COURT FILE NO.: DC-21-013
DATE: 2022 01 17
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
AMAZON.COM and ORLANDO CORPORATION
J.A. Walker Q.C. and J.G. Walker, for the Applicants
Applicants
- and -
THE CITY OF BRAMPTON and THE MUNICIPAL PROPERTY ASSESSMENT CORPORATION
J. L. O'Kane
Respondents
HEARD: December 21, 2021
REASONS FOR JUDGMENT
APPLICATION UNDER the Assessment Act, R.S.O. 1990, c. A. 31, as amended, s. 43.1
DENNISON J.
Introduction
[1] Amazon.com ("Amazon") and Orlando Corporation ("Orlando", collectively the Applicants) seek an order granting leave to appeal Decision DM 1674422 of the Ontario Assessment Review Board ("Board"), pursuant to s. 43.1 of the Assessment Act, R.S.O. 1990, c. A.31, as amended ("Act").
[2] Amazon appealed the Municipal Property Assessment Corporation's ("MPAC") 2016 tax year Property Tax Assessment on Amazon's newly constructed Distribution Center in Brampton to the Board. There were three appeals. Amazon also filed appeals for Taxation years 2017-2020.
[3] In January 2020, the Board advised Amazon that the 2016 appeals were to be treated as Legacy Appeals. Amazon was provided with a new Schedule of Events ("SOE") and ultimately were required to file their disclosure and Statement of Issues ("SOI") by July 21, 2020.
[4] The City of Brampton brought a Motion to dismiss the Legacy Appeals because Amazon did not comply with the July 21, 2020 filing deadline.
[5] The Motion to dismiss was heard on November 25, 2020. The Board dismissed the appeals on February 3, 2021.
[6] The jurisdiction to grant leave to appeal the Board's decision to the Divisional Court is limited to an error of law. The Applicants submit that the Board erred in law and exceeded its jurisdiction as follows:
By exercising its power to dismiss the Legacy Appeals because the Legacy Proceeding Stream has never been formally incorporated into the Board's Rules and there are no Rules that specifically pertain to the early dismissal of appeals that fall under the Legacy Proceeding Stream;
By failing to interpret its Rules in a liberal and proportionate manner as required by Rule 4 and instead finding "there is a clear expectation of strict compliance" with the expedited timelines prescribed in the Legacy Proceedings;
By scheduling the City's motion to dismiss notwithstanding the City's request was brought prior to the 30-day period that must pass set out in the Request to Dismiss an Appeal Form. The City also failed to include or serve a statutory party (Orlando) in accordance with Rule 9;
By determining that "there is prejudice to both sides, and this is not a circumstance where the prejudice to one side significantly outweighs prejudice to the other" when dismissing the appeals.
FACTS
The Assessment Process and Rules
[7] All real property in Ontario is liable to assessment and taxation pursuant to s. 3 of the Act, subject to certain exemptions that do not apply in this application.
[8] Section 19.21 of the Act provides that for the period of 2013 to 2016, all land is valued as of January 1, 2012 ("2012 CVA"). For the period of 2017 to 2021, all land is valued as of January 1, 2016 ("2016 CVA").
[9] After an appeal is filed with the Board, the Board assigns a Commencement Date for that property which serves as the date for calculating all procedural deadlines that are set out in the corresponding SOE: See Rules of Practice and Procedure of the Assessment Review Board (effective April 1, 2017; amended May 2019), Rules 32-34; Rules of Practice and Procedure of the Assessment Review Board, (effective April 1, 2021).
[10] Rule 32 states that there are two types of proceedings: General Proceedings, and Summary Proceedings.
[11] Rule 34 provides that the Board may set a SOE,
a) set out in Schedule A, for General Proceedings which is 104 weeks;
b) set out in Schedule B, for Summary Proceedings, which is 14 weeks; or c) as otherwise specified by the Board.
[12] The filing deadlines are fixed and will only be changed by the Board in "exceptional circumstances": Rules 40, 48, 49, and 66.
