Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: February 15, 2019

FILE NO.: WR 154796

Assessed Person(s): Chyc Enterprises Limited

Appellant(s): Chyc Enterprises Limited and Ted Chyc

Respondent(s): Municipal Property Assessment Corporation (“MPAC”), Region 23

Respondent(s): Township of Malahide

Property Location(s): 47926 Lyons Line

Municipality(ies): Township of Malahide

Roll Number(s): 3408-014-020-12300-0000

Appeal Number(s): 3269379 and 3312970

Taxation Year(s): 2017 and 2018

Hearing Event No. 701790

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

Heard: July 26 - 27, 2018 in London, Ontario

APPEARANCES:

Parties	Representative
Chyc Enterprises Limited	Ted Chyc
MPAC	Ian Johnstone
Township of Malahide	Suzanna Dieleman

DECISION OF THE BOARD DELIVERED BY WARREN MORRIS and JENNIFER GRIFFITH

Background

1Edward Arnott Chyc is the owner of 47962 Lyons Line, (the “Subject Property”), which is located in the County of Elgin.

2Pursuant to the provisions of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”), the assessment of land shall be based on its current value. The Act also provides that, for the 2017 to 2020 taxation years, MPAC is required to assess this value as of the valuation date, January 1, 2016.

3MPAC has assessed the current value of the Subject Property at $787,000 for the 2017 taxation year and $724,000 for the 2018 taxation year.

4Chyc Enterprises Limited and Ted Chyc (the “Appellants”) have filed appeals for the 2017 and 2018 taxation years with the Assessment Review Board (the “Board”), pursuant to s. 40 of the Act. It is their position that MPAC’s assessment of current value is too high and that the correct current value is $690,000. At this hearing, MPAC takes the position that its assessed value should be $724,000 for the 2017 and 2018 taxation years.

5Pursuant to s. 40(11) of the Act, the Township of Malahide (the “Township”) is a party to this proceeding. Ms. Dieleman, the Township’s representative indicated that she was there to observe the hearing on the Township’s behalf. She asserts no position on current value.

6Section 44(3)(b) of the Act directs the Board to reduce the current value of the Subject Property if similar lands in the vicinity have been assessed at a lower value (“equitable reduction”). The purpose of this provision is to fairly distribute the municipal tax burden according to the value of the property possessed by each ratepayer. MPAC takes the position that an equitable reduction is not required. The Appellants assert no position on equity. Therefore, equity is not at issue at this hearing.

7At the completion of the hearing, the Board reserved its decision. For the reasons that follow, the Board finds that the current value for 2017 to 2018 tax years is $699,000 Pursuant to s. 44(3)(b) of the Act, an equitable reduction of this value is not required.

Relevant Legislation

8The Act states:

1. “current value” means, in relation to land, the amount of money the fee simple, if unencumbered, would realize if sold at arm’s length by a willing seller to a willing buyer.

19.(1) Assessment based on current value. – The assessment of land shall be based on its current value.

19.2(1) Valuation days – Subject to subsection (5), the day as of which land is valued for a taxation year is determined as follows:

4. For the period consisting of the four taxation years from 2017 to 2020, land is valued as of January 1, 2016.

40.(17) For 2009 and subsequent taxation years, where value is a ground of appeal, the burden of proof as to the correctness of the current value of the land rests with the assessment corporation.

44.(3) Same, 2009 and subsequent years. – For 2009 and subsequent taxation years, in determining the value at which any land shall be assessed, the Board shall,

(a)determine the current value of the land; and

(b)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 land.

19.(5) Farm lands and buildings - For the purposes of determining the current value of farm lands used only for farm purposes by the owner or used only for farm purposes by a tenant of the owner and buildings thereon used solely for farm purposes, including the residence of the owner or tenant and of the owner’s or tenant’s employees and their families on the farm lands,

(a) consideration shall be given to the current value of the lands and buildings for farm purposes only;

(b) consideration shall not be given to sales of lands and buildings to persons whose principal occupation is other than farming; and

(c) the Minister may, by regulation, define “farm lands” and “farm purposes”.

Issue

9The issue to be determined on this appeal is the correct current value of the Subject Property for the 2017 and 2018 taxation years.

