Tribunals Ontario

Assessment Review Board

ISSUE DATE: July 06, 2022 FILE NO.: DM 179542

Assessed Person(s): Penguin-Calloway (Vaughan)/SmartCentres Appellant(s): Elroy Bacchus Respondent(s): Municipal Property Assessment Corporation, Region 14 Respondent(s): City of Vaughan

Property Location(s): 0 Millway Avenue Municipality(ies): City of Vaughan Roll Number(s): 1928-000-230-31110-0000 Appeal Number(s): 3478361 and 3488421 Taxation Year(s): 2021 and 2022 Hearing Event No.: 768274

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

Parties	Representative
Penguin-Calloway/SmartCentres and Elroy Bacchus	Self-represented
Municipal Property Assessment Corporation	Robert Zamozniak
City of Vaughan	Jaroslaw Wowk

REQUEST FOR: Dismissal of Appeal(s) HEARD: June 13, 2022 in writing ADJUDICATOR(S): Christopher Voutsinas, Vice Chair

MOTION DECISION

OVERVIEW

1Elroy Bacchus on behalf of Penguin-Calloway (Vaughan)/SmartCentres (the “Appellant”) is the owner of the property located at 0 Millway Avenue in the City of Vaughan (“Subject Property”). The Appellant filed an appeal pursuant to s. 40 of the Assessment Act, S.O. 1990, c. A.31 (“Act”) for the 2021 taxation year. The ground of this appeal is that the current value of the Subject Property, as determined by the Municipal Property Assessment Corporation (“MPAC”) in its general reassessment, is incorrect and too high. Pursuant to s. 40(26) of the Act, a corresponding appeal is deemed for the 2022 taxation year.

2Per s. 40 of the Act, MPAC and the Municipality are statutory parties to this appeal proceeding.

3For each appeal filed with the Assessment Review Board (“Board”), the Board sets a commencement date for the appeal and assigns a corresponding Schedule of Events (“SOE”) which sets out: (i) the various steps parties must undertake during the life cycle of an appeal and, (ii) the associated due date for each step.

4The City of Vaughan (“City”) filed a Request to Dismiss the Appeals due to the Appellant’s non-compliance with the assigned SOE.

5The Appellant and MPAC oppose the City’s request to dismiss the appeals and the matter is set to this Motion.

Result

6The City’s request to dismiss the appeals is granted.

BACKGROUND

7On March 4, 2022, the Appellant and MPAC agreed to a settlement in connection with the subject appeals.

8The City was unaware of the settlement discussions and correspondence by and between the Appellant and MPAC as the two parties did not to include the City in their exchange.

9Three days later, on March 7, 2022, the Appellant was required to serve a Statement of Issues (“SOI”) on the other Parties per the SOE.

10The Appellant did not serve a SOI by that date.

11On April 8, 2022, the City filed a Request to Dismiss the Appeals with the Board as the Appellant did not serve a SOI in accordance with the requirements of the SOE.

12On April 11, 2022, the City advised the Appellant and MPAC that it objected to the settlement between the Appellant and MPAC and requested that the Appellant serve its SOI no later than April 22, 2022.

13The Appellant did not serve a SOI by that date.

14All Parties involved provided submissions on this Motion to the Board.

ISSUES

15The issues to be addressed in this Motion Decision are:

a. Was the Appellant required to serve a SOI by the due date in the SOE?

b. If so, does the Appellant’s not doing so warrant a dismissal of the appeals?

ANALYSIS

Issue 1: Was the Appellant required to file a SOI by the due date in the SOE?

16Section 25.0.1 of the Statutory Powers and Procedures Act (“SPPA”) provides that the Board can control its own process and s. 25.1 provides that the Board has the power to determine its own procedures and practices that apply in any particular proceeding, and to make its own rules governing that practice.

17In connection with the foregoing, the Board has established its Rules of Practice and Procedure dated April 1, 2021 (“Rules”). The following includes three of the Board’s rules:

Dismissal of a Proceeding

24. The Board may dismiss a proceeding without holding a hearing, or after a hearing, if:

(a) the Board is satisfied that it is without jurisdiction to hear the appeal;

(b) the Board is of the opinion that the proceeding is frivolous or vexatious, is commenced in bad faith or only for the purpose of delay;

(c) the Board is of the opinion that the reasons set out in the appeal do not disclose any apparent statutory ground on which the Board can make a decision;

(d) the appellant has not responded to a request by the Board for further information within the time specified by the Board;

(e) the appellant has not complied with the statutory requirements or these Rules; or

(f) the appellant has abandoned the appeal.

