Hemingway v. Municipal Property Assessment Corporation, 2016 CanLII 29994

Assessment Review Board / Commission de révision de l’évaluation foncière

ISSUE DATE: May 19, 2016

FILE NO.: RRD 2016M7

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

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

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

Respondent(s): Municipality of Central Huron

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

Municipality(ies): Municipality of 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 and 2014

Hearing Event No.: 574431 and 588830

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

Request by: David Blane Hemingway (“Requester”)

Request for: A review of the Board’s Decision WR 133188 issued on August 27, 2015

Heard: By written submission

DECISION OF THE BOARD DELIVERED BY PAUL MULDOON

ISSUES AND ORDER SOUGHT

1David Blane and Patricia Gayle Hemingway, (the “Requesters”), seek a review of the decision of the Assessment Review Board (the “Board”) (WR 133188) by Vice-Chair Susan F. Mather and Member Mark Spraggett issued on August 27, 2015. This request for review was filed with the Board on September 28, 2015.

2The main issue before the Board at the hearing was the impact of wind turbines (proposed and built) and hydro-electric transmission lines on a determination of current value.

3At the hearing, the Requesters sought a reduction between 25% and 65% of the assessed value of their properties, 78403 Whys Line and 78396 Porters Hill Line. At the commencement of the hearing on April 15, 2015, the Requesters brought a motion requesting disclosure of MPAC’s documents, notes and raw data related to their study: The Impact of Industrial Wind Turbines on Residential Property Assessment in Ontario - 2012 Assessment Base Year Study (the “Report”).

4MPAC recommended the Whys Line property’s current value be reduced from $254,000 to $250,000. They did not support a reduction of the second property located on Porters Hill. MPAC objected to the Requesters’ motion for disclosure on the basis it was outside the Board’s jurisdiction to order an audit of an MPAC study.

5The Board, in ensuring the current values of the properties were equitable with the assessments of similar lands in the vicinity, reduced the Whys Line property to $250,000 and confirmed the Porter Hill property at its assessed current value of $545,000. The Board denied the Requesters’ motion for disclosure.

6A review of the Board’s decision is being sought on the basis that the Board did not have all necessary information before it when arriving at a finding of current value. The Requesters assert the Board would have reached a different current value calculation but for the dismissal of their disclosure motion.

RELEVANT RULES

7The Board’s rules respecting request for review are set out in Rules 141 to 146 of the Board’s Rules of Practice and Procedure (the “Rules”).

8A 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.

(2) The Board will determine initially whether the request has met one or more of the eligible grounds for such a review without providing notice to the other parties. The Board may review or grant a motion request without submissions from other parties.

9The 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

10The Board denies the request for review in this case.

11The Board requires very good reasons for changing a final decision. The Board will not review a decision even where there may be an error or omission if the conclusion of the decision would not change.

i. Disclosure and Relevancy

12The Requesters submit that the dismissal of the motion for disclosure limited the record before the Board. The Requesters argue that the disclosure of the MPAC’s primary data was necessary in order to corroborate the study’s results and conclusions. The Board does not find this objective to be relevant to the issue of current value before the Board.

13In order to grant a motion for disclosure, the documents being sought must be sufficiently related to the issues being determined (CJRT-FM Inc. v. Municipal Property Assessment Corp., Region 9, [2012] O.A.R.B.D No. 49; GlaxoSmithKline v. Municipal Property Assessment Corp. Region 15, [2011] O.A.R.B.D. No. 234 (GlaxoSmithKline)). As grounds for disclosure, the Requesters cite the need for of public-openness and procedural transparency. For the reasons set out below, the Board does not find this rationale connected to an analysis of current value.

14The jurisdiction of the Board is statute based and defined by the Assessment Act (“Act”). Section 40 sets out the basis upon which an appeal can be made to the Board. In this case, the Board was limited to determining the current value of the subject properties. The Board does not have jurisdiction to act on any matters beyond those enumerated in the Act.

15The Board’s role in this case was to determine the effect of wind turbines on the current values of the Requesters’ properties. Current value, as defined in s. 1 of the Act, is the “amount of money the fee simple, if unencumbered, would realize if sold at arm’s length by a willing seller and a willing buyer.” In reaching a current value, the Board will first compare a property’s current value to actual sales in the neighbourhood. Secondly, the Board will determine if the current value is fair and equitable relative to the assessed value of similar properties.

16The best evidence of current value would be a market tested sale of the subject property on or near the valuation day. Absent such evidence, the Board will rely on the sale of comparable properties in the vicinity presented by the parties. Comparable properties are those which have sufficiently similar features – such as total building area, access to amenities, type and nature of housing etc. so at to enable a direct comparison.

17In reviewing the Board’s decision, I do not find that the disclosure of MPAC’s report data would have facilitated a comparison of the subject properties’ current value to comparables. Furthermore, the conclusions drawn in MPAC’s report reflect the 2012 current value assessments. The Requesters’ assessment appeals pertain to the 2008 taxation year and thus the Board cannot give substantial weight to evidence based on 2012 sales.

18Lastly, it is not within the purview of a current value assessment to consider future impacts on a property and prospectively amend the property value. At the time of the Requesters’ properties’ current value assessment in 2008, no wind turbines had been proposed or constructed.

19Therefore, without a nexus linking the data of MPAC’s Report to comparable property values for the 2008 taxation year, it is not relevant to the Board’s current value determination.

ii. Disclosure and Proportionality

20In accordance with the Board’s Rule 2 “Interpretation and Directions,” proportionality is an overriding principle which should direct Members when making decisions on motions for disclosure or discovery. Members must make decisions relative to the importance and complexity of the issues before them.

21The Requesters’ motion for disclosure was denied in part because the Board was not satisfied that the request was proportionate to the complexity and importance of the issues (Hemingway v. Municipal Property Assessment Corporation, 2015 CanLII 54413 (ON ARB)).

22Proportionality necessitates that weight be given to the fair, affordable and timely adjudication of issues. Balancing these factors is integral to ensuring access to justice - the greatest challenge to the rule of law in Canada. The adjudication of disputes must develop in tandem with these principles and in making judgments, Members must strive to employ the “most expeditious and least expensive determination of every proceeding on its merits” (Toronto (City) v. Philmore (Bloor Walk) Development Corp., [2016] O.A.R.B.D. No. 1; Nichol v. Municipal Property Assessment Corp., Region 3, [2015] O.A.R.B.D. No.162; GlaxoSmithKline, supra).

23I concur with the Board’s decision that the motion for disclosure requested by the Requesters would result in time and economic expenditures unrelated to the issue of current value before the Board. The just and efficient adjudication of issues undergirds the Board’s jurisdiction. A determination by the Board that only documents related and central to the issues being tried be produced should not be misconstrued as party bias.

24The Board as an administrative justice tribunal is founded on accessible justice and thus will not grant a motion for disclosure which unnecessarily expenses a party.

ORDER

25For all these reasons, the Board orders that this request for review be denied.