Description of the Subject Property

10The Subject Property is used for farming purposes and is located at 47962 Lyons Line, in the Township of Malahide in the Old South Dorchester region. The Subject Property consists of 52.92 acres of farm lands. MPAC classified the soil as class 2 for the entire 52.92 acre parcel. There are no structures on this property.

Discussion, Analysis and Findings

MPAC’s Evidence

11Mr. Johnstone is counsel for MPAC and Corinne Van Raay and Wayne Williams are the witnesses for MPAC. Mr. Johnstone called on Ms. Van Raay, Property Valuation Analyst for MPAC and she provided a copy of her curriculum vitae of her Education, Professional Development Training and work experiences.

12Ms. Van Raay continues by presenting a Valuation Report dated February 24, 2018 which she prepared in support of current value. Ms. Van Raay testifies to the information contained in the report.

13Ms. Van Raay states that 149 farms filed Request for Reconsideration (“RfR”) for the 2017 taxation year, and a review of the sales which occurred in the Township reveals that a negative 8% adjustment to the assessed value of these farms was required. Ms. Van Raay states that all but two farmers accepted MPAC’s recommendation to reduce the returned assessed value by a negative 8%. She states that Mr. Chyc was one of the two farmers that rejected the recommendation. Ms. Van Raay also states that the farmers who did not file an RfR for the 2017 taxation year did not receive the adjustment for that year. However, the negative 8% adjustment was applied to the 2018 taxation year for all farms, regardless of whether an RfR was filed.

14Ms. Van Raay states that the farm land Soil Class 1 means that it has good drainage and level; and that Farm Land Soil Class 2 means that it is more rolling, lower level of drainage, and is still good soil for the Subject Property.

15Ms. Van Raay states that the trend in the market value is starting to go up and that farms with large livestock tend to acquire more land for nutrients (manure).

16Ms. Van Raay presents a Trend Analysis Report of 335 sales which she used to determine the time adjustment factor of sales which occurred prior to and a year after the valuation date of January 1, 2016. She testifies that these sales of suggested comparable properties are located in the immediate and adjacent neighbourhoods, 35 kilometres away from the Subject Property. She testifies that these sales were investigated and found to be open market transaction of vacant farm lands, sold from farmers to farmers. She states that the sales investigation involves such things as a farm sales questionnaire that is sent to the purchasers, telephone call to the buyers or sellers, deeds, and site visitations.

17Ms. Van Raay states that MPAC always uses vacant farm lands for comparison to the Subject Property because it does not involves variables like a home, silos, bins and other outbuildings that are difficult to assess, because of their condition. In cases where there is a farm residence, the value of the residence is determined by the Cost Approach to value.

18In support of current value, Ms. Van Raay presents an analysis of six suggested comparable properties located in the same homogeneous neighbourhood as the Subject Property. The analysis includes both actual sales and time adjusted sales prices. Ms. Van Raay testifies that she selected properties that are inferior, superior, and similar to establish a range of values for comparison to the Subject Property.

19Ms. Van Raay testifies that the sales of these suggested comparable properties were investigated and found to be open market transactions between farmers who are registered by Ontario Ministry of Agriculture, Food and Rural Affairs (“OMAFRA”). As stated above the investigation is extensive and involves (sales questionnaire, deeds, telephone calls etc.).

20She also confirms that adjustments to the returned assessments of these six suggested comparable properties and the Subject Property include a negative 8% market adjustment and adjustments for changes to the Soil Class where applicable.

21These suggested comparable properties are located at 1781 Avon Drive, sold in 2013; 47738 Yorke Line, sold in 2014; 12500 Empey Road, sold in 2013; Avon Drive, sold in 2015; 7119 Pigram Road, sold in 2016; and 51765 Lyons Line, sold in 2013.

22Mr. Johnstone also called Mr. Williams, Senior Valuation Specialist for MPAC as a witness and he presents an overview of his academic background and work experiences in the field of assessment. He states that he has an Associate Member Institute of Municipal Assessors designation (“AIMA”) since 1989 and has been qualified as an expert in 2006 and in 2008. He states that he has worked in a number of municipalities (Town of Orangeville and Cities of Guelph, Brantford and London) and has directed the work of field officers and customer service officers.