[13] In July 2019, the Board issued a public notice of procedural changes to be implemented in January 2020. As explained by Member Stringer in her reasons granting the motion to dismiss the appeals, all complaints for assessment cycles prior to 2016 were to be de-coupled from appeals in the General Proceeding stream and designated as "Legacy Appeals." Legacy Appeals would have an accelerated timeline under the SOE. An expedited process was also introduced to dismiss appeals for non-compliance with the SOE and the Rules.
[14] An Explanatory Note posted by the Board on July 8, 2019 explained the proposed changes as follows:
- Any appeal from a previous cycle that does not have a current cycle appeal (2017-2020) will be set to a new expedited Schedule of Events timeline, even if the appeal has been assigned a Commencement Date.
Properties affected by this proposed change are in the General Stream. Any property appeal currently active will be removed from any existing Schedule of Events regardless of where the appeal is in the Schedule and will have a new Commencement Date set with new timelines. The Board is proposing an 18 week schedule up to the filing of evidence.
... The Board continues to expect the parties to work cooperatively if there are any adjustments to the timelines up to the Mandatory Meeting date.
[15] Commencing in January 2020, the Board transferred all outstanding assessment appeals for taxation years prior to 2017 to newly created "Legacy Appeals" with an accelerated 18-week procedural timetable and expedited the dismissal process for non-compliance. There is nothing in the Rules specifically dealing with Legacy Appeals.
[16] Rule 7 provides that the Board will determine the appropriate consequences for non-compliance with the Rules.
[17] Rule 24(e) permits dismissal of an appeal without a hearing if "the appellant has not complied with the statutory requirements or these Rules."
The Amazon Appeals
[18] The Legacy Appeals concern a property located at 8050 Heritage Road in the City of Brampton. Amazon added an 868,122 square foot Distribution Center known as the Amazon Fulfillment Center ("Subject Property") in 2016. Orlando owns the Subject property and has leased it to Amazon since 2016.
[19] Amazon appealed assessments on three properties owned by Orlando for the following years as set out below:
Roll Number
Address
Years Appeal
Commencement date
21-10-080-012-07700-0000
Subject Property
580650 Heritage Rd. Brampton
2016-2021
February 2020
21-05-040-097-29200-0000
Mississauga Property
6363 Millcreek Dr. Mississauga
2017-2020
August 2018
21-20-140-099-00218-0000
Associated property
7995 Winston Churchill Blvd. Brampton
2018-2021
June 2019
[20] In March 2019, Amazon, MPAC, and the City agreed to request that the Board consolidate certain appeals in order to streamline the three appeals. The Consent Request from the parties did not include the Legacy Appeals.
[21] On March 21, 2019, the Board agreed and issued a new joint Commencement Date of June 17, 2019. Amazon was therefore required to deliver its SOI and disclosure in accordance with Schedule A for General Proceedings, which would have required them to file in advance of January 2020. The Board also stated that the "property at Heritage Road Brampton includes appeal nos. 3284962-63 & 64 the changes will be reflected on the Board's website shortly."
[22] Amazon delivered the SOI and disclosure for the appeals the Board consolidated in accordance with the SOE. Amazon did not deliver its SOI or disclosure for the 2012 CVA appeals (the Legacy Appeals).
[23] On February 21, 2020, the Board emailed the parties a separate SOE for the Legacy Appeals. The SOE set out a Commencement Date of March 23, 2020, with Amazon's SOI and disclosure due on April 20, 2020.
[24] Due to COVID-19, on April 7, 2020 the Board changed the Commencement Date for the Legacy Appeals to May 1, 2020, with Amazon's SOI due on May 29, 2020. Again, on May 7, 2020, due to COVID-19 the Board changed the Commencement Date to June 23, 2020, with the SOI due on July 21, 2020. These communications stated that if there were any questions the parties should contact the Board's Registrar.
[25] There is no evidence that Amazon contacted the Board Registrar or anyone else to suggest that they were confused or opposed to the Legacy Appeals being decoupled from the other appeals, or that it was unable to deliver its SOI in accordance with the Legacy Appeal SOE.
The City's Dismissal Motion
[26] On August 18, 2020, the City of Brampton filed a Request to Dismiss the Legacy Appeals because Amazon failed to file its SOI and disclosure by July 21, 2020, as required by the SOE. The City failed to serve Orlando with this Request to Dismiss.
