Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: June 23, 2017

FILE NO.: RRD 2017M08

Assessed Person(s): 1490804 Ontario Limited

Appellant(s): 1490804 Ontario Limited and Angie Cormpilas

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

Respondent(s): Town of Halton Hills

Property Location(s): 150 158 Guelph Street

Municipality(ies): Town of Halton Hills

Roll Number(s): 2415-020-002-04200-0000

Appeal Number(s): 3098430, 3098431, 3098432 and 3069220

Taxation Year(s): 2014 and 2015

Hearing Event No.: 587535

Legislative Authority: Sections 33, 34 and 40 of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Request by: Angie Cormpilas (“Requester”)

Request for: A review of the Board’s Decision (WR 133386) issued on June 03, 2016

Heard: By written submission

DECISION OF THE BOARD DELIVERED BY PAUL MULDOON

INTRODUCTION

1Angie Cormpilas (the “Requester”) seeks a request for review of the decision of the Assessment Review Board (“Board”) (WR 133386) delivered by Members Okhovati and Weagant on June 3, 2016. This request for review was filed with the Board on June 28, 2016.

2The Requester and MPAC jointly submitted an agreement to the Board before the hearing. The parties agreed to the assessed values, property classes and apportionment between classes for a section 40 appeal for the 2015 taxation year, two section 33 appeals for the 2014 taxation year (one of which the parties agreed was to be cancelled), and a section 34 appeal for the 2014 taxation year effective July 13, 2014. The sole issue before the Board at the hearing was the determination of the effective date of the omitted assessment (section 33 of the Assessment Act (“Act”)) for the 2014 taxation year (appeal No. 3098431).

3The Requester claims four grounds for review on page one of tab one of her request for review:

1. the presiding Members made an error of law and fact such that the Board would have likely reached a different decision if it appropriately applied section 34 supplementary assessment with an effective date of July 11, 2014, instead of a supplemental assessment under section 33;

2. the presiding Members did not consider credible evidence submitted by the Requester that could have affected the result;

3. the presiding Members heard and relied on misleading evidence adduced by Frank Shea, MPAC’s counsel at the hearing, which the Requester discovered upon reading the Board’s decision (WR133389) after the hearing;

4. the Requester is requesting the Board consider new evidence which is credible, could have affected the result, and was not available at the time of the hearing.

4The Board sought submissions from the parties on August 30, 2016; however, this letter seeking submissions was sent to the wrong address and a follow up letter was sent to the parties on November 17, 2016. MPAC sent submissions on November 30, 2016. The Board received two letters from the Town of Halton Hills. The first, dated November 25, 2016, from Elizabeth Van Ravens contained submissions. The second, dated November 29, 2016, addressed to the Requester from Halton Hills’ solicitors directed the Requester to address all future inquiries to them and was copied to the Board. The Requester submitted a reply to MPAC’s submissions on December 2, 2016.

5Both the Requester and MPAC have asked the Board to make minor corrections to its decision (WR 133386) to reflect the agreement between the parties. This joint request will be addressed in this order.

RELEVANT RULES

6Rules 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.

7A 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.

8The 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

9The Requester seeks a review of the Board’s decision (WR 133386) pursuant to Rule 145.(c), (d), and (e). The Requester submits that the presiding Members made material errors of law and fact, failed to take credible evidence adduced by the Requester into consideration, and relied on misleading evidence when making their decision. The Requester also asks the Board to consider new evidence that was not available at the time of the hearing. At the hearing, the Requester asked the Board to find the effective date for the omitted assessment for the 2014 taxation year to be July 11, 2014. The Requester now asks the Board to review its decision (WR 133386) and replace the omitted assessment with a supplementary assessment effective July 11, 2014.

10On December 2, 2016, the Requester provided the Board with submissions in reply to MPAC’s submissions dated November 30, 2016. In her letter, the Requester restates the first three grounds for her request for review under Rule 145.(c) and (e) and claims MPAC’s submissions included a number of misleading statements. The Board considered the Requester’s reply submissions as supplemental to the request for review.

DISCUSSION AND REASONS

11The Board denies the request for review in this case.

Issue No. 1: Whether the Presiding Members Chose the Correct Framework to Consider the Requester’s Appeal

12The Requester submits that the presiding Members erred in law by considering her appeal under the framework of section 33 instead of section 34 of the Act. Prior to the hearing, the parties reached a joint agreement regarding the section 40, 34, and cancelling one of the section 33 appeals. The only issue at the hearing was the effective date of the remaining section 33 appeal. It would have been inappropriate for the Board to consider anything other than the effective date of the remaining section 33 appeal. The Requester’s concerns about the different frameworks under section 33 and section 34 should have been addressed as a preliminary issue at the hearing or prior to reaching an agreement with MPAC.

13In the fourth paragraph on page three of the reply submissions dated December 2, 2016, the Requester states that she held a sincere belief that section 33 and section 34 frameworks were similar in nature at the time of the hearing. The Requester alleges that she was disadvantaged due to her unfamiliarity with the relevant legislation. Unfortunately, the Requester’s failure to fully inform herself or to retain legal counsel for the hearing is not a ground for review, neither does it suggest Mr. Shea, MPAC’s counsel, took advantage of the situation. Every party must fully prepare for the hearing before the Board and it was up to the Requester to take all necessary steps to fully prepare for the hearing.

