Tribunals Ontario
Tribunaux décisionnels Ontario
Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE:
October 13, 2023
FILE NO.:
DM 2023M04
Assessed Person(s):
Mike Dean Butcher Limited
Appellant(s):
Mike Dean Butcher Limited
Respondent(s):
Municipal Property Assessment Corporation Region 01
Respondent(s):
City of Clarence-Rockland
Property Location(s):
2212 Laval Street
Municipality(ies):
City of Clarence-Rockland
Roll Number(s):
0316-016-032-13000-0000
Taxation Year(s):
2009 - 2022
Hearing Event No.:
781466
Legislative Authority:
Section 40.1 of the Assessment Act, R.S.O. 1990, c. A.31
Parties
Counsel*/Representative
Mike Dean Butcher Limited
Jonas Perov
Municipal Property Assessment Corporation
Allyson Amster* and Alisha Chohan
City of Clarence-Rockland
Submissions not received
REQUEST FOR:
An order extending the time for bringing appeals and directing the assessment corporation to be the Appellant pursuant to s. 40.1(b) of the Assessment Act
HEARD:
September 5, 2023 in writing
ADJUDICATOR(S):
Carly Stringer, Member
MOTION DECISION
OVERVIEW
1Mike Dean Butcher Limited (the “Property Owner”) is asking the Assessment Review Board (the “Board”) for an extension of time to bring assessment appeals for the 2009 to 2022 taxation years for 2212 Laval Street in the City of Clarence-Rockland, Ontario (the “Subject Property”) pursuant to s. 40.1(b) of the Assessment Act R.S.O. 1990, c.A.31 (the “Act”). The Property Owner argues that there are palpable errors in the assessment roll and the Board should extend the time for bringing these appeals.
2The Municipal Property Assessment Corporation (“MPAC”) opposes the request. MPAC argues there are no palpable errors in the assessment roll, and the Board should not extend time for bringing appeals.
3The Board has not received submissions from the City of Clarence-Rockland.
Result
4For the reasons that follow, the Board denies the request.
BACKGROUND
The Subject Property
5The Subject Property is a 2-storey building with a 10,500 square foot grocery store on the first floor, and residential units on the second floor.
6The Property Owner provided the following uncontested evidence:
a. The Property Owner occupied the Subject Property beginning as a tenant in November 2009, operating a grocery store at the site.
b. Prior to the Property Owner occupying the Subject Property, there were 10 weeks of renovations which included filling the basement with sand and pouring a concrete layer on top.
c. The Property Owner contracted the architects, engineers, and contractors who carried out the renovations, and had full knowledge of the renovations that were performed including filling in the basement.
d. The Property Owner eventually purchased the Subject Property in 2019.
7MPAC provided evidence that in 2022, the Property Owner told MPAC that the basement was filled in in 2009. MPAC’s evidence is that the basement had been assessed as 1,950 square feet valued at a storage rate of $1.90/sq. ft. MPAC removed the basement from the Subject Property’s assessment and issued a post-roll assessment notice for the 2022 taxation year that reflected a reduction in the Subject Property’s assessment from $953,000 to $917,000.
Alleged Errors
8The Property Owner says that the basement of the Subject Property was filled in in 2009, but MPAC has been erroneously valuing the Subject Property as if it had a basement since that time.
ISSUES
9The Act provides for the correction of 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.
Where the correction of a palpable error involves alteration of assessed values or classification, the Board has the discretion to extend the time for bringing an appeal to correct the error.
10In this case, the error alleged by the Property Owner engage s. 40(b) of the Act, as it would involve alteration of assessed values. Therefore, there are two issues the Board must determine:
Does it appear that there are palpable errors in the assessment roll for the applicable taxation years?
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
11The first step of the analysis requires that there appears to be an error in the assessment roll, and the error must be “palpable”: see 388210 Ontario Limited v Municipal Property Assessment Corporation Region 15, 2023 CanLII 64028 (ON ARB) (“0 Centre Street”) at paragraph 132.
12In determining whether there appears to be an error in the assessment roll, an “error” is a “matter of fact, and like any other fact, can be proved based on circumstantial evidence”: 0 Centre Street at paragraph 132.
13The sole test is “whether it is a factual error of conspicuous magnitude; plain, evident, obvious, and easy to understand”: 0 Centre Street at paragraph 132.
Submissions of the Parties
14The Property Owner submits that MPAC committed an error by attributing value to a basement that was filled in in 2009. The Property Owner submits this is a “factual error of conspicuous magnitude” and it would be plain, evident, obvious and easy to understand that the Subject Property did not have a basement during the relevant years.
15MPAC submits that a palpable error must be an error that mischaracterizes the fundamental nature or legal character of the property. MPAC submits that assessing a 1,950 square foot basement is not an error that mischaracterizes the fundamental nature or legal character of the Subject Property.
16MPAC further submits that the basement represented a small fraction of the total size of the Subject Property and only added $36,000 to the assessed value of the Subject Property. MPAC submits that a small error of this nature cannot be considered “palpable” because it is not an error of conspicuous magnitude that is plain, evident or obvious.
Findings on Issue 1
17The Board does not accept MPAC’s submission that the error is not “palpable” because it does not mischaracterize the fundamental nature or legal character of the property. For the reasons clearly outlined in 0 Centre Street, there is no requirement that the error mischaracterize the fundamental nature or legal character of the property. The sole test, based on the long-standing definition of a palpable error, is that it is a “factual error of conspicuous magnitude; plain, evident, obvious and easy to understand.”
