Hemingway v. Municipal Property Assessment Corporation, 2018 CanLII 37735

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: April 26, 2018 FILE NO.: RRD 2018M04

Assessed Person(s): Patricia Gayle Hemingway, David Blane Hemingway Appellant(s): Patricia Gayle Hemingway, David Blane Hemingway Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 24 Respondent(s): Municipality of Central Huron

Property Location(s): 78396 Porter Hill Line Municipality(ies): Municipality of Central Huron Roll Number(s): 4030-240-006-02300-0000 Appeal Number(s): 3091662 and 3158887 Taxation Year(s): 2015 and 2016 Hearing Event No.: 677079

Legislative Authority: Rule 120 of the Assessment Review Board’s Rules of Practice and Procedure, as amended Request for: A review of the Board’s Decision DM 146842 issued on July 13, 2017 Heard: By written submission

Parties	Representative	Submissions
Patricia Gayle Hemingway, David Blane Hemingway	Self-represented	Requester
MPAC	No one appeared	Not Requested
Municipality of Central Huron	No one appeared	Not Requested

DECISION DELIVERED BY PAUL MULDOON AND ORDER OF THE BOARD

INTRODUCTION

1On August 10, 2017, Patricia Gayle Hemingway and David Blane Hemingway (the “Requesters”) filed a written Request for Review with the Assessment Review Board (the “Board”) respecting Decision No. DM 146842, a decision respecting a Motion which was issued by Member Joseph M. Wyger on July 13, 2017 (“Member’s Decision”) (see Municipal Property Assessment Corporation, Region No. 24 v Hemingway, 2017 CanLII 46013).

2The background to this Request for Review is as follows. The Requesters own 80 acres of farmland property that is located at 78396 Porters Hill Line, Municipality of Central Huron (the “Subject Property”), on which the Requesters have placed a mobile home. MPAC conducted a general reassessment, as defined in s. 1 of the Assessment Act (the “Act “), of the current value of the Subject Property for each of the four taxation years in the 2013 to 2016 assessment cycle. Pursuant to s. 19.2 of the Act, the valuation date for this general reassessment is January 1, 2012. MPAC determined that the current value as of this valuation date is $545,000 apportioned as follows:

a. Farm property Class - $507,100 b. Residential Property Class - $37,900

3Pursuant to s. 40 of the Act, the Requesters filed appeals for the 2013 and 2014 taxation years challenging MPAC’s general reassessment. The Board’s decision respecting these appeals confirmed MPAC’s assessment (see Hemingway v Municipal Property Assessment Corporation, 2015 CanLII 54413) (the “2015 Board Decision”). This decision indicates the Requester’s argued that MPAC’s assessment of current value was incorrect because it did not account for the negative impact of the potential development of industrial wind turbines (“IWTs”) in the Municipality. At paragraph 149 of this Decision the Board specifically noted that the only issue raised in respect of the assessment of the farmland is that it did not take into account the effect of the wind turbines on the property value. Regarding the Residential Property Class apportionment, the Board states, at paragraph 146 stated:

146. With respect to the mobile home, Mr. Hemingway does not challenge the value assigned to the home. He argues that the home should not be assessed because it is not used and he was forced to put it on the property to preserve his rights to build on the property. According to Mr. Hemingway, if a wind turbine were constructed on a neighbouring property while there was no residence on the Porters Line property, he would no longer be able to build a residence on the property.

4In rejecting this argument, the Board found that s. 3 of the Act requires that all real property must be assessed and taxed unless it is exempt from taxation, and that there was no evidence before the Board indicating that the mobile home was exempt from taxation.

5After release of the 2015 Decision, the Requesters then filed appeals for the 2015 and 2016 taxation years respecting the Subject Property. The Requester’s have not claimed that there had been a change in the use or condition of the Subject Property since the general reassessment valuation date. Therefore, the determination of current value for these years is based on the current value on the January 1, 2012 valuation date. Consequently, in respect of the 2015 and 2016 taxation appeals, MPAC brought a motion requesting that the Board find that the legal doctrine of issue estoppel applied to prevent the Requester’s from re-arguing the issue of the effect of the potential development of IWT’s on the current value of the Subject Property. Although the Member’s Decision could have been more explicit in its description of the relief requested by MPAC in its motion, the Decision does indicate that MPAC took the position that issue estoppel applies to both the determination of total current value of the property, and the $37,900 apportionment of the assessment for the Residential Property Class.

6In the Member’s Decision, Member Wyger found that MPAC had established the pre-requisite criteria for the application of the legal doctrine of issue estoppel. Therefore, he found that the Requesters were estopped “from re-arguing the January 1, 2012 current value”, and he issued an order confirming the assessments for the 2015 and 2016 taxation years at $545,000, which includes the $37,900 apportionment for the Residential Property Class.

7Turning now to the Request for Review, it attaches an affidavit jointly sworn by the Requesters on August 8, 2017, in which they request the following relief:

The Appellants Dave and Pat Hemingway at a minimum are requesting the removal of the Residential Property Assessment on the land 4030 240 006 2300 0000 as well as the $37,000 assessment on the mobile home unit plus the repayment of taxes paid for these two assessment designations in the past. This would be consistent with the ARB Chair Mr. Joseph Wyger’s Motion Decision, paragraph 23, date July 27, 2017.