[27] Amazon responded and apologized for the delay and explained that confusion resulted from the various dates and Amazon's unfamiliarity with scheduling the Legacy Appeals.
[28] On August 28, 2020, The Board responded to the parties as follows:
The Board has received a response submission from the City. However, this submission does not address that Appellant's submission that a Statement of Issues has not been served. MPAC has not provided a response to this submission. There would be no point in scheduling a formal written motion hearing if a Statement of Issues has been served. Therefore, before scheduling a motion, the Board directs the parties to confer among themselves to clarify where're there is a dispute and advise the Board no later than September 3, 2020 whether there is a dispute to be adjudicated and if so, the specific issue to be addressed.
[29] Amazon had delivered its SOI for the Legacy Appeals to the City and MPAC on August 26, 2020.
[30] The City and Amazon provided the Board with written submissions. On September 29, 2020, the Board provided written instructions to all parties that required the City to bring a formal Dismissal Motion for November 25, 2020 (Motion Hearing No. 736160). By the time of the motion, Walker Longo & Associates was counsel of record for both Amazon and Orlando.
The Board's Decision
[31] Member Stringer held that the subject appeals should be dismissed because Amazon had failed to provide the SOI in accordance with the timelines set out in the SOE.
[32] Member Stringer reviewed her authority under the Rules to dismiss the appeals. Member Stringer noted that the Appellant explained that its failure to comply was based on inadvertence and misunderstanding: "The Appellant attributes its failure to comply to i) the multiple Commencement Dates assigned to the Subject Property, ii) administrative disruptions caused by COVID-19 and iii) the Appellant's unfamiliarity with the separate scheduling for Legacy Appeals and General Proceeding appeals". Amazon filed its SOI on August 26, 2020, which was over a month past the deadline.
[33] Member Stringer also considered whether the failure to comply with the SOE warranted dismissal of the appeal. Member Stringer considered the factors that weighed in favour of dismissal and the factors that weighed against dismissal. Member Stringer also considered the jurisprudence put forth by Amazon and how it was distinguishable from the facts in this case. Ultimately, Member Stringer held that the Appellant's excuses for not complying were not satisfactory and the appeals should be dismissed.
POSITION OF THE PARTIES
The Applicants
[34] The Applicants submit the Board did not have jurisdiction to set out a Legacy Appeal SOE. Rule 32 only contains two types of proceedings i) the general stream and ii) the summary stream. The Rules do not set out a "Legacy Stream". If the Board wished to create a new stream of proceedings, they should have amended the Rules. Without amending the Rules, the Board had no jurisdiction to impose the deadlines it did and no jurisdiction to decide the Dismissal Motion when it did.
[35] The Applicants also submit that even if the Board did have the ability to create a "Legacy Stream", these appeals should not have been included because they do not meet the Board's own requirements. The notice provided by the Board in discussing Legacy Appeals focuses on the 2012 to 2016 cycle. The Applicants submit that Appeals filed in 2017 and 2018 are not included in that cycle. In addition, the appeals had current appeals in the 2017 cycle.
[36] It is also the position of the Applicants that the Board acted in a procedurally unfair manner because it dealt with the Motion to Dismiss despite the fact that the City of Brampton did not wait the required 30 days to file the Motion to Dismiss and did not serve Orlando.
[37] The Applicants further submit that Member Stringer exceeded her jurisdiction in dismissing the appeals, as she relied almost exclusively on the fact that the appeals were in the "Legacy Stream". She mentioned the word "legacy" 18 times in 6 pages of her reasons. She also erred in finding that the prejudice to one side was not significantly outweighed by the prejudice to the other side. Her decision was therefore not in accordance with the principles set out in the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("SPPA").
[38] It is the Applicant's position that the legal questions regarding the jurisdiction of the Board to create a Legacy Appeal stream are of significant importance because as of October 2020, there were still 3,000 Legacy Appeals. It is important that the Divisional Court resolve whether the Board had jurisdiction to create a new "Legacy Appeal Stream" without properly amending the Rules.
The City of Brampton
[39] The City of Brampton submits that Rule 34 provides the Board with jurisdiction to schedule appeals "as determined by the Board." It was within the Board's authority and jurisdiction to determine that it wanted to deal with a back log of older appeals and impose shorter SOEs for those appeals.
