1110708 Ontario Inc. v. Municipal Property Assessment Corporation Region 15, 2023 CanLII 83070

Tribunals Ontario

Assessment Review Board

ISSUE DATE: September 08, 2023

FILE NO.: DM 184903

Assessed Person(s): 1110708 Ontario Inc., Tokol CMCC Atlantic GP Inc.

Appellant(s): 1110708 Ontario Inc., Tokol CMCC Atlantic GP Inc.

Respondent(s): Municipal Property Assessment Corporation Region 15

Respondent(s): City of Mississauga

Property Location(s): 5775 Atlantic Drive

Municipality(ies): City of Mississauga

Roll Number(s): 2105-050-116-06750-0000

Appeal Number(s): 3235528, 3304082, 3359858, 3404862 and 3445508

Taxation Year(s): 2017, 2018, 2019, 2020 and 2021

Hearing Event No.: 781293

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

Parties	Representative
1110708 Ontario Inc., Tokol CMCC Atlantic GP Inc.	Gurjit S. Grewal
Municipal Property Assessment Corporation	Brandy Pitz
City of Mississauga	Submissions not received

REQUEST FOR: Dismissal of Appeal(s)

HEARD: August 11, 2023 in writing

ADJUDICATOR(S): Carly Stringer, Member

MOTION DECISION

OVERVIEW

1The Municipal Property Assessment Corporation (“MPAC”) seeks to have appeals 3235528, 3304082, 3359858, 3404862, 3445508 (the “Subject Appeals”) dismissed because 1110708 Ontario Inc. and Takol CMCC Atlantic GP Inc. (the “Appellants”) failed to serve expert reports by August 30, 2022 and failed to file a Statement of Issues (“SOI”) and documentary evidence with the Assessment Review Board (the “Board”) by February 28, 2023, which were the deadlines prescribed in the Schedule of Events (“SOE”) for these proceedings.

2The Appellants have not provided submissions in response to MPAC’s motion, but have indicated by email that they oppose.

3The City of Mississauga has not provided submissions on this motion.

Issues

4The issues to be determined are:

1. Did the Appellants fail to comply with the Board’s Rules of Practice and Procedure (“Rules”)?

2. If the answer to (a) is yes, does the failure to comply with the Rules warrant dismissing the Subject Appeals?

Result

5For the reasons that follow, the motion to dismiss is granted.

PROCEDURAL BACKGROUND

6The SOE for this proceeding required that the Appellants serve any expert reports on which they intend to rely at the hearing by August 30, 2022. The Appellants did not provide expert reports to MPAC by this date.

7The SOE further required that the Appellants file their SOI, as well as “all documentary evidence, witness statements and expert reports on which [they intend] to rely if the matter proceeds” to a hearing with the Board by February 28, 2023. The Appellants did not file any material with the Board by February 28, 2023.

8A settlement conference in this proceeding was held on May 7, 2023. Both MPAC and the Appellants attended, and MPAC advised the Appellants that it intended to seek dismissal for the Appellants’ failure to comply with the Rules, pursuant to Rule 24 of the Board’s Rules.

9MPAC filed a Request to Dismiss with the Board on June 7, 2023, and the Board scheduled this motion to dismiss for August 11, 2023.

10On June 8, 2023, the Appellants’ representative sent an email to the Board asking that the Board send the appeals to a hearing.

11MPAC served and filed its motion materials on July 18, 2023. As of July 18, the Appellants had neither served nor filed “documentary evidence, witness statements and expert reports on which [they intend] to rely.”

12On July 25, 2023, the Appellants’ representative sent the Board an email stating “Please find attached my expert report ie evidence to present at the Hearing.” No Acknowledgment of Expert Duty form was filed. The Appellants did not provide material specifically responding to MPAC’s motion to dismiss.

ANALYSIS

Issue 1 – Did the Appellant fail to comply with the Rules?

Applicable Rules

13Rule 24(e) permits dismissal without a hearing if “the appellant has not complied with the statutory requirements or these Rules.”

Submissions of the Parties

14MPAC submits that the Appellants failed to comply with the SOE deadlines to serve expert reports by August 30, 2022 and to file materials with the Board by February 28, 2023.

15The Appellants did not provide submissions on this issue.