8It is apparent from the reasons cited in their affidavit, that the Requester’s also challenge the application of issue estoppel which led to the Board’s confirmation of MPAC’s assessment for the 2015 and 2016 taxation years.

9The Board has reviewed the Request for Review record and has found the issues raised by the Requesters can be addressed without further submissions from the Requesters or the other parties to the Member’s Decision.

10For the reasons that follow, the Board concludes that the Request for Review should be denied.

RELEVANT RULES

11The Board’s Rules of Practice and Procedure (the “Rules”):

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

12In the Request for Review, the Requester relies on all of the grounds listed in Rule 121.

DISCUSSION, ANALYIS AND FINDINGS

The Requester’s Submissions

13While the Board has considered, in detail, all of the Requesters’ reasons and submissions in support of their Request for Review, the Board finds that providing an overview of these submissions will be sufficient for purposes of this Decision.

14Regarding the issue of the impact of the IWT’s on the total current value of the Subject Property, the Requester’s assert that MPAC’s evidence in support of the Motion indicates that several of the properties referenced by MPAC “had turbine leases on them.” The Requesters also challenged the qualifications and impartiality of MPAC’s property valuation specialist. The Requesters assert that “Based on this evidence, we have never received to this day an appeal hearing based on the issues in our appeals that relate to the effects of the Industrial Turbines on Property Values of properties in close proximity to Industrial Wind Turbines.” They also assert that the Hearing Member failed to understand that negative effects of wind turbines have been experienced by owners of properties that are located over ten kilometres from an Industrial Wind Project, which “makes the property unlikely at best to be purchased without a devaluation of the sale price.”

15The Requesters also re-iterate a submission made at the motion hearing that four groups, Municipalities, MPAC, the Government of Ontario, and the Board, meet the dictionary definition of a “Political (Tax) Cartel”, and, therefore, Board decisions are “based on government political policy, not on evidence provided at a tribunal.”

16Regarding the apportionment for the Residential Property Class, as noted earlier in this Decision, the Requesters submit that the Board should “remove” this classification, and order repayment of taxes as a consequence of such “removal.” In support of this position they rely on paragraph 23 of the Member’s Decision, which states:

The panel [sic the Hearing Panel who made the 2015 Decision] made a factual finding at paragraph 83: “With respect to the Porters Hill Line farm property while there were proposed wind turbines for Central Huron Municipality on the January 1, 2012 valuation day, there were none approved. The Porters Hill Line property is not used for residential purposes and the closest turbine to both properties is 9 to 10 kms and did not become operational until 2014.” The Deputy-Treasurer of Central Huron confirmed to MPAC that these facts have not changed.

17Implicitly, the Requesters’ argue that if the Subject Property is not used for residential purposes, the residential property classification is incorrect.

Findings

18The Board first notes that the Requesters have not challenged the Hearing Member’s summary of the criteria to be applied when determining whether the legal doctrine of issue estoppel applies. The Board has reviewed the Member’s Decision and finds that the Hearing Member has correctly summarized these criteria, and that the Hearing Member correctly identified and considered whether there was “anything different or changed about the subject matter or question or issue”, in order to determine whether any issues or facts raised in the current 2015 and 2016 appeals are different from the issues or facts addressed in the 2015 Decision respecting the 2013 and 2014 appeals. In this regard, it is important to note the determination of current value for all four taxation years is based on the current value of the Subject Property as of the general reassessment valuation date of January 1, 2012, as the Requesters do not assert that has been any change in the use or condition of the Subject Property since this valuation date.

19In this context, the Board finds that the reasons advanced by the Requesters in their Request for Review, do not indicate that any issues raised in the current 2015 and 2016 appeals are different from the issues addressed in the 2015 Decision respecting the 2013 and 2014 appeals. If anything, the Requesters appear to be re-arguing the issues addressed in the 2015 decision. The Hearing Member carefully considered the evidence and submissions adduced on the Motion and he found that there has been no substantive change in the facts or issues considered and adjudicated by the Board in the 2015 Decision. Consequently, the Request for Review does not provide a sufficient basis on which to conclude that the Hearing Member was incorrect in finding that the pre-requisite conditions for issue estoppel have been established, or that the Hearing Member should not have then exercised his discretion to apply this legal remedy in this case.

20Regarding the Requester’s submission respecting a “Cartel”, there is nothing in the Member’s Decision to suggest that the Member applied anything other than the appropriate statutory and legal criteria that were necessary to adjudicate the Motion.

21Regarding the issue of the Residential Property Class apportionment, the 2015 decision confirms the Requester’s own evidence that the mobile home is not used and was placed on the property for the purpose of preserving the Requesters’ rights to build on the Subject Property. Therefore, the Hearing Member’s conclusion that the Subject Property is not used for residential purposes is clearly correct. The Board further finds that Requesters’ submission in their Request for Review, simply re-iterates the same issue and evidence that was adjudicated by the Board in the 2015 Decision. Therefore, there is no indication that there is a significant error of fact or law in the Member’s Decision.

22Based on the above analysis and findings, the Board finds that the Requesters have not provided sufficient reasons, when considered individually or collectively, to satisfy the Board that any of the of grounds set out in Rule 121 have been established. Therefore, the Board finds that the Request for Review must be dismissed.

ORDER

23The Request for Review is dismissed.