Grand Theatre Foundation v. Municipal Property Assessment Corporation Region 23, 2022 CanLII 5433

Assessment Review Board

Tribunals Ontario Tribunaux décisionnels Ontario Assessment Review Board Commission de révision de l’évaluation foncière

ISSUE DATE: January 25, 2022 FILE NO.: DM 2022M04

Assessed Person: Grand Theatre Foundation Appellant: Grand Theatre Foundation Respondent: Municipal Property Assessment Corporation Region 23 Respondent: City of London

Property Location: 339 Neptune Crescent Municipality: City of London Roll Number: 3936-040-700-00560-0000 Taxation Year: 2021 Hearing Event No.: 758972

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

Parties	Representative
Grand Theatre Foundation	Ansel B. Tempral
Municipal Property Assessment Corporation	Douglas Keyes
City of London	No submissions received

REQUEST FOR: Late Appeal HEARD: January 12, 2022 in writing ADJUDICATOR: Jean-Paul Pilon, Member

MOTION DECISION

OVERVIEW

1Grand Theatre Foundation (the “Moving Party”) became the owner of a property at 339 Neptune Crescent in the City of London (the “Subject Property”) on March 12, 2021. This motion was set because the Moving Party requested that the Assessment Review Board (the “Board”) accept its appeal for the 2021 taxation year after the time set out in the Assessment Act, R.S.O. 1990, c. A.31.

Result

2For the reasons that follow, this motion is granted.

Factual Background

Affidavits

3The Moving Party relied on the affidavit of its Director of Finance Ansel B. Tempral sworn on October 26, 2021.

4Mr. Tempral stated in his affidavit that the Moving Party acquired the Subject Property on March 12, 2021 “for the storage and fabrication of stage props and related structures.” He wrote that the Moving Party contacted the Municipal Property Assessment Corporation (“MPAC”) on April 1, 2021 and was correctly told that the last day to appeal the assessment was the day before, March 31, 2021. He further wrote that the Moving Party contacted the Board the same day, April 1, 2021, and that the Board responded on April 16, 2021 saying that the Moving Party should file an affidavit with the Board pursuant to Rule 26(b) described below.

5Mr. Tempral stated in his affidavit that the Moving Party had not received any notice of assessment and that it was unable to file any appeal by the deadline because the pandemic had interfered with its normal administrative operations.

6In its response to the motion, MPAC relied on the affidavit of its employee Montanna Hill-Sooley affirmed on December 17, 2021. In that affidavit, Ms. Hill-Sooley wrote that MPAC received the Board’s letter setting out next steps in the motion that was sent on November 25, 2021. She confirmed that the Moving Party had contacted MPAC on April 1, 2021 but wrote that the Moving Party was not heard from again until December 14, 2021 “when (the Moving Party’s) materials were filed for this motion.”

The Board’s File

7The Moving Party’s first filing with the Board was a request to extend time to file a Request for Reconsideration (“RfR”) on April 1, 2021, likely the communication of the same date referred to in Mr. Tempral’s affidavit. The Board’s email reply dated April 16, 2021 that was also described in Mr. Tempral’s affidavit said that the Board did not have the authority to grant his request. It said that the request was instead “being treated as a request to file a late appeal with the Board.” It then set out Rule 26(b), pursuant to which this motion was filed, and directed the Moving Party to file an affidavit without setting any deadline. Mr. Tempral’s affidavit was filed on October 26, 2021.

8The Board’s Registrar wrote to the Moving Party on November 8, 2021 acknowledging that the Moving Party’s request for a late appeal was received October 26, 2021 and that “the Board will respond to your request shortly.” On November 25, 2021, the Board set the request to a motion and sent the parties the letter referred to above that set out next steps in the motion.

9That letter specifically provided “that submissions must be served on and delivered to all other parties by the deadlines outlined below.” The first of these deadlines was that “the appellant must file and serve all of his motion material inclusive of any evidence, on or before December 9, 2021.”

10On December 14, 2021, MPAC’s representative wrote to the Board, copying the Moving Party, indicating that MPAC had not received any material from the Moving Party. It was only at that point that MPAC was served with the Moving Party’s affidavit in the motion by Mr. Tempral.

ANALYSIS

11This motion was filed pursuant to Rule 26(b) which 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).” Rule 26 also specifically provides that the Board may only accept the appeal “if the appellant satisfies the Board, by way of affidavit evidence” of the three requirements.

12In its response, MPAC argued that the motion should be denied because the Moving Party did not comply with the Board’s direction to serve its motion material on the other parties on or before December 9, 2021.

Issue 1 – Should this motion be denied because the Moving Party did not follow the Board’s direction?

13MPAC argued that the Moving Party had the burden of proof in the motion, and that if the Moving Party did not file and serve its evidence as directed, then the motion should be dismissed in the absence of evidence to support it.

14In fact, and as detailed above, the Moving Party’s affidavit was before the Board prior to the date that the motion was set. The problem in this instance was that it was not served on the other parties in accordance with the Board’s direction issued when the motion was set.

15The Moving Party’s motion material was, however, served on MPAC on December 14, 2021 after MPAC’s representative wrote to the Board, five days late. The same direction required MPAC to file and serve its motion material on the other parties on or before December 23, 2021, but this was done on December 17, 2021 because of the upcoming holidays.

16On this point, had MPAC required additional time to file and serve its response, it could have submitted that request to the Board. Such a request may have been granted where these motions are stand-alone proceedings and not part of any larger Schedule of Events where several more due dates might have been at issue.

