Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: January 06, 2017 FILE NO.: WR 144742

Assessed Person: William David Nichol and Barbara Elizabeth Nichol Appellant: William Nichol Respondent: Municipal Property Assessment Corporation ("MPAC") Region No. 03 Respondent: City of Ottawa

Property Location: 4094 Armitage Avenue Municipality: City of Ottawa Roll Number: 0614-421-840-11600-0000 Appeal Numbers: 3114227, 3114228, 3072799, and 3143957 Taxation Years: 2013, 2014, 2015, and 2016 Hearing Event No. 647068

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

Heard: November 30, 2016 and December 1 and 2, 2016 in Ottawa, Ontario

APPEARANCES:

Parties	Counsel⁺/Representative
William David Nichol	Self-represented
MPAC	Donald Mitchell⁺
City of Ottawa	No one appeared

DECISION OF THE BOARD DELIVERED BY SCOTT McANSH

INTRODUCTION

1The property before me is a lot in subdivision plan 418, which was the subject of the Ontario Superior Court of Justice decision in Lackner v Hall, 2012 ONSC 3951. In that case Justice McNamara made a declaration, at paragraph 76, that "the boundaries of the lots in issue extend to the water's edge." That judgment explicitly applies to the lot before me. The Court of Appeal for Ontario unanimously affirmed that declaration in Lackner v Hall, 2013 ONCA 631. Notwithstanding those decisions, William Nichol argues that his lot does not extend to the water's edge. He argues that the Court was wrong, and that any rights he may have to the waterfront are in doubt. As such, he argues that the value of his lot, as a waterfront lot, is too high.

2The lot at issue is a seasonal recreational property along the Ottawa River. The property is pie shaped, with a total area of just under 34,000 square feet. Mr. Nichol's father built a cottage on the property in 1937, which still stands. The cottage is 420 square feet, with no heat or washrooms. Portions of another cottage were moved to the property in 2014 for use as scrap.

3MPAC returned an assessment of $319,000 for the property for the 2013 taxation year. MPAC added $2,000 for the cottage remains that were on the property for the 2014, 2015 and 2016 taxation years. For those years the returned value is $321,000. Mr. Nichol indicated that if I find that the property extends to the water's edge, he does not dispute the returned assessments.

DECISION

4For the reasons set out below, I find that property does extend to the water's edge and that the evidence supports a current value of $340,000. There is no indication that this value is inequitable when compared to similar assessments in the vicinity. MPAC did not seek to increase the assessments. I therefore confirm the assessed value of $319,000 for the 2013 taxation year and I also confirm the assessed value of $321,000 for the 2014, 2015 and 2016 taxation years.

Legislation

5Section 44.(3)(a) of the Assessment Act, RSO 1990, c A.31 requires that I "determine the current value of the land." Current value is defined in s. 1 as "the amount of money the fee simple, if unencumbered, would realize if sold at arm's length by a willing seller to a willing buyer." That is, I must determine what the subject property would have sold for in an arm's-length transaction on the relevant valuation day, set pursuant to s. 19.2(1)3 of the Act, as January 1, 2012 for the 2013, 2014, 2015, and 2016 taxation years.

6Once I have determined the current value, s. 44.(3)(b) requires that I "have reference to the value at which similar lands in the vicinity are assessed and adjust the assessment of the land to make it equitable with that of similar lands in the vicinity" but only if that adjustment would result in a reduction of the assessment.

Current Value

7The primary dispute before me was whether the subject property extends to the water's edge. Mr. Nichol argued that there is a parcel of land between his property and the water's edge that is owned by 2219160 Ontario Limited ["221"], a company owned by the heirs of the original parties that subdivided plan 418. That was the dispute at issue in Lackner v Hall, a dispute that Mr. Nichol played a key role in initiating.

Lackner v Hall

8The dispute seems to begin in 2004, when Mr. Nichol filed a request for reconsideration with MPAC, arguing that the legal description of the lot should be changed, but not its value. At Mr. Nichol's request, and based on registered plan 5R-14386, provided by him, MPAC split the lot into two parts. One part was a strip of land approximately 30 feet deep along the Ottawa River and the second part was the remainder of the lot. In the fall of 2004, Mr. Nichol wrote to MPAC requesting a new roll number be created for the part along the Ottawa River. MPAC obliged, creating roll number 0614-421-840-11610-0000 ["roll number 610"] and assigning it to the parcel along the Ottawa River.

