County of Wellington v. Municipal Property Assessment Corporation Region 22, 2025 CanLII 6769

Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: January 28, 2025

FILE NO.: DM 187344A

AMENDED MOTION DECISION ISSUED: January 30, 2025

Assessed Person(s): Radaja Inc.; Elora 7 BT Inc.

Appellant(s): County of Wellington

Respondent(s): Municipal Property Assessment Corporation Region 22

Respondent(s): Township of Centre Wellington

Property Location(s): Pilkington Con A Wogr Pt Lot

Municipality(ies): Township of Centre Wellington

Roll Number(s): 2326-000-017-14750-0000

Appeal Number(s): 3511368, 3527970 and 3526216

Taxation Year(s): 2023 and 2024

Hearing Event No.: 785374

Legislative Authority: Rule 24(e) of the Assessment Review Board's Rules of Practice and Procedure and sections 34 and 40 of the of Assessment Act, R.S.O. 1990, c. A.31

Parties

Counsel/Representative

Elora 7 BT Inc.

Robert Brazzell and Damian Bernacik

County of Wellington

Rebecca Shoom and Gregory Cherniak

Municipal Property Assessment Corporation

Montanna Hill-Sooley

REQUEST FOR: Dismiss Appeal Proceeding pursuant to Rule 24(e) of the Board's Rules of Practice and Procedure

HEARD: November 8, 2024 in writing

ADJUDICATOR(S): Dirk VanderBent, Vice-Chair

AMENDED MOTION DECISION

In accordance with Rule 99 of the Assessment Review Board’s Rules of Practice and Procedure, effective April 1 2021, related to the correction of minor errors and in accordance with section 21.1 of the Statutory Powers and Procedure Act regarding the correction of errors, this Amended Motion Decision is issued to correct error(s) in the Motion Decision regarding dates in paragraphs [1] and [4] The amendments have been underlined for ease of reference. There are no other changes in this Amended Motion Decision.

OVERVIEW

1On March 30, 2023, pursuant to s. 40 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Assessment Act”), the County of Wellington (the “Municipality”) filed a Notice of Appeal of the assessment for the 2023 taxation year respecting the property located in Wellington County with assigned Assessment Roll No. 2326-000-017-14750-0000 (the “Subject Property”). Pursuant to the deeming provision under s. 40(26) of the Act, the Municipality is deemed to have brought the same appeal for the 2024 taxation year.

2A corporation, Elora 7 BT Inc., (“Elora”) purchased the Subject Property on November 3, 2022, from a corporation named Radaja Inc (the “Former Owner”).

3Subsection 40(9) of the Assessment Act provides direction regarding notice where an appeal concerns the assessment of another person. It applies in this instance because the Municipality’s appeal concerns the assessment of another person. It states:

40.(9) Where appeal concerns another person. – Where the appeal concerns the assessment of another person,

(a) the notice of appeal shall state a name and address where notices can be given to the person; and

(b) the appellant shall deliver or mail a copy of the notice of appeal to the person within the time limited by subsection (6), (7) or (8), as the case may be.

4In this case, it is not disputed that, sometime after the November 3, 2022 sale, the Municipality mailed its notice of appeal to the Former Owner only. Consequently, as is described in greater detail below, the current owner Elora was not given notice of the appeal, and did not become aware of the appeal until February 2024.

5Rule 24(e) of the Assessment Review Board’s (the “Board's”) Rules of Practice and Procedure (“Rules”), provides that the Board may dismiss a proceeding without holding a hearing if the appellant has not complied with the statutory requirements, or the Rules. Elora is now requesting that the Board dismiss this appeal proceeding, arguing that the Municipality should have mailed its Notice of Appeal to Elora, not the Former Owner.

6The Municipality opposes this request. To understand the nature of this dispute, a description of some further background information is required:

