City of Mississauga v. 2379879 Ontario Inc., 2022 CanLII 51264

Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: June 10, 2022

FILE NO.: DM 178996

Assessed Person: 2379879 Ontario Inc.

Appellant: City of Mississauga

Respondent: Municipal Property Assessment Corporation Region 15

Respondent: 2379879 Ontario Inc.

Property Location: 5990 Indian Line

Municipality: City of Mississauga

Roll Number: 2105-050-100-04010-0000

Appeal Numbers: 3438217, 3468655, 3468656, 3468657, 3488615, and 3488753

Taxation Years: 2019, 2020, 2021 and 2022

Hearing Event No.: 767166

Legislative Authority: Sections 33 and 40 of the Assessment Act, R.S.O. 1990, c. A.31

Parties

Representative

2379879 Ontario Inc.

Jonas Perov

Municipal Property Assessment Corporation

Christeen Mattat

City of Mississauga

Sean Doyle

REQUEST FOR: To extend due dates in the Schedule of Events

HEARD: June 1, 2022 in writing

ADJUDICATOR: Jean-Paul Pilon, Member

MOTION DECISION

OVERVIEW

12379879 Ontario Inc. (the “Moving Party”) is the owner of a property at 5990 Indian Line in the City of Mississauga (the “Subject Property”).

2The City of Mississauga (the “Municipality”) appealed the assessment of the Subject Property for the 2021 taxation year, and a further appeal for the 2022 taxation year was deemed pursuant to section 40(26) of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”). The Municipality’s appeal also triggered deemed appeals for correcting assessments made pursuant to section 33 of the Act for the 2019 to 2021 taxation years.

3These appeals were assigned a Schedule of Events pursuant to Rule 39(a) of the Board’s Rules of Practice and Procedure (the “Rules”), and the Moving Party brought this motion to extend the due dates in the Schedule of Events due to circumstances outlined below. The Municipal Property Assessment Corporation (“MPAC”) and the Municipality both opposed the motion.

Result

4This motion is denied.

Factual Background

5Arti Sood’s affidavit affirmed on April 6, 2022 was filed in support of the motion. In it, Ms. Sood wrote that her husband, who “had taken care of the affairs of property taxes and other business matters for this property and others,” passed away and that she was struggling with the management of those affairs. She wrote that after his death, the pandemic came with resulting lockdowns that severely impacted the Moving Party’s park and fly business near Pearson Airport in Mississauga. Ms. Sood wrote that she then became very sick with COVID, “furthering mismanagement of all the business affairs associated with the business.” Ms. Sood’s affidavit closed with a statement that “these issues made it difficult to task load (sic) everything I had to deal with both in personal and business endeavours.” She wrote that “this matter of an increase in the assessment brought on by the (Municipality) was amongst many things that I have not been able to thoroughly respond to or process.”

6The Municipality relied on an affidavit sworn by its employee Sean Doyle on May 12, 2022. Mr. Doyle wrote that the Municipality appealed the assessment of the Subject Property on March 26, 2021, that it served its Statement of Issues on the other parties earlier than required in the Schedule of Events on June 29, 2021, and that the Municipality received MPAC’s Response to the Statement of Issues on October 4, 2021.

7Mr. Doyle wrote that the Municipality and MPAC held their Mandatory Settlement Meeting in accordance with the Schedule of Events and that the Moving Party did not attend or participate. He wrote that the Municipality and MPAC then agreed to settle the appeals which had a hearing month of July 2022, noting that the appeals were in their final stages. Finally, Mr. Doyle’s affidavit closed with the statement that granting the relief requested “will place an unwanted and unnecessary demand on the administrative resources and time of the (Municipality), resulting in corresponding prejudice to this appeal and other applications and appeals now or which in future may be in process.”

8MPAC relied on the affidavit of its employee Rachel Michael sworn remotely on May 12, 2022. It noted that the commencement date assigned was May 17, 2021, and that Statements of Response were due on October 4, 2021. It explained that the Municipality’s position was that the assessment of the Subject Property of $2,936,000 as of January 1, 2016 was too low in view of a sale of the Subject Property on March 21, 2016 for $6,300,000. It said that the Municipality and MPAC had agreed to settle the appeals at $4,216,000.

9Ms. Michael’s affidavit also outlined additional attempts to engage the Moving Party in the Board’s process. It said that MPAC and the Municipality agreed that MPAC would write to the Moving Party, which it did on January 31, 2022, well after the October 4, 2021 due date for a Statement of Response. That letter exhibited to the affidavit enclosed MPAC’s Statement of Response reminded the Moving Party of the obligation to schedule a mandatory meeting and requested contact on or before March 4, 2022. Ms. Michael wrote that MPAC did not receive any response to its letter. She went on to say that on March 31, 2022, MPAC received the Expedited Board Direction Form that led to this motion from the Moving Party’s legal representative.

ANALYSIS

10This motion was filed pursuant to Rule 40 which provides that after a commencement date, “the Board will not alter any due date set out in the Schedule of Events other than in exceptional circumstances.”

