Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: November 22, 2016

FILE NO.: DM 142892

Moving Party(ies): Ietedal Mohamad

Respondent(s): Municipal Property Assessment Corporation ("MPAC")

Respondent(s): Town of Oakville

Property Location(s): 1120 Kent Avenue

Municipality(ies): Town of Oakville

Roll Number(s): 2401-030-270-09400-0000

Appeal Number(s): 2999026, 3008122 and 3084287

Taxation Year(s): 2013, 2014 and 2015

Hearing Event No.: 636697

Legislative Authority: Sections 34 and 40 of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Heard: September 30, 2016 in Oakville, Ontario

APPEARANCES:

Parties	Counsel+/Representative
Ietedal Mohamad	Roman Andrzejewski
MPAC	Donald Mitchell+
Town of Oakville	Susan Price (Observer)

DISPOSITION OF THE BOARD DELIVERED BY TYRONE D. SKANES

INTRODUCTION

1This matter came before the Assessment Review Board ("Board") at a motion hearing held in Oakville, Ontario on September 30, 2016.

2The Moving Party's and Appellant's representative, Roman Andrzejewski, requested that the Board issue:

1. An order putting aside signed on January 19, 2016, 2014/2015 Minutes of Settlement;
2. Alternatively, an order correcting revised 2008 Current Value on 2014/2015 Minutes of Settlement from $1,046,435 to $335,000, to reflect the value returned on 2014 Municipal Roll;
3. If neither relief from above paragraph 1 or 2 is granted, an order to schedule 2014 and 2015 appeals into full hearing. If the full hearing is granted on September 30, 2016 After-Tax is prepared to proceed to full hearing on the same day, following the Motion; and
4. An order to accept signed 2013 Minutes of Settlement and issue Notice of Decision for 2013 taxation year. Please note that 2008 Current Value Assessment on the 2013 Minutes of Settlement has the same value of $867,989 as shown on Property Assessment Change Notice, (see exhibit "C" of moving party affidavit), therefore the 2013 Minutes of Settlement were prepared correctly. (Exhibit 1).

3Mr. Andrzejewski said that the grounds for the request were that his colleague, Robert Baranowski, the representative assigned to this appeal, had negotiated a value reduction and signed Minutes of Settlement (“MOS”) for the 2014 and 2015 taxation years (Exhibit 1 - Appendix F). Mr. Andrzejewski stated that Mr. Baranowski realized the next day that the current value for the 2008 valuation date had been changed from $335,000 to $1,046,435. Mr. Baranowski, upon realizing the change, called both the MPAC assessor and the Town of Oakville (“Town”) representative to alert them and request that the MOS be returned and corrected. He said that the parties refused to cooperate with Mr. Baranowski and the signed MOS were processed, despite all parties acknowledging the change.

4Mr. Andrzejewski said that Mr. Baranowski contacted the Board to revoke his signature and asked that the MOS be declared invalid. He said that processing the MOS constitutes an abuse of process, goes against natural justice and is a clear example of execution of justice by ambush.

5Donald Mitchell, counsel for MPAC, said that MPAC's position is as follows:

a) With respect to motion 1, MPAC agrees that the minutes should be set aside and the matter re-opened for the sole purpose of determining the correct phase-in value;

b) With respect to motion 2, MPAC does not agree that the correct 2008 CVA phase-in value is $335,000. MPAC proposes that the Board hear argument on September 30 as to the correct phase-in value;

c) With respect to motion 3, MPAC does not agree that a full hearing for the 2014 and 2015 taxation years should be held. The parties have agreed that the correct 2012 CVA for the 2014 and 2015 taxation years is $1,270,000. That issue has been settled and should not be revisited; and

d) MPAC agrees with the relief requested in motion 4 (Exhibit 2).