9Several years later, in 2008, Mr. Nichol became involved in a scheme involving the parcel along the Ottawa River, which he seemed to claim was no longer his. The scheme involved Mr. Nichol, and a realtor named John Roberts, attempting to sell the waterfront to the owners of the lots in subdivision plan 418. The theory was that the waterfront was not included in the plan of subdivision and therefore belonged to the heirs of the parties that originally subdivided plan 418. Mr. Nichol stated that he did not have great success in selling the waterfront to his neighbours, many of whom claimed that they already owned the land to the water's edge.

10The scheme advanced when, on October 13, 2009, the heirs registered plan 4R-24005. It was a registered plan that included the land along the Ottawa River abutting subdivision plan 418, including the waterfront parcel set out in Mr. Nichol's 2004 plan 5R-14386. On February 2, 2010, 221 registered a notice of purchase of the waterfront parcel from June Pye, Shirley Smith, Ronald Hall and Shane Hall, the heirs to the original subdivider of plan 418. In May 2010, a number of residents in plan 418 retained legal counsel in an effort to stop Mr. Nichol and Mr. Roberts from trying to sell them the waterfront land that they thought they already owned. That led to the action in Lackner v Hall, which began as an application seeking not only the declaration that the lots extended to the water's edge, but also injunctions against Mr. Nichol, Mr. Roberts, and others from asserting any ownership in the waterfront parcel that had been created.

11Sometime in 2010, MPAC's land office became aware of plan 4R-24005 and determined that it outlined the proper legal description of roll number 610. 221 became the sole owner of the waterfront strip described on that plan on June 3, 2010. MPAC therefore changed the scope of the land described by roll number 610, from not just in front of Mr. Nichol's lot, but to the entire riverfront along all lots in subdivision plan 418. They also changed the ownership from Mr. Nichol to 221. Roll number 610 remains active, and was assigned to 221 for all of the taxation years before me.

12Mr. Nichol entered a number of affidavits from the Lackner v Hall proceeding at this hearing. Those were fragmented, incomplete, and generally not useful documents. Mr. Nichol put a great deal of weight on the interim order of Justice Scott, dated May 26, 2011, which removed Wayne Morris as a defendant in that action. Specifically, Mr. Nichol emphasized Justice Scott's declaration that the disputed land is not "common lands" pursuant to the Surveys Act, RSO 1990, c S.30. The term "common lands" does not appear in the Surveys Act, so it is unclear what Justice Scott's declaration means. Mr. Nichol seems to suggest that Justice Scott's declaration is a judicial acknowledgement that the strip of land described in plan 4R-24005 is a separate legal parcel. However, that was the main issue in the trial and Justice McNamara was clear that all of the waterfront lots in subdivision plan 418 extend to the water's edge and that 221 had no interest in the waterfront land.

13Mr. Nichol put forward two primary arguments as to why his lot is not a waterfront property. First, he argues that a judicial declaration has no force without implementing orders. Secondly, he submits that both Justice McNamara and the Court of Appeal erred because they failed to specifically address section 54 of the Surveys Act. I do not find either argument persuasive, for the reasons set out below.

Judicial Declarations

14Mr. Nichol puts a great deal of weight on the differences between the interim order of Justice Scott and the judgment of Justice McNamara in Lackner v Hall. He points to the use of the word "order" in particular. Justice Scott's order states "this court orders and adjudges that [the lands] are not 'common lands'." The judgment of Justice McNamara states "this court declares and adjudges that the boundaries of [the lands] extend to the water's edge." Mr. Nichol argues that the use of the word "order" makes Justice Scott's findings binding, while characterizing the judgment of Justice McNamara as a cost order, because costs are the only clause in the judgment that uses the word "order."

15This argument puts form over substance, which should be avoided. There is nothing in the word "order" that makes the declaration of Justice Scott anything more than a declaration. Both Justice Scott and Justice McNamara made findings related to the legal status of land. Neither of them issued specific coercive instructions to any person. They are both judicial declarations, which have a clear status in law.

16The force of a judicial declaration was canvassed by Justice Muldoon in LeBar v Canada, 1987 CanLII 8938 (FC), [1987] 1 FC 585. That case involved the stunning argument from the Crown that it was not bound to comply with a declaration, unless it was coupled with a coercive remedy. Justice Muldoon reviewed the jurisprudence and found that the doctrine of stare decisis applied to judicial declarations, such that the Crown was negligent in not applying a declaration in another matter involving the same issue. In Canadian Warehousing Association v The Queen, [1969] SCR 179, Justice Pigeon was clear that once a declaration is issued "it is no longer open to… contend in other judicial proceedings" the opposite of what was declared.

