Hemingway v. Municipal Property Assessment Corporation, 2015 CanLII 54413

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: August 27, 2015

FILE NO.: WR 133188

Assessed Person(s): Patricia Gayle Hemingway and David Blane Hemingway

Appellant(s): Patricia Gayle Hemingway and David Blane Hemingway

Respondent: Municipal Property Assessment Corporation (“MPAC”) Region 24

Respondent: Municipality of Central Huron

Property Location(s): 78403 Whys Line and 78396 Porters Hill Line

Municipality(IES): Central Huron

Roll Number(s): 4030-240-007-02000-0000 and 4030-240-006-02300-0000

Appeal Number(s): 2888594, 2921092, 3000542 and 3027711

Taxation Year(s): 2011, 2012, 2013, 2014

Hearing Event No(s).: 574431 and 588830

Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Heard: April 15, 16, June 8 and 9, 2015 in Clinton, Ontario

APPEARANCES:

Parties

Counsel⁺/Representative

D. Hemingway and P. Hemingway

Self-represented

MPAC

D. Mitchell⁺

Municipality of Central Huron

No one appeared

DECISION OF THE BOARD DELIVERED BY SUSAN F. MATHER AND MARK SPRAGGETT

INTRODUCTION

1The main issue in these appeals on two roll numbers owned by David and Patricia Hemingway (“the Hemingways”) is the effect that wind turbines that have been proposed for their area or have been built in their area and the hydro-electric transmission lines that may be built in their area have on the current value of their properties.

2Roll Number 4030-240-007-02000-0000 (“Whys Line”), the residence of the Hemingways, is assessed at $254,000 for the 2011 and 2012 taxation years under appeal and is classified in the Residential Property Class. The classification of this roll number is not in issue.

3Roll Number 4030-240-006-02300-0000 (“Porters Hill Line”), an 80 acre parcel of land, is assessed at $545,000 for the 2013 and 2014 taxation years under appeal. The assessment of this property is apportioned with $507,100 in the Farm Property Class and $37,900 in the Residential Property Class. The apportionment of the assessment between the property classes is an issue.

4With respect to the Whys Line property, the appellants argue that the assessment on the silos should be reduced to zero and that the milk house and parlour are no longer in a state to be used for a dairy farm.

5With respect to the Porters Hill Line property, the appellants argue that the mobile home on the property should not be assessed for the reason that the appellants felt forced to put the mobile home on the property to “protect building rights”.

6The Hemingways are seeking a reduction in their assessment of between 25% and 65%. Mr. Hemingway argues that as early as 2004 and for certain as of October 20, 2010 when a Draft Industrial Wind Turbine Map was released (Exhibit 4A), any prospective purchaser of the properties would discount the price they were willing to pay because of the potential that they would be living too close to wind turbines and hydro-transmission lines. The Hemingways are passionate in their belief that residing and working close to wind turbines will have the potential of affecting their health, the health of livestock and their enjoyment of their properties. There is no doubt that the release of the map in Exhibit 4A and approval and construction of wind turbine projects in nearby municipalities has caused a considerable amount of angst and unrest in the community.

7MPAC takes the position that its sales evidence supports the assessments as returned. MPAC recommends that the assessment on the Whys Line property be reduced to $250,000 to account for the condition of the outbuildings. MPAC argues that there is no evidence to support the Hemingways’ contention that the approval of wind turbines in the area and the proposal for wind turbines in their vicinity reduces the property’s value by 25% to 65%.

8The parties agreed that evidence on the appeals on the Whys Line property would be heard first followed by the evidence on the appeals on the Porter Hill Line property. They further agreed that evidence on one property would be considered evidence on the other property to the extent that is applicable. The final submissions for both properties were heard together.

PRELIMINARY ISSUES

Recording of Proceedings

9At the commencement of the hearing on April 15, 2015, Mr. Hemingway requested the Board’s permission to record the hearing using his personal recording equipment. Donald Mitchell, MPAC’s counsel, stated that he did not object to the recording being made provided that the recording was for Mr. Hemingway’s personal use and not for use as a transcript of the hearing or for any other purpose.

10The Board allowed Mr. Hemingway to record the proceeding on the following conditions:

1. The recording is for Mr. Hemingway’s personal use only.

2. If requested by the Assessment Review Board (the “ARB”) or MPAC or the Municipality, Mr. Hemingway must provide a copy of the recording to the requestor.

3. No copy of the tapes will be provided to any other persons.

4. The tapes cannot be used in any other proceeding before the ARB, or in any other tribunal or any court proceeding.

11This ruling was made recognizing the difficult task it is for a representative to make accurate notes while examining witnesses and making submissions to the Board.

12In making this Ruling the Board considered the provisions of Rule 124 and 125 of the Board’s Rules of Practice and Procedure (‘the Board’s Rules”) set out below.

13Rule 124 states:

124. Request to Record Proceeding

A person wishing to record a proceeding must ask for authorization from the Chair as soon as possible after notice of the proceeding; from the presiding Member at the beginning of the proceeding; or as soon as the issue arises. The parties will be given the opportunity to comment on the request, and if the Board approves it, to make a request to vary the permission at any time. In evaluating the request, the Board will consider, among other issues:

(a) whether the proceedings will be disturbed or disrupted;

(b) any undue discomfort for any participant; and

(c) any public interest in having proceedings accessible to all those affected or interested.

14Rule 125 permits the Board to impose conditions when allowing a party to record proceedings.

125. Conditions of Approval

The Board may approve recording on conditions, and the following conditions shall always apply to any approval to record:

(a) only equipment, which does not produce a distracting noise or light, may be used, and it must be placed in one location approved by the Board;

(b) a person recording shall not move about the hearing room while the proceeding is going on; and

(c) the activity authorized will occur only within the times and portions of the proceeding determined by the Board.

Motion for Disclosure

15The Hemingways brought a motion for disclosure from MPAC at the start of the hearing on April 15, 2015. Mr. Hemingway’s Notice of Motion and supporting affidavit is Exhibit 1A.

16The motion is “to obtain full access to relevant data to do a complete audit of the MPAC study data” with respect to an MPAC Industrial Wind Turbine (“IWT”) report released on April 17, 2014.

17Mr. Hemingway’s affidavit states: “The purpose of conducting a public audit is to verify the accuracy, completeness and objectivity of the data, methodology and algorithms used for any MPAC IWT study review and assessment appeals pertaining to property assessments”.

18MPAC objected to producing the documents for the reasons set out in the Responding Record of the Respondent Municipal Property Assessment Corporation (Exhibit 2A). Mr. Mitchell argues that the Board is an adjudicative tribunal with no administrative, policy or regulatory role and it is beyond the Board’s jurisdiction to evaluate or supervise MPAC’s performance as an organization; that there are no IWTs within close proximity to the properties under appeal; that MPAC is not relying on the IWT report and that the appellants have not acted in a timely fashion to bring the motion.