23In regard to 1781 Avon Drive (Comparable 1), Mr. Williams testifies that the property was purchased by tender and was sold to the highest bidder. He testifies that the sale was advertised in newspapers and with for sale signs posted in locations that were available to anyone who wishes to place an offer to purchase.

24In regard to the suggested comparable property at 47738 Yorke Line (Comparable 2), Mr. Williams states that the purchaser, Stephen Crinklaw, was spoken to and he indicated that the property was sold by tender. He made an offer as did other potential buyers and when it was decided he was successful in purchasing the property for DNS Crinklaw. Mr. Williams also states that the purchaser is a registered farmer as confirmed by OMAFRA.

25In regard to 12500 Empey Road (Comparable 3), Mr. Williams states that a sales questionnaire was mailed to the purchaser and was not returned. MPAC tried contacting the purchaser by telephone and had no response. However, MPAC was successful in reaching the vendor, who indicated that he/she was monitoring the sale prices and speaking to a real estate agent. Mr. Williams said that the vendor did not list the property on Multiple Listing of Service (“MLS®”), but in fact listed the property for sale locally in variety stores, local co-ops, and restaurants for six to eight weeks. Offers were accepted and in the end the property was sold to the highest bidder (a pig farmer).

26In regard to the suggested comparable property at Avon Drive (Comparable 4), Mr. Williams testifies that MPAC reviewed the sale and contacted the purchaser and vendor who said that the property was listed on the open market. He testifies that the purchaser owned two other properties, and purchasing Avon Drive would increase the size of the farm, making it more desirable, with less turning and therefore easier to farm with less wear and tear on equipment.

27In regard to 7119 Pigram Road (Comparable 5), Mr. Williams testifies that MPAC has spoken to the new owners who said that the property was listed and sold by a Real Estate agent and that there were three offers. Mr. Williams states that it was a farmer to farmer sale and the new owner is in the dairy farm business.

28In regard to 51765 Lyons Line (Comparable 6), Mr. Williams testifies that the purchaser did not return MPAC’s calls. However, Mr. Williams states that the vendor advised him that the purchaser had been sending a Real Estate agent every year to make an offer to buy the farm and that the purchaser has known the vendor since the 1980s.

29Mr. Williams testifies that MPAC has identified seven factors that influence the classification of farm soil. These factors are texture, topography, drainage, stoniness, flooding, erosion and depth of bedrock. Mr. Williams further states that there are six soil classes (soil class 1 to 6) meaning that the lower the number, the better the quality of the soil type and the greater the value added to the assessment. He states that all farm lands in the Province of Ontario (“Ontario”) are assessed based on these factors and are assigned the appropriate soil class level.

30Mr. Williams states that the returned assessment of $787,000 for the 2017 taxation year was revised to $724,000 for 2018 taxation year to reflect a change of the soil classes. In addition, there was a market adjustment of negative 8%.

MPAC’s Submissions

31MPAC submits that the correct current value for the taxation years 2017 and 2018 is $724,000, which is supported by open market sales.

32Finally, MPAC cited the following cases to assist the Board in its determination of current value:

(i) Burns v. Municipal Property Assessment Corp. Region No. 05, [2007] O.A.R.B.D. No. 612 (“Burns”) in support of farmer to farmer sale, vicinity and s. 19.(5);

(ii) Payne v. Municipal Property Assessment Corp., Region No. 13, [2013] O.A.R.B.D. No. 196 (“Payne”) in support of Soil Classes;

(iii) Davies v. Municipal Property Assessment Corp., Region No. 15, [2016] O.A.R.B.D. No. 114 (“Davies”) in support sales in the shoulder years;

(iv) Middle Road Farms Ltd. v. Municipal Property Assessment Corp. Region No. 26, [2010] O.A.R.B.D. No. 711 in support of s. 19.(1) and s. 44.(3)(b).;

(v) Sang v. Municipal Property Assessment Corp., Region No. 2, [2006] O.A.R.B.D. No. 34 in support of the Cost Approach.