[40] The fact that the City of Brampton filed their Notice to Dismiss two days early created no procedural unfairness because Amazon still did not file the required documents within the 30 days and the Dismissal Motion was heard well after the 30 days had expired. Similarly, the fact that Orlando was not initially served with the material was cured because Orlando and Amazon were represented by counsel prior to the Dismissal Motion.
[41] It is also the position of the City that the Board had jurisdiction to dismiss the appeals pursuant to Rule 24(e). The Applicants' challenge to Member Stringer's decision does not raise an error of law. Rather, the Applicants are attacking the manner in which the Member balanced the various factors. Member Stringer was entitled to balance the factors as she saw fit and acted within her jurisdiction in dismissing the appeals.
MPAC
[42] MPAC submits that the question of the Board's jurisdiction to create an SOE schedule outside its Rules is moot because Amazon already missed the filing deadline for the 2012 CVA appeals prior to the Board providing a new Commencement Date for the Legacy Appeals. The material was to be filed by November 19, 2019 and Amazon did not file its SOI until August 26, 2020.
[43] MPAC adopts the submissions of the City and points out that the Rules are very clear that timelines will only be extended in "exceptional circumstances." MPCA submits that no exceptional circumstances existed in this case and therefore the board acted within its jurisdiction in dismissing the appeals.
JURISDICTION: TEST FOR LEAVE TO APPEAL
[44] An appeal of a decision of the Board lies to the Divisional Court, with leave on a question of law: Act, s. 43.1.
[45] The test for leave to appeal is two-fold:
i) there must be reason to doubt the correctness of the decision under review; and
ii) there must be a question of law of sufficient importance to merit the attention of Divisional Court.
BCE Place Ltd. v. Municipal Property Assessment Corp., Region No. 9, 77 R.P.R. (4th) 38, at para. 4.
Issue #1: Did the Board Exceed its Jurisdiction in Creating a Process for "Legacy Appeals"?
[46] There is no reason to doubt the Board acted within its jurisdiction in scheduling the Legacy Appeals.
[47] Sections 25.0.1 and 25.1 of the SPPA provide that the Board may make orders governing the practice and procedures that apply in a proceeding and establish Rules to govern the practice and procedure of the Board.
[48] The Board established a variety of Rules that govern how appeals of assessment are dealt with.
[49] The Applicants submit that the Board exceeded its jurisdiction because it created a new stream of "Legacy Proceedings" and Rule 32 states that all proceedings are classified under the general or summary proceedings. I disagree. The Board did not create a new stream of proceedings, it created a new SOE for dated appeals.
[50] Rule 32 is under the heading "Proceedings." Under Rule 32 Proceedings are classified under general or summary proceedings. The timelines under the two proceedings are different and in summary proceedings there is no settlement conference and no requirement to exchange expert reports. In the explanatory note to the profession, the Board stated that the appeal from the previous cycle (Legacy Appeals) are within the general stream.
[51] In contrast, Rule 34 is under the heading "Schedule of Events." Rule 34 gives the Board jurisdiction to create schedules or timetables for the hearing of appeals. The Board has not created a new proceeding but rather created a new schedule for appeals dealing with older assessments under general proceedings. Rule 34 states that the SOE is as:
i) set out in Schedule A for all appeals scheduled as general proceedings;
ii) set out in summary proceedings under schedule B; and
iii) As otherwise specified by the Board.
[52] Admittedly, there is no Rule that specifically addresses Legacy Appeals or a formal practice direction. I do not find that is required because the wording in Rule 34 gives the Board the discretion to set any schedule it specifies.
[53] The Board is entitled to control its process in accordance with its Rules and Practice Guidelines. The Board has an Appeal Management Advisory Committee whose purpose is to assist in developing and maintaining appropriate policies, practice, and procedures for appeals. In this case, the Board decided how to deal with a backlog of older appeals. The Board sent out letters advising stakeholders that the Board was changing certain practices to deal with appeals from the 2012 CVA cycle. The Board advised stakeholders the Board was going to impose a new expedited SOE timeline. In addition, the Board established an expedited process for dismissals for noncompliance with the SOE.
