My Appeal Was Dismissed - Can I Get it Back?

Reading through recent decisions of the Assessment Review Board (“ARB”), I am struck by how many appeals have been dismissed for missed deadlines. This gives rise to appeals seeking to reinstate the now dismissed appeal*. So what is the answer to the title question - can your dismissed appeal be reinstated. In practical terms the answer is a definite maybe.

To avoid causing too much trauma to my high-school English teachers (we all remember the “can I “ vs “may I” discussions), I should state up front that the ARB definitely has a process for reinstating appeals. The much better question is - in the specific case, will they?

In the case of an accidental withdrawal, the rules governing reinstatement are very clear. They were outlined in Abbey Plaza Inc. v Municipal Property Assessment Corporation, Region 15, 2020 CanLII 52446 (and many other cases) as follows:

First, it is only open to parties to the appeal that was withdrawn. Secondly, the order must be sought within 30 days after the appeal was dismissed or withdrawn and lastly, an affidavit must be filed in support of the request. If these preconditions are met the Board will consider the specific grounds set out in Rule 122 (a), (b), and (c).

Note that even if these three requirements are met, this does not guarantee reinstatement. The above noted case continues: “It is not strictly enough that all of the conditions in Rule 122(a) are met. Reinstatement is a discretionary remedy, see Rule 123. The Board may refuse to reinstate appeals even where the requirements of Rule 122 are met.”

Certainly the best course is to not withdraw appeals you hope to continue. I am not sure why there has been such a rash of accidental appeals, but there are a lot of such decisions out there. But what about the case of an appeal which was dismissed because an important date, such as the date for filing issues, was missed? Is there any hope for these to be reinstated?

There is hope, but it’s not the smart way to bet. In some cases, if the appellant has corrected the deficiency promptly, dismissed appeals can be reinstated. But be careful - “The Board has been clear that timelines in Schedules of Events are not intended to be “flexible guideline(s)”” (Conair Consumer Products Inc. v Municipal Property Assessment Corporation Region 14, 2020 CanLII 87159 (ON ARB))

Pay attention to dates!

Everyone knows that the current pandemic has complicated our lives. If a default is truly unavoidable, there is a chance it won’t be fatal to the appeal. But the ARB has signaled that they will not tolerate carelessness or needless delays. In the past appeals have dragged on for years - even decades. The Board is working to eliminate the backlog, and will not allow proceedings to be needlessly delayed.

* A five minute search yielded the following cases of taxpayers seeking appeal reinstatements. Some involve missed deadlines, others involve taxpayers and representatives accidentally(!) withdrawing appeals -

https://www.canlii.org/en/on/onarb/doc/2020/2020canlii87159/2020canlii87159.html https://www.canlii.org/en/on/onarb/doc/2020/2020canlii63858/2020canlii63858.html https://www.canlii.org/en/on/onarb/doc/2020/2020canlii62518/2020canlii62518.html https://www.canlii.org/en/on/onarb/doc/2020/2020canlii52446/2020canlii52446.html https://www.canlii.org/en/on/onarb/doc/2020/2020canlii52445/2020canlii52445.html