17Although Mr. Tempral did not explain the Moving Party’s failure to serve and file its motion material as directed, it was clear from his communication to the Board that he did not understand what was required. Moreover, MPAC did not cite any prejudice arising from the late service which was notable when it filed fulsome submissions in response prior to the due date.

18As a result, the Board finds there was no prejudice to MPAC caused by the Moving Party’s late service of its affidavit. In addition, the Board finds that it would be unfair that in these particular circumstances to deny the motion simply because of Mr. Tempral’s oversight in not serving MPAC with the Moving Party’s motion material by the date specified.

Finding on Issue 1

19This motion is properly before the Board and is not denied for the reasons above.

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

20As noted above, Mr. Tempral identified himself in his affidavit as the Director of Finance for the Moving Party. MPAC did not dispute that he was entitled to receive notice.

Finding on Issue 2

21The Board finds that the Moving Party met the first requirement of Rule 26(b).

Issue 3 – Did the Moving Party receive a notice of assessment for the 2021 taxation year?

22In his affidavit, Mr. Tempral wrote that the notice of assessment was not received. In its argument, MPAC confirmed that it had been sent to the previous owner of the Subject Property. MPAC did not dispute that the Moving Party did not receive the notice of assessment.

Finding on Issue 3

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

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

24MPAC first argued that the Moving Party did not meet the third requirement of Rule 26(b) because “standard practice requirements for the transaction of property in Ontario” would include a review of tax liabilities and assessment of a property to be transacted. As a result, MPAC argued that the Board should find that the Moving Party knew of the assessment before it acquired the Subject Property.

25The “standard practice requirements” in real estate transactions were not in evidence in this motion, nor should the Board speculate as to what legal advice was or should have been provided to the Moving Party when it acquired the Subject Property. As a result, the Board does not agree that the Moving Party should have been aware of the assessment prior to acquiring the Subject Property. MPAC cited Marsh v Municipal Property Assessment Corporation, Region 09, 2018 CanLII 89425 (ON ARB) at para. 12 where the Board found that awareness of an assessment could be imputed from municipal tax invoices, however in this case there was no evidence before the Board that the Moving Party received any tax invoices.

26Second, MPAC argued that “it was entirely possible for the owner to reach-out (sic) to MPAC and the Board in advance of the deadline” and that given that it did on April 1, 2021, “the owner was clearly aware of this issue at the time of the transaction but did not act before the deadline.”

27The wording of Mr. Tempral’s affidavit suggested that he knew of the deadline for filing an appeal on March 12, 2021, the day the Subject Property was acquired. His affidavit stated, however, that for reasons relating to the pandemic, his filing, which was in the form of a request to extend time to file an RfR, was not made until the day after the deadline to file an appeal passed on April 1, 2021.

28The Board concurs that the Moving Party could have contacted MPAC or the Board prior to the deadline to file an appeal when the Moving Party was aware of the assessment prior to that date. However, neither of those observations is relevant where the single question to be determined in the third part of Rule 26(b) is whether the Moving Party filed an appeal within 30 days of becoming aware of the assessment.

29Third, MPAC argued that Mr. Tempral’s statement in his affidavit as to the use of the Subject Property “indicates that the current owner may have been in a tenancy with the previous owner,” and that there may have been an agreement with that previous owner as to apportionment of tax liabilities. It therefore argued “that the owner may well have been aware of the assessment in question through their tenancy well in advance of the March 31, 2021 filing deadline.”

30The Board finds MPAC’s third argument entirely speculative. There was no evidence in the motion of any tenancy.

31Fourth, MPAC argued that since the Moving Party was clearly aware of the assessment on April 1, 2021 and that MPAC was not contacted until November 8, 2021, the appeal was not filed within 30 days of the Moving Party becoming aware of the assessment.

32This argument goes to the crux of the third part of Rule 26(b). MPAC argued that the Moving Party was clearly aware of the assessment on April 1, 2021 when it contacted MPAC. In fact, the Board finds that the Moving Party knew of the assessment on March 12, 2021. This is because Mr. Tempral wrote in his affidavit that the pandemic prevented the Moving Party from filing an appeal between that date, when the Subject Property was acquired, and the deadline of March 31, 2021.

33The Moving Party did, however, contact the Board on April 1, 2021 and filed its request to extend time to file an RfR on the same date which was within 30 days of it becoming aware of the assessment. This was not the filing of an appeal with the Board as required by Rule 26(b). However, in several recent decisions, namely 2356746 Ontario Inc. v Municipal Property Assessment Corporation, Region 13, 2019 CanLII 114731 (ON ARB) at para. 28, 2604696 Ontario Inc. v Municipal Property Assessment Corporation, Region 09, 2019 CanLII 109526 (ON ARB) at para. 24 and Four O One 45 Developments Inc. (Marvin Pernica) v Municipal Property Assessment Corporation Region 06, 2021 CanLII 125747 (ON ARB) at para. 19, the Board determined that moving parties “filed the appeal within 30 days of becoming aware of the assessment” even if that filing was in the wrong form. The Board also determined in each of these decisions that to find otherwise in similar circumstances would be procedurally unfair.

Finding on Issue 4

34The Board finds that the Moving Party met the third requirement of Rule 26(b).

CONCLUSION

35The Board finds that the Moving Party has met all three requirements of Rule 26(b) and that the Board may accept its late appeal for the 2021 taxation year.

ORDER

36The Board orders that that the Moving Party’s appeal for the 2021 taxation year is accepted pursuant to Rule 26(b).