6Mr. Mitchell also stated that the following facts supports MPAC's position:

• Prior to 2013 the subject property ("SP") was vacant land and in 2013 a dwelling was constructed. MPAC issued a supplementary assessment under section 34 of the Assessment Act ("Act") in the amount of $992,000, the value of the house (Exhibit 1 - App. C).
• The Appellant filed a Request for Reconsideration ("RfR") and eventually appealed the assessment to the Board.
• MPAC returned the 2012 current value assessment (“CVA”) for the 2014 and 2015 taxation years at $1,460,000. MPAC neglected to adjust the 2008 CVA phase-in start value to reflect the new home value. Therefore, the assessment rolls returned for the 2014 and 2015 taxation years incorrectly showed the 2008 CVA phase-in value as $335,000 (Exhibit 1 - App. A).
• The parties reached an agreement on the supplementary assessment for the 2013 taxation year and it was reduced from $992,000 to $802,000 (Exhibit 1 - App. F) and that the parties also agreed to reduce the assessment for the 2014 and 2015 taxation years from $1,460,000 to $1,270,000 (Exhibit 1 - App. A). MOS were signed by all parties and filed with the Board in January 2016. Mr. Baranowski made his objections known the day after the MOS were signed and notified the Board and the other parties that the phase-in value for 2008 ought to be $335,000.
• Mr. Mitchell said that Mr. Baranowski did not raise any issue with the MOS for the 2013 taxation year and that the revised 2008 CVA for phase-in purposes only was $711,435 (Exhibit 1 - App. F).

7Mr. Mitchell submitted that the 2008 CVA phase-in amount of the 2014 and 2015 taxation years in the MOS is $1,046,435. He said this value is the sum of the agreed revised notional 2008 CVA for the house and the notional 2008 CVA for the land, which appears on the assessment roll for the 2013 taxation year ($711,435 + $335,000 = $1,046,435).

8Mr. Mitchell also said that although MPAC initially failed to realize its mistake, it eventually did, and that it has the right and responsibility to correct any error. He further stated that the Board has the legislative jurisdiction to correct the 2008 CVA for phase-in purposes.

DISPOSITION OF MOTIONS

9Upon hearing the parties’ submissions and reading the motion materials, the Board finds the following:

1. Motion 1 - Granted: The Board sets aside the MOS (Exhibit 1 - App. A) because; a) there is an error in the MOS signed on January 19, 2016 for the 2014 and 2015 taxation years and, b) the parties requested that it be set aside.
2. Alternative Motion 2 - Not Addressed: The Board finds that it need not address the Alternative Motion because it granted Motion 1. Furthermore, the Board notes that the correct revised 2008 CVA is $1,046,435. This is because the SP's CVA as of January 1, 2008 without improvement was $335,000 (Exhibit 1 - App. E). When that amount is added to the revised improvement value for the 2013 taxation year ($711,435) as shown in the MOS (Exhibit 1 - App. F), the total 2008 Current Value (Phase-in Use Only) is correctly shown to be $1,046,435 (Exhibit 1 - App. A).
3. Motion 3 - Not Granted: The Board will not order a new hearing as the parties have agreed that a revised assessment of the SP for the 2014 and 2015 taxation years is $1,270,000 (Exhibit 1, Affidavit of R. Baranowski - Paragraph 9) and the Board accepts this agreement. Furthermore, as mentioned above, the correct revised 2008 CVA is $1,046,435.
4. Motion 4 - Granted: On the parties’ agreement and recommendation, the Board orders that the 2013 MOS (Exhibit 1 - App. F) be implemented.

REASONS FOR DISPOSITION OF MOTIONS

Legislation

10Section 1 of the Assessment Act (“Act”) states:

“current value” means, in relation to land, the amount of money the fee simple, if unencumbered, would realize if sold at arm’s length by a willing seller to a willing buyer.

11Section 14.(1) of the Act states:

14. (1) Assessment corporation to prepare roll. The assessment corporation shall prepare an assessment roll for each municipality, for each locality and for non-municipal territory and the assessment roll shall contain the following information as well as the information required under subsections (1.1) and (1.2):

15. The name and surnames, in full, if they can be ascertained, of all persons who are liable to assessment in the municipality or in the non-municipal territory, as the case may be.

