Purcell v. Municipal Property Assessment Corporation (“MPAC”) Region 05, 2018 CanLII 116163

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: November 30, 2018

FILE NO.: RD 2018M17

Assessed Person(s): Michael Stephen Purcell, Catherine Nye Purcell

Appellant(s): Michael Stephen Purcell, Catherine Nye Purcell

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 05

Respondent(s): City of Kingston

Property Location(s): 300 Wellington Street

Municipality(ies): City of Kingston

Roll Number(s): 1011-030-110-07730-0000

Appeal Number(s): 3276482 and 3292502

Taxation Year(s): 2017 and 2018

Hearing Event No.: 697309

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

Request for: A review of the Board’s Decision WR 153392 issued on July 16, 2018

Heard: By written submission

Parties

Representative

Submissions

Michael Stephen Purcell, Catherine Nye Purcell

Self-represented

Requester

MPAC

No one appeared

Not Received

City Of Kingston

No one appeared

Not Received

DECISION DELIVERED BY PAUL MULDOON AND ORDER OF THE BOARD

INTRODUCTION

1Michael Purcell (the “Requester”) has filed a written request for the Assessment Review Board (the “Board”) to review Purcell v Municipal Property Assessment Corporation, Region 05, 2018 CanLII 67787, a decision made by Member Jennifer Griffith (the “Member”), which was issued on July 16, 2018 (the “Decision”). The Decision disposed of an appeal by the Requester pursuant to s. 40 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”). This request to review was filed with the Board on August 15, 2018.

2The Requester was the Appellant in the proceeding before the Member. He asserts that the Decision contains errors of fact and law, and that the Member misinterpreted evidence adduced by Appellant, leading the Member to make an erroneous decision. The Requester also provided new evidence which the Requester asserts is credible evidence that was not available at the hearing which could have affected the Member’s disposition of the appeal. Finally, the Requester asserts that the Member had “an inherent bias towards the information and position taken by considering MPAC as a technical authority.” The Requester explains that there is bias because the Member failed to consider the Requester’s positions as equally valid as those of MPAC.

3The Requester asks that the Board order a rehearing of the matter before another Member of the Board.

4The Board has reviewed the request for review record and has found the issues raised by the Requester can be addressed without further submissions from the Requester or the other parties.

5For the reasons that follow, the request for review should be dismissed.

RELEVANT RULES

6The Board’s Rules of Practice and Procedure (the “Rules”) state:

Request for Review

120. A party may request a review of any final decision of the Board, other than a decision pursuant to Rule 122, by filing a request in writing no more than 30 days after the decision was issued, including:

(a) a copy of the decision to be reviewed;

(b) the written reasons for the decision, as set out in Rule 112;

(c) the reasons for the request, addressing the factors set out in Rule 121;

(d) notice of any appeals or applications for judicial review that have been filed in relation to the decision;

(e) proof of service on all other parties to the proceeding;

(f) the remedy or relief sought; and

(g) the fee specified by the Board.

Grounds for Review

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.

Review Order

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.

ISSUES

7In this request for review, the Requester argues that the Member violated natural justice by being biased towards MPAC, erred in law by preferring MPAC’s evidence over his evidence, and that there is new evidence that would have affected the result.

DISCUSSION, ANALYIS AND FINDINGS

The Member’s Decision

8The only issue in dispute in the appeal before the Member was whether there should be an equitable reduction of current value pursuant to clause 44(3)(b) of the Act.

9In the Decision, the Member reviewed the evidence and submissions of MPAC and the Requester and then accepted MPAC’s evidence over the Requester’s evidence. MPAC’s equity analysis indicated that no equitable adjustment was required. The Member’s reasons for not preferring the Requester’s analysis are set in out paragraph 32 of the Decision:

The Appellant presented a study based on 39 sales which occurred over the period 2007 to 2017. The Board did not rely on the Appellant equity studies, because most of the sales were too far removed from the valuation date of January 1, 2016 to provide any meaningful test of equity. Also, the Appellant used inflationary adjustment percentages that were based on his own assumptions and he presented no evidence to support a finding that his assumptions are correct.