17Thus, while I take Mr. Nichol's point that he would have preferred an order directing the registry office, as was requested in Chen v Stafford, 2012 ONSC 3802, there was no need for those orders to make the declaration binding. The registrar has already complied with the declaration. The parcel register for Mr. Nichol's lot has Justice McNamara's judgment registered against it and contains the remarks "boundaries extend to waters edge. PIN 04565-0475 closed." That parcel identification number is for the parcel along the river that 221 claimed to own through plan 4R-24005, and appears to have been deleted from the parcel register. The registration reflects the state of the law, as declared by Justice McNamara and affirmed by the Court of Appeal.

18The law is clear that it is not open to 221, or anyone else, to assert ownership of the land along the Ottawa River in plan 418, other than the owners of the lots which extend to the water's edge. The declaration has the force of law and cannot be disputed in any other judicial forum. Mr. Nichol's lot runs to the water's edge.

The Surveys Act

19The lack of coercive orders in Lackner v Hall is related to Mr. Nichol's second contention. He is distressed that the plan of subdivision for his lot does not depict it as extending to the water's edge. The plan shows the lot as extending to the high water mark, which Justice McNamara held reflected the understanding, at the time, that that was the extent of the land that was owned. Mr. Nichol argues that this creates an issue as a result of section 54 of Surveys Act, which states, in part, "every line…established by survey and shown on a plan of subdivision is a true and unalterable line." Mr. Nichol contends that this section is in conflict with the decisions in Lackner v Hall because the unalterable line on the plan of subdivision does not extend to the water's edge.

20Section 54 of the Surveys Act was raised before the Divisional Court in Michnick v Bass Road Beach Association, 2015 ONSC 1936. That case involved a dispute over waterfront land before the Deputy Director of Titles pursuant to the Boundaries Act, RSO 1990, c B.10. Justice Sachs, writing for the Court, held, at paragraph 50, that section 54 was not a barrier to the declaration in Lackner v Hall, though there are no reasons provided for that conclusion other than that Justice McNamara made the declaration notwithstanding section 54 of the Surveys Act.

21The Court of Appeal considered the role of a registered plan in MacIsaac v Salo, 2013 ONCA 98. That case involved a dispute over a survey of a right of way, which deviated from the road that operated as the right of way. Chief Justice Winkler, writing for the Court, held, at paragraph 45, that "a reference plan does not independently create an interest in land." This was based on section 140(2) of the Land Titles Act, RSO 1990, c L.5, which states that "the description of registered land is not conclusive as to the boundaries or the extent of the land." The Court explained that the concept of indefeasibility of title does not extend to the description of the boundaries of the title. On the evidence before it, the Court of Appeal found that the right of way was intended to follow the road, and therefore did follow the road, notwithstanding the registered plan.

22Mr. Nichol accepts the finding in McIssac v Salo, but argues it has no application here because plans of subdivision are special. There is nothing in section 140 of the Land Titles Act that puts one type of land description over others. There are, of course, special controls on subdivision plans in section 50 of the Planning Act, RSO 1990, c P.13 and those controls must be complied with prior to registration, pursuant to section 153(1) of the Land Titles Act. But the scheme of the Land Titles Act is that a plan of subdivision is but one form of description of registered land. Section 140.(2) of the Land Titles Act is clear that descriptions are not conclusive.

23The purpose of section 54 of the Surveys Act was addressed by the Divisional Court in Richmond Hill Furriers Ltd. v. Clarissa Developments Inc., (1996) 1996 CanLII 11805 (ON CTGD), 31 OR (3d) 529. Justice Corbett, writing for the Court, held that "section 54 addresses a possible conflict between a line on a plan and markings in respect of that plan." That is, the plan of subdivision is taken as the true line over the physical markings of that line if there is any disagreement between the two.

24The Surveys Act does not conflict with section 140.(2) of the Land Titles Act. A survey line can be "true and unalterable" while also being "not conclusive as to the boundaries or the extent of the land." That is, the line on a plan of subdivision can be in a fixed place, and not move, but not be the final determination of the boundaries of a lot in the subdivision.

25I note that the "true and unalterable" rule applies not just to subdivisions, but also original surveys, pursuant to section 9 of the Surveys Act. If the plan at issue in McIssac v Salo was not a plan of subdivision, it was certainly an original survey because it split a parcel into three smaller lots. The Court of Appeal did not find that it was without jurisdiction to alter the plan, and its reasons accord with the legislation. I find that section 54 of the Surveys Act does not create a barrier to a judicial declaration altering the boundaries of lots in a plan of subdivision.

