Hemingway v. Municipal Property Assessment Corporation, Region No. 24, 2017 CanLII 46013

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

ISSUE DATE: July 13, 2017

FILE NO.: DM 146842

Moving Party(ies): Municipal Property Assessment Corporation ("MPAC") Region No. 24

Respondent(s): Patricia Gayle Hemingway and David Blane Hemingway

Respondent(s): Municipality of Central Huron

Property Location(s): 78396 Porters Hill Line

Municipality(ies): Municipality of Central Huron

Roll Number(s): 4030-240-006-02300-0000

Appeal Number(s): 3091662 and 3158887

Taxation Year(s): 2015 and 2016

Hearing Event No.: 677079

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

Heard: May 3, 2017 in Clinton, Ontario

APPEARANCES:

Parties	Counsel+/Representative
Patricia Gayle Hemingway and David Blane Hemingway	Self-represented
MPAC	Tony Pileggi
Municipality of Central Huron	No one appeared

DISPOSITION OF THE BOARD DELIVERED BY JOSEPH M. WYGER

DISPOSITION OF MOTION

Introduction

1Near the eastern shores of Lake Huron, are located numerous tall windmills in various municipalities, which are referred to as Industrial Wind Turbines ("IWT"). In the Municipality of Central Huron, where the subject 80 acres of farmland is located, there are no IWTs or current active proposals for IWTs, yet many residents are concerned about the prospect of their arrival for a variety of reasons. The Appellants, Patricia and David Hemingway own those 80 acres of farmland in Central Huron and share those concerns, alleging that the prospect of those IWTs coming to their community has a deleterious effect on the current value of their properties. The nearest actual windmill is 9 or 10 kilometres ("kms") away in the Municipality of Bluewater.

2The Hemingways appealed to the Assessment Review Board ("Board") and made those arguments at a hearing dealing with the 2013 and 2014 taxation years, which are valued as of January 1, 2012. Those appeals were heard by the Board on April 15 and 16, 2015 and June 8 and 9, 2015, with written reasons issued on August 27, 2015 as WR 133188. That panel ruled that there was no evidence that the future possibility of IWTs or IWTs in neighbouring communities had any impact on the current value of the Hemingway's properties. Following the release of the written reasons for decision, the Hemingways filed a request for review of the decision and brought a motion for costs under the Rules of Practice and Procedures ("Rules"), and were unsuccessful in both actions.

3The appeals before me now are for the 2015 and 2016 taxation years. These appeals were deemed from the prior year but not heard with the 2013 and 2014 appeals and are also based on the same January 1, 2012 valuation day as the 2013 and 2014 appeals that were decided. The appeals for 2015 and 2016 were scheduled for a full hearing, but MPAC brought this motion to request the Board to rule that issue estoppel arises to prevent the Appellant from re-arguing the effect on value of wind turbines, as that issue was fully litigated by the parties and considered by the panel that made the decision on the 2013 and 2014 appeals. The issue before me in this motion is whether or not the Appellant is estopped from arguing the effect of wind turbines on the value for those taxation years.

Disposition

4I conclude that the issue of whether wind turbines affected the current value of the subject property was fully litigated and considered in the hearing of the 2013 and 2014 appeals. I hereby grant the Orders requested by MPAC and confirm the assessments for the 2015 and 2016 taxation years at $545,000, apportioned $507,100 Farm Property Class and $37,900 Residential Property Class.

REASONS FOR DISPOSITION OF MOTION

Legislation

5Section 19 of the Act states:

19.(1) Assessment based on current value. – The assessment of land shall be based on its current value

6Section 44 of the Act states:

44.(1) Assessment may be open upon appeal. – Upon an appeal on any ground against an assessment, the Assessment Review Board or court, as the case may be, may reopen the whole question of the assessment so that omissions from, or errors in the assessment roll may be corrected, and the amount for which the assessment should be made, and the person or persons who should be assessed therefore may be placed upon the roll, and if necessary the assessment roll, even if returned as finally revised, may be opened so as to make it correct in accordance with the findings made on appeal.

(2) Reference to similar lands in vicinity. – For taxation years before 2009, in determining the value at which any land shall be assessed, reference shall be had to the value at which similar lands in the vicinity are assessed.

(3) Same, 2009 and subsequent years. – For 2009 and subsequent taxation years, in determining the value at which any land shall be assessed, the Board shall,

(a) determine the current value of the land; and

(b) 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 if such an adjustment would result in a reduction of the assessment of the land.

7Section 23.(1) of SPPA states:

Abuse of processes

23.(1) A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes. R.S.O. 1990, c. S.22, s. 23 (1).

