12502488 Canada Inc. v. Municipal Property Assessment Corporation Region 23, 2022 CanLII 5448

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

ISSUE DATE: January 24, 2022 FILE NO.: DM 2022M02

Assessed Person: 12502488 Canada Inc. Appellants: 12502488 Canada Inc.; Fan Tang Respondent: Municipal Property Assessment Corporation Region 23 Respondent: City of Woodstock Property Location: 278 Hunter Street Municipality: City of Woodstock Roll Number: 3242-010-080-07000-0000 Taxation Year: 2020 and 2021 Hearing Event No.: 757780 Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31

Parties	Representative
12502488 Canada Inc. and Fan Tang	Self-represented
Municipal Property Assessment Corporation	Douglas Keyes
City of Woodstock	Submissions not received

REQUEST FOR: Late Appeals HEARD: January 11, 2022 in writing ADJUDICATOR: Jean-Paul Pilon, Member

MOTION DECISION

OVERVIEW

1Fan Tang is the owner of 12502488 Canada Inc. (the “Moving Party”) which, in turn, owns a property at 278 Hunter Street in the City of Woodstock (the “Subject Property”).

2On the Moving Party’s behalf, Mr. Tang filed this motion for the Assessment Review Board (the “Board”) to accept the Moving Party’s appeals for the 2020 and 2021 taxation years after the time set out in the Assessment Act, R.S.O. 1990, c. A.31 (“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 granted for the 2021 taxation year but denied for the 2020 taxation year.

Factual Background

Affidavits

4There were two affidavits before the Board in this motion, one from Mr. Tang sworn on October 29, 2021, and one from the Municipal Property Assessment Corporation’s (“MPAC”) employee Montanna Hill-Sooley affirmed on December 14, 2021. The City of Woodstock made no submissions in the motion.

5Mr. Tang wrote in his affidavit that he did not receive MPAC’s Property Assessment Change Notice (“PACN”) issued on May 10, 2021 pertaining to the Subject Property. He wrote that he did receive a tax bill from the City of Woodstock on October 6, 2021, and that he “was only aware of this notice” after speaking with a municipal representative the same day. He wrote that “as a result of not receiving the property assessment notice from MPAC, the property Owner (sic) missed the deadline of filing the appeal on September 7, 2021.”

6Ms. Hill-Sooley’s affidavit noted that the Board had directed that the Moving Party’s motion materials “were due to the parties November 30, 2021,” and that “the owner did not send his materials to the parties as required” on that date. Instead, she said, they were only sent to the Board on November 27, 2021. This affidavit further confirmed that the PACN was issued on May 10, 2021 and that it was mailed to the Subject Property.

Additional Factual Background From the Board’s File

7Mr. Tang first contacted the Board on October 6, 2021 when he made a written request to extend time to file a Request for Reconsideration (“RfR”). The Board replied on October 28, 2021 that it did not have jurisdiction to consider that request and that his “request is therefore being treated as a request to file a late appeal with the Board.” It then set out Rule 26(b) and said that “if (Mr. Tang) can provide an explanation that meets the criteria set out above, please submit a notarized affidavit directed to the Chair, at which time your request will be considered.”

8Mr. Tang then obtained his affidavit described above that was sworn on October 29, 2021 and submitted it to the Board as directed on November 2, 2021. At that point the Board followed its usual practice and set the request to a written motion.

9The Board sent a letter to the parties dated November 16, 2021 which set out next steps in the motion. That letter directed Mr. Tang to file and serve all of his motion material on all other parties on or before November 30, 2021, and MPAC was to do the same on or before December 14, 2021.

10Mr. Tang filed a letter dated November 26, 2021 on November 27, 2021, setting out the same details as in his affidavit with the addition of information relating to his potential appeal. That submission was not compliant with Rule 26(b) because it was not in the form of an affidavit, although his affidavit was already in the Board’s file.

11Mr. Tang did not provide any of his motion material to MPAC until December 6, 2021. Even then, it appears that Mr. Tang did not serve his affidavit on MPAC because MPAC argued in its material that what it received was not sworn as was required. At that point Mr. Tang retained counsel who sent reply submissions and the affidavit to MPAC on the reply date set out in the Board’s letter of December 17, 2021.

