Decision and Order
IN THE MATTER OF AN APPEAL PURSUANT TO S. 50 OF THE ASSESSMENT ACT
CONCERNING:
Sudesh Nagpaul
AND
Assessor Of Area #14 - Surrey/White Rock
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Appeal No.: |
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Refer to as: |
Nagpaul et al. v. Area 14 (2010 paabbc 20100613) |
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Date of Decision: |
May 26, 2010 |
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Property: |
City of Surrey |
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Heard: |
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Board Panel: |
Cheryl Vickers, Panel Chair |
[1] This is an application to reconsider the Registrar’s opinion that the Board does not have jurisdiction in this appeal.
[2] The Appellants are the owners of the property that is the subject of this appeal located in Surrey. In August 2009, the Appellants moved from the property to Markham, Ontario. The Notice of Assessment for the property, however, was not forwarded by Canada Post to their Markham address. The Appellants were in India from early January 2010 until sometime in April 2010. They received the Notice of Assessment in April, 2010 on their return from India. It had been forwarded from the Surrey address by their Realtor.
[3] By letter dated April 20, 2010, sent to the Surrey-White Rock Assessment Office and received by that office on April 29, 2010, the Appellants appealed the 2010 assessment. The Surrey-White Rock Assessment Office forwarded the letter of appeal to the Board and the Board received it on May 4, 2010.
[4] As the Appellants did not file a complaint to the Property Assessment Review Panel within the time required by section 33(2) of the Assessment Act, they must seek leave of the Board to file an appeal. In accordance with the requirements of sections 50(1.1) and 50(3) of the Assessment Act, an application for leave must be filed with the Board by April 30. For the application to be “filed” with the Board, it must either be mailed to the Board in advance of April 30 or received by the Board by April 30. Mailing to the Assessor does not constitute mailing to the Board. (Thompson, et al v. Assessor of Area 24, 1999 PAABBC 19991276; Gulmans, et al v. Assessor of Area 23, 2004 PAABBC 20040944). The Board has no discretion to waive or extend the legislated deadline (Pacific Rim Resort Properties Inc. v. Assessor of Area 05, 2005 BCCA 241). Although the letter of appeal had been mailed before April 30, it was not mailed to the Board but to the Assessor’s office. The Board received the Appellant’s letter of appeal on May 4, 2010. It, therefore, has no jurisdiction to entertain an application for leave to appeal or to hear the appeal.
[5] Even if I am wrong in finding that the letter was not filed with the Board by April 30, I would not exercise the Board’s discretion to grant leave to appeal, in any event, in the circumstances. Section 50(4.3) of the Act provides that the Board may grant leave where it is satisfied that the owner’s failure to file a complaint to the Review Panel within the time required by section 33(2) of the Act was “due to circumstances beyond the owner’s control”. The onus is on the owner to provide evidence in support of reasons why leave should be granted.
[6] The ordinary meaning of the words “circumstances beyond the owner’s control” mean circumstances or events that were not created by a lack of diligence or efficiency on the part of the owner, circumstances that could not reasonably have been foreseen by the owner, or circumstances that with reasonable efforts on behalf of the owner could not have been avoided. To turn it around, if there is something the owner could have done to avoid the circumstance, the circumstance was within the owner’s control rather than beyond their control. Such an interpretation accords with the scheme of the Assessment Act to provide an annual system of assessments with time limits for the filing of appeals so that the roll may be adjudicated and finalized in a timely way.
[7] While the owners had moved from Surrey to Markham, and were away from the country from early January to April 2010, I am not satisfied that there were circumstances beyond their control. First, it is apparent that the owners did not provide BC Assessment with notice of a change of address but were relying on Canada Post to forward the Notice of Assessment. BC Assessment is required to deliver the Notice of Assessment to the address known to the Assessor. In the absence of advice of a change of address, the Assessor is not going to know an address has changed. In this regard, the circumstances of this case are similar to the circumstances in Saiberg Holdings v. Assessor of Area 15 (2008 PAABBC 20081049). There are steps the owners could have taken to avoid the Notice of Assessment being delivered to Surrey instead of Markham.
[8] As for being out of the country, while the evidence is that the reason for travel was “urgent business”, I am not satisfied there were circumstances beyond the owners’ control. Generally, it is expected that if owners know they will be out of the country, they will make arrangements to ensure that matters at home are appropriately handled, and that correspondence is dealt with including making arrangements to ensure an appeal is filed in a timely manner. In this regard, the circumstances of this case are similar to the circumstances in Green v. Assessor of Area 15 (2008 PAABBC 20080521). In this age of easy global communication, despite being absent from the country, I am not satisfied the owners could not have taken steps to avoid failing to file an appeal to the Review Panel in a timely manner as required by the Act.
[9] The Board does not have jurisdiction in this appeal.