Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: November 20, 2017 FILE NO.: RRD 2017M12

Assessed Person(s): DOM Investment Corporation and 1067005 Ontario Ltd. Appellant(s): DOM Investment Corporation Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 03 Respondent(s): City of Ottawa Property Location(s): 400 West Hunt Club Road Municipality(ies): City of Ottawa Roll Number(s): 0614-120-505-06604-0000 Appeal Number(s): 2981031, 3004336, 3070647 and 3144662 (deemed 2016 appeal) Taxation Year(s): 2013, 2014, 2015 and 2016 (deemed appeal) Hearing Event No.: 624645 Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31, as amended Request by: DOM Investment Corporation (“Requesters”) Request for: A review of the Board’s Decision WR 140942 issued on August 10, 2016 Heard: By written submission

DECISION OF THE BOARD DELIVERED BY PAUL MULDOON

INTRODUCTION

1Stephen Longo, on behalf of DOM Investment Corporation (the “Requester”) seeks a review of the decision of the Assessment Review Board (“Board”) (WR 140942) delivered by Member Laflamme (“Presiding Member”) on August 10, 2016. This request for review was filed with the Board on September 9, 2016.

2The issue before the Board at the hearing was whether the assessment for the property at 400 West Hunt Club Road (“subject property”) as returned at $4,272,000 for the 2013, 2014, 2015, and 2016 taxation years was at current value and equitable with similar properties in the vicinity. The Presiding Member confirmed the subject property’s assessment at $4,272,000 for the 2013, 2014, 2015, and 2016 taxation years.

3At the hearing, the Requester’s representative, Glenn Lucas, agreed with the value of the building but disputed the value of the land. Mr. Lucas stated that he had negotiated a lower land value for a nearby property at 299 West Hunt Club Road and asked the Board to lower the subject property’s land value to match the lower value he negotiated for the property at 299 West Hunt Club Road.

4The Requester raises four grounds for review:

1. the Presiding Member acted outside of his jurisdiction by conducting his own independent investigation;

2. the Presiding Member denied the Requester natural justice and procedural fairness by basing his decision on his own independent investigation;

3. the Presiding Member ignored a number of significant submissions made by Mr. Lucas; and

4. the Presiding Member made an error law and/or fact by misinterpreting the legal test for equity and denied the Requester natural justice and procedural fairness by narrowing the list of properties provided by MPAC.

5The Requester seeks the cancellation of the Board’s Decision (WR 140942) and a new hearing before a different Board Member be ordered.

6The Board sought submissions from the parties via letters dated September 30, 2016 and January 13, 2017. The City of Ottawa 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.

ISSUE AND ORDER SOUGHT

10The Requester seeks a review of the Board’s decision (WR 140942) pursuant to Rules 145 (a), (b) and (c). The Requester submits that the Presiding Member acted outside of his jurisdiction, made material errors of fact, and denied natural justice and procedural fairness. At the hearing, the Requester asked the Board to lower the subject property’s land value to match the lower value negotiated for a nearby property by the Requester’s representative. The Requester now seeks the cancellation of the Board’s Decision (WR 140942) and a new hearing before a different Board Member be ordered.

DISCUSSION AND REASONS

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

Issue No. 1 and 2: Whether the Presiding Member conducted an independent investigation

12In the first issue, the Requester submits the Presiding Member acted outside of his jurisdiction by conducting his own investigation with regard to the three comparable properties proposed by MPAC and located at 2160 Robertson Road, 295 West Hunt Club Road, and 1855 Merivale Road.

13Similarly, in the second issue, the Requester submits that the Presiding Member violated the principles of natural justice and procedural fairness by making a decision on his own investigation without input from the parties.

14Although raised as distinct grounds for review by the Requester, these first two issues submitted turn on the same contention, whether the Presiding Member conducted an independent and improper investigation in contravention of the authority of the Board and the principles of natural justice and procedural fairness. On this issue, the Requestor has not raised a convincing and compelling case.

15During the hearing, the Presiding Member considered the entirety of the evidence before it. MPAC was the only party to provide evidence. The Requester relied on MPAC`s evidence and made submissions during the hearing. Each of the properties were proposed as comparable properties by MPAC. In paragraph 24 of the Board’s Decision (WR 140942), the Presiding Member stated the property at 2160 Robertson Road was “too far away from the subject property and not within the ‘Hunt Club’ car dealership neighborhood.” The Presiding Member considered and rejected 1855 Merivale Road as a proper comparable property due to its substantially larger lot size in para. 25 of the Board’s Decision (WR 140942). Similarly, the Presiding Member relied on MPAC’s witness, Ms. Kennedy-Boisvert’s submissions in his analysis of the property located at 295 West Hunt Club Road as stated in para. 25 of the Board’s Decision (WR 140942).

