Assessment Review Board

Commission de révision de l'évaluation foncière

ISSUE DATE: April 22, 2016

FILE NO.: WR 135286

Assessed Person(s): Di Cenzo Construction Company

Appellant(s): Joseph Aquino

Respondent(s): Municipal Property Assessment Corporation ("MPAC") Region 19

Respondent(s): City of Hamilton

Property Location(s): 305 Stone Church Road West

Municipality(ies): City of Hamilton

Roll Number(s): 2518-080-961-07115-0000

Appeal Number(s): 3094742 and 3156307 (deemed 2016 appeal)

Taxation Year(s): 2015 and 2016 (deemed appeal)

Hearing Event No. 595250

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

Heard: September 15, 2015 in Stoney Creek, Ontario

APPEARANCES:

Parties	Counsel+/Representative
Joseph Aquino	Self-represented
Di Cenzo Construction Company	Allan Buist+
MPAC	John Richardson
City of Hamilton	No one appeared

MEMORANDUM OF ORAL DECISION DELIVERED BY SANDRA DRIESEL AND CATHERINE ROBERTS ON SEPTEMBER 15, 2015

INTRODUCTION

1Joseph Aquino owns a property next door to a vacant parcel of land that is assessed as farmland. Mr. Aquino filed and validly served what is known as a third party appeal against his neighbour's assessment under s. 40.(9) of the Assessment Act ("Act"). He says that the property is owned by a construction company and is not being farmed, so it should not receive the preferred tax treatment that legitimate farms receive under the Act.

PRELIMINARY ISSUE

2Mr. Aquino requested a small delay to the start of the hearing as he had requested the tenant "Farmer" to appear at the hearing. He explained that he had received an affidavit containing a statement from the Farmer to confirm that the property was being farmed, but he contends the affidavit is not complete enough to expose that it is in fact not being farmed. He stated his plan was to question the Farmer to bring out details that will support his issue that the property is not technically being farmed.

3The Assessment Review Board ("Board") canvassed the parties to see if there were any objections in delaying the proceedings for a short period of time (approximately 10-15 minutes):

a. The MPAC assessor, John Richardson did not object but did state that he has been in discussion with the Appellant and provided him MPAC's evidence to support its opinion that the subject property is being farmed in accordance with the Act and is therefore correctly classified and assessed. He added that he was unclear of what evidence the Appellant is relying on to support his issue that the property should not be classified as farm land.

b. Mr. Aquino's neighbour, the property owner Allan Buist did object and made an oral motion that the Board dismiss the appeal on the basis that the Appellant has refused to disclose the evidence to him or clearly define his issues prior to the hearing. He suggests that this proceeding is frivolous, appealed without merit and has/is wasting a considerable amount of time and expense on behalf of both the Assessed and the tenant.

4Mr. Aquino was quick to reply that he has 'many years' of photographic evidence that the subject property is not being farmed. He adds that he has taken his concern to other authorities and has been unsuccessful in getting anyone to address this matter.

5The Board stepped down and instructed the three parties to talk with each other and have Mr. Aquino explain his issues and the evidence he is planning to present to the Board to support his case. Although the other parties noted they had disclosed their information to the Appellant, the Board suggested a brief discussion to clarify their positions might assist the Appellant in going forward.

6The Board questioned the parties to determine if they had come to an agreement as to what the issue(s) is/are and that they were prepared to proceed. The Board determined that their discussion during the recess was not helpful as specifically, Mr. Aquino and Mr. Buist continued to engage in adversarial discussion without being able to agree that the parties were ready to proceed or had a complete understanding of the issue(s) and evidence.

7Mr. Aquino insisted that he had enough evidence in his photographs to prove that the activity on the property does not meet the criteria of 'farming'. He admitted that he had no other issue related to the current value assessment ("CVA") or the equity of the CVA compared to other properties in the area. He notes that he doesn't know what the property should be classed as, but that the owners of the property shouldn't have the benefit of a tax break for farmland as they are a construction company.