Findings on Issue 1

16MPAC has provided evidence that the SOE deadline to file materials with the Board was February 28, 2023, and the Appellants did not comply with this deadline. The Board accepts this evidence and, accordingly, finds that the Appellants failed to comply with the Rules.

Issue 2 – If the answer to Issue 1 is yes, does the failure to comply with the Rules warrant dismissing the Subject Appeals?

Applicable Rules and Law

17Rule 8 provides that the Board shall determine the appropriate consequence for non-compliance with the Rules. Rule 3 provides that the “Rules shall be liberally interpreted to ensure the just, most expeditious and least expensive determination of every proceeding.” Rule 4 requires that the Board apply the Rules “in a manner proportionate to the importance and complexity of the issues in a proceeding and with a view to resolving appeals within the assessment cycle.”

18In determining an appropriate consequence for failure to comply with the Rules, the Board has routinely considered the circumstances surrounding the non-compliance, as well as prejudice to all parties: see Orlando Corporation v Municipal Property Assessment Corporation, Region 15, 2021 CanLII 8253 (ON ARB) at paragraph 23, leave to appeal dismissed in Amazon.com v. The City of Brampton, 2022 ONSC 297.

Submissions of the Parties

19The Appellants have not provided evidence or submissions explaining their non-compliance with the Rules, nor have they provided evidence or submissions regarding prejudice.

20MPAC provided affidavit evidence in support of this motion, but this affidavit does not contain evidence regarding prejudice to MPAC. MPAC submits that it is unaware of the circumstances surrounding the Appellants’ failure to comply with the Rules. MPAC submits that the Appellants did not seek an extension to the SOE, that any prejudice to the Appellants is of their own making; and that to allow these appeals to proceed would be prejudicial to the other parties.

Findings on Issue 2

Circumstances Surrounding Non-Compliance

21The following circumstances weigh in favour of dismissal:

a. The SOE provides clear notice of the deadlines for serving and filing materials.

b. Despite being advised by MPAC at the settlement conference on May 7, 2023 that it would seek dismissal of the appeals, the Appellants took no steps to seek an extension to the SOE deadlines or otherwise provide MPAC or the Board with materials until July 25, 2023, only after MPAC served and filed materials for this motion to dismiss.

c. The materials filed on July 25, 2023 are incomplete as there is no Acknowledgement of Expert Duty in support of the Appellants’ expert report. Further, the information constituting the “expert report” was evidence from the Appellants’ legal representative. The Appellants have not sought leave to have their legal representative act as both witness and advocate, and the Board has held in previous decisions that a legal representative may not be qualified as an expert witness.

d. The Appellants are represented by a paralegal who should be familiar with the Board’s Rules and requirements.

e. There is no explanation for the Appellants’ failure to comply. Other than stating in an email that the appeals should proceed to a hearing, the Appellants have provided no substantive response to this dismissal request. Further, there is no evidence or explanation regarding exceptional circumstances that might support an extension to the SOE to permit late filing, if the Appellants had requested such an extension (which they did not).

22The following circumstances weigh against dismissal:

a. Some form of materials have now been served and filed with the Board, so presumably the Appellants wish to proceed.

Prejudice to the Parties

23The Board has no evidence on which to base a finding with respect to prejudice to any party.

Appropriate Consequence for the Breach

24Parties that appear before the Board have been made well aware that the Board will strictly enforce its Rules, and it expects compliance with the timelines prescribed in the SOE: see CP REIT, supra at paragraph 34. As noted in SGS Lakefield, supra at paragraph 19, “[t]he Board has an interest in ensuring that Parties adhere to schedules to avoid delays and to achieve its mandate to justly and expeditiously resolve the appeals before it.”

25Each case will be determined on their own facts. In this case, the Board finds that the circumstances weigh heavily in favour of dismissal. In the absence of evidence of prejudice to any party, including the Appellant, the Board finds that dismissal is warranted on the facts of this case.

CONCLUSION

26This Board will strictly enforce its Rules. It expects compliance with the timelines prescribed in the SOE and parties will face consequences for non-compliance where the circumstances warrant it.

27The Board finds that the Appellants failed to serve and file material in accordance with the timelines prescribed by the SOE. The Board has considered all of the circumstances and determines that dismissal is appropriate.

ORDER

28The Board grants the motion, and orders the Subject Appeals are dismissed.