Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: June 02, 2016

FILE NO.: WRC 2016M1A

AMENDED DECISION ISSUED ON: June 06, 2016

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

Applicant(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

Heard: By written submission

DECISION OF THE BOARD DELIVERED BY PAUL MULDOON

1Patricia Gayle and David Blane Hemingway (the “Applicants") seek costs of $12,814.15 against the Municipality of Central Huron (the “Municipality”) and the Municipal Property Assessment Corporation (“MPAC”) (collectively the “Respondents”).

Amended pursuant to Rule 130 of the Assessment Review Board’s Rules of Practice and Procedure, effective January 4, 2016

BACKGROUND

2The Applicants’ request for costs arises from a proceeding before Vice-Chair Susan F. Mather and Member Mark Spraggett, heard April 15 – 16, 2015 and June 8 – 9, 2015 in Clinton, Ontario. The decision (WR 133188) was issued August 27, 2015. The appeals concerned the current value assessments (“CVA”) of the properties at 78403 Whys Line and 78396 Porters Hill Line for the 2008 and 2012 valuation years, respectively.

3The main issue at the hearing was the impact of wind turbines, both proposed and built, and hydro-electric transmission lines on the current value of the properties.

4The Applicants sought a 25% to 65% reduction in the assessed value of both of their properties. MPAC 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 Line.

5The Assessment Review Board (“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 Line property at its assessed current value of $545,000.

6The Applicants made a written request to the Board for costs, dated September 28, 2015.

Relevant Legislation and Rules

7Section 17.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, (the “SPPA”) provides that a tribunal shall not make an order to pay costs unless the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith.

8Pursuant to s. 17.1(4), the Board has made rules with respect to the ordering of costs and the circumstances in which costs may be ordered.

9The Board’s rules respecting costs are set out in Rules 133 to 139 of the Board’s Rules of Practice and Procedure (the “Rules”).

10Rules 137 to 139 of the Board’s Rules state:

137. 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.

138. 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.

139. Amount of Costs Awards

Where the Board determines that an order for costs may be made under Rules 133 to 138:

(a) the Board when determining the appropriate award of costs shall consider all the circumstances, including without limiting the generality of the foregoing, factors such as the seriousness of the misconduct, the amount of costs incurred by the party requesting costs, the conduct of the party requesting costs and offers to settle; and

(b) the amount of costs shall not exceed the sum of $1500.00 per day or up to $750.00 for each half day or less.

Submissions

11The Applicants submit that MPAC’s refusal to disclose evidence in the case and the Municipality’s failure to attend the hearing amounted to unreasonable and frivolous actions. The Applicants also submit that the conduct of the Municipality was unreasonable and frivolous as they did not attend several hearings.

12The Applicants’ application for costs relates to the failure of MPAC to disclose the raw data and internal communications relating to their study, The Impact of Industrial Wind Turbines on Residential Property Assessment in Ontario - 2012 Assessment Base Year Study (“Report”). The Applicants assert that MPAC’s failure to disclose the data and information pertaining to their Report caused delays to the hearing and an accompanying increase in their research and hearing expenses. Furthermore, the Applicants submit it was unreasonable and frivolous of MPAC not to have a representative at the hearing with knowledge of the Report.

13At the commencement of the hearing on April 15, 2015, the Applicants brought a motion requesting disclosure of the Report. The motion was denied by the Board as its relevancy, in addition to the time and expense required to fulfill the motion, was not proportionate to the issues before the Board. Therefore, there was no requisite duty imposed on MPAC to have a representative cognizant of the Report in attendance at the hearing.

Discussion and Analysis

14As with all costs applications, the starting point for determining whether costs should be awarded is Rule 137 of the Board’s Rules. Essentially, costs are only awarded when a party acted unreasonably, frivolously, vexatiously, or in bad faith. This language emanates from s. 17.1 of the SPPA.

15The Board does not find a cost award is necessary or warranted in this instance. An award of costs is reserved for the most exceptional circumstances and requires the threshold test in Rule 137 to be met (Windsor Tool & Die Ltd. v. Windsor (City) [2015], O.A.R.B.D., No. 201). For the reasons set out below, we do not find that the Respondents acted in an unreasonable, frivolous, vexatious manner.

16A request for costs is not an opportunity to reargue a case or retry issues which were previously before the Board. The Board, at the commencement of the hearing on April 15, 2015 considered the Applicant’s motion for disclosure of Report related data and communications. The Board at paragraph 19 stated:

19The Board denied the motion 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.

17As this motion for disclosure was dismissed by the Board, a claim that the Respondent acted vexatiously by not delivering documentation or providing a representative with knowledge of the Report at the hearing is moot.

18The Applicants seek costs in excess of the Board’s daily maximum of $1,500 because of the lack of disclosure by MPAC of their Report data. The Board notes that there are limits to cost awards. As outlined in Rule 139, the amount of costs shall not exceed the sum of $1,500 per day or up to $750 for each half day or less. Hence, even if the Board was to grant costs, it is restrained to the cost limits outlined in the Rules.

19The second submission by the Applicants is that the failure of the Municipality to attend hearings lead to unreasonable and vexatious actions per Rule 137(a). The absence of the Municipality in this instance does not lead to a finding of frivolity or unreasonableness.

Amended pursuant to Rule 130 of the Assessment Review Board’s Rules of Practice and Procedure, effective January 4, 2016

20There is no evidence by the Applicants that the Municipality was a necessary party without whose presence, an impartial and fair decision could be rendered. While the Municipality is entitled to party status and notice of all submissions, they are not required to have a representative at the hearing.

21Throughout the hearing, the Applicants’ submissions were focused on the disclosure of MPAC’s Report and not the actions of the Municipality. Thus, the Board does not find the Municipality was a necessary party whose absence would result in a prejudiced decision.

22I find that the test for costs outlined in Rule 137, therefore, is not met and the cost request is denied.

ORDER

23The Applicants’ application for costs against the Municipality and MPAC is denied.