8The Board advised Mr. Aquino of the fact that s. 19.(5) of the Act specifies that the property can be classified as farm land if it is being farmed by a tenant and therefore it is not relevant that the owner is a construction company:

9Section 19.(5) of the Act states:

19.(5) Farm lands and buildings. – For the purposes of determining the current value of farm lands used only for farm purposes by the owner or used only for farm purposes by a tenant of the owner and buildings thereon used solely for farm purposes, including the residence of the owner or tenant and of the owner's or tenant's employees and their families on the farm lands,

(a) consideration shall be given to the current value of the lands and buildings for farm purposes only;

(b) consideration shall not be given to sales of lands and buildings to persons whose principal occupation is other than farming; and

(c) the Minister may, by regulation, define "farm lands" and "farm purposes".

10Mr. Richardson restated his position that MPAC is confident that the property is correctly classified as farm land and that the CVA of $164,000 as returned on the roll is correct.

11Mr. Buist asked the Board to consider his request for dismissal and that the tenant on the property (now present) was being considerably inconvenienced by having to attend these proceedings when a legally executed affidavit from the tenant was already provided to all the parties to state he is farming the property.

12Mr. Aquino held to his position that the Board should/could glean enough from his photographs that the classification of the subject property should be changed to anything else but farm land. He admits he has no other submissions to make before the Board.

13The main issue before the Board is to consider Mr. Buist's oral motion to have the appeal dismissed and if there is a more appropriate sanction against the Appellant for failure to comply with the Board's Rules of Practice and Procedure ("Rules") regarding disclosure of information in the Direct Hearing Stream.

14A secondary issue raised by Mr. Buist is to consider his motion to have costs awarded against Mr. Aquino in the amount $4,933.50.

DECISION

15The Board dismissed the Appellant's third party appeal. Therefore the subject property remains at a current value of $164,000 for the 2015 taxation year and it remains classified as farm land as returned on the roll.

16The Board denied the request for an award of costs.

REASONS FOR DECISION

Legislation

17Section 19.(5) of the Act states:

19.(5) Farm lands and buildings. – For the purposes of determining the current value of farm lands used only for farm purposes by the owner or used only for farm purposes by a tenant of the owner and buildings thereon used solely for farm purposes, including the residence of the owner or tenant and of the owner's or tenant's employees and their families on the farm lands,

(a) consideration shall be given to the current value of the lands and buildings for farm purposes only;

(b) consideration shall not be given to sales of lands and buildings to persons whose principal occupation is other than farming; and

(c) the Minister may, by regulation, define "farm lands" and "farm purposes".

18Rule 45 of the Board's Rules states:

Disclosure Prior to a Hearing

(1) In the Direct Hearing Stream, within 90 days of filing of an appeal of the assessment, MPAC shall disclose to the appellant and the municipality any assessment data together with the basis or analysis that supports the assessment that has been appealed.

(2) In the Direct Hearing Stream, unless the Board orders otherwise, if a party intends to present documentary evidence at a hearing, at least 21 days before the hearing, the party must provide one copy of each document to each party.

(a) If documentary evidence is not exchanged at least 21 days before the hearing, the Board may refuse to accept the documents at the hearing.

(b) Material in response must be exchanged 14 days prior to the hearing and other parties may respond 7 days prior to the hearing.

(3) In the Standard Stream, timeframes for disclosure of information will be set by Procedural Order and in accordance with the Board's guidelines (see also Rule 86).

19Rule 133 of the Rules states:

133. Responses to a Costs Request or Board's Costs Proposal

Where a party makes a costs request, any objection and associated argument by the party against whom costs are sought must be filed with the Board and given to the other parties within 14 days after the filing of the costs request or within such time as directed by the Board. The party seeking the costs then has 5 days or within such time frame as directed by the Board to file a reply.

Where the Board, on its own initiative, proposes to make a costs award, the party against whom costs are proposed must file any objection and associated argument and give them to the other parties within the time directed by the Board.

Dismissal of the Appeal

20Mr. Buist's motion to dismiss the appeal was based on the Appellant's failure to comply with the Rules:

45.(2) In the Direct Hearing Stream, unless the Board orders otherwise, if a party intends to present documentary evidence at a hearing, at least 21 days before the hearing, the party must provide one copy of the document to each party.

21The Board considered that a failure to comply with the Board's Rule on disclosure sets consequences that can include: "If documentary evidence is not exchanged at least 21 days before the hearing, the Board may refuse to accept the documents at the hearing."

