Drennan Farms Ltd. v. Municipal Property Assessment Corporation Region 24, 2017 CanLII 41837

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: June 28, 2017

FILE NO.: RRD 2017M10

Assessed Person(s): Drennan Farms Ltd., Phillip Shawn Drennan

Appellant(s): Drennan Farms Ltd., Phillip Shawn Drennan

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 24

Respondent(s): Township of Ashfield-Colborne-Wawanosh

Property Location(s): 84805 Tower Line and 36222 Glen’s Hill Road

Municipality(ies): Township of Ashfield-Colborne-Wawanosh

Roll Number(s): 4070-640-007-01600-0000 and 4070-640-007-01900-0000

Appeal Number(s): 3057134, 3091634, 3057135, 3091635 and 3158937, 3158915 (deemed 2016 appeals)

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

Hearing Event No.: 597538 and 604130

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

Request by: Phillip Shawn Drennan (“Requesters”)

Request for: A review of the Board’s Decision (WR 135787) issued on June 13, 2016

Heard: By written submission

DECISION OF THE BOARD DELIVERED BY DIRK VANDERBENT

INTRODUCTION

1Phillip Shawn Drennan (the “Requester”) requests a review of the decision of the Assessment Review Board (“Board”) (WR 135787) delivered by Members McAnsh and Limoges on June 13, 2016 [Drennan Farms Ltd. v. Municipal Property Assessment Corporation Region 24, 2016 CanLII 37484 (ON ARB)] (the “Presiding Members’ Decision”). This request for review was filed with the Board one week late on July 20, 2016. The Board accepted the late request on a discretionary basis and instructed the Requester to perfect his request by providing a sworn affidavit on July 27, 2016. The Requester sent his sworn affidavit to the Board on the same day.

2At the hearing, the issue before the Presiding Members was whether the assessment for the properties at 84805 Tower Line and 36222 Glen’s Hill Road in the Township of Ashfield-Colborne-Wawanosh (the “subject properties”) should be reduced due to the presence of electrical infrastructure, including wind turbines, a high-voltage transmission line, and a transformer and switching station. The Requester argued at the hearing that the electrical infrastructure had a significant impact on the value of the properties and asked for the assessments of the properties to be reduced accordingly. The Municipal Property Assessment Corporation (“MPAC”) argued there was no evidence to support any reduction in value, but in its summation, conceded to a 50% reduction in the assessments of the residential portions of both subject properties.

3The Presiding Members reduced the assessment of the residential portions of both subject properties due to the negative impact from the electricity infrastructure. They also reduced the residential portion of the subject property at 84805 Tower Line from $255,000 to $127,500 and found its total assessment to be $690,500 apportioned as $563,000 in the farm property class and $127,500 in the residential property class. Similarly, they reduced the residential portion of the subject property at 36222 Glen’s Hill from $47,500 to $23,750 and found its total assessment to be $1,103,750 apportioned as $1,079,500 in the farm property class and $23,750 in the residential property class.

4In this request for review, the Requester raises three issues as grounds for review:

1. the Presiding Members did not properly consider the evidence regarding the devaluation of suggested comparable properties;

2. the Presiding Members denied the Requester natural justice and procedural fairness by allowing MPAC to submit a book of authorities at the hearing;

3. the Presiding Members acted in a biased manner towards the Requester.

5The Requester requests the Presiding Members’ Decision be varied to reduce the assessments for the farm property class portions of the subject properties by 50% similar to the 50% reduction granted in the assessments of the residential portions of the subject properties.

6The Board sought submissions from the parties via letters dated September 30, 2016 and January 13, 2017. The Township of Ashfield-Colborne-Wawanosh (the “Township”) did not make submissions. The Board received MPAC’s submissions on January 25, 2017.

Relevant Rules

7Rules 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.

8A 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.

9The Board may exercise discretion to grant a request and order a rehearing or a motion to review only if the Board 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.

10In this case, the Executive Chair of the Environment and Land Tribunals Ontario, Mr. Bruce Krushelnicki delegates his decision making authority to Mr. Dirk VanderBent, Vice Chair of the Assessment Review Board, pursuant to section 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act.

ISSUE AND ORDER SOUGHT

11The Requester seeks a review of the Presiding Members’ Decision pursuant to Rules 145 (b) and (c). The Requester submits that the Presiding Members made material errors of fact or law, denied him natural justice and procedural fairness, and were biased. At the hearing, the Requester asked the Presiding Members to significantly reduce the assessment of the subject properties. The Requester now asks the Board to vary the Presiding Members’ Decision to reduce the assessment of the farm property class portions of the subject properties by 50%.

DISCUSSION AND REASONS

12The Board denies the request for review in this case.

Issue No. 1: Whether the Presiding Members properly considered the evidence

13The Requester submits the Presiding Members did not properly consider the evidence adduced by the Requester and the Requester’s expert witness, Mr. Lansink at the hearing.

14The Requester claims the Presiding Members erred by failing to consider the assessment to sale ratios (“ASR”) of comparable properties submitted by MPAC. ASR is determined by dividing a property’s assessed value by its sale price. An ASR greater than 1.0 indicates the property is over-assessed and an ASR lower than 1.0 indicates the property is under-assessed. With regard to the comparable properties submitted by MPAC, the Requester claims the lower ASR of the property at 37657 Blyth Road (0.58), compared to that of the property at 37119 Golf Course Road (0.82) is the result of the former property’s proximity to hydro infrastructure, which evidences the negative effect on property values of surrounding hydro infrastructure. The Requester also submits he presented the Presiding Members with three comparable properties in the vicinity of the subject properties with an average ASR of 1.0867, which the Requester submits indicates a devaluation of 8.6%.

