Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: April 06, 2017

FILE NO.: RRD 2017M02

Assessed Person(s): Conservation Authority Toronto

Appellant(s): Bluffers Park Yacht Club

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 09

Respondent(s): City of Toronto

Property Location(s): 15 Bluffers Park Road

Municipality(ies): City of Toronto

Roll Number(s): 1901-071-025-00300-0000

Appeal Number(s): 2023057, 2364946, 2891012, 2709092, 2908420, 2993395, 3017421 and 3077671

Taxation Year(s): 2009, 2010, 2011, 2012, 2013, 2014 and 2015

Hearing Event No.: 609934

Legislative Authority: Sections 32 and 40 of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Request by: Benjamin Blufarb (Bluffers Park Yacht Club) (“Requester”)

Request for: A review of the Board’s Decision (WR 138787) issued on March 14, 2016

Heard: By written submission

DECISION OF THE BOARD DELIVERED BY PAUL MULDOON

INTRODUCTION

1Benjamin Blufarb, on behalf of Bluffers Park Yacht Club (the “Requester”) seeks a review of the decision of the Assessment Review Board (“Board”) (WR 138787) by Members McAnsh and Awoleri issued on March 14, 2016. This request for review was filed with the Board on April 11, 2016.

2The issues before the Board at the hearing were the determination of the land value of the property at 15 Bluffers Park Road (the “subject property”) and whether the assessment of the subject property was equitable with similar properties. The parties agreed that the total depreciated value of buildings and improvements was $404,504 and $409,422 for the 2009 to 2012 and 2013 to 2015 taxation years, respectively. The Requester submitted the land value was $278,428 and $412,195 for the 2009 to 2012 and 2013 to 2015 taxation years, respectively. MPAC submitted that the land value was $3,360,000 and $3,465,000 for the 2009 to 2012 and 2013 to 2015 taxation years, respectively. The Board found the land value to be $4,000,000 and $5,000,000 for the 2009 to 2012 and 2013 to 2015 taxation years, for a total value of $4,404,504 and $5,409,422 for the 2009 to 2012 and 2013 to 2015 taxation years, respectively.

3In its request for review, the Requester raises eight grounds for review. The Requester submits that the Presiding Members: 1) made an error by including water lots when calculating land value: 2) made an error of law by referring to Toronto and Region Conservation Authority’s regulations after refusing to admit them into evidence: 3) made an error by finding that the Yacht Club’s lease was not reflective of its market value: 4) made an error of law by relying on properties which were submitted by MPAC for size adjustment to come to a conclusion on the assessment of the subject property: 5) made an error failing to consider the per slip value in their deliberation: 6) made an error of law by failing to take into consideration MPAC’s submission that there were no comparable properties: 7) made an error of law by relying on contradictory evidence: 8) made an error of law by overlooking the witness testimony by MPAC stating that he had no information on the how the assessment of the subject property was calculated in previous years.

4The Board sought submissions on the review request from the parties on May 31, 2016. MPAC’s counsel sent MPAC’s written submissions to the Board on June 23, 2016. The City of Toronto did not appear at the hearing and did not provide submissions for this review request.

RELEVANT RULES

5Rules 141 to 146 of the Board’s Rules of Practice and Procedure (the “Rules”) set out the process whereby the Board may review a decision.

6A 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.

7The Associate Chair may exercise discretion to grant a request and order a rehearing or a motion to review only if the Associate Chair is satisfied that the request for review raises a convincing and compelling case falling within the narrow grounds of Rule 145. As 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.

ISSUE AND ORDER SOUGHT

8The Requester seeks a review of the Board’s decision (WR 138787) pursuant to Rule 145.(1)(c). The Requester submits that the Presiding Member made errors of law and fact. At the hearing, the Requester asked the Board to set the assessment of the subject property at $682,932 and $821,617 for the 2008 and 2012 valuation years.

9The Requester asks the Board to cancel its decision (WR 138787) and to grant a rehearing under Rules 144.(1)(a) and (b).

DISCUSSION AND REASONS

10The Board denies the request for review in this case.