Schedule of Events

39. For all appeals filed for the 2021 taxation year and subsequent taxation years, the Schedule of Events for a proceeding is:

(a) set out in Schedule A for all appeals designated as a general proceeding;

(b) set out in Schedule B for all appeals designated as a summary proceeding; or

(c) as otherwise specified by the Board.

Schedules A and B to the Board’s Rules include the following statement:

The following Schedules of Events are part of the Rules of Practice and Procedure. Parties are required to adhere to the Schedule of Events applicable to their proceeding. Failure to do so, in addition to any failure to comply with any orders or directions of the Board, may result in a party being unable to rely on documents at a hearing or dismissal of a proceeding.

Extension of Schedule of Events Due Dates

40. After the Commencement Day set out in Rule 39 as the start of a proceeding, the Board will not alter any due date set out in the Schedule of Events other than in exceptional circumstances.

The City’s Submissions

18The City submits that the Appellant failed to serve a description of the issues in dispute (Statement of Issues “SOI”) in accordance with the Board’s Rules and the SOE.

19The City asserts that between March 1, 2022, and March 4, 2022, the Appellant and MPAC exchanged correspondence regarding a settlement of the subject appeals, and that on March 4, 2022, the Appellant and MPAC reached an agreed settlement.

20The City states that it was not included or copied on any of the foregoing settlement discussions and correspondence, and that the Appellant and MPAC failed to provide the City with an offer to settle or advise that a settlement agreement had been reached between the two of them.

21In its submissions, the City offers the following sequence of events.

a. On March 7, 2022, the Appellant was required to serve its SOI in accordance with the SOE and failed to do so.

b. On April 8, 2022, the City filed a Request to Dismiss Appeal(s) with the Board given that the Appellant had failed to serve a SOI in accordance with the SOE.

c. On April 11, 2022, the Appellant opposed the Request to Dismiss.

d. On April 11, 2022, the City advised the Appellant and MPAC that it objected to the settlement agreement between the two of them given that the City was not provided an opportunity to know and respond to the issues in dispute.

22The City takes the position that the Appellant ought to have served its SOI on the City on or before March 7, 2022, given that the City was not a party to the settlement agreement between the Appellant and MPAC.

23On April 11, 2022, the City provided the Appellant an opportunity to remedy its breach by serving its SOI no later than April 22, 2022. The Appellant did not do so.

24The City objects to an extension of the SOE given there are no exceptional circumstances for the Appellant’s non-compliance with the Rules.

25It is the City’s position that the appropriate consequence for the Appellant’s non-compliance is to dismiss the subject appeals.

26The City submits that it is prejudiced by the Appellant’s failure to serve its SOI and that it will continue to suffer prejudice if the appeals are permitted to continue.

MPAC’s Submissions

27MPAC, confirms via affidavit, that on March 7, 2022, the Appellant “was required to serve its Statement of Issues on all parties as per the Schedule of events, it did not do so”.

28MPAC confirms settlement discussions occurred with the Appellant via email without City involvement.

29MPAC submits that it was not appropriate for it to forward the Appellant’s “without prejudice proposal” to the City and that it sought clarification from the Appellant that the Appellant would be communicating with the City on this matter.

30It is MPAC’s understanding that the Appellant would be speaking and negotiating with the City in connection with settlement discussions.

31MPAC submits that a settlement requires all parties to agree and that it would be inappropriate for a party to have not been given the opportunity to participate, and to then prevent them from weighing in on the settlement of an appeal.

32MPAC believes this is a case resulting out of a misunderstanding and that this is a unique and exceptional circumstance.

33MPAC requests that the Board assign a new SOE and that the Appellant be instructed to file a SOI within the new timeline.

The Appellant’s Submissions

34The Appellant states in its submissions that since the subject appeals relate to another appeal that results from a parent roll that was severed into five rolls and involves the same area, that this “demonstrates an alignment of intentions and facts that would provide reasoning to why the Statement of Issues was not issued on or before the March 7th, 2022 deadline set out in the Schedule of Events.”

35It is the Appellant’s position that “both the Appellant and MPAC failed to notify the City with respect to the settlement offer” and that this was not intentional.

36The Appellant indicates that it was waiting on Minutes of Settlement and backup from MPAC to show and discuss with the City.

37The Appellant asserts that based on the recent course of conduct by the City on a related property roll that the Appellant did not believe that the City was going to oppose any settlement.

38The Appellant submits that is it unclear and inconsistent why the City would not participate for the 2018-2020 taxation years and object to the 2021 and 2022 taxation years for the same lands. Further, the Appellant asserts that the proposed settlement related to the subject roll is “aligned” with the settlement on a related roll number.