19The Board denied the motion and with consideration to Rule 2 of the Board’s Rules ordered that the hearing proceed without the disclosure sought by the appellants on the motion. The Board denied the motion not being satisfied that the Board has jurisdiction to order an audit of an MPAC study; not being satisfied that the material sought by Mr. Hemingway is relevant to the issues to be decided by the Board; not being satisfied that the request is proportionate to the importance and complexity of the issues; and not being satisfied that the request was made in a timely manner.

20Rule 2 provides:

2. Interpretation and Directions

These Rules shall be liberally interpreted to ensure the just, most expeditious and least expensive determination of every proceeding on its merits. In applying these Rules, the Board shall make orders and give directions that are proportionate to the importance and complexity of the issues.

The Board may issue practice directions from time to time which may be posted on the Board's website and available on request.

21The Board’s jurisdiction in assessment appeals is limited by the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”). Section 40 of the Act sets out the basis upon which an appeal may be made to the Board.

22The appeals before the Board are made under s. 40.(1)(a)(i) and (iv). The Act does not give the Board any oversight responsibilities for MPAC or any authority to tell MPAC how to conduct its business.

23Section 40.(1) of the Act states:

40. (1) Appeal to Assessment Review Board – Any person, including a municipality, a school board or, in the case of land in non-municipal territory, the Minister, may appeal in writing to the Assessment Review Board,

(a) on the basis that,

(i) the current value of the person’s land or another person’s land is incorrect,

(iv) the classification of the person’s land or another person’s land is incorrect,…

24The Board does not see how the data behind MPAC’s “Impact of Industrial Wind Turbines on Residential Assessment in Ontario – 2012 Assessment Base Year Study” or the study itself is relevant to the January 1, 2008 valuation day for the Whys Line property appeals. The Porters Hill Line property has only a minimal amount of the assessment ($37,900) apportioned to the Residential Property Class.

25It does not appear that the appellants received a copy of the study done for the 2008 valuation day which is referred to in the 2012 study. It was not clear in Mr. Hemingway’s affidavit (Exhibit 1A) whether he is seeking the actual 2008 report or the data behind it.

26The Board was not prepared to delay the hearing further in order for Mr. Hemingway to obtain a copy of the 2008 study. The Whys Line appeals were first scheduled for hearing on March 7, 2012. From the Board’s records it appears there have been at least six adjournments of the appeals since 2012.

27Copies of some of the adjournment records of the Board together with copies of correspondence with the Board are found in MPAC’s motion record (Exhibit 2A).

28Mr. Hemingway had access to the 2012 study in April 2014. It was clear by October 17, 2014 if not earlier that Mr. Hemingway would have to bring a motion if he wanted to obtain further productions on the study from MPAC.

29On October 17, 2014 both the Whys Line appeals and Porters Hill Line appeals were adjourned to full hearing the week of April 13, 2015. The affidavit of Mr. Hemingway in Exhibit 1 was sworn March 24, 2015, less than one month before the hearing date.

30According to the Board’s records, Mr. Hemingway first sought an adjournment of this hearing (April 15, 2015) on March 2015 and the Board convened a telephone conference call (“TCC”) on March 19, 2015 to deal with the request (Hearing 586030). The request was denied for reasons set out in the adjournment record and Mr. Hemingway was advised to bring any motion for disclosure at the start of the hearing on April 15, 2015.

31Mr. Hemingway argues that on two prior occasions the presiding Member at hearing had ordered MPAC to produce the data behind the study. A review of the correspondence and adjournment records at Tab 2 of the MPAC’s motion record and the Board’s records does not indicate that any orders were made by the Board prior to the hearing with respect to the disclosure of documents.

32At the hearing on October 29, 2013 (Pre-hearing 344726), the presiding Member granted the adjournment request and adjourned the appeals to a pre-hearing TCC in early February 2014 on the basis that no disclosure was exchanged by any party prior to the hearing date. The presiding Member noted that the report Mr. Hemingway was awaiting does not refer to any issue prior to 2012 and that he advised Mr. Hemingway that he “should consider choosing his battle” at least with a property with a 2012 valuation day to coincide with the MPAC report (Page 20, Exhibit 2A).

33On October 17, 2014 the presiding Member noted that the appellants had received the MPAC report and were seeking further disclosure. The adjournment record indicated that the appellants may have to make a Freedom of Information request or bring a motion for disclosure (Exhibit 2A, p. 8). The appeals were adjourned until the week of April 13, 2015 with the note that the appellants’ witness was not available until April.

34The Board’s records show that Mr. Hemingway was advised that he may have to bring a motion for the disclosure that he was seeking on at least two occasions and he chose not to do so until less than one month before the hearing date.

35Rule 56 of the Board’s Rules sets out the requirements for one party to obtain necessary information from another party. The party must first request the information and if it is refused or no answer is received, the party must ask the Board to make an order for disclosure of the documents.

56. Order for Discovery

(1) The Board may grant an order for discovery where needed for a party to obtain necessary information from another party. This will only be granted where the party has requested the information and it has been refused, or no answer was received. This order must be requested by notice of motion, together with an affidavit, which sets out the efforts made to obtain the desired information, and the reasons why the requested information is needed. The Board may make an order for:

(a) any person (usually only a party) to provide an affidavit containing a list of relevant documents which that person possesses;

(b) the delivery of documents;

(c) the examination for discovery of any party;

(d) an examination for discovery by written questions;

(e) the inspection, photographing and testing of property;

(f)\ the examination of a witness before the commencement of a proceeding (under the Rules of Civil Procedure); or

(g) any other form of discovery.

(2) The Board may impose conditions concerning the timing, manner and scope of discovery; no party shall, in conducting oral examinations for discovery exceed a total of 2 hours of examination, regardless of the number of parties or other persons to be examined except with leave of the Board. If an order for discovery is obtained, the Rules of Civil Procedure concerning discovery will guide Board proceedings unless the Board orders otherwise.

NOTE: Inspection in paragraph (e) above is different from inspection in sections 10 and 11 of the Assessment Act, which refer to an inspection for preparation of the assessment roll.

36The Board has no record of Mr. Hemingway bringing a motion for disclosure other than this one. It may be that the Board Members asked MPAC’s representative to provide information or that an MPAC representative volunteered to get the information. The Board’s Rule requires that an order for discovery must be requested by notice of motion. It would be a denial of natural justice and procedural fairness for the Board to order disclosure of a document or information without providing the party from whom the information is sought from the opportunity to argue against its disclosure. As early as October 17, 2013, Mr. Hemingway was advised that he might be required to bring a motion.

