Curry v. Ontario (Ministry of Natural Resources and Forestry), 2024 CanLII 11629

ISSUE DATE: February 14, 2024

CASE NO.: OLT-23-000897

PROCEEDING COMMENCED UNDER subsection 40 of the Assessment Act, R.S.O. 1990, c. A. 31, as amended

Appellants: Shane Curry, Glenariff Holdings Limited

Respondent: Administrator, Ministry of Natural Resources and Forestry

Subject: Determination as to whether and how much of the Assessed Property is in the Conservation Lands Property Class for the 2022 Taxation Year

Property Address/Description: 79419 3rd Line E. Lot 1, CON 4 E PT LOT 12 CON 5 E PT

Municipality/Upper Tier: Town of Mono / Dufferin

Roll Number: 2212-000-002-02300-0000

OLT Case No.: OLT-23-000897

OLT Lead Case No.: OLT-23-000897

OLT Case Name: Curry v. Ontario (Ministry of Natural Resources and Forestry)

Heard: November 30, 2023, in writing

APPEARANCES:

Parties

Representative

Glenariff Holdings Limited

Shane Curry

Administrator, Conservation Lands Tax Incentive Program, Ministry of Natural Resources and Forestry

Lisa Stephens

Mono Township

Les Halucha

DECISION DELIVERED BY C. HARDY AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Glenariff Holdings Limited, represented by Shane Curry (the “Appellant”) appealed the assessment of 79419 3rd Line E. Lot 1 in Mono Township (“Subject Property”) to the Assessment Review Board (“ARB”) for the 2022 taxation year.

2The Tribunal has been supplied with a copy of a tax bill for Roll Number 2212-000-002-02300-0000 which confirms that Glenariff Holdings Limited does receive the tax bill. The Tribunal was also supplied with a copy of the Parcel Register for the Subject Property, being Property Identifier No. 34094-0039 (LT) that indicates that the Subject Property is in the ownership of Hugh Curry Investments Limited. The Tribunal was informed, through counsel for the Appellant, that Hugh Curry Investments Limited merged with Glenariff Holdings Limited in 1994 and the title document must be updated to reflect this merger.

3The Tribunal takes no position on this matter. As part of an application to participate in the Conservation Lands Tax Incentive Program (“CLTIP”) the roll number is the document that accompanies the application.

CONSERVATION LAND DETERMINATION

4The Appellant’s appeal to the ARB included a request to have all or a portion of the Subject Property determined to be conservation land.

5Pursuant to s. 39 of Ontario Regulation 282/98 (“Regulation”), the ARB referred the appeal to the Ontario Land Tribunal (“Tribunal”) by letter dated September 5, 2023.

6The referral to the Tribunal was to determine whether all or a portion of the Subject Property is conservation land and how much acreage of the Subject Property qualified as conservation land as contemplated by the requirements of the CLTIP, administered by the Ministry of Natural Resources and Forestry in the 2022 taxation year.

7The CLTIP Administrator informed the Tribunal that an eligible area of 145.74 acres of the Subject Property out of a total area of 179.42 acres, qualified as conservation lands in the 2022 taxation year.

8The Tribunal confirmed the calculation of 145.74 acres with both the Appellant and Mono Township on emails dated October 23, 2023 and a follow-up email on November 1, 2023. Neither the Appellant nor Mono Township took issue with the calculation. On this basis, the Tribunal finds that 145.74 acres of the Subject Property is eligible conservation land.

EXTENSION OF TIME

9The Appellant is seeking an extension of time to apply for the CLTIP. In an email dated November 1, 2023, the Appellant advised that the deadline for the 2022 CLTIP application was missed due to confusion among family members regarding the responsibility to complete the application.

10Where there is an issue regarding classification of land which is referred to the Tribunal pursuant to s. 39 of the Regulation, s. 40 of the Regulation sets out the process for “special consideration” where a deadline was missed. The Tribunal has jurisdiction to make a determination regarding the missed deadline pursuant to s. 40(2). For ease of reference, s. 40 reads as follows:

SPECIAL CONSIDERATION IF DEADLINE MISSED

(1) The Administrator, on a request described in subsection 38(1), shall agree to a settlement determining that the land is conservation land if,

(a) the requirements for the land to be conservation land have been complied with except that the deadline for submitting an application for designation of the land as conservation land was missed;

(b) the land would have been conservation land if the deadline under section 26 had not been missed; and

(2) The Tribunal, on an appeal described in section 39, shall make a determination that the land is conservation land if,

(a) clauses (1)(a) and (b) are satisfied; and

(b) in the Tribunal’s opinion, there are mitigating circumstances explaining why the deadline was missed.

11The Tribunal has the power to consider an extension of time under s. 40(2) of the Regulation “…on an appeal described in section 39…” as in the present appeal. In considering the request for a deadline extension, the Tribunal must consider whether s. 40(1)(a) and (b) are satisfied, and whether there are mitigating circumstances explaining why the deadline was missed (emphasis added).

12In the present appeal, the Tribunal is satisfied that s. 40(2)(a) has been satisfied based on the correspondence received from the CLTIP Administrator confirming that the requirements have been met and the portion of the land qualifies as conservation land.

13The crux of the issue before the Tribunal is whether there are mitigating circumstances present to satisfy the requirements of s. 40(2)(b) of the Regulation. The Appellant’s explanation was solely the existence of confusion among family members regarding who was responsible for completing the application.

14MNRF confirmed that the confusion regarding the missed deadline originated when the Appellant was mistakenly directed to file a Request for Reconsideration with the Municipal Property Assessment Corporation (“MPAC”), rather than MNRF. The Tribunal was advised that this error occasionally occurs and when it does, MPAC transfers the request to MNRF. However, in this case, the transfer did not occur and the deadline was missed.

15Once MNRF was aware of the error, the Request for Reconsideration Application was sent by MNRF to the Appellant with a submission deadline of August 21, 2023. The Appellant returned the completed 2022 CLTIP Application on August 1, 2023, however, failed to return the Request for Reconsideration. To further complicate the matter, the Appellant’s email and Application went to an unmonitored inbox resulting in MNRF being unaware that the Application was filed prior to the deadline but was incomplete.

16Given the confusion and miscommunication surrounding the 2022 CLTIP Application and Request for Reconsideration, the Tribunal finds that mitigating circumstances do exist and the requirements of s. 40(2)(b) of the Regulation have been satisfied.

DECISION

17The Tribunal determines that the Subject Property includes eligible conservation land as defined in Part IV of Ontario Regulation 282/98.

18The Tribunal further determines that 145.74 acres of the Subject Property is classified as conservation land for the 2022 taxation year.

19The Tribunal further determines that the extension of time to file the 2022 CLTIP application be granted. The application must be made to the Ministry within 30 days of the date of issuance of this Decision.

20The Tribunal directs that no costs shall be payable by any party to this referral.

21The Tribunal further directs that this matter be referred back to the Assessment Review Board.

“C. Hardy”

C. HARDY

MEMBER

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.