3SC Pharmaceuticals Inc. v. Municipal Property Assessment Corporation, 2017 CanLII 31047

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

May 17, 2017

FILE NO.:

RRD 2017M07

Assessed Person(s):

3SC Pharmaceuticals Inc.

Appellant(s):

3SC Pharmaceuticals Inc.

Respondent(s):

Municipal Property Assessment Corporation (“MPAC”) Region 13

Respondent(s):

Town of Ajax

Property Location(s):

95 Green Court

Municipality(ies):

Town of Ajax

Roll Number(s):

1805-040-006-14738-0000

Appeal Number(s):

2955507, 3019265, 3080240 and 3150214 (deemed 2016 appeal)

Taxation Year(s):

2013, 2014, 2015 and 2016 (deemed appeal)

Hearing Event No.:

622132

Legislative Authority:

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

Request by:

3SC Pharmaceuticals Inc. (“Requester”)

Request for:

A review of the Board’s Decision (WR 139692) issued on May 03, 2016

Heard:

By written submission

DECISION OF THE BOARD DELIVERED BY PAUL MULDOON

INTRODUCTION

1Paul Grosman, the representative for 3SC Pharmaceuticals Inc. (the “Requester”) seeks a request for review of the decision of the Assessment Review Board (“Board”) (WR 139692) delivered by Member Griffith on May 03, 2016. This request for review was filed with the Board on May 31, 2016.

2The issue before the Board at the hearing was whether the returned assessment of $1,923,000 for the 2013, 2014, 2015 and 2016 taxation years for the property at 95 Green Court (“Subject Property”) was at current value as at the valuation date January 01, 2012 and whether this value was equitable with the assessments of similar lands in the vicinity.

3In its request for review, the Requester claims three grounds for review; 1) the presiding Member denied the Requester natural justice and procedural fairness by denying an opportunity to cross-examine and respond to the evidence; 2) the presiding Member made an error of law by not applying the correct test for determining comparable properties during equity analysis; 3) the presiding Member made an error of law by accepting an unsubstantiated argument. The Requester seeks an order granting a motion for review of the decision.

4The Board sought submissions from the parties on September 30, 2016 and January 1, 2017, but did not receive submissions from either MPAC or the Town of Ajax. Consequently, the Board issues its decision without the benefit of the submissions of MPAC or the Town of Ajax.

RELEVANT RULES

5Rules 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.

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 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

8The Requester seeks a review of the Board’s decision (WR 139692) pursuant to Rule 145.(b) and (c). The Requester submits that the presiding Member denied it natural justice and procedural fairness and made material errors of law. At the hearing, the Requester asked the Board to reduce the assessment of the Subject Property to $1,092,000. The Requester now asks the Board to grant a motion for review of its decision (WR 139692).

DISCUSSION AND REASONS

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

Issue No. 1: Natural Justice and Procedural Fairness

10The Requester submits the presiding Member denied it natural justice and procedural fairness by relying on evidence without giving the Requester an opportunity to examine and respond to it. The Requester claims the presiding Member relied on adjusted sales 1, 3, 4 and 6 despite the fact that the adjustments for the sale values as well as the supporting documentation, calculations and methodology were not disclosed before the hearing or introduced into the evidence at the hearing.

11The presiding Member addressed the issue of sales of comparable properties in paragraphs [22] and [23] of the Board’s decision (WR 139692). MPAC’s witness, Peter Svistunovs, testified that the adjustments for height, age and site are performed using the Automated Cost System (“ACS”), which is used by MPAC for the purpose of valuation. Mr. Svistunovs submitted two valuation reports, one for the Subject Property and one for the comparable property at 205 MacKenzie Avenue, which showed the change in value when the data (age, height, land) was adjusted. The Requester’s representative, Mr. Grosman, was given time to review these documents, did not oppose them being entered into evidence, and was allowed to cross-examine on these documents.

12The presiding Member considered all of the evidence and found that the Requester was not unduly prejudiced by the use of the ACS methodology. This finding was completely within the jurisdiction of the presiding Member and this issue was fully addressed at the hearing and in the Board’s decision (WR 139692). A request for review is not an opportunity to reargue a point.

Issue No. 2: Test for Comparable Properties for Equity Analysis

13The Requester submits that the presiding Member made an error of law in applying the test for comparable properties for equity analysis. At the hearing, the Requester argued that industrial condominiums (Property Code 575) were not similar to the Subject Property, which is an industrial warehouse (Property Code 530). In paragraph [24] of its request for review, the Requester sets out the test for comparable properties as “similarity in nature, character, and function” and claims “condominiums are dissimilar in nature and character and should not be used in an equity finding under section 44(3)(b) of the Act.”

14The Board does not agree with Requester’s submissions for three reasons. First, the presiding Member did not err in finding that industrial condominiums are sufficiently similar to free-standing properties in terms of their nature, character and function. The presiding Member made findings based on the evidence. Second, property codes are not definitive of a property’s nature, character and function and the Requester simply did not provide sufficient evidence supporting the finding of fact it was seeking. Finally, this issue was fully addressed in paragraphs [40] and [41] of the Board’s decision (WR 139692). A request for review is not an appropriate medium to attempt to bolster an argument that failed at the hearing.

Issue No. 3: Unsubstantiated Findings

15The Requester submits that the presiding Member erred in law by accepting the height, age and land adjustments without supporting evidence. The Requester cites S. Cooley Contractors Ltd. v. Municipal Property Assessment Corp., Region No. 5 [2002] O.A.R.B.D. No. 619; 45 O.M.B.R. 98 (“Cooley Contractors”) and highlights “unsubstantiated, unsupported arguments cannot be accepted by the Board, and that Members cannot use evidence in other hearings to arrive at a decision in a different hearing and “cannot rely on its own expertise.”

16The presiding Member did not accept unsubstantiated claims, and relied on evidence from other hearings, or her own expertise. MPAC’s witness provided evidence supporting the reliability of ACS and the presiding Member found this evidence sufficient. Furthermore, this issue was addressed in detail in paragraphs [22] to [25] of the Board’s decision (WR 139692). This case is clearly distinguishable from that in Cooley Contractors, supra, in which the presiding Member was found to have made a finding in the absence of any evidence to support it.

17The 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

18The Associate Chair finds that the Requester has not raised a convincing and compelling case that the presiding Member denied it natural justice or procedural fairness or made material errors of law. The request for review is denied and the Board’s decision (WR 139692) is confirmed.