Stare Decisis

26I hasten to add that, even if I had found that section 54 of the Surveys Act created a barrier to the judicial altering of lot boundaries, I am still bound by the declaration in Lackner v Hall. As noted above, a judicial declaration on a specific issue, such as if particular lots extend to the water's edge, precludes that issue from being argued in different forums. While I permitted Mr. Nichol to make his arguments, it is not open to me to reach a different conclusion than the Court of Appeal. I am properly bound by decisions of that court, as required by the rule of law. Justice McNamara's judgment is unequivocal that Mr. Nichol's lot extends to the water's edge. That judgment was affirmed by the Court of Appeal. I can reach no other conclusion than that Mr. Nichol owns a waterfront lot.

Land Value

27MPAC argues that Mr. Nichol's lot is best valued as vacant land, due to the state of the cottage. Mr. Nichol argues that value is best determined through a value per square foot of building area comparison to four sales in the area. The current trend on Armitage Avenue is to build large all season homes, removing the small, dated cottages on the sites. A per square foot of building area assessment is not appropriate in those circumstances.

28I have six sales before me. The sales presented by Mr. Nichol were for parcels less than half the size of his lot. Three of those sales took place in 2010, far removed from the January 1, 2012 valuation day. The median of the four sales is $291,500. Given that these are far smaller lots than Mr. Nichol's, I find that his lot would sell for more than $290,000.

29MPAC presented two sales of vacant parcels more comparable in size to Mr. Nichol's lot: 4068 Armitage Avenue and 4042 Armitage Avenue.

304068 Armitage Avenue has a waterfront of approximately 85 feet, which is at least 60 feet less than Mr. Nichol's lot, and is likely comparable in depth. It sold for $327,433 in July 2011.

314042 Armitage Avenue has a waterfront very comparable in length to Mr. Nichol's lot, though it has slightly more depth. It sold for $350,000 in December 2013 and sold again for $394,000 in February 2016.

32The mean sale price of these properties is $338,716.50, indicating that Mr. Nichol's lot would likely have sold for at least $340,000 on the January 1, 2012 valuation day. Mr. Nichol's lot is much more similar to 4042 Armitage Avenue and would therefore be closer to that end of the range created by the two sales. I find the current value of Mr. Nichol's lot to be $340,000 for the 2013, 2014, 2015 and 2016 taxation years.

Equity

33Once I have determined the current value of the land I must determine if that value is equitable with the assessments of similar properties in the vicinity.

34Mr. Nichol argues that equity requires a reduction in the assessment equal to that applied to 130 Sumac Lane, which was reduced from $318,000 to $220,000 through the request for review process. MPAC provided evidence that the reduction applied to 130 Sumac Lane was based on it being entirely within the floodplain set out in the City of Ottawa zoning maps. Mr. Nichol rejects that evidence, asserting that MPAC is lying to cover up the fact that it conceded that 130 Sumac Lane did not extend to the water's edge. He claims that MPAC refuses to admit that the legal status was the basis for the reduction due to the implications it would have to other properties.

35I have no reason to doubt MPAC's evidence on why a reduction was applied to 130 Sumac Lane. Property in a floodplain likely will have a reduced value, and MPAC was clear on its policy with respect to floodplain issues.

36Mr. Nichol's lot is not completely in the floodplain, and is not comparable to 130 Sumac Lane. There is nothing inequitable in 130 Sumac Lane having a lower assessment than Mr. Nichol's lot because they are in different circumstances.

37MPAC provided an equity study that compared the assessments of thirty properties in the area to the amount those properties sold for. The median ratio of assessments to sales is 0.96, indicating that assessments of similar properties in the vicinity are close to their actual values. This is a strong indication that there is equity in the assessments in the vicinity.

38I heard no other evidence that would lead me to conclude that the current value of $340,000 is inequitable.

CONCLUSION

39I am bound by the declaration in Lackner v Hall that Mr. Nichol's lot is a waterfront lot. The evidence before me supports a current value of $340,000 for the 2013, 2014, 2015 and 2016 taxation years and I do not find that value to be inequitable when compared to the assessments of similar land in the vicinity. MPAC is not seeking a higher assessment, and has not met the procedural requirements for doing so. As such, I confirm the assessments of $319,000 for the 2013 taxation year and $321,000 for the 2014, 2015 and 2016 taxation years.