Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: March 13, 2019

FILE NO.: RD 2019M07

Assessed Person(s): Michael Chiaravalle

Appellant(s): Michael Chiaravalle

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 19

Respondent(s): City of Hamilton

Property Location(s): 278 Valridge Drive

Municipality(ies): City of Hamilton

Roll Number(s): 2518-140-320-22705-0000

Appeal Number(s): 3262471 and 3309968

Taxation Year(s): 2017 and 2018

Hearing Event No.: 701371

Legislative Authority: Rule 123 of the Assessment Review Board Rules of Practice and Procedure

Request for: A review of the Board’s Decision WR 154093 issued on October 12, 2018

Heard: By written submission

Parties	Representative	Submissions
Michael Chiaravalle	Self-represented	Requester
MPAC	No one appeared	Not Received
City of Hamilton	No one appeared	Not Received

DECISION DELIVERED BY PAUL MULDOON AND ORDER OF THE BOARD

INTRODUCTION

1Michael Chiaravalle seeks a review of Chiaravalle v Municipal Property Assessment Corporation, Region 19, 2018 CanLII 96166 (ON ARB) (the “Decision”). His concern is largely the procedural aspects of the hearing, including disclosure of documents and admissible evidence. This Request for Review was filed with the Board on November 7, 2018. The Board requested submissions from the other parties on two separate occasions, but no other party submitted any material for this review.

2The Board is satisfied that the hearing and the Decision violated the rules of natural justice or procedural fairness. The Board orders a new hearing before a different panel.

ISSUES AND ORDER SOUGHT

3Mr. Chiaravalle seeks a review of the Decision on a number of grounds. The Board sees the following issues in his submissions:

a. MPAC was permitted to breach the Rules by providing late disclosure, which prejudiced Mr. Chiaravalle’s ability to present his case;

b. The Decision refused to properly consider his evidence; and

c. The Decision misstated his position on some points.

RELEVANT RULES

4Review requests must meet the procedural requirements of Rule 120 before they are considered. There are no procedural concerns with Mr. Chiaravalle’s request. Reviews can only be granted if the provisions of Rule 121 are met: That Rule states:

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.

5If the Board is satisfied that a provision of Rule 121 is met, the remedies available are set out in Rule 123, which states:

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.

Disclosure

6The first issue raised by Mr. Chiaravalle is that MPAC was permitted to provide late disclosure. He says that this prejudiced his ability to adequately present his case.

7The Schedule of Events for these appeals set a commencement date of November 21, 2017. The parties were required to complete their disclosure by December 19, 2017 and have a settlement meeting amongst themselves by February 13, 2018. Two weeks after that meeting, by February 27, 2018, the parties were to serve on the Board all of the documents that they intended to rely upon at the hearing.

8The parties did not comply with the Schedule of Events. In early April, 2018, over a month after the material for a hearing was to be filed, Mr. Chiaravalle requested an extension of time. That request was partially granted by Vice-Chair VanderBent on April 9, 2018. He did not amend the schedule, but granted the parties until May 18, 2018 “to complete their exchange of disclosure, hold the mandatory settlement meeting, and file the Mandatory Meeting Form with the Board.” That is, he set one date by which all of the steps in the Schedule of Events needed to be completed.

9On May 16, 2018, two days before the deadline, Mr. Chiaravalle requested a meeting with MPAC the following day. MPAC responded the next day advising that it could not meet until the following Tuesday, May 22, 2018. Mr. Chiaravalle advised the Board, which granted a further extension to May 22, 2018. Mr. Chiaravalle swears that he was prepared to provide disclosure to MPAC as of May 17, 2018, but did not do so until May 22, 2018 at MPAC’s request. He hand delivered his material to MPAC on May 22, 2018.

10MPAC did not send its disclosure until June 5, 2018. On June 11, 2018, correspondence was sent on behalf of Mr. Chiaravalle to the Board requesting that the Board limit MPAC’s evidence due to not meeting the May 18, 2018 disclosure deadline. MPAC responded on June 15, 2018 and Mr. Chiaravalle filed a reply. The Board decided on June 19, 2018 that MPAC could rely on its late disclosure because “there is no indication of prejudice to any party.”

11The hearing was held just over a week after that order, on June 27, 2018, and the Decision was issued on October 12, 2018. Mr. Chiaravalle argues that he was prejudiced by MPAC’s late disclosure because it was only at that time that MPAC transitioned from a cost approach to valuing this new home to a direct sales comparison approach. He states that the Member at the hearing would not allow him to lead evidence on MPAC’s cost approach, which he had spent some time preparing.

12Mr. Chiaravalle is challenging both the interim order of the Board permitting MPAC to file material late, and the Decision’s denial of the same permission to him in denying him the opportunity to argue about MPAC’s costing valuation. There is a procedural difficulty in reconciling those decisions. It is important that Members of this Board consider previous decisions made when issuing procedural decisions. Procedural fairness requires, at a minimum, that like issues in the same proceeding be dealt with similarly. The Board did not meet that standard here.

13All parties were in breach of the Rules, but only MPAC was given leave to cure further late compliance. In light of the procedural history of non-compliance, and forgiveness for one party, it would have been appropriate to allow Mr. Chiaravalle some latitude on the documents submitted. Giving only MPAC room to provide material late made the process objectively unfair to Mr. Chiaravalle. The Board is satisfied that the Board’s inconsistency in the permitted materials violated the principles of natural justice.

Admissibility

14Mr. Chiaravalle’s second main complaint is that the Decision did not rely on, or even consider, the expert reports he had prepared for the hearing. There were three such reports.