12Section 19.(1) of the Act states:

19.(1) Assessment based on current value. - The assessment of land shall be based on its current value.

13Section 19.2(1)3 of the Act states:

Valuation days

19.2 (1) Subject to subsection (5), the day as of which land is valued for a taxation year is determined as follows:

1. For the 2006, 2007 and 2008 taxation years, land is valued as of January 1, 2005.

2. For the period consisting of the four taxation years from 2009 to 2012, land is valued as of January 1, 2008.

3. For each subsequent period consisting of four consecutive taxation years, land is valued as of January 1 of the year preceding the first of those four taxation years.

Exception

(5) Subsection (1) does not apply in respect of the valuation of land for a taxation year after 2004 if the Minister prescribes a different day as of which land is valued for that year.

14Section 34.(1) of the Act states:

34. (1) Supplementary assessments to be added to tax roll If, after notices of assessment have been given under section 31 and before the last day of the taxation year for which taxes are levied on the assessment referred to in the notices,

(a) an increase in value occurs which results from the erection, alteration, enlargement or improvement of any building, structure, machinery, equipment or fixture or any portion thereof that commences to be used for any purpose;

15Section 37.(1) of the Act states:

37.(1). Last revised assessment roll The yearly assessment roll of a municipality last returned to the clerk, when corrected and revised by the Assessment Review Board and certified by the registrar, is for all purposes the last revised assessment roll of the municipality.

16Section 37.(2) of the Act states:

37.(2). Last revised assessment where no appeals made Where in a municipality no appeals are made to the Assessment Review Board and the time for appealing has elapsed, the assessment roll shall be presented by the clerk to the registrar and if he or she is satisfied that there have been no such appeals he or she shall certify the roll and the roll, as so certified, is for all purposes the last revised assessment roll of the municipality.

17Section 37.(4) of the Act states:

37.(4). Use of last revised roll - municipality In every municipality, the rates of taxation for each year shall be fixed and the taxes shall be levied on the assessment made for the year according to the last revised assessment roll.

18Section 37.(4.1) of the Act states:

37.(4.1) Use of roll as returned - municipality Despite subsection (4), the council of the municipality may fix the rates of taxation and levy the taxes for a year (the “taxation year”) on the assessment made in the preceding year according to the assessment roll as returned for the taxation year.

19Section 37.(5) of the Act states:

37.(5) Right of appeal reserved Nothing in this section deprives a person of a right of appeal provided for in this Act, which may be exercised and the appeal proceeded with in accordance with this Act, despite the fact that the assessment roll has become the last revised assessment roll.

20Section 37.(6) of the Act states:

37.(6) Adjustment of taxes as result of appeal No assessment shall be increased, reduced or otherwise altered until all complaints, reconsiderations, appeals or proceedings concerning the assessment have been finally determined and disposed of and, where the result of the final determination and disposition of the complaints, reconsiderations, appeals or proceedings increases, reduces or otherwise alters the assessment, the taxes levied and payable with respect to the assessment shall be adjusted accordingly and any overpayment resulting from the adjustment shall be refunded by the municipality or the Minister, as the case may be

21Section 40. (1)(b) of the Act states:

40. (1) Appeal to the Assessment Review Board Any person, including a municipality, a school board or, in the case of land in non-municipal territory, the Minister, may appeal in writing to the Assessment Review Board,

(b) on such other basis as the Minister may prescribe.

22Section 44. (1) of the Act states:

44. (1) Assessment may be open upon appeal. Upon an appeal on any ground against an assessment, the Assessment Review Board or court, as the case may be, may reopen the whole question of the assessment so that omissions from, or errors in the assessment roll may be corrected, and the amount for which the assessment should be made, and the person or persons who should be assessed therefore may be placed upon the roll, and if necessary the assessment roll, even if returned as finally revised, may be opened so as to make it correct in accordance with the findings made on appeal.

