Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: April 12, 2017

FILE NO.: RRD 2017M03

Assessed Person(s): Brian Paul Biskey and Rita Marie Biskey

Appellant(s): Brian Paul Biskey

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 26

Respondent(s): Municipality of Chatham-Kent

Property Location(s): 23284 Dillon Road

Municipality(ies): Municipality of Chatham-Kent

Roll Number(s): 3650-110-001-22900-0000

Appeal Number(s): 1810188, 1926045 and 1986118

Taxation Year(s): 2006, 2007 and 2008

Hearing Event No.: 568721

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

Request by: Chester Gryski – MPAC (“Requester”)

Request for: A review of the Board’s Decision (WR 133936) issued on January 25, 2016

Heard: By written submission

DECISION OF THE BOARD DELIVERED BY PAUL MULDOON

INTRODUCTION

1Chester Gryski, on behalf of MPAC (the “Requester”) seeks a review of the decision of the Assessment Review Board (“Board”) (WR 133936) by Member Terry Denison issued on January 25, 2016. This request for review was filed with the Board on February 24, 2016.

2The issue before the Board at the hearing was whether the assessment of the property at 23284 Dillon Road (the “subject property”) as returned at $319,000 for the 2006, 2007, and 2008 taxation years was at current value and equitable with similar properties in the vicinity. The Board returned the subject property’s assessed value at $0.

3In its request for review, the Requester claims two grounds for review. First, the Requester alleges that the Presiding Member erred in law and exceeded the Board’s jurisdiction by fixing the current value at a value for which the Board had no expert evidence to base it upon. Second, the Requester alleges that the Presiding Member erred in law by finding the remediation costs for the subject property would exceed the value of the subject property without having heard evidence supporting this finding.

RELEVANT RULES

4Rules 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.

5A 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.

6The 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

7The Requester seeks a review of the Board’s decision (WR 133936) pursuant to Rule 145(a) and (c). The Requester submits that the Presiding Member made errors of law and exceeded the Board’s jurisdiction. At the hearing, the Requester asked the Board to confirm the assessment of the subject property at $319,000 or possibly to reduce it to $175,000. The Requester now asks that the assessment of the property be set as $175,000 to reflect the lowest value suggested at the hearing.

8The Requester seeks an order amending the Board’s decision (WR 133936) to reflect the lowest value suggested during the hearing. The request for review materials indicate the Requester filed a Notice of Motion for Leave to Appeal and asked for its motion for leave be put on hold until the determination of this request for review.

DISCUSSION AND REASONS

9The Board denies the request for review in this case.

10The Requester submits that the Presiding Member made an error of law by finding that the cost of remediating the subject property would exceed the subject property’s current value in the absence of evidence supporting such a finding. The Presiding Member heard evidence supporting that the complete remediation of the subject property would exceed its value. In paragraph 64 of the Board’s decision, the Presiding Member noted Mr. Higgs’ testimony that the cost of excavating, hauling, and removing the debris to a depth of 1 meter from the subject property in a quote dated December 18, 205 would cost $995,500. This value was the higher of two estimates provided; however, the Presiding Member’s reasoning focused on the stigma associated with contamination of the subject property and the fact that it would be extremely difficult to sell. Therefore, his acceptance of the estimate corresponding to the highest level of remediation was reasonable. Regardless, the Presiding Member had broad discretion to weigh the evidence before him and his choice to accept one estimate above others does not amount to an error of law.

11The Requester also submits that the Presiding Member exceeded the Board’s authority by finding an assessment of $0 despite not having heard evidence supporting this value. The Requester relies on the Divisional Court’s decision in Marathon Realty Co. v. Ontario (Regional Assessment Commissioner, Region No. 7) [1979] OJ No 1090 to argue the Presiding Member’s finding was in effect substituting his own view in the place of expert evidence adduced at the hearing.

12The Associate Chair is not convinced by the Requester’s position for four reasons. First, as stated above, the Presiding Member did have evidence before him supporting that the cost of remediation would exceed the value of the subject property. Second, the Presiding Member was not bound to accept only expert testimony. In fact, he relied on the entirety of the evidence including expert testimony by Mr. Chapman which established that the stigma associated with the contamination rendered the subject property unsaleable and lay evidence by Mr. Higgs. Third, the Presiding Member’s analysis was consistent with the Board’s jurisprudence (Smith v. Municipal Assessment Corp., Region No. 23, [2011] O.A.R.B.D. No 413). Fourth, the Presiding Member addressed the Requester’s submission regarding jurisdiction in paragraph 114 of his reasons for decision.

13The Requester has failed to raise a convincing and compelling case that the Presiding Member breached one or more of the grounds under Rule 145.

ORDER

14The Associate Chair finds that the Requester has not raised a convincing and compelling case that the Presiding Member made material errors of law such that the Board would likely have reached a different decision or exceeded the Board’s jurisdiction. The principles the Presiding Member applied in this case are consistent with previous Board jurisprudence. The request for review is denied and the Requester’s file will be closed.