Requester’s Submissions

10The Requester asserts that the Member made several significant errors of fact or law:

a. The Decision contains minor errors respecting property area, and incorrectly shows the Requester purchased the Subject Property in 2007. The Requester asserts that the 2007 sale was to the original owner and that he purchased the Subject Property in 2010.

b. The Requester asserts that MPAC’s analysis utilized properties from neighbourhoods adjacent to the Subject Property, which the Requester asserts is not acceptable. The Requester asserts that, as a result, MPAC’s comparable property dataset contains only two valid points, based on MPAC methodology and IAAO standards (International Association of Assessing Officers), noting that this is “substantially outside the acceptable minimum of 6 properties and recommended 15 to 30 properties.” The Requester asserts, therefore, that the Member made and error in accepting MPAC’s analysis.

c. The Requester observes that the Member referenced both horizontal equity and vertical equity to describe how the Requester arrived at his proposed equity adjustment. The Requester asserts that this is an error, as he maintains his analysis was based solely on vertical equity calculations, not any combination of horizontal or vertical equity numbers.

d. MPAC’s equity analysis did not provide a vertical calculation. For this reason, the Requester submits that it was unreasonable for the Member to accept MPAC’s analysis.

e. The Decision states that most of the sale dates for most of the properties used in the Requester’s equity analysis were too far removed from the valuation date of January 1, 2016 to provide any meaningful test of equity. The Decision also notes that his equity study is based on sales of 39 properties which occurred between 2007 and 2017. The Requester emphasizes that MPAC’s analysis utilized property sales between 2014 and 2017, and that sales for 21 of the 39 properties used in his equity analysis were in this same time period. The Requester submits, therefore, the Member’s finding is erroneous.

f. In respect of the Member’s finding that property sales were too far removed from the valuation date, the Requester asserts that his equity analysis included a “data reliability analysis” to address this concern. Therefore, the Requester submits that the Member made in error in rejecting his equity analysis.

11In support of his submission respecting the reliability of his assumptions respecting inflationary adjustment factors, the Requester asks that the Board consider new evidence. He has provided what appears to be an information sheet or communications release published by MPAC on May 10, 2016, which indicates that, in Kingston, Ontario, where the Subject Property is located, “assessed values of residential property values has increased, on average 2.5 per cent per year since 2012.” The Requester argues that this evidence supports the validity of his equity analysis, because this is “in line” with the 2.75 per cent inflationary adjustment factor on which he relied.

12The Requester also submits that the Member’s Decision raises an “inherent bias towards the information and position taken by MPAC as a technical authority.”

Findings

13A request for review can only be granted if “the Board is satisfied that” one of the grounds set out in Rule 121 have been met. Each of the alleged grounds will be discussed in turn.

Natural Justice

14The first provision of Rule 121 is if “the Board acted outside its jurisdiction or violated the rules of natural justice or procedural fairness.” In this case, the Board must be satisfied that there was Member hearing the appeal was biased or there was an apprehension of bias in order satisfy Rule 121.

15The Requester argues that the Member was “inherently” biased because the Member accepted MPAC as a technical authority and made findings in MPAC’s favour “when equally valid positions were put forward.” The Requester did not provide any evidence of bias, other than the Member’s preference of MPAC’s evidence over his. The Member was required to make findings on the evidence before her in order to reach a decision. The hearing record indicates that the Member compared the evidence before her and provided reasons for why she preferred MPAC’s evidence over the Requester’s evidence. The Member is required to make findings on the evidence in order to reach a decision. Exercising this jurisdiction is not an indication that there is a reasonable apprehension of bias against the Requester, and certainly there is no evidence of actual bias.

16The Board will usually prefer some evidence over other evidence. The general principle is that a Member has the full authority to review the evidence, assess its reliability and relevance, and then to give it the appropriate weight in reaching his or her conclusion. The Board is not satisfied that there is a breach of nature justice or procedural fairness and therefore the request to review on the first clause of Rule 121 is not granted.

Error of Fact or Law

17The second clause of Rule 121 permits a review if the Board is satisfied that “the Board made a significant error of law or fact such that the Board would likely have reached a different decision.” The Requester alleges a number of errors in the Decision. Having reviewed the submission, the Board is not satisfied that any of them would have impacted the result.

18The Requester set out potential errors in the property area and sale dates. Even accepting that those are errors, there is no indication that those errors changed the results the Decision reached.

19The Requester raised specific concerns with MPAC’s equity study. He asserts that the study included properties from adjacent neighbourhoods, which he says is inappropriate. The legal test in clause 44(3)(b) is that the Board “have reference to the value at which similar lands in the vicinity are assessed” in order to determine if it would be fair and equitable to assess the property at its current value. The term “vicinity” is not defined in the Act. The Ontario Court of Appeal considered that term in Ontario Regional Assessment Commissioner, Region No. 3 v Graham, 1993 CanLII 8621 (ON CA). The Court held that “vicinity… can mean an entire municipality, but may also mean a smaller portion thereof, depending on the appropriate geographical base that will yield meaningful comparables.” It is not limited to a particular boundary.

