Terry Evans v. Municipal Property Assessment Corporation Region 14, 2022 CanLII 64342

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

ISSUE DATE: July 14, 2022 FILE NO.: DM 2022M12

Assessed Person(s): Terry Evans Appellant(s): Terry Evans Respondent(s): Municipal Property Assessment Corporation Region 14 Respondent(s): Town of East Gwillimbury Property Location(s): 19420 Warden Avenue Municipality(ies): Town of East Gwillimbury Roll Number(s): 1954-000-029-26000-0000 Taxation Year(s): 2016, 2017, 2018 and 2019 Hearing Event No.: 769184

Legislative Authority: Section 40.1 of the Assessment Act, R.S.O. 1990, c. A.31

Parties	Counsel
Terry Evans	Joe Jebreen and Scott McAnsh
Municipal Property Assessment Corporation	Submissions not received
Town of East Gwillimbury	Submissions not received

REQUEST FOR: Extension of time to bring appeals HEARD: June 20, 2022 in writing ADJUDICATOR(S): Carly Stringer, Member

MOTION DECISION

OVERVIEW

1Terry Evans (the “Moving Party”) brings this motion before the Assessment Review Board (the “Board”) pursuant to s. 40.1(b) of the Assessment Act R.S.O. 1990, c.A.31 (the “Act”) for an extension of time to bring assessment appeals for the 2016 to 2019 taxation years for 19420 Warden Avenue in the Town of East Gwillimbury, Ontario (the “Subject Property”). The Moving Party argues that there are palpable errors in the assessment roll and the Board should extend the time for bringing appeals.

2Neither the Municipal Property Assessment Corporation (“MPAC”) nor the Town of East Gwillimbury (the “Town”) have submitted material in response to this motion.

Result

3For the reasons that follow, the Board finds that there are palpable errors in the assessment roll for the applicable taxation years. The Board exercises its discretion to extend time for bringing appeals. The Board therefore grants the Moving Party’s motion.

BACKGROUND

4The Subject Property is a 175-acre farm that has been in the Moving Party’s family for generations.

5The Moving Party has worked on the Subject Property since 1966 when he was 14 years old. At that time, his father owned and operated the farm. Over time, the Moving Party took on more responsibility for managing the farm. His father moved off the Subject Property in 2004. Although his father maintained ownership, the Moving Party continued to live on the Subject Property and farm the land. The Moving Party has been the only party farming the Subject Property since 2010.

6The Moving Party’s mother handled the paperwork relating to the farm business until she died on January 8, 2010. After her passing, the Moving Party’s sister took over paperwork relating to the Subject Property.

7The Moving Party provided evidence that to the best of his knowledge, for as long as he can recall, the Subject Property was classified for tax purposes as a farm. Unbeknownst to the Moving Party, commencing in 2016 the Subject Property was changed from the Farm property class to the Residential property class. There is no evidence before the Board explaining why the Subject Property was placed in the Residential property class commencing in 2016.

8Ownership over the Subject Property was transferred to the Moving Party on March 13, 2018.

9In the summer of 2019, the Moving Party retained a bookkeeper to take over paperwork relating to the Subject Property. In late November 2019, the bookkeeper received the Property Assessment Notice for the Subject Property and discovered that the Subject Property was classified in the Residential property class.

10The Moving Party’s bookkeeper immediately took steps to have the property class changed to the Farm property class. She was successful in having the property class changed to Farm for the 2020 taxation year. She contacted many people and public bodies in an attempt to address the error for the 2016 to 2019 taxation years. Eventually, the bookkeeper was advised she would need to file appeals relating to the 2016 to 2019 taxation years in order to change the property classification for those years. She sought to file those appeals but was advised it was too late.

11Counsel was retained in March 2022 to assist with this motion to extend time to bring appeals for the 2016 to 2019 taxation years.

