Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: June 15, 2018

FILE NO.: RRD 2018M02

Assessed Person(s): Bruce Easterbrook

Appellant(s): Bruce Easterbrook

Respondent(s): Township of Athens

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 02

Property Location(s): 102 8th Line Road

Municipality(ies): Township of Athens

Roll Number(s): 0819-819-024-07105-0000

Appeal Number(s): 2996472, 3002885, 3070373 and 3143706

Taxation Year(s): 2013, 2014, 2015 and 2016

Hearing Event No.: 637364

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

Request by: Bruce Easterbrook (“Requester”)

Request for: A review of the Board’s Decision WR 144292 issued December 20, 2016

Heard: By written submission

DECISION OF THE BOARD DELIVERED BY PAUL MULDOON

ISSUES AND ORDER SOUGHT

1Bruce Easterbrook (the “Requester”) seeks a request for review of the decision of the Assessment Review Board (the “Board”) by Member Donald Whitehurst, issued on December 20, 2016 (WR 144292) (the “Decision”). This request for review was submitted to the Board on January 25, 2017, and accepted following the Board’s consideration of the Applicant’s request for an extension of time.

2The issue before the Board at the hearing was whether the assessment of the property at 102 8th Line Road (the “Subject Property”) as returned by MPAC at $177,000 for the 2013 taxation year; $174,000 for the 2014 taxation year; and $184,000 for the 2015 and 2016 taxation years is correct. The Presiding Member confirmed the assessments returned by MPAC for the 2013 to 2016 taxation years. At the hearing, Walter Flemming, for MPAC, stated the Subject Property was assessed at $214,000 for the 2015 and 2016 taxation years, but reduced by $30,000 since the residence was 85% complete. MPAC did not seek an increase in the assessed values for the 2013 and 2014 taxation years. The Requester stated at the hearing the assessment of the Subject Property should be $143,000 based on the per square foot time adjusted sales of his suggested comparable properties. The Requester further argued that MPAC’s completion percentage of 85% should be 75% completeness.

3The Requester submits that the Board violated the rules of natural justice or procedural fairness, and the Board made an error of law or fact such that the Board would have likely reached a different decision. The Requester seeks an order cancelling the Decision of the Board.

RELEVANT RULES

4The Board’s rules respecting request for review are set out in Rules 141 to 146 of the Board’s Rules of Practice and Procedure (the “Rules”).

5A request for review is received pursuant to Rule 144 which grants the Board with the following authority:

144 Receipt of Request for Review

(1) Where a request for review has been received, the Board may:

(a) seek written submissions from the parties on the issue raised in the request;

(b) grant a motion to argue the question;

(c) grant a re-hearing without a motion; or

(d) confirm, vary, suspend or cancel the decision.

6The grounds for review are stated in Rule 145:

145 Grounds for Review

(1) The Board may consider reviewing its decision if the grounds for the request raise a convincing and compelling case that the Board:

(a) acted outside its jurisdiction;

(b) violated the rules of natural justice or procedural fairness, including allegations of bias;

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

(d) should consider new evidence, which was not available at the time of the hearing, but that is credible and could have affected the result; or

(e) heard false or misleading evidence from a party or witness, which was discovered only after the hearing and could have affected the result.

DISCUSSION AND REASONS

7The Board denies the request for review in this case for the reasons that follow.

Ground No. 1 – Rule 145(b): Alleged Violation of the Rules of Natural Justice or Procedural Fairness

8The Requester alleges the Board did not hear the matter in a timeframe considered normal in the legislation. The Requester further alleges that he was not provided with disclosure of assessment data and calculations, or given an opportunity to respond to MPAC’s Valuation Report.

9For clarity, the Standard and Direct Hearing Streams were not legislated requirements, rather they were procedural standards created and implemented by the Board. The commentary explaining the Streams is found on page 27 of the Board’s Rules effective January 4, 2016.

10The Requester’s appeals proceeded through the Direct Hearing Stream. The commentary in the Rules states that appeals proceeding through the Direct Hearing Stream will “generally” be completed within one year of filing of the appeal. The estimated time to complete an appeal may be impacted by complicating factors, such as adjournments, extensions, and the addition of other appeals. In this case, the Requester filed an appeal for the 2013 taxation year on January 3, 2014. A hearing was scheduled for May 8, 2014 (FH 559611) but was adjourned at the request of Mr. Easterbrook. Following the first adjournment request, the 2013 appeal was combined with appeals for the 2014 to 2016 taxation years and rescheduled for July 16, 2016 (FH 634468). This hearing was adjourned due to deficiencies in Mr. Easterbrook’s disclosure. The 2013 to 2016 appeals were heard on November 24, 2016. Given the procedural history of the matter and the fact that four appeals were heard and Written Reasons were issued on December 20, 2016, the Boards timeline was reasonable and that any delay does not result in any violation of the rules of natural justice or procedural fairness.

