Elaine Man Shu Ko v. Municipal Property Assessment Corporation, 2019 CanLII 109531

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

ISSUE DATE: November 15, 2019

FILE NO.: RD 2019M26

Assessed Person(s): Elaine Man Shu Ko

Appellant(s): Elaine Man Shu Ko

Respondent(s): Municipal Property Assessment Corporation ("MPAC") Region 09

Respondent(s): City of Toronto

Property Location(s): 28 Bamboo Grove

Municipality(ies): City of Toronto

Roll Number(s): 1908-083-150-02100-0000

Appeal Number(s): 3262117 and 3293138

Taxation Year(s): 2017 and 2018

Hearing Event No.: 710280

Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31 Rule 123 of the Assessment Review Board Rules of Practice and Procedure

Request for: A review of the Board's Decision WR 158796 issued on March 25, 2019

Heard: By written submission

Parties	Counsel+/Representative	Submissions
Elaine Man Shu Ko	Self-represented	Requester
MPAC	Drew Samuels	Received
City of Toronto		Not Received

DECISION DELIVERED BY PAUL MULDOON AND ORDER OF THE BOARD

INTRODUCTION

1Elaine Man Shu Ko (the "Requester") filed a written Request for Review with the Assessment Review Board ("Board") respecting the decision of the Board issued on March 25, 2019 in Ko v Municipal Property Assessment Corporation, Region 09, 2019 CanLII 25955 (ON ARB) (the "Decision").

2In its decision the Board assessed the Requester's property (the "Subject Property") at a current value of $2,815,000 (rounded) for 2017 and 2018 and reduced the value to $2,511,000 (rounded) to make the assessment of the Subject Property equitable with the assessment of similar properties.

3The Requester submits that the Presiding Member made a number of errors and that the current value assessment of her property should be $1,828,600.

4For the reasons that follow, the Board confirms the Decision for the 2017 and 2018 taxation years as $2,511,000.

RELEVANT RULES

5The grounds for a Request for Review are set out in Rule 121 of the Board's Rules of Practice and Procedure (the "Rules"). A Request for Review will not be granted unless the Board is satisfied that one of the following criteria in Rule 121 are met. Rule 121 states:

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.

6The Requester has not identified which grounds she is relying on. Based on her submissions, it appears that generally the Requester is alleging an error of law or fact and possibly also a breach of fairness, so her allegations appear to fall under grounds (a) and (b).

7According to Rule 124, upon consideration of a Request for Review, 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.

DISCUSSION, ANALYIS AND FINDINGS

8To meet the threshold for review in this case, the Board must be satisfied that:

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

(b) the Board:

(i) made a significant error of law or fact; and

(ii) had the error(s) not been made, the Board likely would have reached a different decision.

Unless one of the grounds set out above is met to the satisfaction of the Board, the Board will not interfere with the decision.

9For the reasons that follow, the Board finds that neither of the grounds set out above has been met and the Decision is confirmed.

Did the Board act outside its jurisdiction or violate the rules of natural justice or procedural fairness?

10The Requester submits that she was treated unfairly through MPAC's actions and in the Board's decision. For the reasons that follow, the Board finds that the Presiding Member did not act outside of its jurisdiction or violated the rules of natural justice or procedural fairness.

Alleged Unfairness in MPAC's actions

11The Requester states that MPAC's representatives misdirected the Requester about the formality and seriousness of the hearing and about what evidence needed to be submitted in advance, and then objected to the Requester's evidence being introduced at the hearing. The Requester stated that one of MPAC's representative's professional conduct is under review by the Ombudsman and by MPAC's Commissioner of Quality Service.

12The Requester raised these concerns "as a preliminary matter." It is not clear whether the Requester was raising these concerns as grounds for her Request for Review, or simply bringing to the Board's attention her dissatisfaction with the actions of MPAC. It should be recalled that the Request for Review grounds focus on whether the Board acted outside of its jurisdiction or violated a rule of natural justice or procedural fairness. Even if the Board was to assume the facts as alleged are true, it is not clear how these facts would support a finding that the Board violated the rules of natural justice or procedural fairness. Therefore, this ground for review (if in fact it was intended as such) must fail.