ISSUES

12The Act has a framework that permits the Board to extend statutory deadlines for bringing assessment appeals where it appears there are palpable errors in the assessment roll. The applicable statutory framework is set out in s. 40.1 of the Act:

40.1 Correction of errors. – If it appears that there are palpable errors in the assessment roll,

(a) if no alteration of assessed values or classification of land is involved, the Board may correct the roll; and

(b) if alteration of assessed values or classification of land is involved, the Board may extend the time for bringing the appeals and direct the assessment corporation to be the appellant.

13The error alleged on this motion is a classification error. Namely, the Moving Party submits the Subject Property should have been classified in the Farm property class for the 2016 to 2019 taxation years. Therefore, this motion involves alteration of the classification of land; s. 40(b) applies; and there are two issues the Board must determine:

1. Does it appear that there are palpable errors in the assessment roll for the applicable taxation years?
2. If the answer to Issue 1 is “yes”, should the Board extend time for bringing appeals for the applicable taxation years?

ANALYSIS

Issue 1 – Does it appear that there are palpable errors in the assessment roll for the applicable taxation years?

Applicable Law

14In determining whether a palpable error exists in the roll, the Board should first ask whether there is an error in the information reported on the assessment roll: Peel Condominium Corporation No. 408 v Municipal Property Assessment Corporation, Region 15, 2022 CanLII 3269 (ON ARB) (“Peel Condominium”) at paragraph 16. The classes of information to be included in the assessment roll are prescribed by s. 14(1) of the Act.

15The next step is to determine whether the error is palpable: Peel Condominium at paragraph 19. To be palpable, the error must be inadvertent and unintentional, as well as of conspicuous magnitude: plain, evident, and easy to understand: York Condominium Corporation No. 60 v Municipal Property Assessment Corporation, Region 09, 2019 CanLII 39632 (ON ARB) (“York Condominium”) at paragraphs 9 and 11.

Submissions

16The Moving Party submits that the error here is a classification error. The Moving Party further submits that the requirements for classification in the Farm property class pursuant to s. 8 of O. Reg 282/98 were satisfied for all of the tax years in issue. The Moving Party submits this is an unintentional error, as nothing changed in 2015 or 2016 to trigger a change in classification.

17The Moving Party further submits that the Board found in Wellington (County) v Municipal Property Assessment Corporation, Region 22, 2018 CanLII 32198 (ON ARB) that an incorrect classification of land is a palpable error in the assessment roll. The Moving Party submits that the classification error is plain on a cursory examination of the facts.

18Neither MPAC nor the Town have made submissions on this issue.

Findings on Issue 1

19For the following reasons, the Board finds there are palpable errors in the assessment roll:

a. The error at issue in this motion is a classification error, which is prescribed by s. 14(1)8 of the Act.

b. The Moving Party has provided uncontroverted evidence that all the requirements of the Farm property class were met for all of the tax years in issue, and that nothing changed in 2015 or 2016 to trigger a change in property classification to Residential. There is no evidence before the Board to explain why the Subject Property was classified in the Residential property class commencing in 2016. In the absence of responding evidence supporting a rationale for the change in property class, the Board is satisfied this is an inadvertent, unintentional error.

c. The error is plain, obvious and easy to understand on the face of the assessment roll - the Subject Property should have been classified in the Farm property class, and it was incorrectly classified in the Residential property class. This is a fundamental, obvious error that “jumps out” on a cursory examination of the facts.

20The Board finds the error in this instance related to information prescribed by s. 14(1) of the Act. The Board finds the error was inadvertent, unintentional, plain, obvious and easy to understand. This is a palpable error.

Issue 2 - Should the Board extend time for bringing appeals for the applicable taxation years?

Applicable Law

21Section 40.1(b) of the Act provides that the Board “may” extend the time for bringing appeals where it appears that there are palpable errors in the assessment roll. Accordingly, the power to extend the time for bringing appeals to correct a palpable error is ultimately discretionary.

22In Peel Condominium at paragraphs 27 to 47, the Board confirmed its approach to the exercise of discretion under s. 40.1 of the Act. Namely, the Board must weigh the objective of correctness and integrity of the assessment roll, with the factors of finality, timing, and fairness, including prejudice to the parties.