15The Presiding Members considered and addressed the ASRs of MPAC’s suggested comparable properties in paragraphs 15 and 16 of the Presiding Members’ Decision. The Presiding Members accepted MPAC’s evidence of a general upward trend in the sale values of farms in the area and found the Requester had not provided sufficient evidence to support sale prices were declining in the area. Members of the Board have discretion in assessing evidence. Consequently, in a request to review a decision pursuant to Rules 141 to 146, the Board accords a high level of deference to findings of fact, unless the Board finds a palpable and overriding error. In this case, the Board finds there is no such error; the Presiding Members considered the entirety of the evidence before them and made findings of fact. A request for review is not an opportunity to reargue a submission that was properly considered and rejected at the hearing.

16The Requester also claims the Presiding Members erred by failing to place sufficient weight on the evidence adduced by the Requester’s expert witness, Mr. Lansink. The Presiding Members thoroughly addressed the reasons for which they decided to place little weight on Mr. Lansink’s evidence in paragraphs 19 to 25 of the Presiding Members’ Decision. As stated in the paragraph above, Members of the Board have discretion in how they weigh evidence before the Board. In this case, the Presiding Members exercised their discretion and articulated their reasons for doing so. This is not an error of fact or law, nor is it a denial of natural justice or procedural fairness.

Issue No. 2: Whether the Presiding Members Denied the Requester Natural Justice and Procedural Fairness

17The Requester claims the Presiding Members denied him natural justice and procedural fairness by accepting MPAC’s Book of Authorities. The Requester also raised this point at the hearing and it was fully addressed by the Presiding Members in paragraph 12 of the Presiding Members’ Decision. As stated by the Presiding Members, a Book of Authorities is not evidence but rather a compilation of jurisprudence intended to guide adjudicators. All counsel, including MPAC’s counsel, have a duty to present all relevant jurisprudence whether it supports their clients’ position or not and Board Members cannot refuse the submission of jurisprudence at hearings.

18In this case, the Requester was presented with MPAC’s Book of Authorities on the first day of the hearing. The Requester had ample opportunity to review the cases during the timeframe of almost one month before the final argument. MPAC’s submission of a Book of Authorities is reasonable and does not amount to a denial natural of justice or procedural fairness.

Issue No. 3: Bias

19In paragraph 24 of his request for review, the Requester claims the Presiding Members were biased against him. In support of this assertion, the Requester refers to paragraph 31 of the Presiding Members’ Decision which states:

[31] In accordance with s.44.(3)(b) we apply a similar reduction to that applied in Thompson. We would not, however, apply that reduction to the farmland. In Hemingway v. Municipal Property Assessment Corp., Region 24 [2015] O.A.R.B.D. No. 223, a different panel of this Board held that all of the evidence before them on the impact of wind turbines on land value was limited “to residential properties only.” Mr. Drennan essentially agreed with this proposition, stating that “there is not an impact if nobody is living there and farmland has value without the residence.” We agree.

The Requester asserts the statement attributed to him in this paragraph is unfounded and raises an apprehension of bias. In further support of his allegation of the apprehension of bias, the Requester also relies on the other grounds he has raised in support of his request for review.

20The test to be applied when determining whether there has been a reasonable apprehension of bias, is whether a fully informed reasonable person viewing the Presiding Members’ conduct practically and realistically would conclude that it is more likely than not that the Presiding Members did not decide the matter fairly [see: Committee for Justice & Liberty v. Canada (National Energy Board) (1976), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at paragraph 394].

21In this case, the Board finds the Presiding Members’ quoting the Requester in paragraph 31 does not meet the threshold for establishing a reasonable apprehension of bias. Even if the Presiding Members misquoted the Requester, they did so after making their finding and to highlight their agreement with the Requester. The Board finds a reasonable person, in reviewing the Presiding Members’ conduct, would not practically and realistically conclude that they did not decide the matter fairly. Prior to the hearing of the appeals, the Presiding Members heard two motions alleging a reasonable apprehension of bias relating to both Presiding Members, asking them to recuse themselves from hearing and deciding the appeals [see: (Drennan Farms Ltd. v. Municipal Property Assessment Corporation Region 24, 2016 CanLII 37494 (ON ARB) and Drennan Farms Ltd. v. Municipal Property Assessment Corporation Region 24, 2016 CanLII 37486 (ON ARB)]. The Presiding Members dismissed both motions, finding that a reasonable apprehension of bias did not arise on the facts. Similarly, in this request for review, the Board concludes that a reasonable apprehension of bias does not arise from paragraph 31 or as a conclusion from the other grounds submitted in the request for review.

22As the Board has not accepted the other grounds raised in support of the request for review, the Board finds that the Requester has not established a reasonable apprehension of bias.

Conclusion

23In summary, the Board finds that the Requester has failed to establish any of the grounds under Rule 145 to raise a convincing and compelling case that the Board should review the decision made by the Presiding Members.

ORDER

24The request for review is denied and the Presiding Members’ Decision is confirmed.