Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: June 30, 2016

FILE NO.: RRD 2016M13

Assessed Person(s): John Kilgour and Christina Kilgour

Appellant(s): John Kilgour and Christina Kilgour

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 07

Respondent(s): Township of North Kawartha

Property Location(s): 2 Eels WAO CON 16 PT LOT 37 INCLUDES RP

Municipality(ies): Township of North Kawartha

Roll Number(s): 1536-020-203-09400-0000

Appeal Number(s): 2989576, 3018887 and 3073681 (deemed 2015)

Taxation Year(s): 2013, 2014 (and deemed 2015)

Hearing Event No.: 560759 and 568739

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

Request by: John Kilgour and Christina Kilgour (“Requesters”)

Request for: A review of the Board’s Decision WR 127737 issued on September 23, 2015

Heard: By written submission

DECISION OF THE BOARD DELIVERED BY PAUL MULDOON

ISSUES AND ORDER SOUGHT

1John and Christina Kilgour (the “Requesters”), seek a review of the decision of the Assessment Review Board (the “Board”) (WR 127737) by Member Robert Tchegus issued on September 23, 2015. This request for review was filed with the Board on October 9, 2015.

2The issue before the Board at the hearing was whether the assessment of the subject property for the 2013 and 2014 (and deemed 2015) taxation years was at current value and equitable with lands in the vicinity.

3MPAC had originally assessed the property at $185,000 as of January 1, 2012 but suggested a reduced value of $170,000 at the hearing. The Kilgours sought to demonstrate that there had not been an increase in value of their property from the previous valuation date of January 1, 2008 and therefore the increase in their property’s current value assessment (“CVA”) was unwarranted.

4The Board supported MPAC’s recommended current value of $170,000 however, in order to make it equitable with the assessments of similar lands in the vicinity, the Board reduced the CVA to $141,250 for the 2013, 2014 and deemed 2015 taxation years.

5The Requesters seek a review of Member Tchegus’s decision on the basis that evidence presented at the hearing was omitted and not consider by the Member in his CVA analysis. Secondly, the Requesters submit that the Member miscalculated the percentage difference between the 2006 and 2008 values of the property. But for these errors the Requesters submit, the Board would have reached a different finding.

6Submissions were sought by all parties. In response to the request for review, MPAC submitted that the Member had given the property owners “both the opportunity to prepare and present evidence and to respond to arguments presented by the opposite side.” MPAC found the decision to the balanced and the Member clearly grounded his determination in the evidence. MPAC requested the Board confirm decision WR 127737 as the Requesters were re-arguing their position taken at the hearing and had not presented any new evidence to merit a review.

RELEVANT RULES

7The Board’s rules respecting requests 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.

10Rule 146 outlines the procedure for a re-hearing by the Board:

146. Motions and Re-hearings Procedure

(1) Where the Board will hear a motion to argue the question or has granted a re-hearing, unless otherwise directed, the requester must:

(a) obtain a motion date or re-hearing date within 90 days of the Board letter granting the motion or re-hearing, or the decision will be nullified. (This means that the requester must secure a date for the motion or re-hearing within 90 days, not that the motion or re-hearing must be heard within 90 days.) The requester must serve notice of the motion and any supporting material on the other parties who attended the hearing at least 30 days before the date set for the motion, unless the Board directs otherwise. The Rules regarding notices of response also apply to a review motion; and

(b) serve Notice of Motion and supporting materials on the other parties who attended the hearing, at least 30 days before the date set for the motion.

(2) At the motion hearing, the parties will be expected to address whether the request meets the grounds for review.

(3) Motions will generally be heard by a different Member than the one who made the original decision, unless the request is based on new evidence that was not available at the time of hearing, but is credible and could have affected the result; or is otherwise ordered by the Board.

(4) Other than as stated in this Rule, the general motions procedure applies to parties to review motions.

DISCUSSION AND REASONS

11The Board grants the request for review in this case and orders a rehearing of the 2013, 2014 and deemed 2015 appeals.

12I find that the grounds for review raised by the Requesters demonstrate that Member Tchegus misapprehended the evidence before the Board. A compelling case has been raised that but for these errors, a different result could have been reached.

13The first ground raised by the Requesters in seeking a review of the decision is that the Board failed to consider, or improperly understood, the evidence presented by Rebecca Bolton who appeared on behalf of MPAC. They submit that Ms. Bolton had testified that the properties on Jack Lake could not be considered comparable to those on Eels Lake. However, as evidenced by paragraph 32 of the decision, the Board relied upon properties located on Jack Lake, as comparables, when making a finding of current value.

14The misapprehension of evidence is an error of fact and/or law and therefore provides the basis for granting this review. While the weighing of evidence is left to the discretion of Board Members, the record indicates discrepancies pertaining to the classification of Jack Lake properties as comparables. As this is a judgment which could affect the final outcome reached by the Board, it is reviewable under a request for review procedure.

15The second issue raised by the Requesters in their request for review pertains to a miscalculation made by the Member. At the hearing, Mr. Kilgour presented evidence that the CVA of the subject property had increased by 52%, from $121,000 in 2008 to $185,000 in 2012. Member Tchegus disagreed, stating it was only a difference of a third. By misunderstanding the significance of the percentage in difference, from 2008 to 2012, the impact of this increase was not fully understood by the Member.

16Having reviewed the submissions received on this matter from the Kilgours and MPAC, I believe that the factual errors in the decision and the misapprehension of the evidence by the Member impacted the decision. While the Board, in this review decision, will not opine on the effect of these errors on a determination of current value, I do find that a rehearing is merited in this instance.

ORDER

17For all these reasons, the Board orders that this request for review be granted.