MPAC's Position

8Tony Pileggi appeared on the motion on behalf of MPAC, advancing the position that the Appellants, who were self-represented by Mr. Hemingway, were raising the same issue that was dealt with at the prior hearing. He contended that almost all of the evidence from seven witnesses, over four days of hearing was on the issue of the effect, if any, of IWTs on the assessed value of the subject property. The Deputy-Treasurer Mr. Steven Dougherty confirmed at that hearing that there were no new permits issued for the Municipality of Central Huron then, and confirmed to MPAC in April 2017 that there are no new permits now.

9Mr. Pileggi argued that the three conditions for the application of issue estoppel were in place: the decision was a final decision; the parties are the same; and the issue to be litigated is the same as the one dealt with in the earlier decision, the effect of wind turbines on current value. He contended that Mr. Hemingway seeks to re-argue a case where there have been no changes and that this is also an abuse of process under s. 23.(1) of the Statutory Powers Procedure Act. Mr. Pileggi sought an Order declaring that the Hemingways are estopped from re-arguing the January 1, 2012 current value and an Order confirming the assessments for the 2015 and 2016 tax years at $545,000.

Mr. Hemingway's Position

10David Hemingway presented the case for he and his spouse Patricia Hemingway, that the Board never actually considered the IWT issue and ignored evidence that was negative to MPAC's position, and that new evidence has become available other than the "cherry-picked" evidence relied on by the panel that wrote WR 133188. He submitted that this ignoring of evidence by the panel indicated bias by the Board against his position. Mr. Hemingway advanced the allegation that MPAC deliberately instructs its assessors not to consider the effects of wind turbines on assessments and that new information demonstrates that buyers identified in MPAC's Valuation Report were not aware of the IWT proposals for the area. His affidavit goes on at length discussing his interactions with MPAC and the Board and concludes that "the appellants are concerned that they never received an independent, fair, transparent just hearing due to alleged fraud, bias non discloser (sic) by MPAC and the ARB".

11Several other issues were raised by Mr. Hemingway, not all of which are related to the question of issue estoppel.

12Two studies by MPAC on the impact of IWTs were not provided to Mr. Hemingway and were not ordered released by the hearing panel who stated they were not relevant. Mr. Hemingway argued that this displayed more bias by the Board in favour of MPAC and Central Huron.

13Mr. Hemingway asserted the proposition that the panel's decision was of no legal force or effect because it had not been signed by the Board Members who made it, and that this also applied to the Request for Review decision and the Costs decision. He argued that if Request for Reconsiderations must be signed by Appellants, then so should decisions of the Board. He had a similar issue with various MPAC reports.

14The Costs Awards Decision was amended under the new Rules to change the word "mute" to "moot". Mr. Hemingway challenged this process, writing that "changing the decision based on amended Rules of Practice not in effect at the time of hearing event is considered a serious issue and breach of Legal Process".

15Mr. Hemingway recorded the audio of the earlier hearing and considers it unreasonable that on the Request for Review, the Board did not request the tapes so that the reviewing panel could hear more of the actual evidence presented than just the cherry-picked evidence that the panel used in coming to their decision.

16Other references including a comparison to gravel pit assessments, a 2006 report of the Ombudsman, the Ontario tax system being a political cartel, municipal non-participation in the costs decision and new information since the previous hearing grounded Mr. Hemingway's belief that the outcome of this motion hearing "...can change the previous hearing decisions."

Analysis

17It is not within my authority to entertain changing the previous hearing decisions. The various issues that Mr. Hemingway had with the conduct of that hearing and the decision resulting from it are not relevant to question of issue estoppel. The other concerns are properly challenged through a request for review of the decision where allegations of bias, error of law or fact, and new evidence that could have affected the result should be raised and dealt with. Mr. Hemingway's request for review was heard and denied by Associate Chair Muldoon who provided considered reasons for so doing. The Board's decision was upheld and I have no authority to re-visit any of those issues or allegations. The same applies to the costs decision.

18Mr. Pilleggi presented a number of cases on the principle of issue estoppel:

• Rasanen v. Rosemount Instruments Ltd., 1994 CanLII 608 (ON CA), 17 O.R. (3d) 267 (Ont. C.A.);
• Municipal Property Assessment Corp., Region No. 25 v. McMillan, [2015] O.A.R.B.D. No. 292 (DM 136486) ("McMillan");
• Hamilton v. Municipal Property Assessment Corp., [2017] O.A.R.B.D. No. 1 (DM 144942);
• Municipal Property Assessment Corp., Region No. 14 v. Zeppieri, [2012] O.A.R.B.D. No. 141 (DM 114632);
• Wabi Iron & Steel Corp. v. Municipal Property Assessment Corp., Region No. 29, [2002] O.A.R.B.D. No. 219 (DM 081/02);
• Weng v. Municipal Property Assessment Corp., Region 15 [2016] O.A.R.B.D. No. 133 (RRD 2016M10).

