Shirley Ruth Anne Piggott v. Municipal Property Assessment Corporation, 2018 CanLII 110104

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

ISSUE DATE: November 14, 2018

FILE NO.: DM 2018M23

Moving Party: Shirley Ruth Anne Piggott

Respondent: Municipal Property Assessment Corporation (“MPAC”), Region 28

Respondent: Municipality of Callander

Property Location: Con 20, Lot 15 PCL 5754

Municipality: Municipality of Callander

Roll Number: 4966-000-002-02900-0000

Taxation Years: 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, and 2016

Hearing Event No.: 701975

Legislative Authority: Section 40.1 of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Heard: August 22, 2018 by telephone conference call

APPEARANCES:

Parties	Representative
Shirley Ruth Anne Piggott	Self-represented
MPAC	Brittany Key
Municipality of Callander	No one appeared

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1Shirley Ruth Anne Piggott is the owner of a 99 acre vacant lot in the Municipality of Callander. The property has no access by road: it is land-locked. She noticed that the assessment of the property doubled between 2002 and 2007, from $28,000 to $56,000. She did not find this odd, given that other properties she owns also increased in value at that time. The assessments continued to increase over time. In 2016 she decided to try to sell the property for the $102,000 that it was then assessed at, but the real estate agent she spoke to insisted that it could not sell for that amount. She had an appraisal conducted in July 2016 that estimated the value of the parcel to be $42,000. She then sought a request for reconsideration of the 2017 assessment, which MPAC agreed to reduce from $97,000 to $48,500.

2Ms. Piggott has applied to have appeals created for all of the taxation years between 2006 and 2016. She argues that there is a palpable error in the assessment roll for those taxation years because the land was likely assessed as having road access. MPAC takes the position that a lack of road access is not a palpable error in the assessment roll and that this is not an appropriate case in which to create appeals after the filing deadline.

3For the reasons that follow I find that there is likely a palpable error in the assessment roll for the 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, and 2016 taxation years. It would be unreasonable, unfair, and highly prejudicial to leave the assessment roll closed. I therefore create appeals for those taxation years and direct that MPAC be the appellant.

Legal Framework

4Section 40.1(b) of the Assessment Act, RSO 1990, c.A.31 states: “If it appears that there are palpable errors in the assessment roll… if alteration of assessed values or classification of land is involved, the Board may extend the time for bringing appeals and direct the assessment corporation to be the appellant.”

5The first step in a 40.1 application is to determine if there is a palpable error in the assessment roll. This Assessment Review Board (this “Board”) has held that “the enquiry into palpable error requires a consideration first of whether it is a true inadvertent and unintentional error, and second whether that error is palpable,” Municipal Property Assessment Corporation v Chew, 2015 CanLII 78969 (ON ARB), (“Chew”) at paragraph 19.

6A palpable error is “an error of conspicuous magnitude; plain, evident, obvious, and easy to understand,” Brockville (City) v Municipal Property Assessment Corporation, 2016 ONSC 5752 (“Brockville”) at paragraph 14.

7The relief in section 40.1 is discretionary and should only be exercised in the clearest of circumstances, see Hopper v Municipal Property Assessment Corporation, 2016 CanLII 24421 (ON ARB) at paragraph 13. This is because section 40.1 is the only provision in the Assessment Act that does not have a limitation period. Appeals should only be created under section 40.1 if it would be “unreasonable, unfair, and highly prejudicial” to leave the assessment roll as it stands, Municipal Property Assessment Corporation v Guelph Eramosa Township, 2018 CanLII 263 (ON ARB) (“Guelph”) at paragraph 16.

Error

8Chew directs that I must first determine if there is a true, inadvertent error in the assessment roll. The alleged error here is that the land was assessed as having road access when it does not. Ms. Piggott is asking that I infer that MPAC added road access to its description of the lot in 2006. MPAC acknowledged that it was assessed as having road access in 2017, and a correction of that data halved the assessed value. The assessed value of the property doubled in 2006, so it can be inferred that road access may have been added to MPAC’s description of the land that year. The court was clear in Brockville, at paragraph 16, that an “otherwise inexplicable increase in the assessment value,” coupled with a later halving of value due to a correction, is evidence of an error. I find that a reasonable inference can be drawn from the evidence before me that MPAC’s data on the land was erroneous starting in 2006.

9It also appears that the error was inadvertent. I do not have any evidence before me on how the 2006 assessment was prepared, but MPAC states that if it had known of the lack of road access it would have assessed the land differently.

Palpable Error

10Once I have determined that there is an inadvertent error I must consider if the error is palpable. As noted above, a palpable error is one that is of conspicuous magnitude; plain, evident, obvious, and easy to understand.

11MPAC argues that this is not a palpable error, relying on the decision of Member Stabile in Scott v. Municipal Property Assessment Corp. Region No. 15, [2015] O.A.R.B.D. No. 64 (”Scott”). Member Stabile held, at paragraph 41, that “valuation issues are not palpable errors.” He defined valuation issues as those “dealt with by [requests for reconsideration] and subsequently appeals to the Board.” I do not accept the removal of valuation issues as a reasonable limitation on palpable errors.

