Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: February 22, 2017

FILE NO.: RRD 2016M18

Assessed Person(s): Shirley Ellen Walsh

Appellant(s): Shirley Ellen Walsh

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 02

Respondent(s): Township of Rideau Lakes

Property Location(s): 70 R5 South Elmsley Con 5 Pt Lot

Municipality(ies): Township of Rideau Lakes

Roll Number(s): 0831-828-033-74300-0000

Appeal Number(s): 3065333, 3110037 and 3110038

Taxation Year(s): 2013, 2014 and 2015

Hearing Event No.: 599337

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

Request by: Shirley Ellen Walsh (“Requester”)

Request for: A review of the Board’s Decision WR 136686 issued on January 08, 2016

Heard: By written submission

DECISION OF THE BOARD DELIVERED BY PAUL MULDOON

INTRODUCTION

1Shirley Ellen Walsh (the “Requester”) seeks a request for review of the decision of the Assessment Review Board (“Board”) (WR 136686) by Member Jacques Laflamme issued on January 08, 2016. This request for review was filed with the Board on February 08, 2016.

2Two issues were raised before the Board at the hearing. The first issue was whether the appeal under s. 34 of the Assessment Act (“Act”) for the 2013 taxation year was a valid appeal when no request for reconsideration was made by the assessed. Under s. 39.1 of the Act, filing a request for reconsideration is a precondition for the filing of an appeal at the Board. The second issue at the hearing was the determination of the current value assessment as of the valuation day of January 01, 2012 for the 2014 and 2015 taxation years.

3At the hearing, the presiding Member dismissed the s. 34 appeal for the 2013 taxation year on the basis that there was no evidence a request for reconsideration was filed. The Requester’s review request did not challenge the Board’s finding with respect to this issue. With respect to the second issue, the presiding Member at the hearing accepted MPAC’s recommended reduced current value of $246,000 (from $316,000) for the 2014 and 2015 taxation years.

4The Requester requests a review of the decision on the basis that the presiding Member made an error in the decision such that the Board would likely have reached a different decision. Specifically, the Requester claims that MPAC provided incorrect information at the hearing and that the comparable properties provided by MPAC were superior to the subject property with respect to their location, lot size, living area, age of property, and quality of construction.

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 (WR136686) pursuant to Rule 145(1)(c). The Requester submits that the Board made an error by deciding on the current value of the subject property based on comparable properties that are superior to the subject property.

9The Requester has not asked for a specific remedy under Rule 144 but seeks a review of the presiding Member’s decision.

DISCUSSION AND REASONS

10The Board denies the request for review in this case.

11At issue in this request for review is the Board’s interpretation of the evidence at the hearing. The Requester disagrees with the presiding Member’s finding of $246,000 for the current value of the subject property for the 2014 and 2015 taxation years. The Requester argues the assessed value of the subject property for the 2014 and 2015 taxation years should be $154,316. Further, the Requester submits the presiding Member misstated the cost of construction at $175,000 to $200,000 when the Requester submitted the cost of construction was$170,000 to $180,000 at the hearing.

12Paragraph 37 of the Board’s decision addresses the cost of construction. The presiding Member states that the Requester was unsure with respect to the cost of construction. Furthermore, there were no supporting documents before the Board on which the presiding Member could rely for certainty. Consequently, it is not possible to substantiate the Requester’s claim that the presiding Member erred in fact. More importantly, as stated in Rule 145, an error of fact is only reviewable if there is convincing and compelling evidence that the error likely lead the Board to reach a different decision. In this case, the presiding Member weighed all the evidence before him and found that the lower assessment recommended by MPAC was a reasonable one. There is no evidence to suggest that the Board would have reached a different conclusion if the presiding Member had found the cost of construction to be between $170,000 and $180,000.

13In the decision the presiding Member analyzes the evidence regarding current value in paragraphs 28 to 39. The presiding Member found that none of the six properties presented by MPAC and none of the three properties presented by the Requester were helpful in determining the current value for the subject property. However, the Board used whatever evidence it was given and determined an average assessment per square foot ($345), an average selling price per square foot ($368) and an estimated cost of construction per square foot ($350). The presiding Member compared these values with MPAC’s recommended reduced assessment per square foot ($345) and found MPAC’s recommended lower assessment of $246,000 to be reasonable.

14The presiding Member thoroughly considered all of the Requester’s evidence (Exhibits 3, 6, and 7) and MPAC’s evidence (Exhibits 1, 2, 4, and 5) and made a determination of the current value assessment. The admissibility of the evidence to determine the current value and the weight given to that evidence is within the authority of the Member or panel that presides at the hearing and, in the absence of the Member or panel having erred in law in determining the admissibility and weight, the Associate Chair generally will not interfere with the exercise of that discretion.

15The Associate Chair finds no convincing and compelling case in the Requester’s materials that there is a material or other error of fact or law such that the Board would likely have reached a different decision. Nor does the Associate Chair finds that the Board breached paragraphs (a), (b), (c), or (e) of Rule 145(1). A request for review is not an opportunity to re-argue the case or make up for deficiencies in evidence presented at the hearing.

ORDER

16The Associate Chair finds that the Requester’s request for review does not meet the tests under Rule 145(1) and is therefore ordering that this request for review to be denied. The Board’s decision (WR 136686) is hereby confirmed.