37The Board delivered an oral decision on the motion and Mr. Hemingway asked for an adjournment of the hearing so that he could seek a review/appeal of the motion decision. The Board refused the adjournment and ordered that the hearing proceed being of the view that if Mr. Hemingway is unhappy with the decision of the Board on the merits of the appeal, he may seek a review of both the motion decision and final decision of the Board.

38Rule 141 (2) of the Board’s Rules provides that the Board will not review interlocutory orders of the Board.

141. Decisions Eligible for Review/Board’s Powers on Review

(2) The Board will not review:

(a) interim or interlocutory orders;

(b) interlocutory orders of costs awards;

(c) decisions on requests for review;

(d) decisions arising from re-hearings of matters resulting from a request for review.

Order of Proceeding

39Before any evidence was heard on the Whys Line property, Mr. Hemingway requested permission to call his witnesses “out of order” so that they could be heard on the first day and not have to return on another day. Mr. Mitchell did not object to this request and asked the Board to hear the appellants’ case first with the exception of one “short” MPAC witness who was in attendance on the first day.

40Mr. Hemingway did not object to Mr. Mitchell’s proposal and the Board agreed that the order be switched so that the appellants would call present their evidence on the Whys Line property first followed by MPAC’s evidence. The Board’s Rules do not provide the order in which evidence is called at a hearing. Rules 3 and 4 of the Board’s Rules give the Board some latitude in the conduct of a hearing.

3. Exercise of Powers and Matters Not Dealt With in these Rules

The Board may exercise any of its powers under these Rules or applicable laws on its own initiative or at the request of any party.

If these Rules do not provide for a matter of procedure, the Board may do whatever is necessary and permitted by law to enable it to effectively and completely adjudicate on any matter before it including applying the Rules of Civil Procedure.

The Board may grant all necessary exceptions from these Rules or a Procedural Order, or other relief as it considers appropriate, to ensure that the real questions in issue are determined in a just manner.

4. Technical Objections

Substantial compliance with requirements respecting the content of forms notices or documents under these Rules or any Act is sufficient.

41The Board explained to Mr. Hemingway while the usual procedure in residential hearings is for MPAC to call its evidence first. The usual procedure in larger more complex hearings is for the appellant to call evidence first as is done in the Courts.

42MPAC called one very brief witness, Stephen Dougherty, the Deputy-Treasurer of Central Huron, who testified briefly and was cross-examined briefly before he was excused from the hearing.

43The remainder of day 1 of the hearing and all of day two of the hearing was taken up by the testimony of the appellants’ witnesses.

44After two long days of hearing during which the Board heard from at least seven witnesses for the appellants, the appeals were adjourned to two further days of hearing scheduled for June 8 and 9, 2015. When the hearing resumed on June 8, 2015, Mr. Hemingway advised the Board that he had researched hearing procedure and was concerned that he was prejudiced by calling his evidence first. He asked the Board to reverse the order and begin on day three of the hearing with MPAC’s evidence.

45The Board reminded Mr. Hemingway that it had explained to him at the commencement of the hearing that the usual procedure was for MPAC to go first but there are also cases when MPAC does not go first. Mr. Mitchell objected to the order being reversed in the middle of the evidence on the Whys Line property agreeing that it would present its evidence first on the Porters Hill Line property.

46The Board denied Mr. Hemingway’s request to reverse the order finding that there was no prejudice to the appellants in calling their evidence first. In the Board’s view, there was no denial of natural justice or procedural fairness in requiring the appellants to continue calling their evidence on the Whys Line property.

47The rules of natural justice and procedural fairness require each party be given the opportunity to call evidence and cross-examine the opposing party’s witnesses. The Board explained to Mr. Hemingway that he would have the opportunity to call reply evidence to address any issues raised in MPAC’s case that had not been addressed in the appellants’ evidence.

48In the Board’s view it would be disruptive to the flow of the hearing to not complete the appellants’ evidence before hearing from MPAC on the Whys Line property. MPAC called its evidence first on the Porters Hill Line property.

Evidentiary Issues

Expert Witnesses

49The Board accepts Ben Lansink as an expert witness qualified to give opinion evidence on real property appraisal.

50Mr. Lansink’s curriculum vitae is found in Exhibit 6. He is a member of the Royal Institution of Chartered Surveyors and has held the Accredited Appraiser Canadian Institute designation (AACI) since 1982.

51Mr. Mitchell initially objected to Mr. Lansink’s qualification as an expert on the basis that Mr. Lansink had not completed the Acknowledgement of Expert’s Duty Form and had not delivered a copy of an expert’s report. The Board reserved its decision on the qualification of Mr. Lansink and proceeded to hear Mr. Lansink’s testimony.

52During his testimony, Mr. Mitchell further challenged whether Mr. Lansink met the requirements to provide expert evidence to the Board arguing that Mr. Lansink had become an advocate for the appellants; and as an advocate, he could not provide expert evidence. At this point, Mr. Lansink took exception to Mr. Mitchell’s submission and became irate.

53Mr. Mitchell submitted that MPAC’s objection is not to Mr. Lansink’s knowledge but that he is not sufficiently neutral in this case.

54With respect to MPAC’s objections, the Board finds that the Rules allow an expert to either acknowledge their expert duty by executing the acknowledgement form attached to the Rules or at the proceeding. There is no absolute requirement that the acknowledgment form attached to the Rules be completed.

55Rule 49 provides:

49. Duty of Expert Witness

It is the duty of every expert engaged by or on behalf of a party who is to provide opinion evidence at a proceeding under these Rules to acknowledge either prior to (by executing the acknowledgment form attached to the Rules) or at the proceeding, that they are to:

(a) provide opinion evidence that is fair, objective and non-partisan;

(b) provide opinion evidence that is related only to the matters that are within the expert’s area of expertise; and

(c) provide such additional assistance as the Board may reasonably require to determine a matter in issue.

These duties prevail over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged.

56With respect to the Expert report, the Board finds that the requirement in Rule 48 applies to appeals in the Standard Stream. The appeals before the Board are in the Direct Hearing Stream.

57Rule 48 provides:

48. Expert Reports

In the Standard Stream, at least 60 days before the hearing, unless the Board orders otherwise, the parties must provide one copy of any expert report to every other party. If a party intends to call an expert witness without a report, the party must provide a written statement of the opinion to be given, the facts upon which the opinion is based and the qualifications of the expert witness at least 60 days before the hearing.

58There is no suggestion by MPAC that it did not receive copies of the case studies of Mr. Lansink (Exhibits 7 and 9) and Mr. Lansink’s comments on MPAC’s study entitled “Impact of Industrial Wind Turbines on Residential Property Assessment Base Year Study”.