1. Pursuant to s. 36(2) of the Act, the Municipal Property Assessment Corporation (“MPAC”) was required to return the 2023 assessment roll to the Municipality no later December 13, 2022. Given the time required to administratively update assessment roll information, MPAC must prepare the assessment roll in advance of returning the roll as of this date. MPAC’s administrative deadline for inputting information for the 2023 assessment roll was October 30, 2022.
2. MPAC received notice of the sale on November 9, 2022. As this change post-dated the October 30, 2022 administrative deadline, it was not included in the 2023 assessment roll returned to the Municipality by MPAC on December 13, 2022. Consequently, the 2023 assessment roll incorrectly named the Former Owner as the owner of the Subject Property.
3. However, MPAC maintains an electronic data base named ‘Municipal Connect’, which MPAC describes as the primary source of assessment-related online information for Ontario municipal staff. On November 10, 2022, MPAC recorded the ownership change and owner address on Municipal Connect. On November 16, 2022, MPAC also administratively reported the sale to the Municipality. The Municipality then updated its taxation roll, and on January 25, 2023, the Municipality issued a property tax bill to Elora at Elora’s correct mailing address.
4. Upon receiving the assessment of the Subject Property, the Municipality adopted the position that its assessed value was too low. The Municipality confirms that it retained a paralegal firm, who prepared and filed the appeal as agent on its behalf, serving the Former Owner with the Notice of Appeal. The specific paralegal representative (“Paralegal Representative”) who completed this work has provided an affidavit in which he states that he has no specific recollection of how he determined that the Notice of Appeal should be mailed to the Former Owner. He describes that there are only two places where he would have searched for owner information: either Municipal Connect, or real estate assessment software known as 'Real Property Tax Analytics'.
5. After the Municipality’s appeal was filed, the Board did not proceed to assign a Commencement Date and Schedule of Events for hearing the appeal because the Municipality’s Paralegal Representative erroneously included the appeal in a list of appeal proceedings for a number of gravel pit properties. For reasons unrelated to this Motion Hearing, the Board suspended the appeal proceedings for these gravel pit properties.
6. The Board’s records show that MPAC issued an annual property assessment notice for the 2024 taxation year to correctly show Elora as the assessed owner on the assessment roll for the 2024 taxation year.
7. Elora states that it did not receive notice of the 2023 taxation year appeal until on or about February 7, 2024, when the Former Owner contacted Elora to enquire about the Municipality’s appeal.
8. In February 2024, the Board granted a request made by the Paralegal Representative to lift the suspension of the Municipality’s appeals. On February 24, 2024, the Board subsequently set a Commencement Date of May 6, 2024, and the parties, including Elora, began to exchange pleadings in accordance with the assigned Schedule of Events.

7As stated above, the Municipality opposes Elora’s request to dismiss its appeals. In overview, the Municipality argues that it has complied with s. 40(9) of the Act, emphasizing this section refers to the assessment of another person, which the Municipality maintains is the assessment as shown on the assessment roll. Therefore, the Municipality maintains that s. 40(9) requires that it deliver or mail the notice of appeal to the person as shown on the 2023 assessment roll, which, of course, is the Former Owner.

8MPAC’s only submission in this Motion Hearing is that it provided the Municipality “with the necessary up-to-date assessment information” prior to the return of the 2023 assessment roll (as described above).

RESULT

9The Motion is denied.

ISSUES

10The sole issue to be addressed in this Motion Decision is:

1. Where the appeal concerns the assessment of another person, can an appellant rely on the names of persons who are liable to assessment, as shown on the assessment roll, for the purpose of compliance with s. 40(9) of the Act? While the Board has reviewed all the parties’ submissions in detail, for purposes of this Motion Decision, the Board provides a synopsis of only the most salient submissions.

ANALYSIS

Submissions

Elora’s Submissions

11Elora refers to provisions of the Municipal Act, S.O. 2001, c.25 as amended (the “Municipal Act”) noting that they require that the treasurer of a municipality annually prepare a tax roll which must provide the name of every person against whom land is assessed. Because the Municipality named Elora on the tax roll, Elora submits this means that the Municipality deemed Elora to be the person against whom land is assessed. Elora argues, therefore, that the Municipality was required to provide notice of its appeal to Elora. As it did not do so, its appeals should be dismissed.

Municipality’s Submissions

12In overview, the Municipality submits that the Act contemplates that the parties will rely on the assessment roll and that s. 40(9) can only operate reasonably with a central repository of property information.

13The Board observes that, in support of these submissions, the Municipality cites several provisions of the Act. The relevant provisions are described and discussed in the Board’s findings below.

Elora’s Reply

14Elora submits that the provisions of the Act must be read in tandem with the Municipal Act. Elora references s. 17(1) of the Act which states that “land shall be assessed against the owner”, and s. 46(1) which refers to “Any person against whom the land is assessed”, submitting that, pursuant to these sections, land is assessed annually against the legal owner of the land.

15Elora also submits that s. 40(9) could have stated that a notice of appeal must be sent to the owner of a property as set out on the assessment roll, but the Legislature opted not to do so, instead using the broader language “Where the appeal concerns the assessment of another person…”. Elora argues that, in this case, the context of the provision is specific to when a legal proceeding is being commenced against another person who would be impacted by the assessment change and resulting tax implications of an assessment appeal.

16Elora further submits that the Municipality’s interpretation of s. 40(9) fails to appreciate the purpose of this section and the underlying principles of natural justice. Elora submits that, when an appeal concerns the assessment of another party’s property, proper notice to the actual owner is critical to ensure due process and a fair opportunity for that party to respond. The provision is a substantive requirement designed to safeguard property owners’ rights by ensuring they are fully aware of any appeals that may affect their tax obligations. Elora argues that, if the Municipality’s position were accepted, an administrative error in either the Municipality’s or MPAC’s records would override the procedural fairness rights of the legal owner of a property. Elora asserts that this cannot be the case.