Submissions

23The Moving Party submits that the relevant factors weigh in favour of the Board exercising discretion to extend time to bring appeals. With respect to timing and fairness, the Moving Party submits that he did not know there was an error. He submits it was only once he retained a bookkeeper to assist him that the error was discovered, and steps were promptly taken to correct it. His bookkeeper contacted many parties commencing in November 2019 in an attempt to correct the error, including Agricorp, the Board, MPAC, an accountant, the provincial Ombudsman, a municipal councilor, and various law firms. The Moving Party submits he has shown a consistent effort to correct the error since it was discovered. The Moving Party further submits any delay is not inordinate and did not prejudice MPAC or the Town of East Gwillimbury. The Moving Party submits there is significant, measurable prejudice to it as he has had to pay over $52,000 more in municipal taxes than he should have which has resulted in financial difficulties. The Moving Party submits there is no indication of any prejudice to the Town or MPAC.

24Neither MPAC nor the Town have made submissions on this issue.

Findings on Issue 2

25The Board takes the following considerations and factors into account:

a. There is a clear and palpable error on the assessment roll for the applicable taxation years. In Peel Condominium, the Board confirmed at paragraph 30 that “[w]hile one might argue that the integrity of the assessment roll should make the correction of errors an absolute requirement, this is not the case.” While correctness and integrity of the roll is at issue, which weighs in favour of the Board exercising its discretion to extend time, the Board must balance this with questions of timing, finality, and fairness: see Kensington Foundation v Municipal Property Assessment Corp, [2013] OJ No 5848, 2013 ONSC 7694, 236 ACWS (3d) 18, 20 MPLR (5th) 202, 79 OMBR 177, 2013 CarswellOnt 17768, 316 OAC 210 at paragraph 18; see also Peel Condominium at paragraphs 30-31.

b. The Board finds that timing is a neutral factor in this instance. There is a great deal of evidence supporting a consistent effort to correct the roll since the classification issue was discovered by the Moving Party’s bookkeeper in 2019. The evidence also establishes that the Moving Party was unaware of the error from when he became the property owner to when he retained a bookkeeper to assist him. While the Moving Party’s lack of knowledge is not an excuse for delay, weighed with the consistent efforts to correct the problem renders this factor neutral.

c. In terms of finality and fairness, including prejudice, neither MPAC not the Town have provided submissions or evidence regarding prejudice. In contrast, the Moving Party has provided evidence that the error has resulted in roughly $52,000 of higher property taxes owing. In these circumstances, the Board finds that finality and fairness, including prejudice, weighs in favour of exercising discretion to extend time to bring an appeal.

26In all the circumstances of this case, fairness including prejudice to the Moving Party weighs in favor of exercising discretion, while timing weighs neither for nor against. While palpable errors that result in higher taxes are always prejudicial to the taxpayers (see York Condominium at paragraph 22; Bleau v Municipal Property Assessment Corporation, Region 1, 2019 CanLII 11625 (ON ARB) at paragraph 19), the Board is satisfied there is evidence of significant financial prejudice to the Moving Party. Given that there is no evidence of prejudice to any other party, and weighing all other factors, the Board finds it is appropriate to exercise its discretion to grant an extension of time to bring appeals.

CONCLUSION

27The Board finds that there are palpable errors in the assessment roll for the 2016 to 2019 taxation years. Balancing the appropriate factors, the Board exercises its discretion to grant an extension of time to bring appeals.

ORDER

28The Board grants the motion. The Board extends the time for filing appeals for the Subject Property for the 2016 to 2019 taxation years; directs that MPAC be the appellant; and directs that the appeals be created for the 2016, 2017, 2018 and 2019 taxation years for the Subject Property.

"Carly Stringer"

CARLY STRINGER MEMBER Assessment Review Board Website: www.tribunalsontario.ca/arb