19It is well settled in the case law that there are three tests or criteria for issue estoppel to apply:

1. that the parties to the first proceeding are the same persons as the parties to the subsequent proceeding;
2. that the decision in the first proceeding said to create the estoppel was final; and
3. that the same question has been decided and was fundamental, as opposed to collateral or incidental, to the decision.
4. The law is also clear that even when these three pre-conditions have been met, issue estoppel is a discretionary remedy that should not be applied mechanically if it would not be in the interest of justice to do so.

20Member W. Morris in McMillan provides the policy reason underlying the principle: "The purpose of issue estoppel is obvious. Without the issue estoppel rule, virtually any losing party could simply bring another appeal leading to duplicative litigation, potential inconsistent results, undue costs and inconclusive proceedings."

21On this estoppel motion, I conclude that all three tests have been met, and that there is no injustice to any party in preventing the re-litigation of the issue in question. With respect to the first two tests, I find that the parties to the litigation are the same and the decision which was upheld on review and not appealed further is a final decision. With respect to the third test, I am restricted to considering whether there is anything different or changed about the subject-matter or question or issue that the Board is being asked to determine. In this assessment appeal, has there been a change in facts or circumstances such that arguably the value of the subject property could be different in 2015 and 2016 than it was determined to be in 2013 and 2014.

22For example, the actual approval and/or construction of an IWT in close proximity to the subject property in 2015 or 2016 may constitute an arguably different issue from an IWT 9 kms away in the municipality next door. An IWT was not approved or built in 2015 or 2016 and that prospect appears not to be on the radar for the foreseeable future. Residents' concerns over the effect on value of the potential for approval and construction of proximate IWTs was the over-arching theme of the previous hearing as the panel noted: "There is no doubt that the release of the map in Exhibit 4A and approval and construction of wind turbine projects in nearby municipalities has caused a considerable amount of angst and unrest in the community."

23The panel made a factual finding at paragraph 83: "With respect to the Porters Hill Line farm property while there were proposed wind turbines for Central Huron Municipality on the January 1, 2012 valuation day, there were none approved. The Porters Hill Line property is not used for residential purposes and the closest turbine to both properties is 9 to 10 kms and did not become operational until 2014." The Deputy-Treasurer of Central Huron confirmed to MPAC that these facts have not changed.

24The panel framed the issue specific to the Hemingway's properties: "Mr. Hemingway's only issue with the assessment of the farm land is that it does not take into account the effect of the wind turbines on the property value." and "The main issue in these appeals ... is the effect that wind turbines that have been proposed for their area or have been built in their area and the hydro-electric transmission lines that may be built in their area have on the current value of their properties." Based on the evidence and submissions provided on this motion, I conclude that this is the same issue that Mr. Hemingway proposes to argue for the 2015 and 2016 taxation years.

25This argument does not need to take place again as a final answer by the panel hearing the 2013 and 2014 appeals is paraphrased here: No, there is no effect on the current value of Class 1 farmland never used for residential purposes, resulting from either the generalized concern of residents over the potential future approval or construction of IWTs in proximity to the subject property, or from a single wind turbine in a neighbouring municipality.

Order

26In conclusion, I grant the Order declaring that the Hemingways are estopped from re-arguing the January 1, 2012 current value and an Order confirming the assessments for the 2015 and 2016 tax years at $545,000.

Recording of Motion

27Mr. Hemingway requested and received my permission to video tape the motion hearing. He also requested that MPAC reimburse him some of his cost for providing a copy if so requested. Mr. Pilleggi objected to paying for a copy and I reserved the ruling on that issue. Although I am not sure to what purpose MPAC would put such a recording, I consider it not unreasonable for it to defray some of Mr. Hemingway's costs. Should MPAC request a copy of the recording, they will pay Mr. Hemingway the sum of $78.40.

Appeals of Whys Line

28WR 133188 also dealt with the appeals of the Hemingway's residential property at 78403 Whys Line. That property was not before me at this motion because there are no appeals outstanding for that property for the 2013 to 2016 taxation cycle. The appeals before the panel that issued WR 133188 for Whys Line were for the taxation years 2011 and 2012. Unlike the Porter's Hill Line property before me now, there were no 2013 or 2014 appeals before that panel, to be deemed for the subsequent tax years. There is a large volume of correspondence between Mr. Hemingway and the Assessment Review Board regarding why the Whys Line property is not on the docket before me, but the simple fact as I understand it is that Mr. Hemingway did not file an appeal for any of the taxation years for that property from 2013 through 2016.