(vi) Carlyle v. Municipal Property Assessment Corp. Region No. 7, [2010] O.A.R.B.D. No. 253 in support of family to family sales;

(vii) Irber Holdings Ltd. v. Municipal Property Assessment Corp. Region No. 9, [2010] O.A.R.B.D. No. 384 in support of vicinity and equity.; and

(viii) Nestle Canada Inc. v. Ontario Property Assessment Corp., Region No. 23, [2001] O.A.R.B.D. No. 439 in support of vicinity.

Appellants’ Evidence

33Mr. Chyc represents himself. He called on Ryan R. Parker as his witness.

34Mr. Parker presents a copy of his Resume of Qualifications and highlights his activities with various professional memberships, associations and accreditations. Mr. Parker states that he is an Accredited Appraiser and a Professional Appraiser, with the Appraisal Institute of Canada since 2012 (“AIC”); a Professional Agrologist, with the Ontario Institute of Agrologists (“OIA”); a Certified Agricultural Farm Advisor and Co-Chair of the London Chapter, with the Canadian Association of Farm Advisors (“CAFA”); and associated with the Ontario Chapter of the American Society of Farm Managers and Rural Appraisers and with Ontario Expropriation Association.

35Mr. Parker states that he is not relying on his June 18, 2017 Appraisal Report, which was commissioned by the Appellants for the purpose of divorce proceedings. Instead, he is only relying on the sales of two suggested comparable properties contained in the Appraisal Report and the sales of three other suggested comparable properties contained in the Appellants’ Hearing Brief.

36Mr. Parker testifies that the vast majority of farms are sold privately and only a few farms are sold through MLS® and/or by tender. He states there are a number of key factors that impact the value of farm lands such as workable land, soil quality, large square field, location, topography and near major livestock properties (for nutrients).

37Mr. Parker testifies that he used a soil class map that was developed by OMAFRA which is based on seven soil classes and 13 sub-classes to identify suggested comparable properties sold in the vicinity for comparison to the Subject Property.

38In support of the current value, Mr. Parker presents five suggested comparable properties located at Part Lot 15, Concession 9, sold in 2015; 46383 Wilson Line, sold in 2014; 48913 Yorke Line, sold in 2014; Part Lot 18, Concession 8, sold in 2016; and Part Lot 18, Concession 12, sold in 2016.

39Mr. Chyc presents a copy of an article by Jeffrey Carter, a freelance journalist based in Dresden to support his argument that the Subject Property is assessed too high. He made references to a quote by Jim Crane who said “In most other areas, the assessment went up 65 per cent and here it went up 105 per cent.” He made another reference to an article by quoting Jeff Yurek stating that “…there must be a flaw with the system for having such a high failure rate.” Reference was also made to Mr. Parker who stated that “MPAC assessments are sometimes too high, sometimes too low and occasionally spot on.” The article also stated that according to a spokesperson from MPAC, 3% of Ontario farm owners filed an RfR in 2017, whereas, in South Dorchester where there are 402 farm properties, the number was 37%.

Appellants’ Submissions

40Relying on his evidence, Mr. Chyc submits that the correct current value for taxation years 2017 to 2018 is $690,000.

ANALYSIS

41Under s. 44.(3)(a) of the Act, the Board must first determine “the current value of the land.” The best evidence the Board can receive of current value is an arm’s length and market-tested sale of the Subject Property on the valuation date or close to it. If, as in this case, no such transaction took place near the valuation date, the next best measure of current value is arm’s length and market tested sales of comparable properties in the same vicinity and market on or close to the valuation day. To enable an estimate of value for the Subject Property to be derived from a comparable property there must be sufficient elements of similarity, in terms of location and physical factors such as soil quality, size and shape of lot, and workable acreage, so as to enable a direct comparison to be made between the comparable property and the Subject Property.

