Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: September 14, 2016

FILE NO.: DM 2016M19

Moving Parties: Drennan Farms Ltd. and Phillip Shawn Drennan

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

Property Locations: 84805 Tower Line and 36222 Glen’s Hill Road

Municipality: Township of Ashfield-Colborne-Wawanosh

Roll Numbers: 4070-640-007-01600-0000 and 4070-640-007-01900-0000

Appeal Numbers: 3057134, 3091634, 3057135, 3091635 and 3158937, 3158915

Taxation Years: 2014, 2015 and 2016

Hearing Event Nos.: 597538 and 604130

Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A. 31, as amended, and Rules 133-139 of the Assessment Review Board’s Rules of Practice and Procedure

Heard: In Writing

APPEARANCES:

Parties	Counsel^+^/Representative
Drennan Farms Ltd. and Phillip Shawn Drennan	Phillip Shawn Drennan
MPAC	Donald G. Mitchell^+^

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH AND RICHARD LIMOGES

DISPOSITION OF MOTION

1Drennan Farms Ltd. and Phillip Shawn Drennan bring this motion seeking costs of $37,577.50. Mr. Drennan claims these costs arise from the hearing held before us on September 16 to 18, 2015 and October 13, 2015. Our written reasons were released on June 13, 2016 in WR 135787. We confirmed the current value of both 84805 Tower Line and 36222 Glen’s Hill Road, but reduced the residential portion of the properties to make the assessment equitable with those of similar lands in the vicinity.

2Mr. Drennan argues that, because the assessments were reduced, a hearing was not necessary. MPAC opposes the motion, arguing that the requirements of the Board’s Rules of Practice and Procedure (the “Rules”) are not met.

3For the reasons set out below, the motion is denied. No costs are awarded.

REASONS FOR DISPOSITION OF MOTION

4The Rules outline our limited jurisdiction to award costs. Costs are governed by Rules 133-139. The most relevant rule for this proceeding being Rule 138, which states the basis on which we may award costs. We must be satisfied “that a party has acted unreasonably, frivolously, vexatiously, or in bad faith.” This is also the standard set by s. 17.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

5It is well established that “costs are only awarded in exceptional circumstances,” see Scrimgeour v Municipal Property Assessment Corporation, Region No. 24, 2015 CanLII 40065 at para. 16. Unlike a court of law, where costs are generally awarded to the successful party, we can only award costs where a party has acted unreasonably, frivolously, vexatiously, or in bad faith.

6Mr. Drennan raises four main concerns in this motion: (1) MPAC’s alleged failure to comply with the request for reconsideration process, pursuant to s. 39.1 of the Assessment Act, R.S.O. 1990, c. A.31; (2) The tone of MPAC’s without prejudice offer made during the hearing; (3) MPAC’s failure to put forward an expert witness in wind turbines; and (4) MPAC’s failure to present two sales in its evidence. None of the concerns raised by Mr. Drennan indicate that MPAC was acting unreasonably, frivolously, vexatiously, or in bad faith.

7The request for reconsideration process is not a “proceeding before the Board” and Rule 133 limits the scope of cost awards to those proceedings. As such, we cannot consider MPAC’s alleged wrongdoing in the request for reconsideration process.

8Without prejudice offers are made on the basis that they cannot later be used against the offering party. There is a long tradition of protecting the confidence of such offers. Mr. Drennan was explicitly told not to discuss the offer at the hearing and we are disappointed that he has raised it again in this motion. We will not consider the tone of the offer in determining a cost award.

9The qualifications of MPAC’s witness were discussed at the hearing and we found that MPAC’s witness was qualified to give opinion evidence on the valuation of real property for assessment purposes. Mr. Drennan complains in this motion that MPAC’s witness did not have specific qualifications in assessing wind turbines, which he claims is unreasonable.

10MPAC did not provide a specialized witness on wind turbines, but that does not show that MPAC acted in bad faith. We found that we could not “conclude that wind turbine infrastructure, in general, impacts the value of land,” WR 135787 at para. 17. MPAC is not required to call a specialized witness for each issue that arises. They take the litigation risk of a compelling expert being called by the appellant, but there is nothing unreasonable in MPAC making that determination. There is no indication that MPAC acted unreasonably in putting forward the witness they did.

11Finally, Mr. Drennan complains that MPAC did not present two potentially relevant comparable properties. The parties elect which evidence to put before us and there is no indication that MPAC excluded those sales in bad faith. MPAC’s assessor was questioned about not providing sales and provided a reasonable and intelligible answer: that she only presented what she saw as the best comparable sales. The entire purpose of the hearing process is to allow both parties to put forward what they see as the best evidence. This is how an adversarial system operates. The failure to provide all comparable sales is not an indication that MPAC was acting unreasonably, frivolously, vexatiously, or in bad faith.

12There is no evidence that MPAC has acted unreasonably, frivolously, vexatiously, or in bad faith. As such, there is no basis to award costs. Mr. Drennan’s motion for costs is denied.