23Section 45 of the Act states:

45. Powers and functions of the Assessment Review Board Upon an appeal with respect to an assessment, the Assessment Review Board may review the assessment and, for the purpose of the review, has all the powers and functions of the assessment corporation in making an assessment, determination or decision under this Act, and any assessment, determination or decision made on review by the Assessment Review Board shall be deemed to be an assessment, determination or decision of the assessment corporation and has the same force and effect.

24Section 47.1 of Ontario Regulation 282/98 states:

47. (1) For the purposes of paragraph 9 of subsection 14 (1) of the Act, the following information must be included on the assessment roll for the 2009, 2010 and 2011 taxation years:

1.The assessment or classification of the land as shown on the assessment roll returned for the 2008 taxation year, adjusted for any changes in value for assessment purposes and any changes in classification, if the changes would affect the assessment or classification of the land on the assessment roll for the 2009 taxation year.

1.1 The assessment of the land as shown on the assessment roll returned for the 2008 taxation year adjusted for any changes in value for assessment purposes and any changes in classification or liability for taxes, if the changes would affect the assessment of the land on the assessment roll for the 2010 or 2011 taxation year.

2. The assessment of the land for the taxation year, as adjusted under section 19.1 of the Act.

25Section 50.(1) of Ontario Regulation 282/98 states:

50. (1) For the purposes of clause 40 (1) (b) of the Act, an appeal may be made in writing to the Assessment Review Board on the basis that any of the following is incorrect:

51. The amount of the assessment of the land for the 2008 taxation year, as adjusted for the purposes of paragraph 1 or 1.1 of subsection 47 (1), or the classification of the land for the purposes of that paragraph.

52. The amount of the assessment of land for the 2012 taxation year, as adjusted for the purposes of paragraph 1 of subsection 47.1 (1), or the classification of the land for the purposes of that paragraph.

53. A recalculation of the eligible increase under subsection 48.2 (5).

(2) An appeal under paragraph 1 of subsection (1) does not affect any tax liability for the land for the 2008 taxation year.

(3) An appeal under paragraph 2 of subsection (1) does not affect any tax liability for the land for the 2012 taxation year.

The Moving Party’s Position

26Mr. Andrzejewski set out the grounds for the four motions in Exhibit 1, Tab 1 and in the sworn affidavit of Mr. Baranowski in Tab 2.

27Mr. Andrzejewski, in his oral submissions, said it was his position that MPAC intentionally misled Mr. Baranowski when it changed the 2008 CVA on the MOS for the 2014 and 2015 taxation years. He said that the assessor's and the Town's representative's refusal to discuss the change and correct the MOS further strengthened his belief that the change was intentional.

28Mr. Andrzejewski did not comment on Mr. Baranowski's responsibility to carefully proofread legal documents before signing them.

29Mr. Andrzejewski said that it would be an abuse of process and be contrary to natural justice if this were allowed to stand, although he did not articulate his reasons for believing so.

The Respondent’s Position (MPAC)

30Mr. Mitchell, counsel for MPAC, entered Exhibit 2 into evidence and provided oral submissions to the Board.

31Mr. Mitchell said that the only issue for the Board’s determination was what was the correct starting value for the 2008 CVA. It was his opinion that the 2014 and 2015 taxation years’ value had already been agreed upon by the parties at $1,270,000. He said that value was not in dispute and the Board should not consider that motion.

32Mr. Mitchell said that the dispute over the revised 2008 CVA resulted from an oversight by MPAC in conducting its calculations in subsequent assessments. He said that when the oversight was recognized, MPAC correctly revised the 2008 CVA to properly account for the value of land with the new structure included. He said that the revised value was properly recorded on the MOS and MPAC cannot be held responsible for Mr. Baranowski not reviewing the MOS before signing.

