Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: April 28, 2017

FILE NO.: RRD 2017M06

Assessed Person(s): 2214766 Ontario Ltd. and 2302021 Ontario Ltd.

Appellant(s): 2302021 Ontario Ltd.

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 15

Respondent(s): City of Mississauga

Property Location(s): 1093 Lorimar Drive

Municipality(ies): City of Mississauga

Roll Number(s): 2105-050-116-64700-0000

Appeal Number(s): 3069828 and 3152880 (deemed 2016 appeal)

Taxation Year(s): 2015 and 2016 (deemed appeal)

Hearing Event No.: 591136

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

Request by: Paul Grosman, Argil Property Tax Services (“Requester”)

Request for: A review of the Board’s Decision (WR 137938) issued on April 05, 2016

Heard: By written submission

DECISION OF THE BOARD DELIVERED BY PAUL MULDOON

INTRODUCTION

1Paul Grosman, the representative of 2214766 Ontario Ltd. and 2302021 Ontario Inc. (the “Requesters”), seeks a review of the decision of the Assessment Review Board (“Board”) (WR 137938) Member Kowarsky issued on April 5, 2016. This request for review was filed with the Board on May 12, 2016.

2The issue before the Board at the hearing was whether the assessment of the property at 1093 Lorimar Drive (the “subject property”) as returned at $4,433,000 for the 2015 taxation year was at current value and equitable with similar properties in the vicinity. The Presiding Member returned the property’s assessed value at $4,433,000 for 2015 taxation year. MPAC’s assessment resulted in a current value of $4,770,000 for the subject property; however, MPAC did not recommend an increase from the returned value. At the hearing, the Requesters’ representative argued that the returned value was too high.

3In its request for review, the Requesters suggest that the Presiding Member exceeded its jurisdiction by creating a reverse onus on the appellant, breached the principles of fundamental justice, and erred in law by basing its decision on evidence that was not before it. The Requesters request an order granting a motion for review of the decision.

Relevant Rules

4Rules 141 to 146 of the Board’s Rules of Practice and Procedure (“Rules”) set out the process through which the Board may review a decision. A 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.

5The Associate Chair may exercise his 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

6The Requesters seek a review of the Board’s decision (WR 137938) pursuant to Rules 145.(1)(a), (b), and (c). The Requesters submit that the Presiding Member exceeded its or her jurisdiction, violated natural justice, and erred in law.

7The Requesters do not seek any specific remedy under Rule 144 but request an order granting a motion for a review of the Board’s decision.

Discussion and Reasons

8The starting point for all requests for review requires a determination of whether a convincing and compelling case has been raised such that the Presiding Member breached one of the five grounds listed in Rule 145.

9At the hearing, the Requesters’ representative testified that he did not receive the land tables, market studies, time adjustment tables and other information that was relied on by MPAC to adjust the value of the subject property. In response, MPAC’s representative testified that the Requesters’ representative had not asked for this information. The Presiding Member stated that the Requesters’ representative was experienced and that MPAC would have supplied the information if he had asked for it. The Requesters submit that the Presiding Member’s statement amounts to creating a new onus on the appellant.

10The Presiding Member did not create a new onus. It is a representative’s responsibility to investigate relevant facts and request additional information if the party finds such information is necessary to fully prepare for a hearing. The challenge is this request for review is that, in effect, the Requester is raising whether adequate disclosure was given in this appeal. To rule on the adequacy of disclosure after the hearing of appeal is a challenging task. The Board finds that more disclosure of information is better than less disclosure, but what is appropriate for any one appeal is often made on a case-by-case basis. Of course, it would be preferable if there was standard, and agreed, disclosure packages for different property types. In this matter, a convincing and compelling case has not been made that there was inadequate disclosure.

11The Requesters also submit that the Presiding Member’s reliance on the information used by MPAC for value adjustment without both parties having had an opportunity to inspect and respond to the information amounts to a breach of the principles of natural justice and procedural fairness. The Associate Chair does not accept the Requesters’ position. The Requesters’ representative had both the opportunity to ask for the information used by MPAC for value adjustment MPAC’s burden under s. 40.(17) of the Assessment Act to prove the correctness of the current value does not include providing unsolicited disclosure. Land tables are often not included in disclosure and a representative who needs them should address disclosure as a preliminary matter. The Presiding Member’s decision to accept MPAC’s evidence was not a breach of natural justice or procedural fairness.

12Finally, the Requesters submit that the Presiding Member’s decision to accept MPAC’s evidence was an error of law absent which the Presiding Member likely would have reached a different conclusion. MPAC provided the Presiding Member with charts summarising how MPAC had calculated the adjustments for time, height, and year in which the properties were built. What MPAC did not provide was the raw sales data that was used to create the adjustment charts. The Associate Chair is not convinced that the Presiding Member’s exercise of its broad discretion to weigh evidence in this case gives rise to an error of law.

13More importantly, even if the Presiding Member had erred in law by accepting MPAC’s adjustment evidence in the absence of the raw sales data, it would not have made a difference in the outcome of the case. The Presiding Member considered the entirety of the evidence before it, including the 2015 sale of the property, the submissions of both parties with regard to the appropriate comparable properties, and MPAC’s submissions with regard to the appropriate adjustments. In doing so, the Presiding Member noted that the Requesters’ representative had failed to make submissions on the appropriate adjustment and instead submitted that the most appropriate way to determine the value was to apply the average unadjusted value per square foot of the comparable properties. In summary, the Presiding Member considered all the evidence and based its decision on the best evidence before it.

Order

14The Associate Chair finds that the Requesters have not made a convincing and compelling case that a specified ground in Rule 145 has been met, and hence, the request for review is not granted. The Requesters’ request for review is dismissed and the decision of Member Kowarsky (WR 137938) is hereby confirmed.