11The first issue raised by the Requester is that the Presiding Members erred by finding water lots were part of, and included, in land values, despite both parties specifically excluding water lot values from the evidence they submitted. The Board does not accept the Requester’s position with respect to this issue. Expert evidence submitted by both parties included water lots as part of the land value and the Presiding Members acknowledged the parties’ agreement on this issue in paragraph 2 of their decision.

12The second issue raised by the Requester is that the Presiding Members made an error of law by referring to the Toronto and Region Conservation Authority regulations despite refusing to admit them into evidence. The Presiding Members refused to admit the regulations because introducing them for the first time during the hearing would have prejudiced MPAC. In paragraph 19, the Presiding Members refer to the regulations in response to a claim by a witness for the request claim that the strict restrictions imposed on the subject property restricted comparable properties to effectively unusable “Hazard Lands.” The Presiding Members did not rely on the regulations, but referred to the regulations to point out, regardless of the restrictions, any purchaser of the subject property can continue using it as a yacht club. The Board finds that this is not an error of law.

13The third issue raised by the Requester is that the Presiding Members made an error in making a finding without evidence that the Yacht Club’s lease was not at market value. The Presiding Members heard evidence from both parties, especially the City staff’s report to the City Council dated September 22-25, 2003, submitted by both parties, and found that the City “was aware that a below market rental rate had political benefits” (WR 138787 at paragraph 16). The Board finds that the finding was supported by the evidence and within the Presiding Members’ discretion.

14The fourth issue raised by the Requester is that the Presiding Members erred by basing their conclusion on properties relied on by MPAC for size adjustments and not value. The Requester’s submission misrepresents the evidence that was before the Board. Comparable properties Nos. 149, 151, and 167 Chesterton Shores were offered as comparable properties by both parties as acknowledged by the Presiding Members in paragraph 24 of their decision. The Board re-iterates that the Presiding Members have broad authority to consider and weigh the evidence before them. The Presiding Members considered the totality of the evidence before them and decided to rely on the Chesterton Shores sales for the reasons they highlighted in paragraphs 24, 25, and 26 of the decision.

15The fifth issue raised by the Requester is that the Presiding Members erred by failing to consider the evidence regarding the per-slip value of a for-profit marina. The per-slip value of a for-profit marina was not in evidence before the Presiding Members during the hearing. Consequently, the Presiding Members did not address the per-slip value and based their decision on the evidence before them.

16The sixth and seventh issues raised by the Requester are that the Board erred both by failing to take into consideration MPAC’s admission that there were no comparable properties and by accepting contradictory evidence by relying on properties presented by MPAC as comparable properties. The Presiding Members stated that the parties agreed “that there are no comparable sales on which to base a direct sales comparison approach to value” (WR 138787 at paragraph 8). The Presiding Members acknowledged that the evidence before the Board was not ideal; however, the Presiding Members found “that the direct comparison approach to land value is the best evidence of value in this case” (WR 138787 at paragraph 15), nonetheless. In accordance with this finding, the Presiding Members weighed the evidence before them and decided that the Chesterton Shores sales were the best evidence before the Board (WR 138787 at para 26). In short, both parties provided comparable sales for land values; there was no error of law or contradiction in MPAC’s evidence.

17Finally, the eighth issue raised by the Requesters is that MPAC failed to discharge its statutory burden to prove the “correctness of the current value of the land” because MPAC’s witness admitted that there were no comparables and that he did not know how the assessment on the subject property was calculated. This argument stems from the same source as those addressed in the above two paragraphs. Both MPAC’s and the Requester’s witnesses presented evidence on land value, the Presiding Members considered the entirety of the evidence, and made their finding by weighing the evidence before them. In doing so, the Presiding Members carefully considered the difficulties in valuing the Yacht Club and explained their decision in detail. There is no error in the Presiding Members’ decision; instead, they exercised their jurisdiction to consider evidence properly before them.

18The Requester has failed to raise a convincing and compelling case that the Presiding Members breached one or more of the grounds under Rule 145.

ORDER

19The Associate Chair finds that the Requester has not raised a convincing and compelling case that the Presiding Members made material errors of fact or law such that the Board would likely have reached a different conclusion. The request for review is denied and the Requester’s file will be closed.