11In Mississauga (City) v Michalakos, 2018 CanLII 126632 (“Michalakos”) at para. 11, the Board set out two questions to be determined in applying Rule 40. First, there must be a determination as to whether there are, in fact, exceptional circumstances. If there are exceptional circumstances, the second question to be determined is whether the balance of prejudice favours the extension of time requested. In the absence of exceptional circumstances however, the motion to extend time would be dismissed.

Issue 1 – Are there are exceptional circumstances?

The Moving Party’s Affidavit

12At para. 10 of Michalakos, the Board determined that “exceptional means, among other things, something that does not occur regularly, something unusual, or something atypical.” In this instance, the exceptional circumstances disclosed in Ms. Sood’s affidavit included: the death of her husband who took care of the business matters of the Moving Party, the pandemic and its effect on the business, her positive COVID test and ensuing sickness, and her difficulties running the business.

13The most significant problem with this request was that it did not allow for any of the events cited to be situated within the context of these appeals, because Ms. Sood’s affidavit provided no dates.

14For example, Ms. Sood wrote that her husband died prior to the pandemic. However, it is common knowledge that significant disruption caused by the pandemic in Ontario did not start until March, 2020 when the commencement date assigned to these appeals was not until 14 months later, on May 17, 2021. Ms. Sood’s affidavit went on to say that she tested positive for COVID and became very sick, but that could have occurred any time after the start of the pandemic and at any time during the course of the appeals, or even earlier.

The Board’s Jurisprudence

15The Moving Party cited four Board decisions on reply in support of its position. The first two were Almondale Homes Ltd. v Municipal Property Assessment Corp. Region No 22, [2010] O.A.R.B.D. No. 512 and Fava Management Ltd. v Municipal Property Assessment Corp., Region No. 15, [2013] O.A.R.B.D. No. 213.

16In the former of these decisions, the Board indicated that it would be lenient at para. 8 and allowed an adjournment so that an appellant could disclose his evidence to the other parties. In the latter decision at para. 26, the Board allowed the submission of new evidence that had not been disclosed in advance as it should have been.

17Neither of these decisions made reference to applicable rules of procedure in force at the time, and both significantly pre-dated not only the current version of the Rules effective April 1, 2021, but also the preceding set of rules effective April 1, 2017 and amended May, 2019 (the “Previous Rules”) which required exceptional circumstances. Moreover, a plain reading of both decisions suggests that relief was granted on an entirely discretionary basis, where the Board’s subsequent decision in Michalakos set out the two-step procedure above requiring a determination of exceptional circumstances prior to any exercise of discretion.

18Unlike those first two cases, the Moving Party’s third case, CP REIT Ontario Properties Ltd. v Municipal Property Assessment Corp., Region 9, [2019] O.A.R.B.D. No. 178 (“CP REIT”), was decided pursuant to the rule 82 of the Previous Rules, which was very similar to Rule 40, and applied Michalakos. The Board found at para. 8 in that instance that there were exceptional circumstances because the appeals in question were the first to proceed through “the Board’s new process”, where “only one batch of appeals can be first, so that is something that will not occur regularly.” It also determined the involvement of two appellants was unusual, as was the fact that “it is also one of a very few cases where the City of Toronto is retaining outside experts for the appeal.”

19CP REIT is distinguishable from this case for two reasons: because “the Board’s new process” is no longer new, having been in place in substantially the same form since 2017, and because there is a single and not two appellants in these appeals. The single similarity between that case and this one is that the Municipality indicated that it would be retaining an expert. However, there was no explanation as to why that would be relevant in these circumstances, where Ms. Sood’s affidavit did not indicate that to be a factor for her late participation. In addition, there was no indication in this case that the Municipality did, in fact, retain an expert.

20The fourth of the Moving Party’s cases was D.K. v. Hamilton (City), 2019 CanLII 122824 (“D.K.”). At para. 11 of that decision, the Board determined that the loss of a spouse could amount to an extraordinary circumstance and granted an adjournment. It also noted that the passage of time could make it more difficult to gather relevant documentation and “can negatively impact on any applicant’s inability to remember the key information required to be successful at such an application.”

21The Board has no doubt that the death of a spouse can amount to exceptional circumstances, but such a determination must be made within the context of the appeals. In this instance, Ms. Sood’s spouse died well before the commencement date in these appeals, and the impact of his death on these subsequent appeals was not explained in the motion material. This was not the situation in D.K. where the applicant’s spouse died in February 2019 which resulted in adjournments of hearings to take place very soon after, in July, 2019 and December, 2019. It is also noted that there was no indication in Ms. Sood’s affidavit that fading memories were an issue in these appeals.

22MPAC cited two Board decisions of relevance in its response to the motion. Its first, Corporation of the City of Pickering v Municipal Property Assessment Corporation, Region 13, 2019 CanLII 122356, was analogous to the extent that two parties to appeals had not received any response from the municipality which later requested an extension of time pursuant to the predecessor to Rule 40. That decision determined that the municipality should have known the importance of serving responding pleadings. It was also the case, as indicated in para. 16 of that decision, that the other parties “considered the matter settled with the minutes of settlement that did not need the consent of the Municipality as (it) was deemed not to oppose any settlement pursuant to Rule 39.”