Issue No. 2: Whether the Presiding Members Sufficiently Considered the Requester’s Evidence

14The Requester submits that the presiding Members did not consider credible evidence submitted by the Requester. The Requester also argues that the presiding Members placed less weight on her evidence than that of MPAC’s expert witness, Ian Throw. The presiding Members thoroughly addressed the Requester’s evidence in paragraphs 20 to 24 and 32 of the decision (WR 133386). Members of the Board have discretion in weighing the evidence before them and placing more weight on expert evidence rather than lay evidence is reasonable. The Requester had the opportunity to retain an expert witness but chose not to do so. The presiding Members placing more weight Mr. Throw’s evidence is not an error of law. Such issues are solely within the discretion of the presiding Members and there is no compelling argument to interfere with the exercise of their discretion in this respect.

15The determinative issue at the hearing was whether the effective date for the remaining section 33 omitted assessment was the first day of the taxation year in which the buildings existed or the first day in which the buildings could be occupied. The Requester provided evidence supporting the first occupation of the subject property occurred on July 11, 2014. The occupation date is not in dispute. At the hearing, the Requester argued the commencement date for the remaining section 33 omitted assessment is the day a property becomes fully useable for commercial purposes, but failed to provide legal authority supporting this position. In paragraph 32 of the Board’s decision (WR 133386), the presiding Members found that the occupation date is not the commencement date for an omitted assessment. This issue was dealt with at the hearing. A request for review is not an opportunity to reargue a matter.

16The Requester provided considerable jurisprudence regarding land use or classification during construction, at Tab Seven of the request for review record. However, this jurisprudence neither constitutes new evidence nor is it helpful for determining the commencement date.

Issue No. 3: Whether the Presiding Members Relied on Misleading Evidence

17The Requester submits that the presiding Members relied on misleading evidence in finding the commencement date for the omitted assessment to be January 1, 2014. Specifically, the Respondent alleges that the testimony of MPAC’s witness stating the structure of the buildings existed prior to the end of 2013 was misleading. In the final paragraph on page three of the Requester’s reply, the Requester states that iLOOKABOUT photographs submitted by the Requester at the hearing show the buildings were under construction in June 2013; these photographs depict buildings surrounded by a construction fence. MPAC’s witness testified that the structures existed prior to the end of 2013 and the photographs support his testimony. Mr. Throw’s testimony was not misleading and the presiding Members did not make an error by relying on it.

18The Requester has failed to raise a convincing and compelling case that the presiding Members breached one or more of the grounds in Rule 145 in finding that the effective date for the omitted assessment under section 33 was January 1, 2014.

Issue No. 4: New Evidence

19The Requester asks the Board to consider new evidence that the Requester submits was not available at the time of the hearing, is credible, and could have affected the result. The index to the Requester’s review record indicates Tab Six contains new evidence. Tab Six includes MPAC’s Assessment Procedure for Supplementary and Omitted Assessments, an information sheet published by MPAC labelled “Congratulations on the Purchase of Your Newly Built Home!”, Town of Halton Hills’ Notice to Property Owner Regarding Supplementary Billing, an excerpt from the City of Brampton’s Corporate Policies being policy 13.12.0 Tax Policy and Assessment, and the City of Ottawa’s information sheet on supplementary assessments.

20The commentary immediately prior to Rule 141 in the Board’s Rules states:

If the reason for the request is “new evidence”, the evidence must not have been available at the time of the hearing; the evidence must be credible, and material to the original result; the requester must act quickly upon becoming aware of it; and the prejudice to the requester must be far greater than the other parties’ right to a final decision.

21MPAC’s Assessment Procedure for Supplementary and Omitted Assessments, the one page entitled “Congratulations on the Purchase of Your Newly Built Home!”, the Notice to Property Owner Regarding Supplementary Billing from the Town of Halton Hills, the excerpt from the City of Brampton’s Corporate Policies being policy 13.12.0 Tax Policy and Assessment, and the City of Ottawa’s information sheet on supplementary assessments all could with a reasonable degree of due diligence have been presented at the Board hearing. Furthermore, the admissibility of evidence and the weight to be ascribed to admissible evidence is within the jurisdiction of the member that presided at a hearing. If the above listed documents had been admissible at the hearing they would not have been determinative of the issue in relation to which they would have been admitted.

ORDER

22The Associate Chair finds that the Requester has not raised a convincing and compelling case that the presiding Members made an error of law or fact such that the Board would likely have reached a different decision, failed to consider the Requester’s evidence, or relied on misleading evidence. The new evidence the Requester seeks to introduce does not meet the criteria outlined in the commentary under Review of a Board Decision or Order (Rules 141 to 146) found within the Board’s Rules. The request for review is denied. The decision is confirmed regarding the effective date of the section 33 assessment (appeal No. 3098431) being January 1, 2014. The Board will make the minor corrections outlined in the paragraph below in accordance with the joint submissions of the parties.

23The Associate Chair orders paragraph 14 bullets two and four, paragraphs 16 (b) and (d) and 38 (b) and (d) of the Board’s decision (WR 133386) be varied as follows in order to reflect the agreement between the parties:

Paragraph 14 second bullet paragraphs 16 (b) and 38 (b):

Appeal under s. 33 of the Act (Appeal no. 398430) – This appeal proposing an omitted class change from Commercial (Vacant Land) (COM CX) to Commercial (New Construction) Full (COM XT) in the amount of $1,065,000 is cancelled.

Paragraph 14, fourth bullet paragraphs 16 and 38 (d):

Appeal under s. 33 of the Act (Appeal no. 3098431) – The parties agree that the assessment value of $1,495,000 in the Commercial (New Construction) Full (COM XT) tax class is reduced to $999,000 in the Commercial (Vacant Land) (COM CX) tax class for the 2014 taxation year.