Issues in the Motion

12In its written submission accompanying Ms. Hill-Sooley’s affidavit, MPAC argued that the Moving Party was in breach of several Rules, including Rule 8 which requires that any communication with the Board be copied to all other parties, Rule 66 which describes the requirement of filing an Expedited Board Directions Form (“EBDF”) prior to filing a motion, and various other Rules pertaining to disclosure and evidence. It also made arguments relating to the content of reply submissions which it had not yet received from the Moving Party. These issues are addressed in this decision first.

13This decision then turns to the requirements of Rule 26(b) pursuant to which this motion was filed. Rule 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).”

14The use of the word “and” between the first and second requirements above mean that all three requirements need to be met for an appellant (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.

ANALYSIS

Issue 1 – Compliance with the Rules

Rule 8 and the Requirement of Affidavit Evidence in Rule 26

15Rule 8 provides that “all communication to and from the Board in relation to any proceeding must be copied to, or made in the presence of, all other parties to the proceeding.” Rule 26 additionally requires evidence to be submitted in the form of an affidavit.

16Mr. Tang did not copy his communications with the Board to MPAC as he was required to do pursuant to Rule 8. In reply, the Moving Party’s counsel wrote that Mr. Tang did not understand what the Board had directed, where the Board’s letter simply said that Mr. Tang was to “file and serve” his material on all other parties before that date. MPAC argued that the Moving Party did not meet the Board’s requirements in the motion and that there should be a determination that there was no evidence from the Moving Party in the motion.

17While the Moving Party was clearly in breach of Rule 8, the salient points of Mr. Tang’s affidavit appeared almost exactly as in his letter dated November 26, 2021 which was served on MPAC on December 6, 2021.

18Mr. Tang was not represented until he filed and served his reply, and the Board has no reason to disbelieve the submission that Mr. Tang simply did not understand what was required of him. The more significant point is that MPAC was in receipt of Mr. Tang’s letter, and it responded in specific terms to its content.

19As a result, the Board does not accept that MPAC experienced any prejudice as a result of the Moving Party’s breach of Rule 8. Moreover, had MPAC required additional time to file 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 more due dates might be at issue.

20Despite the Moving Party’s breach of Rule 8, the Board finds that the Moving Party’s evidence is properly before the Board and that it would not be unfair for the motion to proceed in these circumstances.

Rule 66

21MPAC argued the Moving Party breached Rule 66 without explaining how. Rule 66 requires “a party bringing a motion (to) serve on all parties and file with the Board a completed Expedited Board Directions Form attaching a notice of motion setting out” what is being requested. Presumably, MPAC’s argument was that the motion was not properly before the Board and that it should have come in by way of an EBDF.

22As noted above, this motion was preceded by Mr. Tang’s request to extend time to file an RfR for which the Board determined it had no jurisdiction. Instead, the Board considered the request as a request for a Rule 26(b) motion to be set by the Board in a process the Board has followed when such requests are made. The Board then set timelines in the motion which is also its standard practice.

23Mr. Tang was not seeking to bring a motion when he requested an extension of time to file an RfR. The Board set the Rule 26(b) motion on its own motion as it was entitled to do, and which it seems always to do administratively when these issues arise.

24There was no breach of Rule 66 by the Moving Party, nor was there any prejudice to MPAC in the Board administratively setting this to a motion on its own terms.

Other Rules and Reply

25MPAC then alleged that the Moving Party had not complied with Rules 30 through 36 and Rule 45, which address service and filing of documents and disclosure, without explaining how they were breached. The Board is not satisfied that any of these other Rules were breached by the Moving Party.

26Finally, MPAC preemptively argued at length that the Moving Party should not be permitted to rely on Mr. Tang’s affidavit that was served in reply, assuming correctly that the Moving Party would serve it at that time.

27Even though the Moving Party was not compliant with Rule 8 and did not initially serve its submissions in the form of an affidavit as was required, Mr. Tang provided the substance of those submissions to MPAC in the form of a letter later confirmed by way of his affidavit. In addition, and as pointed out by the Moving Party’s representative, Rule 26(b) requires that a moving party satisfy the Board by affidavit evidence… (and that) the Moving Party does not have to satisfy MPAC (his emphasis).”

28The Board agrees and adds that the Moving Party’s submissions should not have been a surprise to MPAC when they were sent to MPAC but in the wrong form. Otherwise, none of the Moving Party’s submissions in reply were new issues that could not have been raised in reply.

Findings on Issue 1

29Despite the Moving Party’s failure to comply with Rule 8, there was otherwise compliance with the Rules. The Board finds that Mr. Tang’s affidavit and the motion itself are properly before the Board.