59With respect to Mr. Lansink’s behavior at the hearing, the Board finds it does not preclude him from being qualified as an expert witness in property appraisal. The Board is of the view that it is very difficult for self-represented parties to have a witness properly qualified as an expert in a proceeding and to appreciate the limitation on an expert’s role at a hearing. While it is not clear that Mr. Hemingway appreciates the role and responsibilities of an expert witness, the Board is satisfied that Mr. Lansink does.

Rulings on Admissibility of Evidence

60The appellants called numerous witnesses and introduced almost all of the documents – 68 documents entered into evidence during the hearing. MPAC objected to most of the appellants’ evidence on the basis that it was not relevant to determining the current value of the properties under appeal.

61In order to keep the hearing moving without taking time to rule on each objection to the evidence, MPAC asked the Board to reserve its rulings on the relevancy of the evidence and to record that MPAC objected to the evidence unless it indicated otherwise. Mr. Mitchell explained that he wanted the record of the hearing to show MPAC’s objections in the event the appellants sought a review of the decision or sought to appeal the decision to the Court.

62The Board agreed to Mr. Mitchell’s request taking into consideration the number of documents Mr. Hemingway wanted the Board to consider and the number of witnesses Mr. Hemingway intended to call. The Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 s. 15 (“SPPA”) allows the Board a wide latitude in accepting evidence at a hearing.

63Section 15 provides as follow:

Evidence

15.(1) What is admissible in evidence at a hearing – Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,

(a) any oral testimony; and

(b) any document or other thing,

relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

(2) What is inadmissible in evidence at a hearing – Nothing is admissible in evidence at a hearing,

(a) that would be inadmissible in a court by reason of any privilege under the law of evidence; or

(b) that is inadmissible by the statute under which the proceeding arises or any other statute.

(3) Conflicts – Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence in any proceeding.

(4) Copies – Where a tribunal is satisfied as to its authenticity, a copy of a document or other thing may be admitted as evidence at a hearing.

(5) Photocopies – Where a document has been filed in evidence at a hearing, the tribunal may, or the person producing it or entitled to it may with the leave of the tribunal, cause the document to be photocopied and the tribunal may authorize the photocopy to be filed in evidence in the place of the document filed and release the document filed, or may furnish to the person producing it or the person entitled to it a photocopy of the document filed certified by a member of the tribunal.

(6) Certified copy admissible in evidence – A document purporting to be a copy of a document filed in evidence at a hearing, certified to be a copy thereof by a member of the tribunal, is admissible in evidence in proceedings in which the document is admissible as evidence of the document.

64The main issue for the Board to decide in these appeals is the current values of the properties as of the legislated valuation days.

65Current value is defined in s. 1 of the Act.

“current value” means, in relation to land, the amount of money the fee simple, if unencumbered, would realize if sold at arm’s length by a willing seller to a willing buyer

66The valuation days are provided for in s. 19.2(1) of the Act.

19.2 (1) Valuation days – Subject to subsection (5), the day as of which land is valued for a taxation year is determined as follows:

1. For the 2006, 2007 and 2008 taxation years, land is valued as of January 1, 2005.

2. For the period consisting of the four taxation years from 2009 to 2012, land is valued as of January 1, 2008.

3. For each subsequent period consisting of four consecutive taxation years, land is valued as of January 1 of the year preceding the first of those four taxation years.

67The Board is unable to give much of the appellants’ evidence any weight in that it does not relate to the current values of the properties under appeal.

68The Board has identified the evidence that it gives weight to (is relying on) in the “Reasons for Decision” section of this decision.

Documentary Evidence

69Much of the evidence relied upon by the Hemingways is documentary.

70On the first day of the hearing, the Hemingways provided the Board and MPAC with a binder of material they intended to rely upon during the presentation of their appeals. As Mr. Hemingway proceeded to “call his case”, it became apparent that the binders provided to the Board and MPAC did not have all of the documents in the same order in the binders or that the documents were not in both binders. This kind of confusion is understandable given the formidable task for a self-represented party to put evidentiary material together for a lengthy hearing.

71From the beginning of the hearing, the Board was clear that each document would be given an exhibit number and that only the documents referred to in the hearing and marked as exhibits would be considered by the Board as evidence at the hearing. When the hearing resumed on June 8, 2015, the Board provided both parties with a hand-written list of exhibits from the first two days of the hearing and returned a couple of documents to Mr. Hemingway indicating that they were in with the materials from the hearing but had not been entered as exhibits.

72At the conclusion of the hearing, the Board returned the large binder to Mr. Hemingway which included some documents that had not been referred and entered as exhibits in the hearing.

73Some of the appellants’ evidence refers to internet links. The Board has not viewed or referred to any of the internet links referred to. Exhibit 28 is a document which contains links to various reports, videos and audios on the effects of wind turbines on health of people and farm animals living in close proximity to wind turbines.

74The Board is not satisfied that the links referred to are relevant to the determination of the current value of the properties. There is no evidence before the Board that the Hemingways have experienced any issue with the effects of noise from wind turbines.

75While the SPPA provides that the Board may admit any document or thing relevant to the matter to be heard the rules of natural justice and procedural fairness require that the opposing parties have the opportunity to “test the evidence” through cross-examination.

“Big Wind” Video

76Mr. Hemingway asked the Board to view a 70 minute video entitled “Big Wind”. He suggested that if the Board did not want to take the time at the hearing to watch the video it could view the video later.

77The position of MPAC is that the video is not relevant to determining the current values of the properties under appeal. The Board asked Mr. Hemingway if there was anything in the video that pertained to the properties under appeal or the current values of the properties under appeal and he responded in the negative.

78For that reason the Board declined to watch the video being satisfied it had no relevance to the matter the Board had to decide.

Principal of Proportionality

79The hearing lasted four full days and would have been longer if the Board had agreed to watch the video and hear evidence with respect to the Ombudsman’s report and if the Board had not made it clear to the parties that the hearing must be completed by the end of day 4.

80Rule 2, supra, requires the Board to ensure a just, expeditious and least expensive determination of every proceeding on its merits. The Board is directed to make orders and give directions that are proportionate to the importance and complexity of the issues. From the outset of the hearing, the Board reminded the Hemingways of the limited jurisdiction it has in hearing an assessment appeal.

81The Hemingways take great exception to the Board mentioning the principle of proportionality both in the oral decision give on the disclosure motion and as the Board attempted to keep the hearing “on track”. In the Hemingways’ view cost should not be a factor when the health of people is at stake.

82Rule 2 refers to the Board orders and directions being proportionate to the importance and complexity of the issues. There is no doubt that the wind turbine industry raises important and complex issues for those who live and work in the vicinity.