[54] The Applicants' submission that the appeals were not a Legacy Appeals and should not have been treated as such because the appeals were filed in 2018 and were linked to current appeals is a red herring. There is no reason to doubt that the Board has the jurisdiction to create a SOE as it determines, regardless of when the appeal was filed. The Applicants' Appeals dealt with the pre-2016 assessment cycle. These older appeals were the type of appeals the Board indicated it wanted to deal with on a more expedited basis.
[55] It is worth noting that the original deadline for all the Applicants' appeals – the 2012 and 2016 CVA's - was November 2019. While Amazon met this deadline for the 2016 CVA appeals, it was already in default for the SOE made in accordance with Rule 39(a) for the 2012 CVA appeals before the new deadlines were imposed for the Legacy Appeals. There is therefore some merit to MPAC's submission that the Applicants' arguments are moot. However, I have considered the latest filing deadline in July 2020, because that is the deadline the Board used in deciding to dismiss the appeals.
[56] It is crucial to note that the Applicants were well aware of the new SOEs. Because of COVID-19, Amazon was provided with three different notices that advised them of the SOE and extended it. Moreover, the Applicants never questioned the Board's authority to establish the SOE or asked for an extension to file the SOI later.
[57] I do not find the case of The Director Under the Environment Protection Act v. Becker Milk Co., 2005 38894 (ON SCDC), 78 O.R. (3d) 556, assists the Applicants as they suggest. In that case, there was no legislative provision under the Environmental Protection Act, R.S.O. 1990, c. E.19 ("EPA") providing the tribunal with the authority to award costs. In addition, the Tribunal's Rules dealing with costs did not comply with the requirements of s. 17(2) of the SPPA, so the Tribunal's Rule was not authorized under the SPPA. In those circumstances, the Divisional Court held that the EPA had no jurisdiction to award costs in the manner it did: See also 1609830 Ont. Inv. v. Municipal Property Assessment Corp., Region No. 9, 2011 CarswellOnt 7141 (Ont. Assess. Review Bd.), at para. 5.
[58] In this case, the Board's Rules, made pursuant to the SPPA, specifically authorized the Board to manage its processes using timetables embodied in an SOE "as specified by the Board."
Issue #2: Was the Board's Interpretation of its Rules Inconsistent with the SPPA?
[59] Section 2 of the SPPA requires the Board to interpret the Act and Rules in a liberal manner in order to secure the just, most expeditious, and cost-effective determination of every proceeding. The Board's Rules incorporated these principles: Rules 4 and 5.
[60] The Applicants submit that the Board did not follow these principles in determining that the Legacy Appeals should be dismissed. In particular, the Applicant points to Member Stringer's statement that "the parties 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 Schedule of Events."
[61] There is no reason to find that the Board's decision is inconsistent with the SPPA. The Applicants argument is a veiled attempt to have the court reconsider Member Stringer's decision.
[62] Rule 7 gives the Board jurisdiction to "determine the appropriate consequences for non-compliance with the Rules."
[63] Rule 24(e) provides that the Board may dismiss an appeal for a failure to comply with the Rules.
[64] Member Singer provided detailed reasons for why she was of the view the appeals should be dismissed. I agree that she gave significant weight to the fact these were Legacy Appeals, but she was entitled to do so. Whether the appeals are referred to as Legacy Appeals or appeals dealing with the 2012 cycle, the delay in dealing with the appeals was a relevant factor to consider in determining how to fairly deal with the dismissal motion. Member Stringer referred to the unique policy considerations attached to Legacy Appeals, at para. 25 as follows:
The facts before me today can be distinguished in many ways from the cases the Parties have provided as authorities. First, none of the authorities cited by the Parties address dismissal of Legacy Appeals. The Subject Appeals are Legacy Appeals. The Board has a particular interest in ensuring that Parties adhere to the accelerated timelines of Legacy Appeals to avoid delays and to achieve its mandate to justly and expeditiously resolved these matters. The Board even developed an expedited process to dismiss Legacy Appeals for non-compliance with the Schedule of Events and the Rules. There is a clear expectation of strict compliance with the timelines prescribed in Legacy Appeals.