39The Appellant provides its SOI via a one-page letter dated May 16, 2022 in its submission materials of May 24, 2022.

The Board’s Analysis

40It is clear and consistent from all of the Parties’ submissions that the City was not advised of the settlement discussions and agreement between the Appellant and MPAC.

41For different reasons, neither the Appellant nor MPAC chose to notify the City. MPAC did not believe it was appropriate for it to do so, while the Appellant was waiting until the written agreement was complete along with back up from MPAC to notify the City. As such, neither the Appellant nor MPAC sought to provide an update to the City on the status of the subject appeals.

42Given that there are three statutory parties to the subject appeals, there is no agreed settlement or resolution of the subject appeals, unless all three parties agree.

43While the Appellant makes statements about its beliefs, expectations, and assumptions around the City’s conduct and position in connection with a settlement of the subject appeals, this cannot supplant the rights of the City in agreeing or objecting to any settlement, in its discretion. The Appellant cannot determine what the City’s conduct will be nor determine the City’s position with respect to these matters.

44The Board notes that the respondent to this Motion holds the position of Senior Director, Property Tax, SmartCentre Management Services Inc.

45The Appellant chose not to file its SOI on or before the due date as required by the Board per the SOE. The Appellant chose not to file its SOI prior to the extended due date of April 22, 2022, as offered by the City. The Appellant chose not to file its SOI in the face of the City’s Request to Dismiss. Instead, the Appellant objected to the Request to Dismiss filed with the Board.

46The Appellant did not to seek an extension to the SOI due date.

47The Appellant did not to seek any clarification or specific direction from the Board in connection with the matter.

48The Appellant provides no valid explanation as to why it did not file its SOI on time or when subsequently offered to do so.

49The Appellant offers no evidence of exceptional circumstances in not filing its SOI on time.

50The Board does not accept the reasons offered in the Appellant’s statements regarding its beliefs, expectation, and assumptions of the other Party’s conduct.

51Further, the Board does not accept MPAC’s arguments regarding a misunderstanding and that this may amount to an exceptional circumstance. Either of the Appellant or MPAC could have informed the City of their settlement discussions but did not. Nonetheless, this does not relieve the Appellant of the requirement to serve its SOI on time.

52The SOE is clear regarding the SOI due date, and parties are required to adhere to the Schedule of Events, or as otherwise specified by the Board. No other direction was sought nor provided by the Board.

53Absent an agreed extension among the Parties or as otherwise directed by the Board, the SOI was due on or before the due date prescribed in the SOE.

Findings on Issue 1

54The Board finds that the Appellant was required to serve its SOI in accordance with the SOE and that the Appellant did not do so.

Issue 2: If so, does the Appellant’s not doing so warrant a dismissal of the appeals?

55The SPPA states that a tribunal has the power to determine its own procedures and practices and may for that purpose, (a) make orders with respect to the procedures and practices that apply in any particular proceeding; and (b) establish rules governing the practice and procedure before it.

56The Board expects compliance with its Rules and in this case the SOE assigned to the subject appeals. As stated above, compliance with the Rules is mandatory not discretionary on the parties to an appeal.

57The Board’s Rules and compliance therewith are designed to regulate the Board’s processes, direct the parties in an appeal proceeding, avoid misunderstandings, avoid abuse of process, and enable full and fair proceedings for all parties involved.

58In its submissions, the City describes the prejudice to it in connection with this matter.

59Neither the Appellant nor MPAC provided the Board with submissions on prejudice in connection with this matter.

60While the Board recognizes the finality of dismissing an appeal, the Board’s Rules are in place to ensure fair and expeditious proceedings for the parties involved.

61In this matter, the Appellant did not comply with the Board’s Rules despite the ongoing opportunity to do so. The Appellant did not provide a SOI on the due date required in the SOE, did not provide a SOI when requested to do so and even after it was offered an extension of the due date by the City, did not provide an SOI in response to the Request to Dismiss, did not at any time, request an extension of the due date to file a SOI or request that the Board accept the late filing of a SOI nor sought any other direction from the Board. Furthermore, the Appellant has provided no evidence in support of exceptional circumstances or prejudice.

62The Board determines that there must be a consequence to not complying with its Rules, particularly when a party is given an ongoing or repeated opportunity to do so. The Appellant could have remedied its non-compliance at any time prior to this Motion hearing and chose not to do so.

Findings on Issue 2

63The Board dismisses the appeals due to the Appellant’s failure to serve its SOI in accordance with the assigned SOE.

ORDER

64The Board orders that the subject appeals be dismissed.