83The Board’s jurisdiction is however very limited and the facts remain that as of the January 1, 2008 valuation day for the Whys Line residential property, there were no wind turbines even proposed for Central Huron Township. With respect to the Porters Hill Line farm property while there were proposed wind turbines for Central Huron Municipality on the January 1, 2012 valuation day, there were none approved. The Porters Hill Line property is not used for residential purposes and the closest turbine to both properties is 9 to 10 kilometres (“km”) and did not become operational until 2014.

Decision of the Board

84Whys Line Property – Roll Number 4030-240-007-02000-0000:

1. The Board finds the current value of the property to be $250,000 for the 2011 and 2012 taxation years.

2. The Board finds that there is no evidence before it to support a finding that the assessment of the property should be reduced below its current value to make it equitable with the assessments of similar lands in the vicinity.

3. The Board orders that the assessment of the property be reduced from $254,000 to $250,000 for the 2011 and 2012 taxation years in the residential property class.

85Porters Hill Line Property – Roll Number 4030-240-006-02300-0000:

1. The Board finds the current value of the land to be $545,000 for the 2013 and 2014 taxation years.

2. The Board finds there is no evidence before it to support a finding that the assessment of the property should be reduced below its current value to make it equitable with the assessments of similar lands in the vicinity.

3. The Board confirms the assessment for the Porters Hill Line property at $545,000 for the 2013 and 2014 taxation years apportioned as follows:

• Farm Property Class – $507,100

• Residential Property Class – $37,900

Reasons for Decision

Legislation

86Section 3 of the Act provides that all real property in Ontario is liable to assessment and taxation subject to an itemized list of exemptions from taxation.

3. (1) Property assessable and taxable, exemptions. – All real property in Ontario is liable to assessment and taxation, subject to the following exemptions from taxation…

87Section 1 of the Act defines “real property” to include:

(d) all buildings, or any part of any building, and all structures, machinery and fixtures erected or placed upon, in, over, under or affixed to land,

88Section 14 of the Act requires MPAC to return an assessment roll each year which includes among other things the current value of a property, the classification of a property and the apportionment of the current value between the property classes for each property.

14. (1) Contents. – 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):

15. 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.

16. The amount assessable against each person who is liable to assessment, opposite the person’s name.

17. A description of each property sufficient to identify it.

18. The number of acres, or other measures showing the extent of the land.

19. The current value of the land.

20. The value of the land liable to taxation.

21. The value of land exempt from taxation.

22. The classification of the land.

23. Such other information as may be prescribed by the Minister.

24. (5) Portions classified in different property classes. – If portions of a property are classified in different classes of real property or subclasses of real property, the assessment corporation shall determine the share of the value attributable to each class or subclass, assess the property according to the proportion that each share constitutes of the total value and set out each proportion on the assessment roll.

89Section 40 of the Act allows any person to appeal an assessment on a number of bases as set out below:

40. (1) Appeal to Assessment Review Board. – Any person, including a municipality, a school board or, in the case of land in non-municipal territory, the Minister, may appeal in writing to the Assessment Review Board,

(a) on the basis that,

(i) the current value of the person’s land or another person’s land is incorrect,

(ii) the person or another person was wrongly placed on or omitted from the assessment roll,

(iii) the person or another person was wrongly placed on or omitted from the roll in respect of school support,

(iv) the classification of the person’s land or another person’s land is incorrect, or

(v) for land, portions of which are in different classes of real property, the determination of the share of the value of the land that is attributable to each class is incorrect; or

(b) on such other basis as the Minister may prescribe.

90Section 44(1) sets out the Board jurisdiction in hearing an appeal:

44. (1) Assessment may be open upon appeal. – Upon an appeal on any ground against an assessment, the Assessment Review Board or court, as the case may be, may reopen the whole question of the assessment so that omissions from, or errors in the assessment roll may be corrected, and the amount for which the assessment should be made, and the person or persons who should be assessed therefor may be placed upon the roll, and if necessary the assessment roll, even if returned as finally revised, may be opened so as to make it correct in accordance with the findings made on appeal.

91Section 44(3) requires the Board to do two things in determining the value at which land is assessed:

44. (3) Same, 2009 and subsequent years. – For 2009 and subsequent taxation years, in determining the value at which any land shall be assessed, the Board shall,

(a) determine the current value of the land; and

(b) have reference to the value at which similar lands in the vicinity are assessed and adjust the assessment of the land to make it equitable with that of similar lands in the vicinity if such an adjustment would result in a reduction of the assessment of the land.

92Section 46(1.1) gives the Board exclusive jurisdiction to hear the matters that could be the subject of an appeal under s. 40(1) of the Act.

46. (1.1) Exception. – No application to court may be made for the determination of a matter that could be the subject of an appeal under subsection 40 (1) or for a determination that lands are conservation lands for the purposes of paragraph 25 of subsection 3 (1).

Whys Line Property – Roll Number 4030-240-007-02000-0000

Current Value

93The Board finds that the best evidence of the current value of this property on the January 1, 2008 valuation day is the evidence of Heidi Adams, the MPAC assessor who was qualified by the Board to give expert evidence on the assessment of residential properties. Ms. Adams’s report is Exhibit 14. The Hemingways did not appear to have any serious dispute about the MPAC assessment except for the wind turbine issue on which most if not all of their evidence focused.

94The appellants did not challenge any of the six sales that MPAC relies upon to determine current value and having reviewed the market analysis in Exhibit 14 the Board is satisfied it supports a current value of $ 250,000 as of January 1, 2008.

95The sales evidence supports the value returned by MPAC and in the Board’s view would take into account any external factors such wind turbines as affecting the value as of the valuation day.

96In section 1 of her report (Exhibit 14, p. 1), Ms. Adams indicates that the condition of the dwelling and the data for the secondary structures required correction but that the correction was not done until the next assessment cycle.

97A property profile report (Exhibit 14, Tab 1) sets out the breakdown of the $254,000 assessment between the house and secondary structures on the property. While Mr. Hemingway stated he disagreed with the value assigned to the secondary structures, he did not introduce any evidence to show how the assessment should be adjusted to reflect the condition of the structures.

98While Ms. Adams’s opinion is that the current value is $250,000 as of the valuation day, she indicates in her report that the assessment at $254,000 is within a reasonable range.

99Mr. Hemingway submits that the value without consideration of the effect of the wind turbines on the value should be $245,000 based on a $5,000 adjustment to reflect the poor condition of the secondary structures. He indicated that he did not have the information with him as to how the assessment was broken down for the farm buildings.

100Without evidence from Mr. Hemingway on the figures he seeks to have placed on the secondary structures, the Board accepts Ms. Adams’s evidence that the $5,000 adjustment adequately accounts for the poor conditions of the secondary structures. According to the Property Profile dated June 11, 2013, the value attributed to the farm buildings in the original assessment is only $7,034.