[65] Member Stringer considered the reasons for the non-compliance and found the reasons to be "unsatisfying". She also considered the factors that did not favour dismissal. As Member Stringer explained, at paras. 30-32:
[30] I find this explanation unsatisfying — the Appellant is a sophisticated party. It had ample opportunity to retain counsel if it felt unfamiliar with the Board's processes. The Appellant has not sufficiently particularized the nature of its administrative challenges, so the Board is left guessing, without a clear picture of the specific challenges and whether or how the Appellant attempted to address them. The Appellant has not provided evidence as to why it did not seek clarity from the Board, MPAC, or Brampton, if it was confused at any stage. There is no evidence explaining what the Appellant thought the Board's multiple notices pertained to, if not a pending deadline for the appeals listed on the correspondence. The Appellant filed over a month after the deadline, well after two other much earlier deadlines had been extended. This suggests that the Appellant did not put
much effort into working towards earlier deadlines. In my view, the Appellant has provided very little detail or information to satisfactorily explain its breach.
[31] That said, in deciding whether to dismiss the appeals today, I must consider the totality of the circumstances. The following circumstances weigh in favour of dismissal:
a. The Board provided clear notices and directives respecting the Legacy Appeals process;
b. The Legacy Appeals process is an accelerated one, designed to resolve pre-2016 appeals in a timely way;
c. The Legacy Appeals process has an expedited dismissal process for non-compliance with the Rules;
d. Between February and June 2020, the Appellant received three (3) written notifications from the Board advising of deadlines and the importance of complying with the timelines in the Schedule of Events;
e. The Appellant did not take steps to clarify any confusion, if any, it had over these three (3) notices;
f. The Appellant's timeline for providing the SOI was extended;
g. The Appellant is a sophisticated global retailer and could have retained counsel to manage its appeals;
h. Appeal information is available on the Board's public website; and
i. The Appellant's explanation for its failure to comply is insufficient and unsatisfactory.
[32] following circumstances weigh against dismissal:
a) The Appellant had numerous appeals relating to the Subject Property and others;
b) The Appellant was managing the Subject Appeals from its office in Seattle, Washington;
c) The Appellant did not have local legal counsel retained at the time;
d) The Board's notices were received during the first several months of a global pandemic;
e) The Appellant cured its breach by providing its SOI on August 26, 2020.
[66] Member Stringer recognized that dismissing an appeal was "an extreme remedy that should only be granted in the clearest of cases." She then stated that the Board has been clear that it will strictly enforce the Rules. Member Stringer balanced all of the factors for and against dismissing the appeal and balanced the prejudice to both parties. Ultimately, she concluded that the appeals should be dismissed.
[67] There is no evidence that Member Stringer made an error of law. She did not find any facts for which there was no evidence. She did not misapprehend the legal test to apply on the motion, nor was her conclusion to dismiss the appeals unreasonable: See R v. J.M.H. 2011 SCC 45 for examples of errors of law.
[68] The Applicants essentially argue that Member Stringer weighed the evidence and balanced the relevant factors incorrectly. This is not an error of law but rather a question of mixed fact and law and therefore does not engage the Divisional Court's supervisory jurisdiction: Paletta v. Burlington et al., 2021 ONSC 2565 (Div. Ct.), at para. 45, citing CAMPP Windsor Essex Residents Association v. Windsor (City), 2020 ONSC 4612, at para. 3.
[69] Even if the court were to consider a question of mixed fact and law, it was open to Member Stringer to grant the motion to dismiss the appeals that involve the cycle from 2012. Her decision was not unreasonable. The Applicants were well aware of the deadlines and missed them. The appeals in question dealt with a dated cycle and the Applicants were not unsophisticated parties. There is no basis to find that her analysis is inconsistent with the principles set out in the SPPA, which require the Board to come to a just result.
[70] The Board's current Rules demonstrate that the Board expects timelines to be complied with. For example, Rule 40 states that after the Commencement Date is set, "the Board will not alter any due date set out in the Schedule of Events other than in exceptional circumstances." Rule 48 states that documents may only be admitted "if properly served and filed with the Board in accordance with the Rules, unless the Board determines there are exceptional circumstances." Rule 49 states that no new issues may be raised unless there are exceptional circumstances.
