Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: June 21, 2018

FILE NO.: DM 153343

Moving Party: Municipal Property Assessment Corporation, Region No. 03 (“MPAC”)

Respondent: Kelly White

Respondent: City of Ottawa

Property Location: 3940 Limestone Road

Municipality: City of Ottawa

Roll Number: 0614-422-830-13301-0000

Appeal Number: 3129029

Taxation Year: 2015

Hearing Event No.: 700265

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

Heard: May 15, 2018 by telephone conference call

APPEARANCES:

Parties	Representative
MPAC	Laura Kelleher
Kelly White	Self-represented
City of Ottawa	No one appeared

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1MPAC brings this motion requesting that the Assessment Review Board (the “Board”) dismiss this appeal pursuant to Rule 24(a) of the Board’s Rules of Practice and Procedure (the “Rules”). MPAC argues that the assessment that is the subject of this appeal no longer exists because it was replaced with a lower assessment in 2015. Kelly White opposes MPAC’s motion because he feels that he has been treated unfairly by MPAC for years, and he would like an opportunity to air his grievances before this Board. Mr. White argues that he can only have a fair hearing if two agreements he made with MPAC are set aside, so that the entire issue of his property’s value can be argued.

2I agree with MPAC that this appeal is no longer valid and should be dismissed. Mr. White must live with the agreements he made with MPAC because I see no valid reason to set them aside. However, I find that there is a deemed appeal of MPAC’s amended assessment issued in 2015. The parties will be notified of the procedural steps for that appeal.

Background

3Mr. White purchased the property at 3940 Limestone Road, in the City of Ottawa, on July 31, 2014 for $181,000. The property is a former illegal marijuana grow operation and the house on the property had suffered some damage as a result of that illegal use.

4The property was assessed three times in 2015, the first full taxation year in which Mr. White owned the property. It was first assessed at $390,000 for the 2015 taxation year and Mr. White filed an appeal of that assessment. That is the appeal at issue in this motion.

5Later in 2015, MPAC became aware that the house was unoccupied. It was vacant because a Court Order had ordered it to be so until certain remediation measures were taken. On or about August 22, 2015, MPAC issued its second assessment of 2015. That was a correction to the original assessment, issued pursuant to s. 32(1.1) of Assessment Act, R.S.O. 1990, c. A.31 (the “Act”). That assessment reduced the 2015 assessed value of the home to $177,000. Mr. White did not appeal that assessment.

6The third assessment in 2015 was issued when MPAC became aware that the home had been remediated and was occupied. On or about October 30, 2015, MPAC issued a supplemental assessment, pursuant to s. 34(1) of the Act. That assessment added $176,000 to the assessment of the property, effective May 4, 2015. This was to reflect the value added to the property through improvements made to the house. That amount was added to the $177,000 that the property was then assessed at, bringing the total assessment to $353,000. Mr. White appealed the supplemental assessment and that appeal was resolved, by agreement, in February 2017. The Board issued a decision, in accordance with that agreement, on February 24, 2017, reducing the supplemental assessment from $176,000 to $76,000. The total assessment for that period of 2015 was then $253,000.

7There was also a 2016 assessment of the property which was appealed. The 2016 assessment was returned at $367,000. Mr. White appealed that assessment and that appeal was also resolved by agreement. The 2016 assessment was reduced from $367,000 to $238,000.

2015 Appeals

8MPAC argues that this remaining appeal, of the initial $390,000 assessment for the 2015 taxation year, is moot because that value was replaced in August 2015 with the amended value of $177,000. That is, there is no longer an assessment of $390,000 for the 2015 taxation year, so there is nothing to dispute. They further argue that Mr. White did not appeal the revised value of $177,000 and is out of time to do so now.

9It strikes me as unfair that MPAC can unilaterally make an appeal to this Board moot by issuing a corrected assessment, pursuant to s. 32 of the Act. While it is open to a taxpayer to then appeal the corrected assessment, it seems onerous to require a new appeal multiple times in a year in order for a taxpayer to keep the assessment of their land in dispute before this Board. MPAC argues that a taxpayer must appeal each assessment. That is not how I read the Act.

10The Legislature addressed the potential unfairness in requiring multiple appeals in one year through the deeming provisions of the Act. Clause 40(26)(a) of the Act states, in relevant part, that “an appellant shall be deemed to have brought the same appeal in respect of a property, in relation to the assessments under sections 32… for the year.” There is only one reasonable reading of that provision. If a taxpayer has filed an appeal, they are deemed in law to have appealed all other assessments issued in that year. This seems aimed at protecting taxpayers, such as Mr. White, that may not fully understand what is at stake in each assessment.

