Hutzal v. Municipal Property Assessment Corporation, Region 21, 2019 CanLII 117374

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

ISSUE DATE: December 5, 2019

FILE NO.: RD 2019M28

Assessed Person(s): Brent Douglas Hutzal, Carolyn Elaine Hutzal

Appellant(s): Brent Hutzal, Carolyn Hutzal

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 21

Respondent(s): City of Kitchener

Property Location(s): 34 Paige Street

Municipality(ies): City of Kitchener

Roll Number(s): 3012-060-005-09188-0000

Appeal Number(s): 3253855 and 3311524 (deemed 2018 appeal)

Taxation Year(s): 2017 and 2018 (deemed appeal)

Hearing Event No.: 685469

Legislative Authority: Rule 123 of the Assessment Review Board’s Rules of Practice and Procedure, as amended

Request for: A review of the Board’s Decision WR 154295 issued on January 30, 2019

Heard: By written submission

Parties	Representative	Submissions
Brent Hutzal, Carolyn Hutzal	Brent Hutzal	Requester
MPAC	Michael Radan	Received
City of Kitchener	No one appeared	Not Received

DECISION DELIVERED BY DIRK VANDERBENT AND ORDER OF THE BOARD

INTRODUCTION

1On February 27, 2019, Brent Hutzal the “Requester” filed a written Request for Review with the Assessment Review Board (the “Board”) respecting Decision No. WR 154295, issued on January 30, 2019 (Hutzal v Municipal Property Assessment Corporation, Region 21, 2019 CanLII 7190) (the “Decision”). The Decision relates to a residential property located at 34 Paige Street (“the Subject Property”). Under the Board’s Rules of Practice and Procedure (“Rules”) the appeal was heard by way of summary proceeding.

2At the hearing, Mr. Hutzal requested that he be permitted to file evidence with the Board that had not been earlier served on the other parties. The Board refused this request. The Decision states:

12The Appellant sought to enter into evidence additional photos and other materials during the hearing. MPAC objected to the Appellant’s request to submit new additional evidence, arguing that it would prejudice MPAC as the material would require a review by a statistician. In response the Appellant asserted that these materials are simply a rehash of what has already been presented by MPAC.

13The Board notes the Appellant did not file the additional evidence by the due date set out in the Schedule of Events for this appeal proceeding, nor did he assert that

the additional evidence could not have been provided by this due date. The Board accepts it would be reasonable that MPAC review the proposed evidence before proceeding with the hearing, and, therefore, if the evidence is allowed, an adjournment of the hearing would be required. For these reasons the Board did not allow any new evidence to be submitted.

The grounds on which Mr. Hutzal relies, is that the Hearing Member violated the rules of procedural fairness, and made a significant error of law or fact such that the Board would likely have reached a different decision. He asks that “the Board have MPAC correct the assessed value of this home.”

3The background to this Request for Review is as follows. The hearing was conducted on August 28, 2017. Notice of this Hearing was provided to the parties on June 27, 2017. This Notice indicated that each party should provide to the other parties all documents on which the party intends to rely 21 days in advance of the hearing. In an email dated June 27, 2017, sent by Mr. Hutzal to the Board, he enquired whether the deadline applied to all parties. In a response email dated June 28, 2017, the Board confirmed that the deadline applied to all parties and advised that “If documentary evidence is not exchanged at least 21 days before the hearing the Board may refuse to accept the documents at the hearing.” The applicable due date, therefore, is August 7, 2017.

4MPAC confirms that it provided its Valuation Report on August 2, 2017. In his Request for Review, Mr. Hutzal indicates that he questioned the Sales Ratio Trend Analysis contained in MPAC's report. He submitted a request to MPAC to provide the data in this report in an Excel Spreadsheet format, in order to reduce the amount of time required to conduct his own analysis of this data. He asserts that there was a two-week delay before he was advised by MPAC that it would not provide the data in Excel format as requested. Mr. Hutzal indicated that he advised MPAC on August 18, 2017 that MPAC had seriously impacted his ability to prepare for his hearing.