42During the hearing, there were 11 potentially comparable property sales presented (six by MPAC and five by the Appellants) which can be summarized in the following chart:

	Address	Sale Price	Sale Date	Assessed Value	Acres total/tillable	*$ per acre total/tillable	Comments
	47962 Lyons Line	$724,000			52.92/52.92	$13,681	Class 2 soil
MPAC 1	1781 Avon Drive	$750,000	Nov 2013		49.26	$17,225	All tillable, Soil Class 1
MPAC 2	47738 Yorke Line	$900,100	Feb 2014		50.53	$19,795	All tillable. Soil Class 1
MPAC 3	12500 Empey Rd	$1,235,000	Apr 2013		63.37	$23,547	All tillable. Soil Class 1. Not listed on MLS® but marketed privately 6-8 weeks
MPAC 4	Avon Dr	$520,000	Dec 2015	$522,600	38.99	$13,403	1 acre of poor quality soil
MPAC 5	7119 Pigram Rd	$450,000	Apr 2016	$443,250	30	$14,775	All tillable. Soil Class 2
MPAC 6	51765 Lyons Line	$950,000	Apr 2013		49.61	$23,137	1 acres of Soil Class 4
App 5	Pt Lt 18, Conc 8	$1,250,000	June 7, 2016	$1,218,750	100/94	$12,187/$12,965	MPAC agrees this is a good comparable property.
App 6	Pt Lt 18, Conc 12	$2,080,000	July 29, 2016	$2,007,200	158/154	$12,704/$13,034	MPAC agrees this is a good comparable property.
App X1	Pt Lt 15, Conc 9	$517,000	Apr 30, 2015	$537,680	52/47	$10,340/$11,440	Buyer/seller related.
App X2	46383 Wilson Line	$1,068,980	Apr 15, 2014	$1,175,878	104/99	$11,306/$11,877	Estate sale.
App X3	48913 Yorke Line	$1,900,000	Apr 11, 2014	$2,090,000	149/141	$14,026/$14,823	Structures are on this comparable property

*the $/acre figures in this column have been time adjusted to January 1, 2016 using 0.5% per

43Much of MPAC’s submissions focused on identifying the deficiencies of property sales contained in the Appellants’ Appraisal report, for reasons including the location, timing, validity of sale, and difference in physical characteristics such as structures on the property, topography, and land use. It should be noted that the Appellants specifically indicated that they are only relying on Comparable Sale 5, located at Part Lot 18, Concession 8; and Sale 6, located at Part Lot 18, Concession 12 from the Appraisal Report and not the Report itself. For this reason, the Board will not address the Appellants’ Appraisal Report but will consider Sale 5 and Sale 6 contained therein.

44In determining which of the alleged Comparable Sales are most similar to the Subject Property, the Board must make findings on the following issues:

a) Timing of the comparable sales;

b) Location;

c) Validity of the sales (open market, farmer-to-farmer, etc.);

d) Workable acreage versus total acreage;

e) Soil quality;

f) Size of property;

g) Impact of local news articles and;

h) MPAC case law submission.

a) Timing of the comparable sales

45Generally, the Board looks at sales exposed to the market and sold within a year of the valuation date. The Board may consider the sales outside the one year period; however such sales are considered to have transacted in a different market and are therefore less reliable. Where there are no reasonably comparable sales within a year of the valuation date, it makes sense to look outside that period. This is not the case at hand. There are four sales from the chart above that took place within the one year on either side of the valuation date, those being MPAC’s Sale 4 and Sale 5; and Appellants’ Sale 5 and Sale 6. Only these four comparable sales will be considered as being sold within the same market from a timing standpoint. The Board finds that these four comparable properties sales are sufficient to form a range of values, subject to the adjustments, for the Subject Property.

46Both parties agree that there was a rising market in the year prior to and after the valuation date, and that comparable sales should be adjusted for time. Mr. Parker presented evidence for the Appellants that in the County there was a 3.44% increase in sale prices during 2015 and a 12.86% increase in 2016, with an average increase of 7.2% during the two year period. Mr. Parker provides no supporting evidence for his numbers. The Sales Ratio Trend Analysis presented by MPAC was uncontroverted. For this reason, the Board accepts that there was a rising market during the relevant period and finds that 6% per annum (or 0.5% per month) is a reasonable factor to time adjust comparable sales to the valuation date of January 1, 2016. Thus, after time adjustments, the values of the four comparable sales being considered range from $12,965 to $14,775 per tillable acre, with a median of $13,218. If the value was calculated on total acreage as opposed to tillable acreage, the range of the time adjusted values for the 4 comparable sales would be slightly less.

b) Location

47The Board is satisfied that all four of the comparable properties being considered are in sufficient proximity to the Subject Property to be reasonably comparable. The Board finds the comparable property sales are in the vicinity of the Subject Property.

c) Validity of the sales (open market, farmer-to-farmer, etc.)