[71] The Applicants did not point to any exceptional circumstances that justified their failure to comply with deadlines they were properly advised of. While the Applicants rely on several other decisions where motions were not dismissed for failing to comply with the Rules, I note that those decisions were before the Board changed its policy with respect to expediting the dismissal of appeals for non-compliance with the SOE. There is no basis to find that Member Stringer's decision is inconsistent with the principles of the SPPA or the Board's Rules.
Issue #3: Did the timing of the Filing of Dismissal Motion Create Procedural Unfairness?
[72] The Applicants submit that the City's actions in filing the Notice to Dismiss 28 days as opposed to the 30 days after the SOE deadline, and the City's failure to initially serve Orlando, denied the Applicants' right to procedural fairness.
[73] There is no dispute that a tribunal has a duty to act in a procedurally fair manner. What the duty of fairness requires depends on at least five factors: 1) the nature of the decision being made, and the process followed in making it; 2) the nature of the statutory scheme involved and the terms of the statute pursuant to which the body operates; 3) the importance of the decision to the individual; 4) the legitimate expectations of the individual challenging the decision; and 5) the choice of procedure made by the agency, particularly where the statute enables the decision maker to chose its own procedures. There may be other factors as well: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), 1999 SCC 699, [1999] 2 S.C.R. 817, at paras. 21-27.
[74] Any procedural irregularities were cured well in advance of the hearing of the Dismissal Motion. I do not find that there is any basis to find that the Applicants were denied procedural fairness.
[75] The City delivered its Request to Dismiss on August 18, 2020, on Amazon and the Board. The delivery was 28 days after the July 21, 2020 deadline. The Rules state that a Request to Dismiss may be brought 30 days after a missed SOE deadline. I agree with the City that the likely reason for this 30-day period is to provide a grace period for parties who do not file their material in a timely fashion before a motion can be brought. In this case, I note that Amazon did not file the material within the 30-day period. Rather, it filed its material on August 26, 2020. Had Amazon filed their material within the 30 days and the motion was still allowed to continue, that would have violated the principles of procedural fairness. But that is not what occurred.
[76] The Board did not set a date for the Motion to Dismiss within 30 days. Rather, the Board required the parties to clarify if there was a real issue. On September 29 2020, the Board issued a written directive to the parties, including Orlando, requiring the City to bring a formal Dismissal Motion, and establishing a schedule for exchanging motion material.
[77] By the time the Motion to Dismiss was heard, Amazon and Orlando were represented by counsel. The Board heard the motion after giving all of the parties an opportunity to make full submissions. This cured any procedural defects caused by the City's request to bring the motion 28 days rather than 30 days after the missed SOE deadline, and in not serving Orlando.
Issue #4: Consultation of the Board's Legacy Proceeding Policy
[78] The Applicants did not address this issue in oral submissions and agree that it is not their primary argument. I will therefore only address it briefly. The Applicants submit that the Board did not consult as required by the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, as amended before introducing the Legacy Appeals.
[79] The City submits that this ground of appeal is a collateral attack and if the Applicant had an issue with the consultation process, the proper process is through the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
[80] I agree. This is not the proper forum to raise this ground of appeal. The Board is not a party to the proceedings and therefore cannot respond. This issue does not appear to have been raised at the motion for dismissal and therefore there is no record before the court to litigate this issue.
Issue #5: Is Amazon Raising Important Questions of Law?
[81] Given that there is no reason to doubt the correctness of the Board's decision, the Applicants have failed to raise an important question of law regardless of the number of legacy appeals that might still be outstanding.
[82] The Application for Leave to Appeal is dismissed.
COSTS
[83] The City of Brampton and Amazon agreed to costs in the amount of $5,000 payable to each party. MPAC took no position. I am satisfied that it is reasonable and proportionate to order the Applicants to pay costs of $5,000 to the City of Brampton and costs of $5,000 to MPAC within thirty days of receipt of this decision.
Dennison J.
Released: January 17, 2022
COURT FILE NO.: DC-21-013
DATE: 2022 01 17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
AMAZON.COM and ORLANDO CORPORATION
Applicants
- and -
THE CITY OF BRAMPTON and THE MUNICIPAL PROPERTY ASSESSMENT CORPORATION
Respondents
REASONS FOR JUDGMENT
Dennison J.
Released: January 17, 2022