13The allegations relate to MPAC's behavior before the hearing began and the guidance MPAC's representatives gave to the Requester about how the hearing would proceed. The Requester then had a full hearing before the Board with full procedural rights, which the Requester does not challenge. Regardless of the steps taken before the hearing by the Requester or MPAC, based on the information with respect to this Request for Review, it does not appear that the Presiding Member denied the Requester any procedural rights at the hearing.

14Regarding MPAC's objection to the Requester's evidence being introduced, the Board's decision addresses this issue at paragraphs 2 and 3. Despite MPAC's objection to the late evidence being introduced, the Board allowed the Requester to rely on the evidence. The Board can find no prejudice to the Requester in this regard and no denial of procedural fairness.

15In conclusion, the Board finds that Presiding Member did not act outside of its jurisdiction or violated the rules of natural justice or procedural fairness.

Alleged Unfairness in the Board's Decision

16The Requester also submits that she was unfairly treated because the Presiding Member preferred MPAC's evidence, which she describes as false and misleading. The Requester explains that she questioned and "poked holes" in MPAC's evidence, and in contrast MPAC and the Board had no questions for the Requester's evidence, which she took to mean that her evidence was "rock solid."

17Preferring one party's evidence over another is not a breach of procedural fairness or a violation of natural justice. There is no reason to believe that the Presiding Member acted unfairly in reaching these decisions. The Presiding Member gave the Requester an opportunity to be heard, considered the evidence presented, made a decision, and articulated her reasons for preferring MPAC's evidence. The Board is not satisfied there is any evidence of the rules of procedural fairness were breached.

18The Requester submits that she was treated unfairly because the Board said that the Requester failed to present certain evidence, but she was never asked for that particular evidence so she states she did not have the opportunity to provide the evidence. The Requester points to paragraph 28 of the decision where the Board disregarded the Requester's comparable properties because she did not provide pictures and quality class ratings. The Board agrees with the principles that when parties appear before the Board, the Board must ensure that parties have the opportunity to provide their evidence. However, it is also clear that it is the party's responsibility to bring their best evidence to establish their case. It is not the Board's role to tell parties how to prove their case; it follows that it is not a breach of procedural fairness if the Presiding Member prefers evidence of one party over the evidence of another party. In this case, the Presiding Member preferred MPAC's evidence.

19Finally, the Requester challenges the quality class rankings relied upon in the Decision. It is not clear how this would be an issue of fairness, hence, this issue will be addressed with respect to the discussion of whether there is a legal or factual error in the Decision.

20Based on the above, the Board is not satisfied that the Presiding Member acted outside of the jurisdiction of the Board or violated the rules of natural justice or procedural fairness.

Did the Board make a significant error of law or fact such that the Board would likely have reached a different decision?

21In addition to the issues of unfairness, the Requester submits that the Presiding Member made a number of errors with the Board's Decision, presumably alleged errors of fact or law (Rule 122(b)). For the reasons that follow, the Board is not satisfied that Presiding Member made any errors.

22The Requester's issues generally fall into the following categories:

1. The Board should have relied on the Requester's comparables and not on MPAC's comparables.
2. The Quality Class Ratings were incorrect.
3. The post inspection report was flawed.
4. The time adjustment factor/price change over time analysis was flawed.
5. MPAC's theory on buyer mentality and behaviour is flawed.

23The Requester submits that, based on her evidence and calculations, the current value assessment of her property should be $1,828,600 for January 1, 2016.

24According to MPAC, none of the evidence provided by the Requester in this Request for Review is new evidence, and all arguments were either raised in the original hearing or not raised at the original hearing but should have been. According to MPAC, there is no error in the Board's original decision and this Request for Review is an attempt by the Requester to reargue an unfavourable decision.

25The City did not file any submissions and the Requester did not file any reply submissions.