Findings

17The Board begins by observing that it is not disputed that the name of the person liable to assessment shown on the 2023 assessment roll was incorrect, nor is it disputed that an appeal proceeding should be dismissed if an appellant is required to comply with s. 40(9) of the Act but has not done so.

18As described in the Overview above, MPAC’s only submission is that it provided the Municipality “with the necessary up-to-date assessment information” prior to the return of the 2023 assessment roll. This description is accurate in the sense that information relevant to the assessment of the Subject Property was provided. However, this up-to-date assessment information was not included on the 2023 assessment roll returned by MPAC.

Legislative Interpretation

19The adjudication of this issue requires legislative interpretation of s. 40(9) of the Act. Both parties have submitted that this section must be read in its entire context and in its grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intent of the Legislature. In this regard, the Board observes that s. 40 of the Act governs the appeal process. In this context, s. 40(9) is more than a notice provision. Where the appellant is not the person liable to assessment, the appellant must not only file an appeal with the Board within the prescribed limitation period, but must also deliver or mail notice of the appeal to the person liable to assessment within the same prescribed limitation period. That is the purpose of this section of the Act.

20As a matter of statutory interpretation limitation periods must be strictly interpreted and applied. For this reason, while the Board accepts that statutory interpretation may include consideration of the provisions of the Municipal Act, the primary consideration remains the inter-relationship between s. 40(9) and other provisions of the Act.

Jurisdiction to amend an assessment roll

21The Board has considered Elora’s reference to s. 340(2) (c) of the Municipal Act, which states that the tax roll shall show “the name of every person against whom land is assessed, including a tenant assessed under section 18 of the Assessment Act;”. Elora has submitted that this refers to the legal owner of the land. Elora asserts that, should a municipality place a name on the tax roll that is different from the name shown on the assessment roll, then this constitutes “deeming” of who is the assessed owner. In other words, it expressly overrides the assessment roll. For the following reasons, the Board does not accept this submission.

22Section 1 of the Municipal Act states that: “ ‘assessment’ means the assessment for real property made under the Assessment Act according to the last returned assessment roll”. Section 340(1) of the Municipal Act states: “The treasurer of a local municipality shall prepare a tax roll for each year based on the last returned assessment roll for the year.” (emphasis added). Section 341, which governs adjustments to the tax roll, states:

Adjustments to roll

341 (1) The treasurer shall adjust the tax roll for a year to reflect changes to the assessment roll for that year made under the Assessment Act after the tax roll is prepared.

Consequences of adjustments

(2) Taxes for the year shall be collected in accordance with the adjusted tax roll as if the adjustments had formed part of the original tax roll and the local municipality,

a) shall refund any overpayment to the owner of the land as shown on the tax roll on the date the adjustment is made; or

b) shall send another tax bill to raise the amount of any underpayment.

Same, refund to include credit

(3) A local municipality may credit all or part of the amount of a tax refund owing under clause (2) (a) to an outstanding tax liability of the owner.

[Emphasis added]

The Board observes that none of the parties specifically addressed these sections in their submissions.

23These provisions confirm three important observations: First, under s. 340(1), the tax roll is separate and distinct from the assessment roll. Second, a municipality does not have the jurisdiction to assess real property. Third, a municipality must prepare the tax roll based on the assessment roll. Therefore, a municipality has neither the legislative authority to amend the assessment roll, or to prepare a tax roll that is not based on the assessment roll. Consequently, a municipality does not have legislative authority to report information on a tax roll that is inconsistent with the information reported on an assessment roll. In further support of this conclusion, the Board notes that s. 341 confirms that adjustments to the tax roll can only be made to reflect changes made the assessment roll under the Assessment Act. These provisions indicate that the Municipal Act does not authorize a municipality to initiate its own adjustments to either the assessment roll or the taxation roll. Other sections of the Municipal Act, s. 357 for example, provides a municipality with the jurisdiction to cancel, reduce, or refund taxes. Section 358 of the Municipal Act permits a cancellation, reduction or refund of taxes where there has been a gross or manifest error in the preparation of the assessment roll. However, these sections do not provide that a municipality may amend either the assessment roll or the tax roll itself.

24The above analysis is also reinforced by a s. 41 of the Act which has been cited by the Municipality:

The last revised assessment roll shall, subject to subsections 37 (5) and (6), be valid and bind all parties concerned, despite any defect or error committed in or with regard to the roll, or any defect, error or misstatement in the notice required by section 31 or the omission to deliver or transmit the notice, provided that the provisions of this section in so far as they relate to the omission to deliver or transmit the notice do not apply to any person who has given the assessment corporation the notice provided for in subsection 31 (4).