101The appellants did not introduce any sales evidence relevant to the January 1, 2008 valuation day. The sales evidence in Exhibit 23 is of the sales of properties and real estate listings of properties located in proximity to wind turbines.

102Mr. Hemingway asks the Board to conclude that properties are selling below their asking prices or not selling at all because of their proximity to wind turbines.

103The listings are dated 2011, 2012 and 2013 and the sales took place in 2013 and 2014 which the Board considers to be too far removed from the valuation day to be of any assistance in determined the current value of the Whys Line property as of January 1, 2008.

104The appellants introduced another real estate listing in Exhibit 41 for a property owned by the Connors in Ashfield-Colborne-Wawanosh Township. According to the exhibit, the property which is located within 434 metres of a wind turbine, was listed for $895,000 and sold for $875,000, despite the owner having invested $1,100,000 in the property in 2010. This evidence is of no value in establishing the current value of the Whys Line property.

105In response to a question from a panel member, Mr. Hemingway stated that he is looking for a reduction in his assessment of 60%. The Board can find nothing in the evidence to support this reduction.

106The uncontroverted facts are that as of January 1, 2008, there were no wind turbines anywhere near where the Hemingways’ residence is located. There is no evidence before the Board that there were any proposed wind turbines for the immediate vicinity at that time. The evidence is that it was not until October 20, 2010 (Exhibit 54, p. 4) that there was a proposal released for IWTs close to the Hemingways’ residence. As of the time of the hearing in 2015, the closest wind turbine is located between 9 and 10 km away from the Hemingways’ residence. It became operational in 2014.

107Exhibit 17 is a copy of an option to lease to Twenty Two Degrees (“TTD”) (an IWT company) dated June 1, 2004 for the neighbouring property that was at the time of the agreement owned by Mr. Hemingway’s mother-in-law. This agreement has now expired.

108Mr. Hemingway’s evidence is that the wind turbine lease options are kept confidential and not registered on title. MPAC argues and the Board agreed that a potential purchaser on January 1, 2008 would not have been able to take the lease options into consideration.

109While Mr. Hemingway argues that the signing of the first lease options in 2004 immediately devalued and contaminated his property. The Board is satisfied that the sales evidence of MPAC supports a current value of $250,000. The Board is of the view that if the lease options were affecting current value they would be taken into account in the market place.

110Exhibit 16 is a letter dated June 20, 2014 from TTD to an unknown recipient (recipient’s name was whited out) which purports to update landowners who signed leases with TTD. The letter states that they were not successful in obtaining a contract for a wind turbine project and requests that landowners enter into an amending agreement to their lease option that would suspend land payments immediately. The letter goes on to state that if TTD is unable to secure enough land to maintain a viable project through amending agreements, the project would be dissolved.

111Steven Dougherty, the Deputy-Treasurer for the Township of Central Huron, testified that there are no wind turbines in Central Huron and that no requests for permits for wind turbines have been filed with the township.

112During the four days of hearing, it was abundantly clear to the Board that the Hemingways are looking for the Board to make sweeping findings with respect to the effects of wind turbines on the current value of all properties in proximity to turbines.

113Mr. Lansink, who the Board qualified to give expert evidence in real estate appraisal, did not appraise the property as of the valuation day. His evidence is with respect to a case study he did titled “Diminution/Change in Price of property in Melancthon and Clair Creek” (“Diminution Study”) (A portion of the study is Exhibit 7) and a 2005 case study he did on Injurious Affection arising from the expropriation for the widening of an easement and the erection of hydro towers on the easement by Hydro One (Exhibit 9).

114The Board is required to determine the current value of the property on January 1, 2008. Its task is not to determine the amount, if any, the value of the property fell since the wind turbines were announced in 2004. Any effects of that would be found in the prices that willing buyers paid to willing sellers in the market for comparable properties on or near the valuation day.

115The Act provides for a four-year valuation cycle. It may be that the valuation of the property suffered diminution between the January 1, 2008 valuation day and the January 1, 2012 valuation day as a result of the announcement of a proposed project on October 20, 2010 and/or the construction of wind turbines in the vicinity of the subject property, but that is not the issue that the Board must decide on an appeals for the 2011 and 2012 taxation years.

116While Mr. Lansink opined that the wind farm announcement in 2004 reduced the values of properties within close proximity to wind turbines by 37% and that the Lazar Case study showed a loss in value of 30% for the hydro towers, he did not offer any opinion on the current value of the property under appeal as of January 1, 2008.

117Mr. Hemingway also put into evidence as Exhibit 43, a property value impact and zoning evaluation done by McCann Appraisal & Consulting, LLC for a wind turbine operation in Mason County, Kentucky, which concludes that there was an average diminution of value of 25% within 2 miles of the wind turbines. This evidence is of no assistance in establishing the current value of the Whys Line property.

118There are three recognized methods of determining the current value of a property: the sales comparison approach, the income approach and the cost approach.

119MPAC’s multiple regression model is a sales comparison approach used for mass appraisal.

120Mr. Hemingway argues that the MPAC multiple regression model does not take in to account the effects of IWTs.

121The Board’s task is not to determine whether the MPAC multiple regression model requires an adjustment for proximity to wind turbines. Its task is to determine current value as of the valuation day. The best evidence of current value is either a sale of the property under appeal that meets the definition of current value at or near the valuation day or sales of comparable properties in the vicinity near the valuation day that meets the definition of current value.

122The Board does not use the multiple regression model to determine the current value of a property using a sales comparison approach. The Board relies on actual sales of comparable properties to determine if a correction to current value is required.

123The evidence of Mr. Lansink and other real estate sales persons who testified is that the Ontario Real Estate Association (“OREA”) standard agreements of purchase and sale require a seller to disclose any existing or proposed wind turbine projects. Mr. Hemingway argues that requirement is evidence of a reduction in value for all properties near existing or proposed projects. There were no existing or proposed wind turbine projects in the vicinity of either of the Hemingways’ properties as of the January 1, 2008 valuation day. If there had been existing or proposed projects the sales prices should take into consideration any such projects.

124Exhibit 10 includes three “Real Estate Surveys” completed by three realtors: Mike McMurry, Mark Davis and Stan Francovic.

125Mr. Davis and Mr. Francovic also gave oral testimony but did not provide any evidence with respect to the valuation of the properties under appeal as of the valuation days.

126Mr. Davis is the Deputy Mayor of the Township of Aran-Elderslie, which is approximately 90 km north of the Hemingways’ properties. He is also a farmer and a real estate sales representative with Coldwell-Banker in Walkerton. He testified that his township has managed to keep out wind turbines and that in his view, properties do not sell once there are wind turbines in the area.

