Newson v. Municipal Property Assessment Corporation, 2017 CanLII 27409

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: May 03, 2017

FILE NO.: RRD 2017M05

Assessed Person(s): Georgia Leila Newson and Irving Morris Newson

Appellant(s): Georgia Leila Newson

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

Respondent(s): City of Burlington

Property Location(s): 3108 Lakeshore Road

Municipality(ies): City of Burlington

Roll Number(s): 2402-070-709-08700-0000

Appeal Number(s): 2998959, 3032163, 3084564 and 3152239 (deemed 2016 appeal)

Taxation Year(s): 2013, 2014, 2015 and 2016 (deemed appeal)

Hearing Event No.: 618734

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

Request by: Roman Andrzejewski, After-Tax Paralegal Services (“Requester”)

Request for: A review of the Board’s Decision (WR 139643) issued on June 15, 2016

Heard: By written submission

DECISION OF THE BOARD DELIVERED BY PAUL MULDOON

INTRODUCTION

1Roman Andrzejewski, on behalf of Georgia Newson (the “Requester”), seeks a review of the decision of the Assessment Review Board (“Board”) (WR 139643) by Member Skanes issued on May 17, 2016. This request for review was filed with the Board on June 15, 2016.

2The issue before the Board at the hearing was whether the assessment of the property at 3108 Lakeshore Road (the “subject property”) as returned at $2,203,000 for the 2013, 2014, and 2015 taxation years was at current value and equitable with similar properties in the vicinity. The Board returned the subject property’s assessed value at $2,203,000.

3In the request for review, the Requester submits the Presiding Member violated principles of natural justice by not following MPAC’s recommendation for a lower assessment and by not addressing all of the evidence with regard to the classification of the subject property. The Requester also submits the Presiding Member erred in fact by accepting MPAC’s property code 313 – Single Family Detached on Water and by failing to adjust for the differences between the subject property and the comparable properties. Finally, the Requester submits that the Presiding Member was biased and negligent in his analysis of the evidence before him.

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 139643) pursuant to Rule 145.(b) and (c). The Requester submits that the Presiding Member made errors of law and fact, that the Presiding Member violated principles of natural justice, and that the Presiding Member acted in a biased and negligent manner. At the hearing, the Requester asked the Board to reduce the assessment of the subject property to $1,796,000. The Requester now asks that the current value of the property should be reduced to $2,070,000 as suggested by MPAC during the hearing.

8The Requester seeks an order amending the Board’s decision (WR 139643) to reflect the lower assessment suggested by MPAC during the hearing. In the alternative, the Requester seeks an order cancelling the Board’s decision (WR 139643) and allowing a rehearing before a different Member.

DISCUSSION AND REASONS

9The Board denies the request for review in this case. The Requester raises three issues with respect to the request for review. First, the Requester submits that the Board erred by not accepting MPAC’s recommendation that the current value is $2,070,000 rather than $2,203,000.

10Second, the Requester submits that the Presiding Member did not properly address the evidence with regard to comparable properties and made an error by accepting MPAC’s property code 313 – single family detached on water, rather than 301 – single family detached. Third, the Requester submits that the Member acted in a biased and negligent manner in how he dealt with the evidence.

Issue No. 1: MPAC’s Recommendation for a Reduced Assessment

11The Requester’s first issue was that the Presiding Member arrived at a current value assessment different from the assessment value recommended by MPAC. The Presiding Member agreed with the parties that Sale C was the best comparable and set a range for the value of the subject property between inferior and superior comparable properties. The lower end of this range ($2,263,000) was higher than the assessment of the subject property as returned by MPAC ($2,203,000) and MPAC had not applied to increase the assessment. As a result, the Presiding Member confirmed the assessment at $2,203,000 as returned by MPAC.

12MPAC’s representative John Cole stated that MPAC was ready to accept the lower assessment and recommended the assessment at $2,070,000. The Requester submits that the Board’s decision not to accept Mr. Cole’s recommendation is a violation of the principles of natural justice and procedural fairness.

13Often, the Board does accept MPAC’s recommendation for current value on the basis that opinion of the MPAC’s recommendation is the best evidence before the Board. However, the Board is not required to accept MPAC’s recommendation where there is clear evidence before the Board on the basis of which the Board could reach a different conclusion. In this case, the Presiding Member reviewed the evidence and arrived at his own conclusion. It is within the authority of the Presiding Member to make such a finding. The Associate Chair will usually not challenge such a finding unless there is a convincing and compelling ground to do so, and none exist in this case.

Issue No. 2: Relevance of the Proper Property Codes for the Subject Property

14Robert Baranowski was the Requester’s representative at the hearing. Mr. Andrzejewski provided an affidavit by Mr. Baranowski in support of the request for review. In paragraph 9 of his affidavit, Mr. Baranowski states:

9. My response to John Cole was that I respect and value his offer, however I would like to get clarification from the Board Member on the application by MPAC of Water Frontage Adjustment in valuation of properties that do not have direct water frontage. I felt at that time clarification from the Board would benefit both, MPAC and After-Tax, since this issue has been raised with MPAC before multiple times on other properties. My logic was that if we would get clarification from Assessment Review Board on application of Water Frontage Adjustment, that would save a lot of time in the future of MPAC, appellant, and Assessment Review Board. John Cole agreed to proceed to the Hearing on such understanding that if the Board Member finds application of Water Frontage Adjustment warranted, MPAC would still recommend reducing current value to $2,070,000 based on my second argument focusing on the differences between the subject property and the comparable at 3408 Lakeshore Rd.

15Mr. Baranowski further states that the Presiding Member did not resolve the waterfront valuation issue and this amounts an error of law.

16The Presiding Member addressed the classification of the subject property in paragraphs 46-48 of the written reasons. In paragraph 48, the Presiding Member clearly stated that the comparable properties and not the property code were the determining factor for valuation. The property code assigned to the subject property was not relevant to the Presiding Member’s analysis. From the Presiding Member’s decision, it appears that the Presiding Member was prepared, and did, resolve the precise matter before him rather than address the more general question the appellant was hoping he would address. Hence, the Board finds that no error in the findings of the Presiding Member in this regard.

Issue No. 3: Did the Presiding Member Act in an Inappropriate Manner

17Finally, the Requester submits that the Presiding Member acted in a biased and negligent manner during his analysis of the evidence. There is no indication of bias or negligence in the Presiding Member’s analysis. To the contrary, the Presiding Member reviewed the entirety of the evidence before him carefully and his finding of the most similar comparable property was in agreement with that of both parties. The Presiding Member then decided the assessment range for the subject property started at a higher value than the value returned by MPAC but confirmed MPAC’s returned assessment noting that the appellant had not been given notice of request for higher assessment or higher tax rate property class.

18Members of the Board have broad authority to assess and weigh the evidence before them. A member deciding contrary to the evidence submitted by a party does not amount to bias against that party. The legal test for bias is that a reasonable person, knowing all the relevant facts, would suspect that the Presiding Member may have been influenced by improper considerations to favor one over the other party. The Requester’s submissions do not meet this test.

19The Requester has failed to raise a convincing and compelling case that the Presiding Member breached one or more of the grounds in Rule 145.

ORDER

20The Associate Chair finds that the Requester has not raised a convincing and compelling case that the Presiding Member made a material error of law or fact such that the Board would likely have reached a different decision, violated principles of natural justice or procedural fairness, or acted in a biased or negligent manner. The request for review is denied and the Requester’s file will be closed.