Francois Morel and Diana Kwan v. Municipal Property Assessment Corporation Region 03 and City of Ottawa, 2023 CanLII 73721

Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: August 11, 2023

FILE NO.: ID 184599

Assessed Person(s): Diana Wah Kwan; Francois Morel

Appellant(s): Francois Morel; Diana Kwan

Respondent(s): Municipal Property Assessment Corporation Region 03

Respondent(s): City of Ottawa

Property Location(s): 2202 Elder Street

Municipality(ies): City of Ottawa

Roll Number(s): 0614-094-903-09901-0000

Appeal Number(s): 3505440 and 3511693

Taxation Year(s): 2022 and 2023

Hearing Event No.: 780264

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

APPEARANCES:

Parties

Representative

François Morel, Diana Kwan

Self-represented

Municipal Property Assessment Corporation

No one appeared

City of Ottawa

No one appeared

HEARD: June 13, 2023 by telephone conference call

ADJUDICATOR(S): Pierre R. Lavigne, Member

INTERIM DECISION

OVERVIEW

1This is an interim decision extending the Schedule of Events to permit the parties to file documents and submissions on which they will rely at the hearing. The hearing is adjourned to a date to be set by the Registrar.

Background

2This summary proceeding appeal was set to proceed to a full hearing at 9:30 a.m. on June 13, 2023 after service of notice of hearing on all parties. The Appellants appeared. The Respondents, the Municipal Property Assessment Corporation (“MPAC”) and the Municipality did not appear at the commencement of the hearing. As the Respondents still had not appeared by 9:50 a.m., the matter proceeded in the absence of the Respondents.

3The Assessment Review Board (“Board”) indicated to the Appellants that the Board’s file indicated that no documents had been filed by the Appellants as required by the last event of the Schedule of Events. It also appeared that no documents had been filed by either of the Respondents.

4Pursuant to Rule 48 of the Board’s Rules of Practice and Procedure (“Rules”), the Appellants’ documents identifying comparable properties could not be admitted into evidence as they had not been filed with the Board by the date specified in the Schedule of Events.

5The Summary Proceedings Schedule of Events No. 72102 delivered to the parties by the Board required “Where a hearing has been requested, the parties must file with the Board all documents and written submissions on which they will rely [by] May 16, 2023”.

6The Appellant, François Morel indicated that the documents to be used as evidence had been served on MPAC but that he had erroneously assumed the documents would be filed with the Board by MPAC. The Appellant requested leave to file the documents.

Issues for the Hearing

7At issue in this proceeding is:

1. Should the Schedule of Events be extended to permit the parties to file with the Board all documents and written submission on which they will rely at the hearing.

Result

8The Board finds that the Schedule of Events should be extended to permit all parties to file with the Board all documents and any written submissions on which they will rely at the hearing.

ANALYSIS

Issue 1 – Should leave be given to the Appellants to file previously served documents.

9Relevant Board Rules:

Interpretation of Rules and Powers of the Board

Rule 3. These Rules shall be liberally interpreted to ensure the just, most expeditious and least expensive determination of every proceeding.

Failure to Comply with Rules and Orders

Rule 7. The Board will determine the appropriate consequences of non-compliance with these Rules.

Documents to be Filed

Rule 35. On or before the filing deadline set out in the Schedule of Events for a proceeding, each party must file with the Board all documents that they intend to rely on at a hearing event, including, where applicable:

(a) all evidence, including expert reports;

(b) statements of issues and responses; and

(c) witness statements.

Extension of Schedule of Events Due Dates

Rule 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.

No New Documents

Rule 48. A document, including an expert report, may only be admitted into evidence at a hearing event if it has been served on all other parties and filed with the Board, in accordance with these Rules, unless the Board determines that there are exceptional circumstances.

10In these appeals the parties’ Schedule of Events required the parties to file with the Board all documents and any written submissions on which they will rely by May 16, 2023.

11The Appellants’ request for leave to file their documents at the hearing was effectively a request to extend the Schedule of Events beyond the mandated date of May 16, 2023. Rule 40 provides that an extension will only be granted in exceptional circumstances.

12The Respondents have not appeared at this hearing to express a position or provide any evidence of prejudice caused by the Appellants’ failure to file their documents with the Board or to request dismissal of the appeal for non-compliance with the Rules. Furthermore, it appears the Respondents themselves have also failed to file any documents, including any “all evidence, including experts’ reports” as required by clause a) of Rule 35.

13In Mississauga (City) v Michalakos, 2018 CanLII 126632 (ON ARB) at para. 10 the Board found that “exceptional means, among other things, something that does not occur regularly, something unusual, or something atypical”.

14In the present matter, the proceedings are in the Summary as opposed to the General Stream. The Appellants are inexperienced self-represented parties. The Appellants’ documents have been served on MPAC. The Appellants were under the mistaken impression that MPAC would be filing with the Board the applicant’s documents with the Board. The Respondents have not appeared or filed any documents with the Board.

15In the application of its Rules, the Board has previously taken into account whether the proceedings are Summary Proceedings and where the Appellant is self-represented (see Home Depot Holdings Inc. v Municipal Property Assessment Corporation, Region 14, 2022 CanLII 48459 (ON ARB) at para. 38). In determining the consequences for non-compliance with its Rules, the courts have held that the sophistication of a party is a factor that may be taken into account (see Amazon.com v Brampton (City), [2022] OJ No 2606, 2022 ONSC 297 at para. 69).

16The above combination of circumstances, i.e. the Appellant’s compliance with the Rules in serving its materials on the other parties combined with the other parties’ failure to attend the hearing, is sufficiently unusual and atypical to qualify as exceptional within the meaning of Rule 40. It is the combination of these circumstances and not the mere failure of the Appellants to file their documents with the Board on the mistaken assumption that MPAC would do so, that is exceptional and warrants an extension of time for all parties to file their documents.

CONCLUSION

16The Board finds that the Schedule of Events should be extended to permit all parties to file with the Board all documents and any written submissions on which they will rely at the hearing.

ORDER

17The Board orders that the Schedule of Events is altered to extend the date for the parties to file with the Board all documents and any written submissions on which they will rely, from May 16, 2023, to 30 days from the date of issuance of this interim decision. The hearing of these appeals is adjourned to a date to be set by the Registrar.

18I am seized of the hearing of these appeals.