22Through multiple questions to the Appellant the Board determined if it exercised its discretion to refuse submission of his photographic evidence for non-disclosure, the Appellant had no other evidence or argument to present.

23The Appellant, in response to the motion to dismiss requested that the Board consider adjourning the matter giving him more time to prepare his case. The Board considered:

a. Both MPAC and the Assessed had fairly co-operated with the Appellant in providing him with submissions to support their positions regarding the appeal and that these parties had, prior to the hearing, requested disclosure information from the Appellant citing the Board's Rules.

b. The Appellant had considerable time to prepare for the hearing. The Board is not convinced that the Appellant made any reasonable effort to avoid the adjournment.

c. Until the motion for dismissal was introduced the Appellant made it clear, several times that he was solely relying on that evidence that he failed to disclose and believed it was the only evidence required to make his case.

24Based on the above, the Board also considered its obligation to consider the wise use of tribunal resources and determined that an adjournment would result in an unnecessary delay in the administrative justice process.

25The Board granted the motion to dismiss the appeal.

Costs against the Appellant

26Mr. Buist submitted a REQUEST FOR COSTS statement (Exhibit 1) seeking costs of $4,933.50 against the Appellant. He claims that the evidence produced at the hearing demonstrated that the subject appeal by the Appellant was unreasonable, frivolous, and vexatious or in bad faith in that the true grounds for such an appeal related to matters other than the proper assessment of the subject property.

27The Board's Rules regarding cost are set out in Rules 133 – 136 of the Assessment Review Board Rules. The Board is specifically directed by the following:

134. Considerations by the Board

The Board in determining whether a party has acted unreasonably, frivolously, vexatiously, or in bad faith shall consider all of the circumstances, including, without limiting the generality of the foregoing:

(a) a party failing to attend a hearing before the Board or to send a representative when properly given notice, without contacting the Board and other parties to the hearing;

(b) a party failing to comply in a timely manner with a Procedural Order, case or appeal(s) management plan or direction of the Board where the result therefrom is undue prejudice or delay to another party or parties in the proceedings before the Board;

(c) a party failing to comply in a timely manner with the disclosure or discovery requirements set out in the Board's Rules of Practice or order or direction of the Board, including, without limiting the generality of the foregoing, the disclosure requirements respecting documents, particulars, or constitutional issues, provisions of responses to undertakings given on discovery including document disclosure; or

(d) a party knowingly presenting false or misleading evidence.

135. When Costs may be Awarded

Where the Board finds that a party has acted unreasonably, frivolously, vexatiously, or in bad faith, the Board may order that party to pay the costs of another party or parties to the proceedings subject to Rule 139 respecting the amount of costs that may be ordered.

28The Board finds the Appellant's basis for an appeal, a correct classification of the property, is a valid issue that might impact a 'proper assessment of a property' and is therefore a valid ground for an appeal. Although the Appellant failed to comply with the Board's Rules, the Board is convinced that the Appellant has a sincere belief that the subject property should not be assessed as farm land, and therefore cannot be characterized as frivolous or vexatious or unreasonable.

29The Board notes the non-preparedness of a party to submit evidence to adequately support his/her opinion is not a criterion for awarding costs.

30For the reasons set out above, the Assessed party's request for costs against the Appellant is denied.

2016 DEEMED APPEAL

31An appeal for the 2015 taxation year is presently before the Board. Section 40.(26) of the Assessment Act provides that the appellant is deemed to have made the same appeal for the subsequent taxation year if the appeal is not finally disposed of before March 31 of the subsequent taxation year. The Board has not disposed of the 2015 appeal before March 31, 2016. For that reason, this decision also applies to the 2016 taxation year.

32Section 40.(26) of the Act directs:

Deemed appeals, 2009 and subsequent years

(26) For 2009 and subsequent taxation years, an appellant shall be deemed to have brought the same appeal in respect of a property,

(a) in relation to the assessments under sections 32, 33 and 34 for the year; and

(b) in relation to the assessment, including assessments under sections 32, 33 and 34, for a subsequent taxation year to which the same general reassessment applies, if the appeal is not finally disposed of before March 31 of the subsequent taxation year or, if an assessment has been made under section 32, 33 or 34, before the 90th day after the notice of assessment was mailed.