26To meet the threshold for review under Rule 122(b), the Requester must satisfy the Board that: (i) the Board made significant errors of fact or law; and, (ii) had the errors not been made, the Board likely would have reached a different decision. This is a high threshold and the onus is on the Requester. The Board is not satisfied that this threshold has been met here.

The Requester's Comparables

27The Requester's primary submission is that the Presiding Member's decision made an error in preferring to accept the comparable properties presented by MPAC rather than the properties she presented. She submits that the Board should not have relied on MPAC's comparable properties because they are not similar to the Subject Property for a number of reasons:

1. They are not in the same location as the Subject Property: The Requester explains that MPAC's comparables are in a different neighbourhood and all west of Banbury Road, whereas the Subject Property is east of Banbury Road. The Requester provided her own comparables that were all in her neighbourhood. She submits that location should have been a more relevant consideration in determining the value of the property.
2. They are all custom-built homes on ravine lots or on cul de sacs, whereas the Subject Property is part of a small pocket built by a subdivision builder on small rectangular lots.
3. The Subject Property is much older than MPAC's comparables: The Requester submits that the Subject Property's "effective year built" was incorrect, because most of her home was pre-existing (from 1969) and the house was not a new built (it was renovated). She argues the effective year built should not have been 2014, and her property is much older than MPAC's comparables. Also given that MPAC did not know when the comparables were renovated, it is unknown what their "effective year built" would be, and one of the properties was a new built from 2011.
4. The Requester submits MPAC's calculation of lot size (for properties 1, 3, 4 and 5) is vastly understated and not comparable to the Subject Property. The Requester argues that the lot size of her comparables are similar to the Subject Property.

28The Presiding Member relied on the best evidence it had before it in making its decision. The Presiding Member explained at paragraph 30 that it did not rely on the Requester's comparables because they were not similar to the Subject Property in terms of age and building size and the Board was unable to determine the quality class of the Requester's comparables. That was a decision that was open to the Board to make.

29The Presiding Member then reviewed the other comparables it was given by MPAC. The Board thoroughly and critically analyzed the evidence before it (at paragraphs 31 and 32) and did not simply take MPAC's evidence at face value. The Board considered MPAC's six comparables and found only four of them were comparable, taking into consideration lot size, building size, quality class, age, effective frontage, and other features. The Board then determined the time-adjusted sale price per square foot for the comparable sales, found the median, and determined the current value of the subject property.

30Most of the concerns raised by the Requester relate to factual findings: some are arguments that factual findings were incorrect, and most are concerns about the weighing of the evidence by the Presiding Member. As this Board has held previously see e.g., Drennan Farms Ltd. v. Municipal Property Assessment Corporation, Region 24, 2017 CanLII 41837 (ON ARB), Board Members have discretion in assessing evidence and in a request to review a decision, the Board accords a high level of deference to findings of fact.

31Assessing the value of a property is a complicated process that involves considering many different factors; the Board's choice of which comparables to rely on depended on the weighing of evidence. The Requester believes certain evidence and certain considerations should have weighed more heavily on the Board's decision, including the location of the comparables, whether the property was renovated or newly built, and whether the property was custom built or not. The adjudicator has the discretion to determine which factors to consider and the Board accords a high degree of deference to the Presiding Member's discretion in weighing evidence. While another adjudicator may have reached a different decision on any of these factors, there is no significant error identified by the Requester that would likely have led to the decision being different in this matter.

32With respect to the Requester's submission that the effective year built is incorrect because her home was renovated and not a new built, the term "effective" year built anticipates that although the entire property is not newly built, it does contain renovations that makes the property "effectively" a newer build. Determining that the Subject Property was "effectively" built in 2014 due to the renovations was a factual finding that was open to the adjudicator to make based on the evidence before the Presiding Member.

Quality Class Ratings

33The Requester submits that the Presiding Member relied too heavily on the exterior look of the houses and did not assess the inside of the houses, and quality of construction is based on subjective opinion and not science, evidence or physical inspection. She argues that, based on her comparables and analysis, the Quality Class Rating should have been 7 and not 8.

