Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: May 09, 2022

FILE NO.: DM 2022M11

Assessed Person: 2945 Dundas Street West Inc. c/o Fred Dyer

Appellant: 2945 Dundas Street West Inc. c/o Fred Dyer

Respondent: Municipal Property Assessment Corporation Region 09

Respondent: City of Toronto

Property Location: 2945 Dundas Street West

Municipality: City of Toronto

Roll Number: 1904-013-870-03000-0000

Taxation Year: 2021

Hearing Event No.: 764265

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

APPEARANCES:

Parties	Representative
Fred Dyer; 2945 Dundas Street West Inc.	Self-represented
Municipal Property Assessment Corporation	Zoe Moraitis
City of Toronto	Sara Baxter

REQUEST FOR: Late Appeal

HEARD: April 28, 2022 in writing

ADJUDICATOR(S): Jean-Paul Pilon, Member

MOTION DECISION

OVERVIEW

1Fred Dyer is the owner of 2945 Dundas Street West Inc. (the “Moving Party”) which, in turn, owns a property at the same municipal address in Toronto (the “Subject Property”).

2Mr. Dyer filed this motion on the Moving Party’s behalf for the Assessment Review Board (the “Board”) to 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”). This motion was filed pursuant to Rule 26(b) of the Board’s Rules of Practice and Procedure (the “Rules”).

Result

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

Factual Background

4Two affidavits were filed by the parties to this motion, one from the Moving Party and one from the Municipal Property Assessment Corporation (“MPAC”).

5The Moving Party’s affidavit was in the form of a notarized letter addressed to the Board authored by Mr. Dyer on February 8, 2022. In it, Mr. Dyer wrote that he filed a Request for Reconsideration (“RfR”) with MPAC in March, 2021 but did not receive any response. He wrote that he assumed that the delay was a result of the pandemic and was not concerned about the absence of any reply.

6Mr. Dyer’s letter went on to say that the week prior to the date of his notarized letter, a commercial tenant at the Subject Property gave him mail that had been misdelivered including an assessment for the 2022 taxation year. Mr. Dyer wrote that he then followed up with MPAC and was told that the response to the RfR had been sent in July, 2021.

7MPAC relied on the affidavit of its employee Aidan Mailer affirmed on March 28, 2022. Mr. Mailer’s affidavit noted that MPAC’s records indicated that its assessment for the Subject Property had been returned in the commercial and residential property classes. His affidavit confirmed that the Moving Party’s RfR was filed on March 30, 2021 and that MPAC’s response in the form of a notice of reconsideration had been mailed on July 13, 2021 to the Moving Party at the address of the Subject Property.

8The Moving Party’s submission in this motion also included a quantity of material relating to the assessment and a potential appeal which was not considered because it was not relevant to whether the late appeal should be accepted.

ANALYSIS

9This motion was filed pursuant to Rule 26(b). In essence, Rule 26(b) provides that the Board may accept a late appeal if “the appellant satisfies the Board by way of affidavit evidence that… (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).”

10The use of the word “and” between the second and third requirements above means that all three requirements need to be met for an 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.

Issue 1 – Was the appellant a person entitled to receive the notice of assessment?

11MPAC confirmed that the Moving Party owns the Subject Property and that the Moving Party was entitled to receive the notice of assessment.

Finding on Issue 1

12The Moving Party met the first requirement of Rule 26(b).

Issue 2 – Did the Moving Party receive notice of the assessment?

13Mr. Dyer did not say that he did not receive notice of the assessment, although he did file an RfR on March 30, 2021.

14The Moving Party had the burden of proving that it met each of the requirements of Rule 26(b) in this motion. Without any statement that the notice of assessment was not received, the Board cannot determine that the Moving Party or Mr. Dyer did not receive the notice of assessment. Moreover, the Board finds it unlikely that the Moving Party would have filed the RfR to have MPAC reconsider its assessment if the Moving Party had not received the notice of assessment in the first place.

Finding on Issue 2

15The Moving Party did not meet the second requirement of Rule 26(b).

Issue 3 – Did the Moving Party file an appeal within 30 days of becoming aware of the assessment?

16The date that a potential appellant files a motion pursuant to Rule 26(b) is generally considered to be the date that a party filed an appeal in this part of the Rule.

17In this case, the motion was filed on March 7, 2022 and the Moving Party most likely became aware of the assessment prior to the filing of its RfR on March 30, 2021. As a result, the Moving Party would not have met the third requirement of Rule 26(b).

18In addition, the fact that the Moving Party filed its RfR on March 30, 2021 but did not receive any response did not assist the Moving Party in this motion. This is because a portion of the Subject Property was returned in the residential property class, which meant that the filing of an RfR was a precondition to filing an appeal pursuant to section 40(3) of the Act. Section 40(5)1 of the Act provides the deadline for appealing would have been 90 days after the issuance of the notice of reconsideration which, in this case, was July 13, 2021. Therefore, the deadline to appeal was September 11, 2021.

19Since MPAC’s notice of reassessment was sent to the correct address, the Board cannot determine that it was not sent by MPAC, which would have extended that deadline by a further 90 days pursuant to section 40(5)2 and as determined in Candida Holdings (Sarnia) Limited v Municipal Property Assessment Corporation, Region 26, 2019 CanLII 14343 (ON ARB) at paras 3 and 4. Even if that had been the case, the Moving Party’s appeal was filed late.

20In any event, the Board determined in Werzberger v Municipal Property Assessment Corporation, Region 09, 2018 CanLII 107717 (ON ARB), 2018 CanLII 73665 at para. 18 that Rule 26(b) does not generally apply when an RfR is made.

21The deadline to appeal therefore remained September 11, 2021 and the Board has no jurisdiction to extend it.

Finding on Issue 3

22The Moving Party did not meet the third requirement of Rule 26(b).

CONCLUSION

23The Board finds that the Moving Party has not met all three of the requirements in Rule 26(b) and that its motion must be denied.

ORDER

24The Board orders that this motion is denied.