23In Kitchener (City) v Municipal Property Assessment Corporation, Region 21, 2019 CanLII 91491 (“Kitchener”), the Board declined to extend time where a municipality failed to monitor timelines assigned to the appeals. The Board determined at para. 25 of that decision that “a party should not be successful in arguing that there are exceptional circumstances … where those circumstances were caused by their own carelessness.”

24The obvious distinction to be made in those decisions and the circumstances before the Board in this motion is that the Moving Party is not a municipality but a property owner unwillingly drawn into the Municipality’s appeals. MPAC argued that the Moving Party, effectively Ms. Sood, should still have familiarized herself with the Rules which have been in place since April 1, 2021 (and in a similar form previously). It argued that there was ample time for the Moving Party to have done so, where a response was due on October 4, 2021, and the first instance of participation by the Moving Party was on March 31, 2022. The Moving Party in reply argued that the Moving Party was inexperienced and could not have been expected “to not only learn the complexities of the legal process of the (Board) but additionally the entire spectrum of property valuation; let alone argue it to an even remotely effective manner with the other parties or the Board.”

25Mastery of assessment law is not what would have been required in this instance. What was required was clearly set out in the Schedule of Events which indicated that “each party who responds to the Appellant(s) is to serve its Statement of Response and any additional supporting disclosure” with the “(T)ime period to complete event” indicated as October 4, 2021. Even if Ms. Sood did not understand specifically what was required by that date, it was clear that something was due on October 4, 2021. At that point, Ms. Sood could have consulted the Board’s website, could have contacted the Board’s case coordinator whose details were indicated at the end of the Schedule of Events, or could even have contacted the other parties who would likely have referred her to the Board and/or suggested she retain a representative, which she eventually did. Moreover, it was not suggested in any of the Moving Party’s material that the Moving Party or Ms. Sood had not been in receipt of the Schedule of Events or any other documentation pertaining to these appeals.

26In reply the Moving Party argued additional exceptional circumstances to be considered. These included that the Moving Party was not the appellant, that unrepresented parties are unusual in general stream proceedings before the Board “and therefore need to be shown leniency to the rules,” and that it is even more unusual for an unrepresented owner to be confronted with an appeal on grounds that an assessment is too low. The Board notes that MPAC and the Municipality could not have provided responses to these new arguments because they were made on reply, nor was the data purported to support the Moving Party’s reply argument in the form of an affidavit. However, the Board can provide its ruling on these submissions in general terms.

27While it may not be a frequent occurrence, every property owner in Ontario runs the risk that their municipality will appeal an assessment to the Board. However, it would not be practical, nor would it be fair to hold respondent parties to those appeals, represented or not, to a different standard than other parties in those circumstances. Obviously, issues can arise in the conduct of any appeal which is why the Board has its Expedited Board Direction process which the Moving Party used here to set this motion. Where there are exceptional circumstances, discretion can be applied pursuant to Michalakos.

28Ultimately, parties to appeals decide whether they want to retain a representative or not. Whatever their decision, the Board cannot apply the Rules differently to parties who choose not to retain representatives. In any event, the Moving Party eventually chose to retain a representative who brought this motion, and Ms. Sood did not explain why she did not retain her representative earlier in the process.

Findings on Issue 1

29The death of a spouse, the pandemic and illness can all be exceptional circumstances pursuant to Rule 40, but only when there is evidence that those events were relevant to the appeals. In this instance, there was no connection or nexus that could be made in the evidence submitted between those events and the appeals. The Board therefore finds that they are not exceptional circumstances pursuant to Rule 40.

Issue 2 – Should the Board exercise its discretion?

30As noted above, Michalakos determined that the exercise of discretion need only be considered if there are exceptional circumstances. Since this decision determines there are no exceptional circumstances, discretion is not an issue that needs to be determined by the Board.

31However, had it been necessary for the Board to consider exercising its discretion, it would have returned to its Kitchener decision. In Kitchener, the other parties were similarly close to settlement. The prejudice to the owner wanting to participate at a late date in that instance would have been, to quote para. 26, “that the process would inevitably be prolonged, where its documentation already filed would have to be amended, further expert reporting would be required, and, most significantly, the likely settlement of these appeals would be derailed.” The Board found that “the City could easily have mitigated these circumstances had it taken more of an interest in the conduct of these appeals.”

32The situation here is analogous, where Mr. Doyle in his affidavit indicated that the Municipality and MPAC had already agreed to resolve the appeals. In addition, MPAC indicated that granting the relief requested would have prolonged the appeals, would have required the litigation of issues already settled, would have required amendments to pleadings, and would have required expert reports.

33Had prejudice been an issue in this motion, the Board would have found the prejudice to the Moving Party to have been outweighed by the prejudice to the other parties in these circumstances who would essentially have had to start over.

Finding on Issue 2

34The Board would not have exercised its discretion to extend time had that been an issue for it to decide.

CONCLUSION

35The Board finds that the Moving Party has not demonstrated that there are any exceptional circumstances that would justify altering the due dates in the Schedule of Events.

ORDER

36The Board orders that this motion is denied.