5The Board requested submissions by the parties, which were received in writing. The City of Kitchener did not appear at the Hearing nor did if file any submissions in response to Mr. Hutzal’s Request for Review.

6For the reasons that follow, the Board concludes that the Request for Review should be dismissed.

RELEVANT RULES

7The Board’s Rules:

Disclosure

45. All parties must serve a copy, in paper or electronic form, of all relevant documents in their possession, control or power to all other parties in the proceeding, except for privileged documents, or documents that cannot be disclosed by law.

Request for Review

120. A party may request a review of any final decision of the Board, other than a decision pursuant to Rule 122, by filing a request in writing no more than 30 days after the decision was issued, including:

(a) a copy of the decision to be reviewed;

(b) the written reasons for the decision, as set out in Rule 112;

(c) the reasons for the request, addressing the factors set out in Rule 121;

(d) notice of any appeals or applications for judicial review that have been filed in relation to the decision;

(e) proof of service on all other parties to the proceeding;

(f) the remedy or relief sought; and

(g) the fee specified by the Board.

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.

DISCUSSION, ANALYIS AND FINDINGS

Mr. Hutzal’s Submissions

8Mr. Hutzal submits that he was unable to complete the preparation of the evidence he wished to adduce at the hearing until the day prior to the hearing date, because MPAC had delayed in responding to his request that MPAC provide the data in its Sale Trend analysis in an Excel format. Consequently, he had to convert the data manually. He submits that he denies saying at the hearing that the additional evidence could not have been provided by the “due date”, but the Board notes that his submission does not indicate what this due date is.

9Mr. Hutzal asserts that the Hearing Member did not state at the hearing that, if his evidence was admitted, an adjournment would be required. He submits that, had the Hearing Member done so, he would have requested an adjournment, as his evidence was critical to his case. In this regard, he emphasizes that the Hearing Member stated that Mr. Hutzal’s method of determining the Time Adjustment Factor was plausible, but then found that he had adduced insufficient evidence to produce a reliable prediction of time adjusted value based on market trends.

10On a separate point, Mr. Hutzal refers to paragraph 62 of the Decision where the Hearing Member made the following finding:

Relying on MPAC’s best comparable properties cited above, the Board finds that the range of values includes, at the lower end, a value of $868,483 (with a finished basement) and at the higher end, a value of $908,323 (unfinished basement). MPAC’s proposed correct current value of $846,000 falls within this range. Applying MPAC’s TAF of 0.889 to the Appellant's Appraisal estimate of $925,000, the time adjusted value is $822,325. As this time-adjusted result is close to MPAC’s proposed current value, the Board finds that $846,000 is the correct current value for the Subject Property.

11Mr. Hutzal further submits that the Hearing Member erred in not accepting his position on correct current value. His argument is that the Hearing Member, in effect, decided to increase his determination of current value by approximately $23,000, when he accepted MPAC's position that the correct current value is $846,000. Mr. Hutzal states that, had the Hearing Member reduced the finding of current value by the same amount, it would have produced a correct current value of $798,650, which Mr. Hutzal asserts is in the range of the correct current value for his property. Therefore, Mr. Hutzal asserts that the Hearing Member made and error in not accepting his position on correct current value.

MPAC's Response

12The Board requested a response from MPAC only on the question of the due dates for filing documents to be relied on at the hearing. MPAC provided the requested information which has been described above.

Test for Review

13In considering whether to grant a Request for Review submitted pursuant to Rule 120, the test to be applied is whether the requester has raised a convincing and compelling case to establish any of the grounds set out in Rule 121 (2011090 Ontario Inc. v Municipal Property Assessment Corporation, Region 01, 2017 CanLII 70658).