11Regarding the disclosure concerns, the Requester states that he received a Valuation Report from MPAC on June 22, 2016, and a Comparable Property Report around July 13, 2016 a few days before the hearing. The hearing date of July 16, 2016 was adjourned for non-disclosure by Mr. Easterbrook pursuant to Rule 45(2)(a), a party must provide a copy of any documentary evidence it intends to rely on at least 21 days before the hearing. In this case, the hearing occurred on November 24, 2016. Further, the hearing proceeded through the Direct Hearing Stream, which does not require the exchange of Statements of Issues and Responses, and generally does not require pre-hearing conferences or examinations for discovery. If the Requester had concerns with the disclosure provided or the timeframe of the hearing, these concerns should have been raised prior to the hearing. Further, the Board addressed MPAC’s objection to late evidence provided by Mr. Easterbrook at the commencement of the hearing. Conversely, the Requester did not raise his objections at this time. Hence, the Board finds that there has not been any violation of the rules of natural justice or procedural fairness.

Ground No. 2 – Rule 145(c): Alleged Material Errors of Law and/or Fact

12With respect to alleged errors of law or fact, the Board will only grant a request for review if there is a convincing and compelling case that, but for the error, the Board would have likely reached a different result.

13The Requester submits that the Board erred on a number of issues in reaching its Decision. The first three issues set out in the Requester’s request for review take issue with MPAC’s database and assessment methodologies and the Requester submits that the Board erred by not ordering MPAC to adjust its records to reflect a previous Decision of the Board. With respect to the concerns with MPAC’s database and assessment methodologies, there is no indication such concerns were raised at the hearing with the Board. If they were not raised at the hearing, the Board does not have the full benefit of reviewing any evidence, have the evidence tested at the hearing and having heard submissions by parties. Such matters should have been raised at the hearing. Similarly, it is not clear whether the assessed asked the Board to order MPAC to adjust its records and certainly such a request should not be initiated through a request for review process. Further, the Requester makes a number of references to an unrelated decision of the Board issued on July 8, 2015 Simpson v Municipal Property Assessment Corporation, Region 09, 2015 CanLII 40068 (“WR 132587”) that deals with a single family residential property in Toronto. The Member in WR 132587 determined one property on the same street was comparable and had a valid sale and used a sales price per square foot to determine a current value for the Subject Property. In the Decision under review (WR 144292) the Presiding Member considered many sales characteristics to determine the current value of the Subject Property, one of which was square footage of comparable properties.

14While the Board attempts to respect and follows its own jurisprudence, there are many circumstances where one adjudicator makes a different finding in another matter. The Board attempts to ensure the consistency in applying the law, however, there are often circumstances and facts that may lead to different results. The reasoning and preference of evidence in WR 132587 are distinct from the Decision at issue, meaning the Decision in WR 132587 is confined to its facts, and the Presiding Member did not make an error of law by not following WR 132587. It does not appear that the Requester is submitting that the Board erred in applying a legal principle or dictate, simply that that the Presiding Member did not precisely follow the reasoning and preference of evidence in another decision.

15Second, the Requester submits that the Board ought to have adjusted the main floor square footage from 1,413 square feet submitted by MPAC, to 1,408 square feet in accordance with the Requester’s measurements. This issue is addressed in the Board’s Decision at paragraph 16, point 6, where the Board addresses its preference for MPAC’s evidence. There is no error in the Presiding Member’s decision on that point.

16Third, the Requester submits that the Board used a different range of Time Adjusted Sales (“TAS”) for the parties, resulting in the Requester’s comparable properties not being accepted into evidence. This issue is addressed in paragraphs 17 and 18 of the Decision, in which the Presiding Member clarifies the Board’s determination of comparable sales. It is not an error if a Board is not persuaded party’s evidence and prefers the other party’s evidence.

17Fourth, the Requester submits the Board erred by not adjusting the incompleteness value ($45,000) for inflation. In particular, the Requester challenges the Board’s finding at paragraph 22, point 5 of the Decision, that there was no evidence before the Board that would enable an accurate adjustment to the incompletion value for inflation. It is within the jurisdiction of the Board to find that since no evidence was submitted, the Board could not adjust the incompleteness value.

18Fifth, the Requester submits the Board erred by not making adjustments for size, or other characteristics, in determining the current value assessment, including adjustments for secondary structures. This issue was addressed in paragraphs 23 to 25 of the Decision in which the Presiding Member stressed that the Board is of the view different characteristics have varying degrees of impact on current value. The Presiding Member went on to compare all sales characteristics of the TAS properties accepted into evidence with the characteristics of the Subject Property.

19Lastly, the Requester submits the Board erred by stating at paragraph 26 of the Decision the parties did not plead any inequity. In his request for review, the Requester acknowledges that he did not raise the issue of equity at the hearing, and argues that the comparable properties he submitted into evidence for the determination of current value should have been considered by the Board for equity. Pursuant to s. 44.(3)(b) of the Assessment Act, the Board is required to:

…have reference to the value at which similar lands in the vicinity are assessed and adjust the assessment of the land to make it equitable with that of similar lands in the vicinity if such an adjustment would result in a reduction of the assessment of the property”

20In the Decision at paragraph 26, the Presiding Member states that he reviewed the evidence and did not find “any evidence” of inequity.

21After reviewing the materials submitted, the Board does not find that the Requester met the threshold of presenting a convincing and compelling case there was an error in the Board’s Decision.

22The admissibility of evidence and its weight is within the jurisdiction and authority of the Member or panel of the Board. A request for review does not present an opportunity to reargue a case or make up for deficiencies in evidence presented at the hearing.

ORDER

23For all of these reasons, the Board orders that this Request for Review be denied and the Presiding Member’s Decision is confirmed.