11Mr. White was not required to file a separate appeal for the corrected assessment issued in August 2015 because he had already appealed the assessment for that year. The Act deems that he has brought the same appeal in respect of the corrected assessment of $177,000. There is, through the operation of clause 40(26)(a) of the Act, a deemed appeal of the corrected assessment for the 2015 taxation year.

12I agree with MPAC that the appeal of the $390,000 assessment for the 2015 taxation year is moot because that value has been replaced by a $177,000 assessment. However, clause 40(26)(a) of the Act deems that Mr. White also appealed that assessment. I therefore dismiss the appeal of the $390,000 assessment and effectively replace it with an appeal of the $177,000 corrected assessment.

Agreements

13Mr. White asks that I set aside the agreements he reached with MPAC for his two other appeals to this Board. Those agreements were made through minutes of settlement. He would like two agreements set aside:

a. His agreement that the supplementary assessment, effective May 4, 2015, should be reduce from $176,000 to $76,000; and

b. His agreement that the 2016 taxation year assessment should be reduced from $367,000 to $238,000.

Mr. White says that both agreements were made under “false pretenses.”

Supplemental Appeal Agreement

14On the first agreement, Mr. White claims he was led to believe that the supplementary assessment agreement was for the entire assessed value of the property for the 2015 taxation year. He claims he did not understand that it was, in fact, an addition to the $177,000 then on the assessment roll. He says that he only signed the agreement because a total assessed value of $76,000 was fair and that he would not have signed if he had known that the total assessed value was $253,000. MPAC argues that a reasonable person would have known what was in dispute and that Mr. White should not benefit from his own ignorance.

15I agree with MPAC that the information provided to Mr. White is clear that the $176,000 assessment was a supplemental assessment. The notice sent to Mr. White states “MPAC is required to issue a Notice when changes are made to a property that were not a part of a previous assessment, such as a renovation of addition.” The notice also describes the value as the “increase in assessed value as of January 1, 2012.” While the notice could be drafted to more clearly convey what is going on, including outline the total assessment, it is sufficiently descriptive that a reasonable person, reviewing the entire notice, would know what was at issue.

16I also do not accept Mr. White’s statement that he believed that the total value of the property had been reduced to $76,000. He purchased the property for $181,000 a short time before, and agreed to an assessed value of $238,000 for the 2016 taxation year a short time later. It is not plausible that he believed MPAC was agreeing to a total value of $76,000 for the 2015 taxation year. It is much more likely that Mr. White knew what he was agreeing to. I certainly do not have enough evidence on which to set aside a duly executed agreement between the parties.

2016 Appeal Agreement

17Mr. White’s complaint about the 2016 taxation year agreement is based on his mistaken understating that his assessment would be fixed at $238,000 from that point onward. He was dismayed when MPAC returned an assessment of $274,000 for the 2017 taxation year. Mr. White cannot benefit from that misunderstanding of the law.

18Subsection 19.(1) of the Act sets the date at which property is to be valued for each taxation year. The 2016 taxation year value is an estimate of what the property likely would have sold for on January 1, 2012, while the 2017 taxation year is an estimate of what the property likely would have sold for on January 1, 2016. MPAC’s opinion that the property increased in value over that four year period is not unreasonable. Mr. White’s misunderstanding of the law cannot be a basis to set aside the agreement. Parties are presumed to know the law and must generally live with the consequences of failing to do so.

19The final concern Mr. White raised in this motion is that MPAC is altering documents sent to him and this Board. My review of the documents does not support Mr. White’s allegation. There have been a number of emails between the parties and it is possible that there is some confusion around what was sent when. However, there is no indication that MPAC has intentionally misled Mr. White or this Board. I do not put any weight in the allegation of fraud that Mr. White has brought against MPAC.

Conclusion

20MPAC’s motion is granted and this appeal is dismissed because the assessed value under appeal no longer exists. However, Mr. White is deemed to have appealed the $177,000 assessment made in August 2015. There is a dispute about that value, and that appeal will be assigned procedural dates pursuant to the Rules.

21The parties are reminded that the deemed appeal is only regarding the $177,000 assessment for the 2015 taxation year. That was the only assessment in place from January 1, 2015 through May 3, 2015. The total assessment was $253,000 from May 4, 2015 through December 31, 2015, but only $177,000 is in dispute because the parties agreed on the $76,000 increase in value. A schedule of events for that appeal will be assigned by the Board.