20The term “vicinity” is part of the legal test, and is not necessarily restricted to consideration of the neighbourhood in which the Subject Property is located. In the Member’s Decision, the Member expressly stated that all of the properties in MPAC’s equity study were within 2 kilometers of the Subject Property. It is reasonable to find that the properties were in the vicinity of the Subject Property. The Decision does not contain an error of law on that point.

21The Requester also asserts that the analysis he submitted to the Member was based solely on vertical equity calculations, not any combination of horizontal or vertical equity numbers. The Decision does indicate that the Requester’s submission was based on “an average of the Horizontal LOA 0.85 and Vertical equity of 0.72,” see paragraph 28. It is not clear, however, that that potential description error would have affected the result.

22The Board notes that the Member’s Decision clearly documented the Requester’s analysis on vertical equity. There is no suggestion in the Decision that the Member failed to understand the nature of the analysis advanced by the Requester.

23The Requester takes issue with the Decision stating, at paragraph 32, that “most of the Appellant’s sales were too far removed from the valuation date of January 1, 2016.” He argues that 21 out of the 39 sales he submitted were in the same date range as the sales in MPAC’s equity study. That means, of course, that 18 of the Requester’s properties fall outside the range. That may not be “most” of the properties, but it is still a significant proportion of the sales that are far removed from the valuation day. An equity analysis is only as good as the data set that is used in the analysis. It was not an error for the Member to conclude that the Requestor’s analysis was not reliable, that MPAC’s analysis was more reliable, and therefore preferable over the Requestor’s analysis.

24The Requester submits that it is appropriate to extend the range of sale dates, and that, if a five year range is selected, 33 of 39 properties can be relied on. It was open to the Member to make that determination. It would have been preferable for the Member to take the most comparable sales presented by both MPAC and the Requester in order to determine if there was an equity problem. But it was not an error of law for the Member to simply prefer MPAC’s study over the Requester’s study. The Decision explains why that done and there is no error in that analysis.

25The Requester asserts that his equity analysis included a “data reliability analysis” to support his assertion that a broader range of sale dates should be considered. There is no suggestion that the Member did not consider this analysis. The document contains the Requester’s assertions respecting a “reasonable expectation of a reliable ASR trend” and a distribution that is “reasonabl[y] representative across the adjusted property sales range.” The Board notes that these are qualitative conclusions made by the Requester. The Decision did not accept those arguments and it was within the Member’s legal authority to make that determination. It is open to the Member to decide the range of sales that should be considered based upon the evaluation of the evidence as a whole.

26The Requester objects to the statement in paragraph 32 of the Decision that states that the Requester “used inflationary adjustment percentages that were based on his own assumptions and he presented no evidence to support a finding that his assumptions are correct.” His analysis included four possible rates from 1% to 4%, and argued that a rate of 2.75% should be used. The Requester says that this was not an assumption. He states that the “inflationary adjustments were based on the actual price increase of the Subject Property from the original sale in 2007 to the MPAC current value of 2016.”

27Time adjustment is a tool that should be avoided where possible. A time adjustment based on one property is especially unreliable. It was not an error for the Member to reject the Requester’s time adjustment methods.

28The Board is not satisfied that there are any errors of fact or law in the Decision that would affect the result and, therefore, the request for review with respect to the second clause of Rule 121 is denied.

New Evidence

29The fourth clause of Rule 121 permits a review if the Board is satisfied that “there is new evidence that could not have reasonably been obtained earlier and would have affected the result.” The Requester argues that a May 10, 2016 MPAC publication about the assessment of property in Kingston, is new evidence that would have affected the result.

30The MPAC document indicates that in Kingston, Ontario, where the Subject Property is located, “assessed values of residential property values has increased, on average 2.5 per cent per year since 2012.” The Rule is clear that new evidence on review is limited to “evidence that could not have reasonably be obtained earlier.” The hearing of this matter took place on May 18, 2018, over two years after the MPAC report was published. The Requester did not explain why he could not have reasonably obtained a copy of that report before the hearing and, therefore, the evidence could have been obtained earlier. In this regard, the Board also notes that the data that was reported would have been available prior to the May 10, 2018 publication date, and that the Requester did not provide any explanation why this information could not have been obtained earlier. The evidence therefore will not be considered on review.

CONCLUSION

31Based on the reasons and findings above, the Board finds that the Requester has not satisfied the Board that any of the grounds set out in Rule 121 are met. The Requester’s review is dismissed.

ORDER

32The Request for Review is dismissed.