Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: June 13, 2016

FILE NO.: DM 136587

Moving Party(ies): Drennan Farms Ltd., Phillip Shawn Drennan

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

Respondent(s): Township of Ashfield-Colborne-Wawanosh

Property Location(s): 84805 Tower Line and 36222 Glen’s Hill Road

Municipality(ies): Township of Ashfield-Colborne-Wawanosh

Roll Number(s): 4070-640-007-01600-0000 and 4070-640-007-01900-0000

Appeal Number(s): 3057134, 3091634, 3057135, 3091635 and 3158937, 3158915 (deemed 2016 appeals)

Taxation Year(s): 2014, 2015 and 2016 (deemed appeals)

Hearing Event No.: 597538 and 604130

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

Heard: September 16 to 18, 2015 and October 13, 2015 in Ashfield-Colborne-Wawanosh, Ontario

APPEARANCES:

Parties

Counsel^+^/Representative

Drennan Farms Ltd. and Phillip Shawn Drennan

Phillip Shawn Drennan

MPAC

Donald G. Mitchell^+^ and Joanne Greidanus

Township of Ashfield-Colborne-Wawanosh

No one appeared

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1Drennan Farms Ltd. has brought a motion requesting that I recuse myself from deciding the appeals before the Assessment Review Board (“Board”). This motion was brought on the second day of what became a four day hearing and Mr. Drennan agreed that it was preferable that I hear all of the evidence and decide his motion before considering the substantive appeal. I have carefully considered the motion and decline to recuse myself for the reasons set out below.

Facts

2Mr. Drennan’s recusal request is based on my previous position as member of the Board of Directors of the Sierra Club Canada (the “Club”), including the positions of Vice-President and Acting President, between July 2012 and January 2014. He feels that because the Sierra Club Canada supports renewable energy initiatives, including wind turbines, a reasonable apprehension of bias is created.

3Mr. Drennan raises two specific complaints about the Sierra Club Canada position on renewable energy projects. First, Mr. Drennan notes that the proponent of the wind turbine project near his properties, the K2 Group, refers on its website to a Sierra Club Canada paper published August 18, 2011 entitled “The Real Truth About Wind Energy: A Literature Based Introduction to Wind Turbines in Ontario,” authored by Alexandra Gadawski and Greg Lynch. Mr. Drennan’s second complaint is that representatives of the Sierra Club Canada were speaking to municipal councils in Ontario in 2011 in an attempt to sway their decisions on wind turbine projects.

4I note that both of these actions predate my membership on the Sierra Club Canada Board and both took place while I was living in Alberta and not involved in the Ontario chapter of the Club. I had no personal involvement in either activity, though I acknowledge that I assumed some responsibility for positions taken by the Club as a whole by joining the national Board.

Law

5The most cited formulation of a legal test for a reasonable apprehension of bias is in the dissenting reasons of Justice de Grandpré in Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 SCR 369 at 394:

…the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly.”

6The question is not whether I am actually biased in the decision I am asked to make, but if someone apprised of the facts would think it more likely than not that I would not decide the matter fairly, see Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 SCR 259 at para. 62.

7Justice Cory in R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 SCR 484 provided a useful summary of the scope of bias and what must be proven on a motion such as this. He described a lack of bias, at para. 104, “as a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions.” He noted that onus in demonstrating an apprehension of bias is on the person alleging that such an apprehension exists. What must be demonstrated is “a real likelihood or probability of bias… a mere suspicion is not enough,” see para. 112. This is a matter, however, that must be carefully considered as it calls into question the objectivity of this Board. The impartiality of members is vital for the proper administration of justice.

8Mr. Drennan referenced Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC), [1992] 1 SCR 623 as support for his motion. Specifically, he notes that Justice Cory, writing for a unanimous Court, held that a range of standards apply to administrative tribunals, but those of a more adjudicative nature will be bound by the same standards as the courts. I accept the submission that this Board must meet the reasonable apprehension of bias standard applicable to the courts, as set out above.

Application

9Mr. Drennan has provided evidence of a report and public presentations supportive of wind turbines by other members of the Sierra Club Canada. He points to my membership on the Board of Directors of the Sierra Club Canada as evidence that a reasonable person, informed of all the facts, would have a reasonable apprehension of bias. There is, of course, a temporal disconnect between the complained of activities of the Club and my membership on the Club’s Board. Both the report and the public presentations took place in 2011 and I was appointed to the Club’s Board in July 2012.

10However, even if a person were to find that my later Club Board membership constituted an endorsement of the complained of activities of the Club, those are far removed from the questions I am asked to decide.

11The appeals before me require me to render two decisions pursuant to s. 44.(3) of the Assessment Act. First, I must determine the current value of the properties. That is, what would the properties have sold for on the valuation day of January 1, 2012. Secondly, I must determine if that current value is equitable with the assessment of similar properties in the vicinity. Neither determination turns squarely on my opinion of the desirability of wind turbines, which is not a matter to be decided by this Board.

12Mr. Drennan argues that the basis of this appeal is the impact of wind turbines and the related switching station near the land on the value of the land. As such, he feels that my opinion on the merits of wind turbines could cause me to decide the matter unfairly. I find that a reasonable person who is informed about the issues to be decided would not have an apprehension of bias due to my opinion on the social utility of wind turbines. My interest in renewable energy sources is in common with a large portion of modern society and it is not reasonable to conclude that such an interest would impact my ability to fairly decide upon the current value of the Drennan properties. If I am favourably disposed to wind turbines it does not follow that I also believe that they cannot impact on the current value of nearby properties. If a Member is a car driver there should be no question that they could fairly decide the impact of an abutting freeway on property value. Similarly, I doubt that there is any question that Members of this Board who heat their homes with natural gas can fairly assess evidence related to the impact of natural gas pipelines on land value.

13This Board looks to evidence to determine the valuation issues before it. Mr. Drennan’s assertion of an apprehension of bias is not reasonable. I am not asked to decide if the turbines should be built, or how far they ought to be from homes, or any other issue related to the location or subsidy of wind turbines. I am only asked to assess evidence on the impact existing and proposed wind turbines have on the value of the Drennan land. A reasonable apprehension of bias does not arise on those facts.

2016 DEEMED APPEALS

14Appeals for the 2015 taxation year are 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 appeals before March 31, 2016. For that reason, this decision also applies to the 2016 taxation year.

15Section 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.