18The Board does not accept MPAC’s submission that the basement represents too small a fraction of the total size of the Subject Property to be considered a palpable error. The basement was 1,950 sq. ft. in size. This is sufficiently conspicuous in magnitude. While it may not have a significant impact on the assessed value, it is the error itself that must be palpable, not the effect on value. The Board finds that there was no basement at the Subject Property for the years in question; that the Subject Property was valued as if it had a basement; that it is a factual error; and that it would be plain, evident, obvious and easy for anyone to understand the error. Therefore, the Board finds there is a palpable error.
19With respect to the taxation years in issue, the Board finds that the evidence shows the basement was not filled in until August 2009 and MPAC corrected the roll for 2022. Therefore, the assessment roll as returned for the 2009 and 2022 taxation years did not contain an error. In accordance with the evidence provided, the Board finds palpable error only relates to the 2010 to 2021 taxation years.
Issue 2 - Should the Board extend time for bringing appeals for the applicable taxation years?
Applicable Law
20Section 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 discretionary.
21In determining whether to exercise its discretion, the Board aims to achieve a balanced approach, “considering all relevant factors and weighing timing, finality, and fairness with the objective of correctness of the assessment roll”: 0 Centre Street at paragraph 158. The Board should weigh “any form of prejudice to each of the parties, and systemic prejudice to the administration of the municipal taxation system”: 0 Centre Street at paragraph 158.
Submissions of the Parties
22The Property Owner submits that the circumstances favour the Board exercising discretion to extend time for bringing appeals. The Property Owner submits that the importance of a correct assessment roll, and the balance of prejudice to the parties, weighs in favour of exercising the Board’s discretion.
23MPAC submits that the Board should not adopt the reasoning in 0 Centre Street because it greatly expanded the test for whether the Board should exercise its discretion. MPAC submits the Board should follow the case law that has held that the Board will not exercise its discretion unless it would be “unreasonable, unfair and highly prejudicial” to penalize a party for not meeting the statutory deadline to file an appeal.
24MPAC further submits that the Board should not exercise its discretion to extend time because the Property Owner is a sophisticated grocery store operation that owns several properties and should have monitored its assessments. MPAC asserts that there is no evidence explaining why the Property Owner never filed an appeal for any of the taxation years in question.
Findings on Issue 2
25With respect to the reasoning in 0 Centre Street, the Board does not accept MPAC’s argument that it should not adopt the analytical framework developed in that decision. The Board strives for consistency in its decision-making. Without justification – such as a good reason to distinguish it on the facts, or a reason to believe that 0 Centre Street contained an error – good practice suggests that it be followed where applicable: see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653 at paragraphs 129 to 132. The Board finds there is no basis to distinguish this case on the facts. The Board further finds that MPAC has not provided a convincing rationale to find that the analysis in 0 Centre Street is incorrect. While 0 Centre Street departs from previous case law in terms of its rejection of the “Restrictive Approach” to the exercise of discretion, this is a well-reasoned and sound departure that is relevant to the request before the Board. For these reasons, the Board will apply the framework developed in 0 Centre Street with respect to the exercise of discretion.
26The Board has considered all of the factors enumerated in 0 Centre Street, and notes as follows:
a. The Property Owner has not provided evidence regarding the quantum of taxes, if any, it may have been overtaxed as a result of the palpable error. The Board does not, therefore, make any findings with respect to financial consequences to the Property Owner.
b. The Property Owner’s affidavit does not disclose the prejudice it would suffer if the error is not corrected. The Board finds there is insufficient evidence for it to find that the Property Owner has been, or will be, prejudiced if the error is not corrected.
c. MPAC has not provided evidence supporting prejudice, and the municipality has not made submissions. Therefore, the Board finds there is insufficient evidence in the record supporting prejudice to the municipality, MPAC, or the administration of the municipal tax system.
d. With respect to conduct of the parties, it “must be conduct that causally contributed to the error being made”: see 0 Centre Street at paragraph 122. Here, the Property Owner provided evidence that it had full knowledge of the basement renovations and was, in fact, responsible for filling in the basement. However, the Property Owner provided no evidence to explain its failure to bring this change to MPAC’s attention or otherwise pursue correction of the palpable error. There is no evidence explaining the Property Owner’s reasons for its actions or inactions. This is an instance where the Board finds that the Property Owner’s conduct causally contributed to the error being made, which weighs against the exercise of discretion to correct the palpable error.
27In this case, the Board finds there is insufficient evidence from any party to support a claim of prejudice. The burden of proof rests on the Property Owner to establish that the Board should exercise its discretion to correct a palpable error. Further, the conduct of the Property Owner weighs against the exercise of discretion as there is no evidence explaining the Property Owner’s inaction and conduct. In these circumstances, giving due consideration to timing, finality, and fairness with the objective of correctness of the assessment roll, the Board finds that it should not exercise its discretion to correct the palpable error in the assessment roll for the taxation years in question.
CONCLUSION
28The Board finds that there is a palpable error in the assessment roll, but will not exercise its discretion to correct the error by extending the time to bring an appeal.
ORDER
29The request is dismissed.