrew his appeal in error. The Board accepts that Mr. Dixon withdrew his appeal on the assumption that, after the sale of the Subject Property, his withdrawal meant only that Mr. Patry would replace him as the appellant in the 2016 appeal proceeding. His submission clearly states that, after he became aware that Mr. Patry would not be able to continue the 2016 appeal proceeding, he submitted his request for reinstatement. For this reason, the Board accepts that he did withdraw his appeal in error.

Did Mr. Dixon file his request on time, or, alternatively, has he satisfied the Board that it should grant leave to extend the filing due date Rule 104?

24Rule 104 requires that Mr. Dixon file his request for reinstatement within 30 days of the date the appeal was withdrawn. He filed his request 40 days after the appeal was withdrawn, so he is 10 days late. The question, therefore, is whether the Board should grant a 10 day extension of the filing due date. In this regard, the Board notes that Mr. Dixon’s affidavit indicates that, at the time he withdrew his appeal, he was living in the United States. As such, the preparation of his request for reinstatement may have been delayed. Nonetheless, he acted promptly upon learning of his error.

25The Board’s Rule 3, entitled “Interpretation of Rules and Powers of the Board” provides that the Rules should be liberally construed to ensure the just, most expeditious and least expensive determination of every proceeding. In this case, the ‘just determination of the proceeding’ is the key element. There must be very clear circumstances to justify an extension. In this regard, the Board notes that Mr. Dixon was only 10 days late in filing his request, and the Board accepts that this delay was reasonable considering the circumstances described above. The Board also finds that Mr. Dixon acted promptly to prepare his request for reinstatement. Furthermore, the Board has found that Mr. Dixon withdrew the appeal in error. For these reasons, the Board finds that an extension of the due date to file his reinstatement request is necessary to ensure a just determination of the 2016 appeal proceeding. Therefore, the Board grants the extension and accepts his request to reinstate the appeal.

Does natural justice or procedural fairness require that the appeal should be reinstated?

26The Board has found that Mr. Dixon withdrew the appeal based on an erroneous assumption that Mr. Patry would be able to continue the appeal proceeding, and that he acted promptly to request a reinstatement when he discovered his error. Furthermore, neither MPAC or the municipality have opposed Mr. Dixon’s request. For these reasons, the Board find that natural justice and fairness does require that the 2016 appeal should be reinstated.

Should Mr. Patry be added as a party to this appeal proceeding?

27In his affidavit, Mr. Dixon clearly describes his intention that Mr. Patry should assume carriage of the 2016 appeal proceeding. Mr. Patry’s affidavit also clearly indicates that he wishes to participate in this appeal proceeding. Pursuant to Rule 16, the Board may add a person as a party to an appeal proceeding. Therefore, the Board orders that Mr. Patry be added as a party to the 2016 appeal proceeding.

Amendment to the Schedule of Events

28When the appeal for the 2016 taxation year was before the Board, the Board assigned a Commencement Date and an associated Schedule of Events. The Commencement Date will remain the same now that the Board has ordered that this appeal be reinstated.

29However, as there has been considerable delay in resolving Mr. Dixon’s Request for Reinstatement of his 2016 taxation year appeal, and because Mr. Patry has been added as a party to this appeal proceeding, the parties may apply, through the Board’s Expedited Request process, for any adjustments to the Schedule of Events that may be required.

Issue 3 – Should the Board accept late filing of an appeal by Mr. Patry for the 2017 taxation year?

30Rule 26, which governs requests to file a late appeal, states:

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:

1. the appeal was sent within the time set out in the Assessment Act; or

2. 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.

Did Mr. Patry fail to file an appeal for the 2017 taxation year by the applicable due date prescribed by the Act?

31On or about March 30, 2017, Mr. Patry erroneously filed with the Board, rather than with MPAC, a request for reconsideration in connection with the 2017 taxation year. According to Mr. Patry, the Board “at some point” forwarded the request for reconsideration to MPAC. MPAC responded to Mr. Patry advising that his request for reconsideration had been rejected on June 6, 2017, by saying it was “out of time” i.e. “filed late”. Therefore, there is some ambiguity as to whether Mr. Patry made his Request for Reconsideration on time.

32On June 1, 2018, Mr. Patry provided the Board with his affidavit requesting that the Board accept an appeal for the 2017 taxation year appeal.