Issue 2 – Was the Moving Party a person entitled to receive notice of assessment for the 2021 taxation year?

30The Moving Party owns the Subject Property and Mr. Tang owns the Moving Party. MPAC did not dispute that either were entitled to receive the PACN.

Finding on Issue 2

31The 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?

32MPAC disputed the Moving Party’s contention that it did not receive a notice of assessment because MPAC complied with the requirements of the Act by sending the PACN to the correct address. MPAC argued that “it is not reasonable to hold MPAC to be disadvantaged by the potential misplacement or mis-delivery of an Assessment Notice that is mailed to the correct mailing address.” It continued, that “to make a finding that mailing to the correct address is not evidence of delivery of an assessment notice would bring the entire administration of property assessment in Ontario into question, and the subsequent administration of justice therein, into disrepute because this is the legislated manner by which MPAC must delivery notices.”

33The Moving Party did not suggest that MPAC had not sent the PACN as it was required to do; it only said that that the PACN was “never received by the property owner at the property mailing address.” Rule 26(b) makes no reference to service or to the mailing of the notice of assessment, nor does it deem receipt if it was sent correctly as it was in this instance. Instead, the requirement is that “the appellant is a person entitled to receive a notice of assessment who did not receive notice (emphasis added).”

34A party cannot appeal an assessment of which they were unaware. While it is unfortunate that mail occasionally gets lost, as appears to have occurred in this instance, the Rule exists to preserve procedural fairness where parties, through no fault of their own, do not receive notices of assessment. This process is not unreasonable, nor does it bring the administration of justice into disrepute as argued by MPAC.

35The evidence before the Board was that the PACN was not received by the Moving Party. The Moving Party therefore met the second requirement of the Rule.

Finding on Issue 3

36The Board finds that the Moving Party met the second requirement of Rule 26(b).

Issue 4 – Did the Moving Party file the 2021 appeal with the Board within 30 days of becoming aware of the assessment?

37The first question to be determined here is the date the Moving Party became aware of the assessment.

38Mr. Tang stated in his affidavit that he first became aware of the assessment when he received the tax bill on October 6, 2021, the same day he filed the request to extend time to file the RfR. MPAC explained in its argument, but not in affidavit form, that the Subject Property was a place of worship exempt from taxation until the Moving Party bought it in December, 2020. MPAC argued that “the owner ought to have been made aware of this resulting change in classification,” which MPAC said was the subject of the PACN.

39The determination to be made in this part of Rule 26(b) is the date that a potential appellant became aware of an assessment, not when that party ought to have known of it. The evidence before the Board is that Mr. Tang became aware of the assessment when he received the tax bill on October 6, 2021.

40As a result, the Board determines that the Moving Party became aware of the assessment on October 6, 2021.

41The next date to be determined is the date that the Moving Party filed an appeal, because it would have had to have filed it within 30 days of becoming aware of the assessment pursuant to Rule 26(b).

42Mr. Tang filed the request to extend time to file an RfR the same day, October 6, 2021, and within 30 days of the Moving Party becoming aware of the assessment.

43This was not the filing of an appeal with the Board as required by Rule 26(b) because it was a request to extend time to file an RfR. 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

44The Board finds that the Moving Party met the third requirement of Rule 26(b) for the 2021 taxation year.

Issue 5 – The Moving Party’s request to file a late appeal for the 2020 taxation year

45Mr. Tang’s affidavit made no reference to the assessment of the Subject Property for the 2020 taxation year and did not address any of the three requirements of Rule 26(b) as they pertained to that taxation year. Specifically, the Board had no evidence that: the Moving Party or Mr. Tang were entitled to receive a notice of assessment for that taxation year, that they did not receive notice, or that they filed any appeal with the Board within 30 days of becoming aware of that assessment or classification. Moreover, MPAC pointed out in its argument and not in an affidavit that the Moving Party did not even own the Subject Property until late in the 2020 taxation year.

46As a result, the Board is not satisfied that it may accept a late appeal from the Moving Party for the 2020 taxation year.

Finding on Issue 5

47The Board cannot accept the Moving Party’s appeal for the 2020 taxation year because none of the requirements of Rule 26(b) were met.

CONCLUSION

48The 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.

49The Board finds that the Moving Party has not met any of the three requirements of Rule 26(b) as they pertain to the 2020 taxation year, and the Board does not accept its appeal for that taxation year.

ORDER

50The Board orders that the Moving Party’s appeal for the 2021 taxation year is accepted pursuant to Rule 26(b).