34As with the choice of comparables, determining the Quality Class Rating of a property involves weighing a number of considerations and relying on the best evidence before the adjudicator. In paragraph 27, the Presiding Member found that based on the information provided to the Board, including the comparables provided by MPAC, the comparables provided by the Requester, which the Board found lacked necessary information, and the expertise of MPAC's representative, it was "more probable than not that the subject property is 8.0." Giving deference to the findings of fact, the Board is not satisfied that the Presiding Member made any errors, given that the adjudicator explained the findings, relied on the evidence, and provided reasons for why the evidence was weighed in relation to other evidence.

Post inspection report

35The Requester submits that the post inspection report was flawed. The Requester submits sentences of "general description" in the post inspection report were plagiarized from descriptions of quality class 8 without description, without specifics, and without MPAC being able to explain how they were certain about the findings. The Requester also disagreed with a number of specific facts from the report. Despite these criticisms of the inspection report, the Requester questions how the Board still found the Subject Property was quality class 8.

36The Board is not satisfied that the Requester has identified any significant error of fact. The very specific discrepancies between the report and the Requester's description of her property (for example a description of multiple rooflines versus a flat roof) are minor in nature and likely would not, in and of themselves, affect the Board's decision. In addition, the concerns raised relate to MPAC's report and are not errors with the Board's findings.

Time adjustment factor

37The Requester submits that the 335 sales used to conduct this analysis were hand-picked and not random as MPAC argued. The Requester submits that none of the 335 sales are comparable or useful because the prices are too high and the properties are not near the Subject Property, so any time adjustment factor based on those sales cannot be correct. The Requester argues the time adjustment factor is flawed because using MPAC's time-adjustment factor, there was a $500,000 difference between the adjusted sale prices of property 4 based on sales in April 2016 and July 2017.

38This argument was made before the Presiding Member, as summarized by the Board at paragraph 19. The Presiding Member's findings on this point are at paragraph 29. The Requester argues that the Presiding Member's findings on this point are insufficient, as the Board dismissed the issue simply because the Requester did not provide an alternative. She argues that the burden should not be on her to come up with an appropriate time adjustment factor.

39Although the reasons may not have been explicit, the Presiding Member clearly considered the evidence and the Requester's arguments, but was satisfied with MPAC's time adjustment factor calculation, and the evidence relied upon in reaching that calculation. The Requester is correct that the burden is on MPAC at first instance to establish the correct current value (Assessment Act, R.S.O. 1990, c. A.31 s. 40(17)). However, the Presiding Member also has to rely on the best evidence it has in making findings.

MPAC's theory on buyer's mentality and behaviour

40The Requester had concerns with what she referred to as MPAC's assumptions, including that buyers care more about architectural design than about location, and that price should be determined based on square footage. She argues that rather than relying on price per square foot, the current value should have been average sale price based on her own comparables.

41The Board is not satisfied that the Presiding Member made any error fact or law in this regard, in that the Presiding Member made findings based on the evidence presented at the hearing.

42It appears that the submissions raised in this Request for Review were brought to the attention of the adjudicator at the hearing. The adjudicator considered these issues and decided the matter in a certain way. The Requester is trying to reargue the case and the Board has noted in the past that this is not the purpose of a Request for Review see e.g., Nichol v Municipal Property Assessment Corporation, Region 03, 2018 CanLII 99124 (ON ARB).

43The Requester also argues that the Board disregarded her evidence without sufficient explanation. The Board disagrees in that the Presiding Member considered all of the evidence, all of the submissions of the parties, and provided a comprehensive analysis to support its findings.

44Based on the reasons above, the Board finds the Requester did not meet the threshold for review required under Rule 122(b) and there is no reason to interfere with the Board's original decision.

ORDER

45After providing all parties an opportunity to make submissions, the Board confirms the Decision for the 2017 and 2018 taxation years as $2,511,000.