33In accordance with s. 40(3) of the Act, a property owner cannot file an appeal respecting a residential property unless the owner has first made a Request for Reconsideration under s.39.1 o the Act.

34In making its Decision on Mr. Patry’s request, the Board finds that it is unnecessary to rule on whether Mr. Patry’ filed his Request for Reconsideration on time.

35Where a party files a request for reconsideration, s.40(5) extends the due date for filing an appeal in order to allow MPAC time to complete its reconsideration. Assuming that Mr. Patry did file a Request for Reconsideration on time, pursuant to the provisions of s.39.1 and s.40(5) of the Act, the latest possible due date for filing his appeal was February 24, 2018. Therefore, he clearly did not file an appeal by this due date.

36If, in the case at hand, if Mr. Patry did not make a Request for Reconsideration on time, under s.40( 4) the Act, he could apply to the Board to extend the due date to make his Request for Reconsideration, but only if he applied to the Board in the taxation year. Unfortunately for Mr. Patry, he did not make such a request in the 2017 taxation year. Therefore, no extension could be granted.

37In summary, whether Mr. Patry made or did not make a Request for Reconsideration on time, he clearly has not filed an appeal with the Board by the due date under the Act. The only way he can now file a late appeal, is to satisfy the requirements of Rule 26.

Has Mr. Patry met the requirements of Rule 26?

38In order for the Board to accept a late appeal under Rule 26(b), three requirements must be satisfied. The first two requirements are that the appellant is the person entitled receive a Notice of Assessment for the property in question, i.e. the property owner, and, most importantly, that the owner did not receive Notice. The third requirement is that, if the appellant did not receive a Notice of Assessment from MPAC, he is required to submit his request to file a late appeal within 30 days of becoming aware of the assessment.

39In this case, Mr. Patry was clearly the owner of the Subject Property for the 2017 taxation year. He became the owner of the Subject Property on May 16, 2016, so he was shown as the assessed person when MPAC returned the 2017 Assessment Roll in December 2016. Therefore, Mr. Patry meets the first test.

40However, Mr. Patry fails to meet the second test, i.e., that he did not receive the Notice of Assessment. On the evidence filed, Mr. Patry asserts that he made a Request for Reconsideration on March 30, 2017. This clearly indicates that he had received the Notice of Assessment by this date.

41Even if there were circumstances, which Mr. Patry failed to describe in his affidavit, to establish that he did not receive a Notice of Assessment from MPAC, he was clearly aware of the Notice of Assessment on March 30, 2017 when he made, or attempted to make, his Request for Reconsideration. As noted above, Rule 26 requires that Mr. Patry make his request within 30 days of becoming aware of the assessment. Therefore, he was required to make his request by April 30, 2017. He has only made his request 13 months later, in June 2018.

42For these reasons, the Board finds that Mr. Patry has not met the requirements of Rule 26, and, therefore, his request that the Board accept his appeal for the 2017 taxation year is denied.

Issue 4: If the Board reinstates the 2016 appeal proceeding and allows Mr. Patry to file a late appeal for the 2017 taxation year, should these two appeal proceedings be combined?

43As the Board has only granted Mr. Dixon’s request to reinstate his appeal for the 2016 taxation year, it is unnecessary to address whether two appeal proceeding should be combined.

44However, the Board observes that, had the Board accepted late filing of a 2017 appeal, the Act applies a different valuation day for each of the 2016 and 2017 taxation years. Consequently, it would be unlikely that the issues would be the same or similar in both proceedings. Therefore, it would be unlikely that the appeals could be combined.

ORDER

45The Board orders that:

1. Mr. Patry’s request to reinstate the 2016 taxation year appeal is denied;

2. Mr. Dixon’s request to reinstate the 2016 taxation year appeal is granted, and Mr. Patry is added as a party to this appeal proceeding;

3. The Commencement Date for the reinstated 2016 taxation year is not changed, but, if necessary, the parties may apply for an amendment of the due dates in the assigned Schedule of Events; and

4. Mr. Patry’s request to combine appeal proceedings is denied.

"Christopher Voutsinas"

CHRISTOPHER VOUTSINAS

VICE-CHAIR

Assessment Review Board

Website: www.tribunalsontario.ca/arb