Findings

Procedural Directions to exchange relevant documents prior to the Hearing

14Under the Board’s Rules which came into force on April 1, 2017, this appeal would have been governed by a Commencement Date and Schedule of Events for an appeal heard by way of Summary Proceeding. However, as this appeal was heard in early 2017, and as Board had not transitioned the processing of this appeal under the new system, the Board, instead, directed that the due date for exchange of documents would be 21 days prior to the scheduled date of the hearing. The Board notes that this direction constitutes the Schedule of Events due date referenced in paragraph 13 of the Decision. The Board also notes that this due date is in fact later than the due date that would have been required under the new system. Therefore, the Board afforded the parties a longer time period in which to prepare and exchange their evidence.

Hearing Member’s Refusal to allow Mr. Hutzal to adduce evidence at the Hearing

15Regarding Mr. Hutzal’s submission that MPAC was required to provide its data in Excel format, the Board notes that he provided no authority to support this position. Under Rule 45, MPAC is required to provide all other parties with all relevant documents in its possession, power, or control. Mr. Hutzal’s submissions do not suggest that MPAC failed to do so. Rule 45 does not require that one party assist another party in the preparation its evidence. Similarly, a party is not required to produce new information, or obtain documents that are not within its possession, control, or power (on this latter point, see Walmart Canada Corporation and Target Canada Corporation v Municipal Property Assessment Corporation, Region 01, 2018 CanLII 67789).

16Mr. Hutzal’s submission does not dispute the Hearing Member’s finding that it was reasonable that MPAC needed to review Mr. Hutzal’s evidence before proceeding with the hearing, and, consequently an adjournment would be required if Mr. Hutzal’s request was allowed. Therefore, the question the Hearing Member had to address was whether the circumstances giving rise to Mr. Hutzal’s late filing request warranted an adjournment of the Hearing.

17The Board’s Rules are clear that an adjournment of a hearing will only be granted in exceptional circumstances. At the outset of this appeal proceeding, the Board’s Case Coordinator expressly explained to Mr. Hutzal that the Board might refuse to accept his documents at the hearing if he provided them to MPAC after the required August 7, 2017 due date. Mr. Hutzal’s submissions do not explain why he did not proceed to manually convert the data in MPAC's report when he was aware of the potential consequences of late filing. Also, although Mr. Hutzal states that he could not complete this task and prepare his evidence by August 7th, he provides no explanation as to why he was unable to do so. Similarly, he does not explain why he could not have done so shortly after the filing due date, so that MPAC would have had an opportunity to review his evidence prior to the hearing. Had he done so the Hearing Member may have allowed his request. Although Mr. Hutzal emphasizes the importance of this evidence to support his position at the hearing, his submission fails to indicate any exceptional circumstances which would have prevented him from complying with the August 7, 2017 due date. Accordingly, the Board finds that Mr. Hutzal has failed to raise a convincing and compelling case to establish that the Hearing Member’s refusal to allow him to adduce this evidence violates the rules of natural justice or procedural fairness, or that the Hearing Member made a significant error of law or fact such that the Board would likely have reached a different decision.

Hearing Member’s ruling on the correct current value of the Subject Property

18Regarding Mr. Hutzal’s submission that the Hearing Member made an error in not accepting his position on the correct current value of his property, the Board notes that it is the responsibility of a member hearing an appeal to make a determination respecting correct current value after due consideration of all the evidence adduced at the hearing. The Board, on a Request for Review, will not re-hear the case. It is clear from the Decision, that the Hearing Member considered the suggested comparable properties, as well as the Appellant's appraisal estimate. Based on this analysis, a determination of correct current value was made. Determinations of correct current value are qualitative assessments. Although they employ some precise mathematical calculations, ultimately these determinations cannot be made through the application of precise scientific formulas. While Mr. Hutzal may not agree with the result, there was ample evidence to support the Hearing Member’s determination of correct current value.

CONCLUSION

19For these reasons, Mr. Hutzal’s request for review is dismissed, as he has not raised a convincing and compelling case to establish a breach of procedural fairness occurred or that there was a significant error of law or fact such that the Board would likely have reached a different decision.

ORDER

20The Request for Review is dismissed.