Trimble v. Municipal Property Assessment Corporation, 2018 CanLII 116137

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

ISSUE DATE: November 29, 2018

FILE NO.: RD 2018M16

Assessed Person(s): Carol May Diane Trimble, Ronald Robert Trimble

Appellant(s): Ronald Robert Trimble

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 15

Respondent(s): Town of Halton Hills

Property Location(s): 7448 32 Side Road

Municipality(ies): Town of Halton Hills

Roll Number(s): 2415-070-006-34810-0000

Appeal Number(s): 3253764 and 3305911

Taxation Year(s): 2017 and 2018

Legislative Authority: Rule 123 of the Assessment Review Board’s Rules of Practice and Procedure, as amended

Request for: A review of Board’s Decision WR 153042 issued on July 11, 2018

Heard: By written submission

Parties	Representative	Submissions
Ronald Robert Trimble	Robert Baranowski	Requester
MPAC	No one appeared	Not Received
Town of Halton Hills	No one appeared	Not Received

DECISION DELIVERED BY PAUL MULDOON AND ORDER OF THE BOARD

INTRODUCTION

1Ronald Robert Trimble applies to have the decision of the Assessment Review Board (the “Board”) in Trimble v Municipal Property Assessment Corporation, Region 15, 2018 CanLII 65309 (ON ARB) (the “Decision”) reviewed pursuant to Rule 120 of Board’s Rules of Practice and Procedure (“Rules”). This request for review was filed with the Board on August 2, 2018.

2The Decision only dealt with the equity of the assessment of Mr. Trimble’s property. The parties agreed that the current value of the property is $887,000 for the 2017 and 2018 taxation years. Mr. Trimble argues that the Decision contains a number of errors in its equity analysis. Specifically, Mr. Trimble argues that (1) the Decision applied the wrong legal test for determining similar properties; (2) the Decision did not adequately address jurisprudence he submitted to the Board; and (3) the Decision did not adequately address Mr. Trimble’s stratification argument.

3After reviewing the submissions with respect to this request for review, the Board is satisfied that the Decision contains a significant error of law that likely would have led to a different outcome. A new hearing before a different panel of the Board is ordered to specifically and solely address the equity question.

RELEVANT RULES

4Review requests must meet the procedural requirements of Rule 120 before they are considered. There are no procedural concerns with Mr. Trimble’s request. Reviews can only be granted if the provisions of Rule 121 are met: That Rule states:

121 A request for review will not be granted unless the Board is satisfied that:

(a) the Board acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

(b) the Board made a significant error of law or fact such that the Board would likely have reached a different decision;

(c) the Board heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result;

(d) there is new evidence that could not have reasonably been obtained earlier and would have affected the result; or

(e) any of the situations in Rule 122 exist.

5If the Board is satisfied that a provision of Rule 121 is met, the remedies available are set out in Rule 123, which states:

123 Upon consideration of a request for review, or on its own initiative, the Board may:

(a) dismiss the request;

(b) reinstate the appeal, with or without conditions; or

(c) after providing all parties an opportunity to make submissions,

i. confirm, vary, or cancel the decision,

ii. order a rehearing on all or part of the matter, or

iii. order a motion to decide the review.

ERRORS OF FACT OR LAW

6As noted above, Mr. Trimble has raised three main concerns with the Decision. All three allege that the Decision contains errors of fact or law that would have led to a different outcome. Each of Mr. Trimble’s arguments will be addressed in turn.

Legal Test

7Mr. Trimble argues that the Decision applied the wrong legal test for determining similar property. Equity in assessments is governed by clause 44(3)(b) of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”). That clause requires the Board to “have reference to the value at which similar lands in the vicinity are assessed” in order to test the fairness of the assessment. Similarity is, therefore, a core component of any equity analysis.

8The Decision properly sets out the modern state of the law on similarity at paragraph 37, noting that the Divisional Court recently clarified the proper test for similarity in Municipal Property Assessment Corp. v. Loblaw Properties Ltd., 2017 ONSC 1299 (“Loblaw”). The Court held, at paragraph 23, that “all points of comparison must be considered… One point of similarity such as use may be, but is not necessarily, determinative.” Mr. Trimble does not take issue with the Decision’s statement of the legal test. His concern is in its application to the facts.

9The Decision assessed the similarity of the properties in evidence at paragraph 40. The Decision states that 30 properties are similar because they “are of the same general nature, character or function, with the same Property Code 301 Single Family as the subject property, and are located within a reasonable proximity to the subject property.” Mr. Trimble correctly notes that “general nature, character or function” was a framing of the similarity test that was specifically rejected by the Divisional Court at paragraph 26 of Loblaw. The Board agrees with Mr. Trimble’s submission that the Decision applied the wrong test to the facts of this case.