33Mr. Mitchell said that MPAC's action was justified by the legislation and that the Board has the jurisdiction and authority to rule on the matter. He said that his evidence clearly indicated that the revised 2008 CVA as proposed by MPAC was correct and asked that the Board to so find.

The Respondent’s Position (Town)

34Susan Price, the Town’s representative, appeared as an observer. She did not file a response to the motion nor did she make any oral submissions.

Board’s Analysis

35The Board carefully considered the exhibits as well as the oral submissions and finds that upon an appeal, Sections 40(1) and 45 of the Act is authority for the Board to correct omissions or errors in the assessment roll. The Board also takes note of the following facts:

• the SP's CVA as of January 1, 2008 without improvement was $335,000 (Exhibit 1 - App. E);
• the 2013 taxation year 2008 CVA phase-in value was $867,989 but was revised to $711,435 (Exhibit 1 - App. F);
• the 2013 taxation year 2012 CVA was $992,000 but was revised to $802,000 (Exhibit 1 - App. F), and
• the CVA for the 2014 and 2015 tax years was $1,460,000 but was revised to $1,270,000 (Exhibit 1 - App. A & F).

36The Board, on the basis of the above facts, makes the following findings:

1. Motion 1 - Granted: The Board sets aside the MOS (Exhibit 1 - App. A) because; a) there is an error in the MOS signed on January 19, 2016 for the 2014 and 2015 taxation years and, b) the parties requested that it be set aside.
2. Alternative Motion 2 - Not Addressed: The Board finds that it need not address the Alternative Motion because it granted Motion 1. Furthermore, the Board notes that the correct revised 2008 CVA is $1,046,435. This is because the SP's CVA as of January 1, 2008 without improvement was $335,000 (Exhibit 1 - App. E). When that amount is added to the revised improvement value for the 2013 taxation year ($711,435) as shown in the MOS (Exhibit 1 - App. F), the total 2008 Current Value (Phase-in Use Only) is correctly shown to be $1,046,435 (Exhibit 1 - App. A).
3. Motion 3 - Not Granted: The Board will not order a new hearing as the parties have agreed that a revised assessment of the SP for the 2014 and 2015 taxation years is $1,270,000 (Exhibit 1, Affidavit of R. Baranowski at paragraph 9) and the Board accepts this agreement. Furthermore, as mentioned above, the correct revised 2008 CVA is $1,046,435.
4. Motion 4 - Granted: On the parties’ agreement and recommendation, the Board orders that the 2013 MOS (Exhibit 1 - App. F) be implemented.

37Consequently, the SP's Current Property Assessment and Revised Property Assessment should read as follows:

Current Property Assessment

Classification	2008 CV	2012 CV	Phase-In 2014	Phase-In 2015	Phase-In 2016
RT	$1,202,989	$1,460,000	$1,202,990	$1,331,495	$1,460,000

Revised Property Assessment

Classification	2008 CV	2012 CV	Phase-In 2014	Phase-In 2015	Phase-In 2016
RT	$1,046,435	$1,270,000	$1,158,218	$1,214,109	$1,270,000

38The Board found that the correct 2008 phase-in value to be $1,046,435 by adding the 2008 CVA of $335,000 to the revised 2013 CVA phase-in value of $711,435. The Board also found that it's decision is not an abuse of process nor a breach of natural justice because the $335,000 and the $711,435 values had been previously agreed upon by the parties.

39The Board will not order a new hearing as the parties have agreed upon a revised assessment of the SP at $1,270,000 for the 2014 and 2015 taxation years and the Board accepts this agreement. Mr. Baranowski negotiated this value with the other parties and he signed the MOS. His failure to peruse the MOS before signing is solely his responsibility.

CONCLUSION

40The Board finds that the 2013 MOS (Exhibit 1 - App. F), as agreed upon by the parties, is correct and orders that a Notice of Decision be issued. Furthermore, the Board orders that this decision be interim for a period of 30 days from the date of issue to provide the parties the opportunity to make submissions as to the accuracy of the Board's mathematical phase-in calculations as shown above.