12The question in a section 40.1 application is if appeals should be created. Removing issues that should have properly been dealt with through an appeal seems to defeat the purpose of the provision. This Board found that errors MPAC’s description of land are palpable errors in both Guelph and Wellington (County) v Municipal Property Assessment Corporation, Region 22, 2018 CanLII 32198 (ON ARB). In determining if there is a palpable error, the question is strictly if there is an inadvertent error that is of conspicuous magnitude; plain, evident, obvious, and easy to understand.

13Ms. Piggott relies on the decision of Vice Chair Mather in Arbor Memorial Incorporated v Municipal Property Assessment Corporation, 2015 CanLII 86041 (ON ARB). Vice Chair Mather found that there was a palpable error in the land being described as the incorrect size and incorrect classification in MPAC’s records. Ms. Piggott argues that a lack of road access is a similar type of error. Ms. Piggott also relies on the decision of Member Roberts in Hopper v Municipal Property Assessment Corporation, 2015 CanLII 33606 (ON ARB). Member Roberts found that an error in property description was a palpable error. That decision was set aside, however, by Associate Chair Muldoon in Hopper because “It is not an error that mischaracterizes the very nature in legal character of the property in question in the property roll,” see paragraph 18. That is clear authority that not all measurement errors are palpable errors.

14Ms. Piggott argues that any glance at a map, or a fly over, or an attempt to drive to the parcel, would show that it lacks road access. That is, she argues that the land locked nature of the lot is plain and obvious on a cursory look at the property. I agree. The error is plain, evident, obvious, and easy to understand. It is a palpable error.

Discretion

15The relief in section 40.1 is discretionary. This means that I am not required to create appeals if I find that there is a palpable error in the roll. Once I have found a palpable error I must consider if leaving the assessment roll closed would be “unreasonable, unfair, and highly prejudicial,” see Guelph at paragraph 16.

16MPAC argues that the stability of the assessment roll requires that it stay closed. It notes that the roll is binding despite any errors it might contain pursuant to section 41.

17The exercise of discretion requires a consideration of the reasonableness of leaving the roll closed with errors, the fairness of leaving the roll closed, and the balance of prejudice.

Reasonableness

18I must first examine the reasonableness of the leaving the roll closed with these palpable errors. The land was assessed at twice its value because MPAC considered it to have road access that it does not have. A doubling of the assessed value is not a minor error that it may be reasonable to leave on the roll. I find that leaving such a large error on the roll would be unreasonable.

Fairness

19Next I must consider if it is fair to leave the roll closed. I find that Ms. Piggott was an innocent party here and that it would therefore be unfair to deprive her of appeal rights. The evidence before me is clear that Ms. Piggott did not think the assessed value of the land was too high until she had it appraised in anticipation of sale. She did not even believe her real estate agent’s opinion that the assessed value was unreasonably high, insisting on an appraisal first. That is not the action of a party that sat on its hands.

20It is also not clear from the evidence that Ms. Piggott was willfully blind to the errors in the roll. Her uncontested evidence is that she owned other properties that also saw great increases in value in 2006. I do not find that Ms. Piggott acted unreasonably in managing her assessment. It would therefore be unfair to effectively punish her by leaving the assessment roll closed containing palpable errors.

Prejudice

21The final, and most important, factor to consider in the discretionary assessment of a palpable error motion is the balance of prejudice. That is, the Board must determine the relative prejudice to the parties and determine if it would be more prejudicial to leave the roll closed, or to create late appeals.

22A taxpayer will always be prejudiced by palpable errors in the roll that increase the value of their land. The result is that taxpayers have been paying more in taxes than they should have. The Divisional Court has held that financial consequences to a taxpayer is a significant consideration in balancing prejudice, see Kensington Foundation v. Municipal Property Assessment Corp., 2013 ONSC 7694 at paragraph 18. Ms. Piggott has likely been paying approximately double the taxes she should have for over a decade. While the value of the property is not significant, a doubling of taxes due to the error is certainly prejudicial to Ms. Piggott.

23There is some prejudice to both MPAC and the Municipality of Callander if the roll is opened at this point. Finality is an important goal of the assessment regime and both of those parties have relied on that finality in planning their affairs. However, the Municipality of Callander did not appear that this hearing to claim any harm. I cannot find any serious prejudice without specific evidence. The prejudice to MPAC is to correct its database and assign staff to determine the correct value of the property for the years in question. MPAC has an obligation to assess land correctly, so cannot be prejudiced by having to do so. While there are some additional costs to MPAC in addressing these appeals, I do not find that to be significant prejudice. The balance of prejudice favours creating appeals to the address the palpable errors in the assessment roll.

24I find that it would be unreasonable, unfair, and highly prejudicial to Ms. Piggott to let the assessment roll stand while containing these palpable errors. I therefore find that this is an appropriate case to exercise my discretion to create appeals.

CONCLUSION

25The failure of MPAC to properly reflect the land locked nature of Ms. Piggott’s land is a palpable error in the assessment roll. It would be unreasonable, unfair, and highly prejudicial to let the assessment roll stand with those errors. I therefore extend the time for bringing appeals for the 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, and 2016 taxation years and direct MPAC to be the appellant.