48Only comparable sales that have been exposed to the open market, and were sold from one farmer to another farmer, are to be considered valid for comparability to the Subject Property.

49Regarding MPAC’s comparable Sale 4 and Sale 5, the evidence of MPAC and the Appellants was consistent. Both sales were exposed to the open market (MPAC’s Sale 4 by tender, and MPAC’s Sale 5 on MLS®) and both sales were to the same dairy farmer. Although one of the vendors was an estate, and one purchaser was the owner of an adjacent property, there was no evidence to indicate that either sale was not a valid market sale.

50Regarding the Appellants’ comparable Sales 5 and Sale 6, Mr. Williams testified that both sales were valid market sales to farmers.

51Based on the uncontroverted evidence at the hearing, the Board finds that all four comparable sales being considered were valid market transactions from farmer to farmer.

d) Workable acreage versus total acreage

52During the hearing, Mr. Parker credibly testified that purchasers of farm properties for the purpose of farming value tillable acreage as paramount and only give non-tillable acreage minimal, if any, value. Conversely, MPAC testified that all of the acreage must be valued, and that excess non-tillable land cannot be excluded.

53While it is clear that non-tillable land cannot be excluded from valuation, the Board finds that tillable acreage is the more meaningful manner in which to value the farm properties based on how the market behaves. The range of values per tillable acre for the four comparable sales (after time adjusting) is $12,965 to $14,775.

e) Soil quality

54In regard to the Soil Class, MPAC presents six Soil Classes that are used for farm properties in Ontario to determine the assessment value for each Soil Class. Alternatively, the Appellants rely on a soil class map that was developed by the OMAFRA which is based on seven soil classes and 13 sub-classes. Despite the difference in the names and number of soil categories used by MPAC and the Appellants’ witness, the descriptions of the quality of soil for the Subject Property are relatively consistent between the parties. Therefore, the Board finds that the Subject Property is not treated unfairly by the use of these soil classes.

55The Board agrees with the findings of Payne which states:

That the soil class ratings by MPAC are established pointing standards based on Climatic Zoning of Ontario that is consistently used throughout Ontario for rating the soil of farm lands. The Board is satisfied that the Subject Property is not unduly prejudiced by these standards.

The Subject Property is soil class 2 which is similar to the comparable sales. For this reason, the Board finds it appropriate to use the median of the 4 comparable property sales.

f) Size of property

56At the hearing, MPAC testified that there are economies of scale for farm properties so that as properties size increases, the value per acre decreases. Conversely, the Appellant’s witness testified that larger properties are easier to farm and therefor more desirable, which offset any potential economies of scale. The four comparable sales being considered by the Board have acreages ranging between 30 and 158 acres, and show only a minute trend supporting MPAC assertion that values per acre should be adjusted for property size. As such, the Board finds that where the Subject Property is squarely within the range of sizes of the comparable, there is insufficient evidence to warrant making an adjustment to account for the impact of property size on value per acre.

g) Impact of local news articles

57In regard to the article by Mr. Carter presented by the Appellants, the Board finds that the article is of a general nature and not specific to the Subject Property. As such, the Board finds that the article provides no quantitative evidence to assist the Board in its determination of current value.

h) MPAC case law submissions

58The Board reviewed the seven cases submitted into evidence by MPAC. The cases supported MPAC’s position in a variety of areas that were not in issue. In reaching its conclusion on current value, the Board did not find it necessary to rely on the cases.

CONCLUSION ON CURRENT VALUE

59The four comparable sales that sold within a one year period of the valuation date have time adjusted values ranging from $12,965 to $14,775 per tillable acre. The median value of the four comparable sales is $13,218 per acre. Therefore, the current value of the Subject Property is $699,497 ($13,218 x 52.92 tillable acres), rounded to $699,000.

60Based on the evidence, the Board finds the current value to be $699,000 for the Subject Property for both the 2017 and 2018 taxation years.

DECISION

61The current value of the Subject Property is $699,000 for the 2017 and 2018 taxation years. Therefore, the Board reduces the returned assessment of $787,000 to $699,000 for the 2017 taxation year and from $724,000 to $699,000 for the 2018 taxation year.