Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: April 22, 2016 FILE NO.: RRD 2016M6A AMENDED DECISION ISSUED ON: April 26, 2016

Assessed Person(s): Darlene Eva Hopper Appellant(s): Darlene Eva Hopper Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 15 Respondent(s): City of Brampton

Property Location(s): 98 Braidwood Lake Road Municipality(ies): City of Brampton Roll Number(s): 2110-070-011-23320-0000 Taxation Year(s): 2004 to 2011

Hearing Event No.: 577731 Legislative Authority: Section 40.1 of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Request by: MPAC (“Requester”) Request for: A review of the Board’s decision DM 2015M1 issued on June 12, 2015 Heard: By written submission

DECISION OF THE BOARD DELIVERED BY PAUL MULDOON

ISSUES AND ORDER SOUGHT

1The Municipal Property Assessment Corporation, the Requester, seeks a review of the decision of the Assessment Review Board (the “Board”) (DM 2015M1) by Member Catherine Roberts issued on June 12, 2015. This request for review was filed with the Board on June 23, 2015.

2MPAC seeks a review of Member Roberts’ decision on a motion, under s. 40.1(b) of the Assessment Act, that there were palpable errors in the assessment roll in relation to an assessed property. Member Roberts found that there were palpable errors and ordered that the time for bringing the appeals of the property for the taxation years between 2004 and 2011 be extended and that MPAC be the Appellant in those appeals.

3The basis for the decision was that the square footage of the property was incorrectly recorded. MPAC overestimated the square footage of the basement by assigning it the same square footage (2,638 sq. ft.) as the entire two-storey building.

4Karey Lunau, counsel for MPAC, requests that the decision be set aside and that the original motion be dismissed, or in the alternative, be reheard.

5Submissions were sought from and provided by Ms. Hopper. She opposed the request for review and the relief sought.

RELEVANT RULES

6The Board’s rules respecting requests for review are set out in Rules 141 to 146 of the Board’s Rules of Practice and Procedure (the “Rules”).

7A request for review is received pursuant to Rule 144 which grants the Board with the following authority:

144. Receipt of Request for Review

(1) Where a request for review has been received, the Board may:

(a) seek written submissions from the parties on the issue raised in the request;

(b) grant a motion to argue the question;

(c) grant a re-hearing without a motion; or

(d) confirm, vary, suspend or cancel the decision.

8The grounds for review are stated in Rule 145:

145. Grounds for Review

(1) The Board may consider reviewing its decision if the grounds for the request raise a convincing and compelling case that the Board:

(a) acted outside its jurisdiction;

(b) violated the rules of natural justice or procedural fairness, including allegations of bias;

(c) made an error of law or fact such that the Board would likely have reached a different decision;

(d) should consider new evidence, which was not available at the time of the hearing, but that is credible and could have affected the result; or

(e) heard false or misleading evidence from a party or witness, which was discovered only after the hearing and could have affected the result.

DISCUSSION AND REASONS

9The Board grants the request for review.

10The Board requires very good reasons for changing a final decision. With respect to an alleged error of law, as in this case, the Board will only grant the request for review if, but for the error, the Board would have likely reached a different result.

11In this case, the Member erred in finding that the inaccurate square footage amounted to palpable error. Without that error, a different result would have been reached. Accordingly, the decision of the Member is overturned and the motion is dismissed.

12Section 40.1 of the Assessment Act provides:

40.1 If it appears that there are palpable errors in the assessment roll,

(a) if no alteration of assessed values or classification of land is involved, the Board may correct the roll; and

(b) if alteration of assessed values or classification of land is involved, the Board may extend the time for bringing appeals and direct the assessment corporation to be the appellant.

13The Board has consistently held that the relief in s. 40.1 of the Act is an extraordinary remedy to be used sparingly, or the balance of the Act will be undermined. It should only be applied “in the clearest of circumstances” (City of Brockville v. Municipal Property Assessment Corp., DM 2015M2; Scott v. Municipal Property Assessment Corp., Region No. 15, [2015] O.A.R.B.D. No. 64 (“Scott”)).

14A palpable error must be “plain and obvious” (Whitby (Town) Municipal Property Assessment Corp., v. Region No. 13, [2004] O.A.R.B.D. No. 218 (“Whitby”); 1331679 Ontario Ltd v. Municipal Property Assessment Corp., Region No. 15, [2008] 60 O.M.B.R. No. 281). The Board may look at errors that are not on the face of the roll and may look at factual errors behind the roll (584952 Ontario Ltd. v. Municipal Property Assessment Corp., Region No.9, [2007] O.A.R.B.D. No.792 at para. 29; Cambridge Taylor Holdings Inc. v. Municipal Property Assessment Corp., Region No. 21, [2013] O.A.R.B.D. No. 85 at paras. 50, 51).

15As can be seen from the Board’s decisions on this issue, a palpable must be an error that mischaracterises the fundamental nature or legal character of the property. An error that is simply an error in judgment can – and should – be properly addressed through an appeal to the Board.

16For example, palpable errors have been found where an entire subdivision of lots and blocks was assessed as a single vacant parcel of land (Whitby, supra); where two severed parcels of land were assessed as a single parcel (1331679 Ontario Ltd. v. Municipal Property Assessment Corp., Region No. 15, [2009] O.A.R.B.D. No. 73); where legal transfer and a severance had not been reflected in the assessment (Municipal Property Assessment Corp., v. Chew, 2015 CanLII 78969 (ON ARB)); where the assessment of an individual parking unit mistakenly included other parking unites and storage lockers in a condominium building (Guimond v. Municipal Property Assessment Corp., 2015 CanLII 84329 (ON ARB)).

17Errors that have not been found to be palpable include: an apparent failure to consider that the properties assessed were servient tenements and that the value had been factored into the assessment of the dominant tenements (1012419 Ontario Ltd. v. Municipal Property Assessment Corp., Region No. 9, [2009] O.A.R.B.D. No. 68); three condominium properties, classified and assessed as multi-residential, then re-classified correctly but left with the same value (Sarnia (City) v. Municipal Property Assessment Corp., Region No. 26, [2011] O.A.R.B.D. No. 392; errors regarding the size of a lot and a garage (Scott, supra).

18The error in this case was an over-inclusive assumption about the square footage of the basement. While the error did reflect an unlikely assumption, i.e. that the square footage of the basement of a two-storey house would equal that of the rest of the house, this is precisely the type of error that should properly be dealt with by an appeal. It is not an error that mischaracterizes the very nature in legal character of the property in question in the property roll. It was a property measurement that was wrong in this aspect, the rectification of which would be expected to affect the correct valuation of the property.

19I would note that in setting aside the decision of Member Roberts and dismissing the motion, the Board is mindful of the inconvenience caused to Ms. Hopper, an unrepresented party. Ms. Hopper makes the point in her submissions that it should not make any difference as to whether the error is considered palpable or not because it is, on its face, an error that has had a negative financial impact on her. Once Ms. Hopper discovered the error, she acted responsibly and sought to have it corrected. She brought her motion under s. 40.1 in good faith to redress an error made by MPAC. Regardless of these considerations, however, the Board can only act within its statutory authority and it cannot provide a remedy under s. 40.1 where there is no palpable error.

ORDER

20For all of these reasons, the Board orders that this request for review be allowed, and the decision of Member Roberts set aside. As there are no valid appeals before the Board in relation to this property, the matter is dismissed.