16The Presiding Member’s analysis of these properties does not approach the circumstances in MPAC v. Prata, 2013 ONSC 5883 (leave to appeal) nor the final determination on the issues found in MPAC v. Prata, 2014 ONSC 368 (Div. Crt.). Read together, these decisions provide further insight into the circumstances of what may qualify as an independent and improper investigation to a degree of breaching the rules of natural justice and procedural fairness. The facts of those decisions highlight that the Member conducted his own search of two Municipal Listing Services (“MLS®”) listings prior to the commencement of the hearing, did not provide copies of the listings to the parties, and ultimately did not confine himself to the evidence at the hearing before him.

17Conversely, in the present case, the Presiding Member considered the evidence before him and explained his analysis in the paragraphs noted above. There is nothing to suggest the Presiding Member conducted an independent and improper investigation. Weighing the evidence before him is within the Presiding Member’s authority and is not a breach of the rules of natural justice and procedural fairness.

Issue No. 3: Whether the Presiding Member ignored Mr. Lucas’ submissions regarding the proposed comparable property located at 299 West Hunt Club Road

18The Requester claims the Presiding Member ignored Mr. Lucas’ submissions regarding why the reduced land value negotiated by Mr. Lucas for the property located at 299 West Hunt Club Road should be used for the subject property.

19The Presiding Member addressed the comparability of the property located at 299 West Hunt Club Road in paragraphs 22 and 23 of the Board’s decision (WR140942). The Presiding Member did not ignore Mr. Lucas’ submissions but preferred MPAC’s submissions. Making such a determination was within the Presiding Member’s authority. Not outlining in detail the submissions he did not accept does not indicate the Presiding Member ignored Mr. Lucas’ submissions.

Issue No. 4: Equity

20The Requester claims the Presiding Member made an error of law by misstating the equity test. The Requester claims the Presiding Member misstated the test as “all properties in the same tax class are ‘fair game’ for the purposes of equity” during the hearing.

21The Presiding Member addressed this issue in para. 28 to 30 of the Board’s Decision (WR 140942) by stating “the Board made it clear that properties used for the equity analysis must be in the same tax class but need not be similar to the extent needed for establishing current value.” This statement, while not capturing the entirety of the test for equity, is correct. Moreover, the Presiding Member adjusted MPAC’s equity analysis with regard to vicinity and not similarity. The Requester did not provide an equity analysis. The Presiding Member’s scrutiny of MPAC’s equity analysis is not an error of law.

22The Requester points out the Presiding Member accepted the property located at 2160 Robertson Road as a comparable property for the purpose of equity despite having rejected the same property as a comparable for current value. The Requester claims that this represents an “unsupportable logical inconsistency”. As correctly noted by the Presiding Member in para. 30 of the Board’s Decision (WR 140942) and quoted above in para. 20 of this order, the test for determining comparable properties for the purposes of equity differs from that for current value. Consequently, a property may be rejected as a comparable property for the purposes of current value but accepted for the purposes of equity. There is no legal or factual error, nor is there inconsistency in the Presiding Member’s reasoning.

23The Requester also claims the Presiding Member denied it natural justice and procedural fairness by narrowing the list of 30 properties submitted by MPAC down to eight properties.

24Board Members have authority to assess, accept, or reject the evidence before them. The Presiding Member considered the list of comparable properties and rejected 22 of the 30 properties. The Presiding Member was acting within his authority while narrowing the list of comparable properties for the purposes of equity. More importantly, the Presiding Member’s analysis had no impact on the outcome of the equity analysis. The average Assessment to Sales Ratio (“ASR”) for the 30 properties submitted by MPAC was 0.97 and did not require an equity adjustment. The Presiding Member could have accepted this value and found no equity adjustment was necessary. However, the Presiding Member refined the analysis by narrowing it to the properties in a smaller vicinity of the subject property. The resulting ASR was 0.985; also indicating an equity adjustment was not needed.

25The Requester has failed to raise a convincing and compelling case that the Presiding Members breached one or more of the grounds in Rule 145.

ORDER

26The Board finds that the Requester has not raised a convincing and compelling case that the Presiding Members made material errors of law, denied it natural justice or procedural fairness, or disregarded the submissions of its representative. The request for review is denied and the Board’s decision (WR 140942) is confirmed.