127The surveys which were designed by Mr. Hemingway include twenty questions with respect to the respondent’s real estate experience with industrial wind turbine development. Questions 17 reads:

From your experience for properties close to turbines how would you rate sales price in relation to assessed value based on distance from wind turbines. In percentage?

128All three survey responders indicate that in their experience, they have seen no difference between sales prices and assessed value for properties over 10 km from the nearest turbine.

129Keith Locking, President of the Bluewater Shoreline Residents Association gave evidence with respect to the data he has gathered on recent sales in the Bluewater area, which is 6 km north of Grand Bend. Bluewater Shores is a 40 home subdivision located south of Bayfield. Exhibit 11 is the data he collected on homes sales for the 2012 and 2013 taxation years. The Board does not find this evidence to be of any assistance in determining the appeals before it. All of the sales are of residential properties in 2012 and 2013. They are not sales of rural farm residences or Class 1 Farm Land.

130The Board also heard from witnesses Bonnie Roy, Carla Shitura and Rosemary Pentland with respect to the effects that wind turbines have had on their health and their lives.

131Ms. Roy lives in Bluewater Township on a two acre parcel of land. Ms. Roy told the Board about the effects on her health and enjoyment of her home once wind turbines became operational in close proximity to her home in July 2014, following six to seven months of construction noise and road work. There are five turbines within one km of her property and she can see 22 turbines from her laneway. Ms. Roy has her property listed for sale. She stated that it has been difficult to find anyone interested because of the proximity of the turbines and anticipates that she will lose a considerable amount of money due to the proximity of the turbines.

132Ms. Shitura has a private zoo on the property she purchased in 2003 in the municipality next to Central Huron. There are two turbines operating that are 800 metres from her home and 15 within 2 km. Ms. Shitura described how she must keep her windows closed to block out the noise and she finds her property is no longer a peaceful haven. She has concerns over the effect of the noise on her animals. Ms. Shitura has tried to sell her property but has found that no one wants it. The turbines affecting her property became operational in 2014.

133Ms. Pentland lives in Ashfield Colborne Wawanosh Township, where the turbines became active in March of 2015. Her property is 38 kilometres away from the Hemingways’ properties.

134While the stories of these witnesses are heartbreaking, they are of no assistance to the Board in determining the current value of the subject property.

135Greg Schmalze gave evidence with respect to the IWT that was erected on the Unifor property in Saugeen Shores (Port Elgin) where there are 117 homes within the 550 metre set back. The town issued a “stop” order and the wind turbine remains non-operational. Mr. Schmalze expressed grave concerns over the effects of wind turbines located too close to residences on the health of the residents. Mr. Schmalze speculates that the houses will become worthless and that the municipality will lose its tax base. Mr. Schmalze suggests that MPAC is deliberately avoiding recognizing the effects of wind turbines on property values. Mr. Schmalze gave no evidence with respect to the current values of the properties under appeal.

Equity

136Section 44.(3)(b) of the Act requires the Board to have reference to the value at which similar lands in the vicinity are assessed and adjust the assessment of land to make it equitable with the assessment of similar lands in the vicinity if such an adjustment would result if a reduction of the assessment of the land.

137Neither party raised the issue of equity for the Whys Line property or provided the Board with any evidence to show that the assessments of similar lands in the vicinity are below their current value.

138For this reason the Board finds that the assessment of the Whys Line property does not require an adjustment below its current value to make it equitable.

Porters Hill Line Property – Roll Number 4030-240-006-02300-0000

Current Value

139The Porters Hill Line property is an 80 acre parcel of land the majority of which is used for growing crops. In 2011 Mr. Hemingway placed a mobile home on the property because he was concerned about the effects of Ontario Regulation 521/10 made under the Environmental Protection Act. Mr. Hemingway placed a mobile home on the lot in order to create a setback distance for any wind turbines that might be constructed in the future on the neighboring property.

140The building permit for the home (Exhibit 68) is for a project value of $45,000. The home has no services and has never been occupied. There is no roadway to the home. It is located in the far corner of the lot so as to maximize the set back that would be required if a wind turbine were to be located on the adjacent property as was shown proposed in the map dated October 20, 2010 showing proposed wind turbines (Exhibit 4A).

141The Board finds that the best evidence of the current value of the Porters Hill Line property as of the January 1, 2012 valuation day is the evidence of Joanne Griedanus. Ms. Griedanus has worked for MPAC since 1996 and is presently a property valuation specialist. She was qualified by the Board to give expert evidence on the valuation of real property for assessment purposes on the basis of her almost 20 years of experience with MPAC and her diploma from Fanshawe College.

142MPAC assessed the property for the 2013 and 2014 taxation years at $545,000 with $507,100 in the Farm Property Class and $37,900 in the Residential Property Class. The Farm Property Class apportionment is based on 73 acres of Class 1 Farm and six acres of Class 4 Farm land. According to Ms. Griedanus, Class 1 Farm land is considered to be the most productive farm land with good drainage and Class 4 Farm land is more difficult to cultivate and may have drainage issues and hills or ravines.

143The residential portion of the property includes the mobile home and one acre of farm land.

144Mr. Hemingway has not challenged the value that MPAC has placed on the mobile home nor the sales evidence relied upon by MPAC. MPAC’s Property Report 1 and Property Report 2 in Exhibit 65 support the current value as being $545,000 as of January 1, 2012.

145Property Report 1 includes the sales of four properties without any residences or farm structures and Property Report 2 includes the sales of six properties that are farm lands with residences and no secondary structures.

146With respect to the mobile home, Mr. Hemingway does not challenge the value assigned to the home. He argues that the home should not be assessed because it is not used and he was forced to put it on the property to preserve his rights to build on the property. According to Mr. Hemingway, if a wind turbine were constructed on a neighbouring property while there was no residence on the Porters Line property, he would no longer be able to build a residence on the property.

147Section 3(1) of the Act requires that all real property in Ontario be assessed and taxed except for land that is exempt from taxation. MPAC is required by the Act to place a value on the mobile home. There is no doubt that the mobile home has some value as it was purchased new and has never been used.

148The mobile home cannot be exempt from taxation unless it meets one of the legislated exemptions and there is no evidence or argument before the Board that is does. It should be noted that the Board has no jurisdiction to determine if a land is exempt from taxation. An application to the Superior Court of Ontario is required. The application is made under s. 46(1) of the Act.

46. (1) Application to court. – Subject to subsection (1.1), any of the following persons may apply to the Superior Court of Justice for the determination of any matter relating to an assessment:

47. Any person against whom the land is assessed.

48. The assessment corporation.

49. The municipality in which the land is located or, if the land is located in non-municipal territory, the Minister.

149Mr. Hemingway’s only issue with the assessment of the farm land is that it does not take into account the effect of the wind turbines on the property value.

