Reininghaus v. Municipal Property Assessment Corporation, 2017 CanLII 27412

Assessment Review Board / Commission de révision de l’évaluation foncière

ISSUE DATE: May 05, 2017

FILE NO.: RRD 2016M17

Assessed Person(s): Darka Reininghaus

Appellant(s): Darka Reininghaus

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

Respondent(s): City of Mississauga

Property Location(s): 313 Indian Valley Trail

Municipality(ies): City of Mississauga

Roll Number(s): 2105-010-017-16000-0000

Appeal Number(s): 2130777, 2351345, 2684708 and 2914090

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

Hearing Event No.: 587545

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

Request by: MPAC (“Requester”)

Request for: A review of the Board’s Decision WR 133338 issued on January 18, 2016

Heard: By written submission

DECISION OF THE BOARD DELIVERED BY PAUL MULDOON

INTRODUCTION

1MPAC (the “Requester”) seeks a request for review of the decision of the Assessment Review Board (“Board”) (WR 133338) delivered by Members Marques and Stabile on January 18, 2016. This request for review was filed with the Board on February 29, 2016. The timeframe for filing a request for review was extended until March 02, 2016 because MPAC did not receive the Board’s decision until January 28, 2016.

2The issue before the Board at the hearing was whether the assessment of the property at 313 Indian Valley Drive (the “subject property”) at $1,811,000 for the 2009-2011 taxation years and at $2,184,000 for the 2012 taxation year was at current value and equitable with similar properties in the vicinity. The Board returned the property’s assessed value at $2,063,000 for the 2009-2012 taxation years. At the hearing, Darka Reininghaus (the “Appellant”) argued that the correct current value of the subject property was $1,361,775 and requested a 14% reduction for equity for a final assessment of $1,171,126.50.

3In its request for review, the Requester does not seek a change in the assessed value but requests that the Board vary its decision (WR 133338) by deleting paragraphs 15 to 18 and 20, which refer to concerns surrounding the suitability of MPAC employees to be qualified as expert witnesses, potential conflicts of interest, and the Westerhof v. Gee Estate 2015 ONCA 206 (Westerhof) case. In the alternative, the Requester seeks an order pursuant to Rule 144(1)(b) granting a motion to argue the grounds it has raised in its request.

4The Board sought submissions on the review request from the other parties on June 07, 2016. The Board did not receive submissions from either the Appellant’s representative Mr. Baranowski or the City of Mississauga, the latter of which did not appear at the hearing.

Relevant Rules

5Rules 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.

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 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.

Issues and Order Sought

8The Requester seeks the Board’s decision (WR 133338) be varied to remove paragraphs 15 to 18 and 20 pursuant to Rule 144(1)(d), or in the alternative, an order pursuant to Rule 144(1)(b) granting a motion to argue the grounds it has raised in its request for review. The Requester submits that the Presiding Members denied natural justice and procedural fairness by conducting their own review of the law, relying on cases released subsequent to the preliminary motion without providing parties the opportunity to make submissions, and by making findings concerning the impartiality of MPAC employees without giving the parties an opportunity to adduce evidence and make submissions. The Requester also submits the Presiding Members erred in law by misinterpreting the jurisprudence regarding the admissibility of expert evidence and by commenting on the ability of MPAC employees to be expert witnesses.

Discussion and Reasons

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

Issue 1: Whether the Presiding Members Denied Natural Justice and Procedural Fairness by Denying the Parties the Opportunity to Make Submissions

10The Requester submits that the Presiding Members by referring to decisions which were not addressed at the hearing thereby denying it natural justice and procedural fairness. The Requester points out that the Presiding Members referred to the Board’s decision in Len Health Sciences only by its decision number (DM 81365) and did not provide the name of the case during the hearing. The Requester also points out that the decisions of the Ontario Court of Appeal (Westerhof, 2015 ONCA 206 and Moore v. Getahun, 2015 ONCA 443 (Moore)) which the Presiding Members referred to and relied on in writing their reasons for decision were not released until after the Board’s ruling. The Requester submits that the Presiding Members’ reliance on these decisions which were not addressed by the parties during the hearing were a denial of natural justice and procedural fairness.

Issue No. 2: Whether the Presiding Members Denied Natural Justice and Procedural Fairness by Making Findings Regarding MPAC Employees without Evidence

11The Requester submits that the Presiding Members denied natural justice and procedural fairness by making findings concerning the impartiality of MPAC employees without any evidence. The Requester specifically highlights the Presiding Members’ findings regarding the employment circumstances of MPAC employees and their reference to a hypothetical disagreement between MPAC and its witness without inquiring whether such a disagreement existed. The Requester submits that in making such findings of fact in the absence of evidence and submissions, the Presiding Members denied MPAC natural justice and procedural fairness.

Issue No. 3: Whether the Presiding Members Erred in Law Regarding Expert Evidence

12The Requester also submits that the Presiding Members erred in law regarding the correct test for the impartiality of employees as expert witnesses. The Requester claims that jurisprudence from the Supreme Court and the Superior Court as well as the Board’s own jurisprudence is inconsistent with finding MPAC employees are disqualified from providing expert evidence simply because of their employment with MPAC. The Requester relies on the Supreme Court decisions in Mouvement Laïque Québécois v. Saguenay [2015 SCC 16] and White Burgess Langille Inman v. Abbott and Haliburton Co. [2015 SCC 23], the Ontario Superior Court of Justice decision in R. v. Inco Ltd. 2006 CanLII 14962 (ON SC), [2006 OJ 1809], and the Board’s decisions in Drummond Motors Ltd. v. Municipal Property Assessment Corp., Region No. 6 [2014 O.A.R.B.D. 285] and Feldman v. Municipal Property Assessment Corp., Region No. 9 [2014 O.A.R.B.D. 228] to argue that an employment relationship alone is not sufficient to disqualify an expert witness. The Requester further claims that the Presiding Members erred in interpreting the Westerhof case as authority to allow a non-expert witness to give opinion evidence without being qualified and not to qualify an MPAC employee as an expert witness.

13The Associate Chair finds that the Requester raises important issues where the jurisprudence and practice is in need of clarification. By having more full and complete submissions by the parties, the Board will be in a better position to provide guidance on the matter. The Associate Chair grants a motion to argue the three grounds raised in MPAC’s request for review.

Order

14The Associate Chair grants the request for review. All parties are strongly encouraged to make submissions regarding the issues raised by MPAC, as well as the broader questions of whether employees of statutory parties to Board appeals (i.e. municipalities or MPAC) are eligible to be qualified as experts and if so, to what extent employees of statutory parties should be allowed to give expert and/or opinion evidence.