As a municipality is a party, it is bound the assessment roll even though there may be an error on the assessment roll.

25In arriving at this conclusion, the Board recognizes that: (i) property sales that close near the date for the return of the assessment roll routinely occur in the province every year; and (ii) it is administratively expedient to initiate the collection of municipal tax from the new owner, pending MPAC’s amendment of the assessment roll. However, such administrative expediency cannot be construed as legally deeming that the new owner is the person liable to assessment under the Act. The Board reiterates that the Municipal Act does not provide a municipality with the jurisdiction to amend an assessment roll.

Requirement to serve a copy of a notice of appeal under s. 40(9) of the Act

26In light of the above findings, the question remains as to which person must be sent a notice of appeal under s. 40(9) of the Act. Is it the owner reported on the assessment roll (in this case, erroneously, the Former Owner), or is it the current owner?

27Elora has submitted that s. 40(9) could have stated that a notice of appeal must be sent to the owner of a property as set out on the assessment roll, but Legislature opted not to do so, instead using the broader language “Where the appeal concerns the assessment of another person…” (emphasis added). This submission raises the question of the meaning of the term ‘assessment’ in the Act.

28Although the Act does not define the term ‘assessment’, the Municipality points out that s. 14(1) states:

14 (1) The assessment corporation shall prepare an assessment roll for each municipality, for each locality and for non-municipal territory and the assessment roll shall contain the following information as well as the information required under subsections (1.1) and (1.2):

1. The name and surnames, in full, if they can be ascertained, of all persons who are liable to assessment in the municipality or in the non-municipal territory, as the case may be.

[Emphasis Added]

Accordingly, in s. 40(9), ‘assessment’ refers to the person liable to assessment as shown on the assessment roll.

29Elora argues that the context of s. 40(9) is specific to a person who, in an appeal proceeding, could be impacted by an assessment change. The Board finds that this submission is presumptive, in that it assumes that the current owner, who is not named on the assessment roll, would be unable to participate in the appeal proceeding (this point being addressed in greater detail below). Furthermore, the Board reiterates that s. 40(9) is a limitation period provision which must be strictly interpreted. The issue here is whether the appeal was properly perfected. The ability of the current owner to participate in an appeal proceeding once it has commenced, is a separate issue.

30In further support of the conclusion that s. 40(9) refers to the person named on the assessment roll, the Municipality cites s. 39 of the Act which speaks to the delivery of an assessment roll to the clerk of a municipality. Section 39(2) states: “Immediately upon receiving the assessment roll for the municipality, the clerk shall make it available for inspection by the public during office hours.” The Board accepts that this statutory provision underscores the Legislature’s intent that the public rely on the assessment roll to ascertain the persons who are liable to taxation. In this regard, as previously noted, s. 41 provides that the assessment roll is valid and binds all parties concerned, despite any defect or error committed in or with regard to the roll. Consequently, this reinforces the interpretation that s. 40(9) refers to the person liable to taxation, as returned on the assessment roll.

Notice Requirement

31It is not disputed that Elora, as the current owner, should be able to participate in the Municipality’s appeal proceeding. However, as noted above, s. 40(9) imposes a limitation period for service of the Notice of Appeal. This clearly stated in s. 40(9)(b) which states that the appellant “shall deliver or mail a copy… within the time limited by subsection (6), (7) or (8), … as the case may be.” Once an appeal is filed, an error on the assessment roll can be addressed. In this regard, s. 44 of the Act provides that the Board “may reopen the whole question of the assessment so that omissions from, or errors in the assessment roll may be corrected…”. Therefore, the Board has the jurisdiction to correct an error respecting the name of the person liable to assessment.

32The main point is that, where such an error regarding ownership occurs, the Board’s Rules provide, if required, that a person may be added as a party to an appeal proceeding, and the Board, in controlling its process can reset the Commencement Date for an appeal proceeding to ensure that a current owner has a full opportunity to be heard.

33In the circumstances of this case, there has been no prejudice to Elora’s ability to participate fully in this appeal proceeding. As there has been no denial of natural justice, a request to dismiss the Municipality’s appeals based on a denial of natural justice is unfounded.

CONCLUSION

34In summary, the Board finds that s. 40(9) refers to the name of the person shown on the assessment roll as being liable to assessment. In this case, the assessment roll named the wrong person, but the assessment roll is, nonetheless, binding until it has been corrected by MPAC or by the Board in the appeal proceeding. Therefore, as the Municipality correctly served the person named on the assessment roll within the prescribed limitation period, the Municipality has complied with the statutory provisions of the Act. Consequently, Elora’s request to dismiss the Municipality’s appeal proceeding is denied.

ORDER

35The Board orders that Elora’s motion is dismissed.