150On January 1, 2012 the closest wind turbine was between 9 and 10 km away and the proposed wind farm closer to the Hemingways’ property had been put on hold.

151Three of the four vacant land sales in Property Report 1 occurred after the October 10, 2010 announcement of proposed turbines and all six sales in Property Report 1 took place in 2012.

152In the Board’s view the public perception of the effect of the proposed wind turbines would be taken into account in these sales.

153The Board also notes that this property is farm land and while it has a mobile home on it, there is no evidence that it has ever been used for residential purposes or for livestock.

154The reality is that it is 73 acres of Class 1 Farm Land. The studies of Mr. Lansink and the MPAC study that the appellants entered into evidence both qualify the studies and findings as relating to residential properties only.

155Under the Map Tab of Exhibit 65 are two maps showing the locations of the comparable properties relied upon by MPAC and the location of the subject property.

156Ms. Griedanus testified that the first three vacant land properties in Property Report 1 are within the same proposed turbine project that Mr. Hemingway is concerned about. She testified that the existing turbine to the south of Mr. Hemingway’s property was not active before June 2014 and would not have been up or operational on the valuation day.

157The Board is of the view that even if there were turbines located near this farm property, it would be difficult to see how they would affect the value of prime farm land for which there is no evidence that there has ever been a residence or livestock on the land.

Equity

158Neither party sought an adjustment to the assessment below current value to make it equitable with the assessment of similar lands in the vicinity.

159Ms. Griedanus gave evidence with respect to the assessment to sales ratios (“ASR”) of the properties in Property Report 1 and Property Report 2 in Exhibit 65.

160ASRs are a tool used to look at whether properties are assessed above or below their current values. An ASR of greater than one indicates that a property is assessed above its current value while an ASR of less than one indicates that a property is assessed below its current value. If the ASRs of similar lands in the vicinity show that similar lands in the vicinity are assessed below their current value the Act requires the assessment to be adjusted to make it equitable.

161With respect to the farm properties without structures, the evidence is that two of the properties are assessed minimally above their current values: one property is assessed at its current value and one is assessed slightly below its current value.

162With respect to the farm properties with structures the evidence is that all the ASRs are below one.

163The Board is of the view that similar properties in the vicinity for the purpose of the Porters Hill Line property are the properties without residences for the reason that the mobile home on this property has no services and has never been used as a residence.

164The Board calculates that the median ASR for the properties in Property Report 1 is 0.99 which in the Board’s view does not require the Board to adjust the assessment below current value to make it equitable with the assessment of similar lands in the vicinity.

Encroachment on Crown Patent

165During the course of the hearing it became clear to the Board that Mr. Hemingway’s appeals of the assessments for the two properties are part of a larger campaign he is waging against the wind turbine industry. He argues that the government approval of wind turbines is an legislative trespass on his property as the effects they have on the health of the homeowners and their livestock offends the grant of the letters patent.

166While this is an interesting argument the Board has no jurisdiction to make any finding in this regard.

Length of Time to Sell

167Mr. Hemingway emphasized that his sales evidence (Exhibit 23) shows that there are properties on the market which have not sold due to their proximity to wind turbines.

168The Board was not provided with any evidence of how quickly properties sell in the area either before or after the wind turbines have been proposed and built. The Board was not given any evidence to allow it to compare/contrast markets with and markets without turbines. This contention does not change the fact the MPAC’s sales evidence supports the current value of both properties.

169Ms. Griedanus reviewed the sales in Exhibit 23. She testified that the property at 3756 Hills Road, which is 10 km away from the subject property sold in 2014 for more than its assessment as of January 1, 2012 As did the property at 34951 Amberley Road, which is 40 to 41 km away from the subject property.

170Mr. Hemingway argues that MPAC’s sales do not take into account the properties that did not sell. The Board is satisfied that for the valuation days in question, the MPAC comparable sales do not suggest that there was an issue with properties selling.

Health Issues

171Exhibits 47 through 51 and Exhibit 59 are with respect to the impact of wind turbines on human health. Exhibit 47 is case studies compiled by Catherine Crawford entitled “Health Impact in Two Local Wind Projects”. The case studies document the health issues and concerns of local residents related to two wind turbine projects in the Municipality of Kincardine. The studies suggest that people living in close proximity to turbines may experience health issues and may be forced to sell their property and relocate.

172This evidence however, does not prove that the current values of the properties under appeal require correction for the valuation days. The Porters Line property does not have anyone living on it and there is no evidence that the Hemingways are suffering or have ever suffered any ill effects from wind turbines.

Hydro Lines

173The Hemingways are not only concerned about the wind turbines. They are also concerned about the health effects of the power lines that come with the turbines.

174Michael Leitch, a retired Hydro Linesman who designed hydro lines testified with respect to how the hydro lines were built for the K2 Wind Project and the Bluewater Project.

175The Board is satisfied that for both the January 1, 2008 and January 1, 2012 valuation days the sales used to determine the current values of the property would take into account the proximity of hydro lines.

Appellants’ Issues with MPAC

176The Board advised the appellants during the hearing that it was not prepared to hear evidence with respect to the Ombudsman’s Report on MPAC that was issued in 2005.

177The reasons for this is that the Board’s responsibility in hearing an assessment appeal is not to review the procedures and conduct of MPAC, the provincial government, or any other agency. The Board is of the view that a report issued by the Ombudsman in 2005 is totally irrelevant to the determination of the appeals before it.

178Mr. Hemingway also put into evidence a report entitled “MPAC: Its Creation and Its Conflicts” (Exhibit 42) and a document entitled “Municipal Property Assessment Corporation MPAC and You” (Exhibit 52). Both of these documents are highly critical of MPAC.

179Throughout the hearing Mr. Hemingway criticized MPAC and questioned its transparency. He complained that he could not get the data from MPAC to build his case. It became very clear to the Board as the hearing progressed that the appeals of Mr. Hemingway are not truly with respect to the current value of his properties but rather a forum to register complaints about the wind industry, MPAC and the provincial government.

180The Board pointed out to Mr. Hemingway several times throughout the hearing that the only issues for the Board to determine are with respect to determining the current values and classifications of the properties as of the valuation days.

CONCLUSION

181For the reasons give above the Board orders that:

• The assessment of Roll Number 4030-240-007-02000-0000 be reduced from $254,000 to $250,000 in the Residential Property Class for the 2011 and 2012 taxation years.

• The assessment of Roll Number 4030-240-006-02300-0000 is confirmed at $545,000 with $507,100 in the Farm Property Class and $37,900 in the Residential Property Class.