10The further question to be determined in Rule 121(a) is if the error is such that the Board “would likely have reached a different decision.” The Decision sets out two explicit points of comparison when addressing the properties: their property code and location. The Decision’s reference to function seems to be a finding that the suggested similar properties are similar in use. That is three points of the comparison. The test adopted in Loblaw is “all points of the comparison.” That does not, of course, mean that any party that can point to one aspect that was not considered and then mount a successful review. The Board understands the test to mean that properties must be compared in a global way, not simply on a small number of metrics.

11The Board cannot determine with complete confidence if the Decision would have been different if the proper test had been applied, but it is likely that there would have been a different result. The Decision, in fact, states at paragraph 39 that “characteristics such as (total building area, lot size, frontage, quality etc.)…may be of assistance,” but did not use those points of comparison in determining similarity. A careful consideration of similarity on all points of comparison would have included those factors and may have led to a different finding on which properties are similar. The properties used in an equity analysis will always impact the result of the analysis. The Board is satisfied, therefore, that the Decision contains an error of law that likely would have impacted the outcome. Rule 121(a) is met.

Jurisprudence

12Mr. Trimble’s second argument is that the Decision did not give any reasons for not relying on three cases he presented at the hearing. The Decision notes that the cases were submitted at paragraph 32. Those cases are Beeden v. Municipal Property Assessment Corp. Region No.15, [2011] O.A.R.B.D. No. 165; Bernardo v. Municipal Property Assessment Corp. Region 15, [2011] O.A.R.B.D. No.291; and Simos v. Municipal Property Assessment Corp. Region No.14, [2015] O.A.R.B.D. No. 109. Those cases were put forward for the proposition that means are a better measure of central tendency than medians.

13The Decision specifically addressed why those decisions were not useful at paragraph 43: “because there is no significant difference between the average and median ASR.” That is, the Decision found that both the mean and the median did not indicate that an equity adjustment was required. It was therefore unnecessary to decide which is a better measure of central tendency. There is no error in that conclusion.

14It is good practice to look at both measures of central tendency to see if there are any differences between them. The Decision did so. If the mean and median diverge, it may be an indication that the sample does not have a normal distribution. In most cases, means should be preferred, see Jay Patry Enterprises Inc. v Municipal Property Assessment Corporation, Region 05, 2019 CanLII 39629 (ON ARB), 2018 CanLII 70338 (ON ARB) at paragraph 112. But each data set needs to be weighed to see what conclusions can reasonably be drawn from it. The calculation of central tendency and error tolerances are tools that the Board should rely upon in drawing conclusions from any data set.

15The Decision was not in error in determining that it did not matter if the mean or the median was used to measure central tendency here. Both measures indicated that there was no evidence that it would be inequitable to assess Mr. Trimble’s property at its current value. I am not satisfied that the Decision made an error of fact or law in how it addressed the jurisprudence submitted by Mr. Trimble.

Stratification

16Mr. Trimble’s final argument is that properties should be stratified when testing for equity. This is a reference to an MPAC recommended practice of grouping sales by various characteristics, such as age or quality of construction, and testing for equity in each grouping. Mr. Trimble argues that the Decision did not address stratification and was in error in not doing so. The Board is not satisfied that failing to address stratification was an error.

17The use of stratification seems to be an internal method that MPAC uses to test its assessments of various properties. It does not make sense to analyse subcategories of property in determining if a single property is equitably assessed. An equity analysis requires a determination of which properties are similar, looking at all points of comparison. There is no need to split those similar properties into smaller categories. A careful statistical analysis of those similar properties is the best test of equity.

18While it would have been preferable for the Decision to address each of Mr. Trimble’s arguments, the Board is not satisfied that it was in error in not addressing stratification. The Decision shows which evidence it considered and, while it applied the wrong legal test, it is transparent on which evidence it used and how that evidence was analysed. It did not use stratification, which shows that Mr. Trimble’s argument on that point was unsuccessful. The Board is not satisfied that the Decision was an error in not explicitly stating why stratification was rejected. Even if that were an error, The Board does not find it likely that the Decision would have been different if it had explained why it did not accept the stratification argument.

REMEDY

19Rule 123 permits certain remedies after a review has been conducted. Submissions were requested from all parties, but only Mr. Trimble provided any submissions. There are two remedies available once the Board has determined that there is an error of law that would have changed the decision. The Board can either vary the Decision to correct the error, or cancel the Decision and order a new hearing.

20There is some efficiency in varying the Decision. However, Mr. Trimble points out that the appropriate test for similarity was not an issue that was raised by the parties at the hearing. It would be unfair to apply the test to the evidence without providing the parties with an opportunity to provide evidence in accordance with the correct legal test. The Board finds that fairness is preserved if the Decision is cancelled with respect to the equity issue and a new hearing ordered before a different panel of the Board.

ORDER

21Mr. Trimble’s request is granted. The Decision is cancelled with respect to the equity issue and a new hearing is ordered on the equity of assessing the property at its current value of $887,000.