15First, there was a dispute about how wide the frontage of the property was. MPAC said there was 79.63 feet of frontage. Mr. Chiaravalle entered a letter from S.D. McLaren of A.T. McLaren Limited, Legal and Engineering Surveys, which stated that the lot frontage was 53.86 feet. The Decision accepted MPAC’s value because it held, at paragraph 16, that Mr. McLaren “was not at the hearing to introduce this letter nor did the Board have a curriculum vitae (“cv”) presented attesting to Mr. McLaren’s education, training, and experience in the area of land measurement.”

16There was a similar result to the appraisals submitted by Mr. Chiaravalle. He entered a report by Robert J. Schinkel of Schinkel Real Estate & Appraisals Inc., which was of the opinion that the property was overbuilt for the area. He also entered an appraisal report prepared by Alex Del Sordo of Humphreys Appraisal Services Inc. That report estimated the value of the property to be $1,250,000 on January 1, 2016. The Decision, at paragraph 19, expressed concern with that report and noted that the author was not present. Mr. Chiaravalle submitted the appraiser’s resume to the Board immediately after the hearing, but that was excluded, see paragraph 30 of the Decision.

17The Decision held, at paragraph 31, that it would “place no weight whatsoever on the letters and reports submitted by S.D. McLaren, Robert J. Schinkel, and Alex Del Sordo.”

18Mr. Chiaravalle argues that he was denied a fair hearing because his evidence was given “no weight whatsoever.” His feeling of unfairness is compounded by MPAC providing late disclosure, in breach of the Board’s order, and the Decision accepting that evidence.

19Natural justice is a flexible doctrine that adjusts to fit the particular circumstances of each particular case, see Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 SCR 369, 1976 CanLII 2 (SCC) at page 395. The proceeding here was a summary proceeding before the Board. That is a streamlined process to see that less complex matters are efficiently and proportionally dealt with.

20The admissibility of evidence to this Board is largely governed by section 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c S.22. Subsection 15(1) makes anything admissible, so long as it is “relevant to the subject-matter of the proceeding.” Subsection 15(2) makes privileged documents inadmissible, but there are no other specified limits on admissible documents. Evidence should be considered if it is relevant and probative of the issues in the hearing. The expert reports submitted Mr. Chiaravalle was clearly relevant to the issues in the Decision.

21The Decision’s approach to Mr. Chiaravalle’s documents is problematic in a summary proceeding, where the state of the law is that all relevant documents are admissible. It defeats the purpose of a summary proceeding to require parties to have expert witnesses appear to enter reports that they have had prepared for the hearing. A summary proceeding is aimed at providing an efficient and accessible forum for minor disputes. Requiring that taxpayers provide experts, at great expense, to have their opinions considered is overly onerous for that process. While there may be good reasons to doubt the statements in an expert report, there is no principled basis to not consider the report at all simply because the person did not appear or provide their credentials. Once a Member reviews the report, it is up to the Member to assess what weight should be given the evidence submitted in light of the totality of the evidence presented at the hearing.

22The fact that the expert that prepared a report does not appear is worth noting. But the Board must still consider the contents of that report, and decide if the report can stand on its own. An expert that is tested through cross-examination will always carry more weight, but that does not mean that an expert that is not tested should be completely ignored. All evidence should be considered and reasons should be given for the weight assigned to any particular piece of evidence, including expert reports.

23The lot size dispute here is problematic. The Decision had a letter from a surveyor and MPAC’s statement of the lot size. The Decision does not say that MPAC inspected the property, but is critical of the surveyor for not being present. Given the competing facts, it was not reasonable for the Decision to reject the surveyor’s letter for the stated reasons. Mr. Chiaravalle was putting forward evidence of a measurement of property he owns, while it is not clear that MPAC provided any evidence to support its opinion of the lot size. It was an error of law to reject the surveyor’s letter without considering its contents. There may be good reasons to not rely on that letter, but the Decision did not consider it at all. That was an error of law.

24There is less issue with the appraisal report. The Decision addressed specific concerns with the content of the report at paragraph 19. It was not excluded without reasons relating to why the Decision found it to be unreliable. There is no error on how the Decision addressed that report because it weighed its contents, notwithstanding its later statement that it gives the report no weight.

25The Board is satisfied, however, that the Decision contains an error of law in excluding documents from a summary proceeding solely because the author was not present. That did not accord with the low threshold of admissibility that applies at this Board, or the nature of the proceeding.

Misconstrued Position

26Mr. Chiaravalle’s final arguments are that the Decision did not accurately represent his position on various issues. For instance, the Decision states, at paragraph 15, that Mr. Chiaravalle opinion was “that a fair assessment of the SP is between $900,000 and $1,000,000.” Mr. Chiaravalle swears that he never made that submission to the Board. He is also concerned that the Decision states, at paragraph 33, that he did not “provide any evidence that supported his request for a negative adjustment greater than the 10% already provided by MPAC.” Mr. Chiaravalle points out that he had provided a copy of the Ministry of Environment’s Environmental Noise Guideline – Stationary and Transportation Sources, which is some evidence.

27It is important that parties before the Board feel heard. When a party feels that a decision did not understand them, the Board has fallen short of that ideal. However, a review can only be granted if an error of fact is “such that the Board would likely have reached a different decision.” The Board is not satisfied that the errors on misstating Mr. Chiaravalle’s positions, which appear in the Decision, rise to that level.

28The Decision’s misstatement of Mr. Chiaravalle’s position on current value did not change the fact that the Decision only reviewed MPAC’s evidence. It cannot be said that the Decision would have been different if it had understood Mr. Chiaravalle’s position that the value should be $1,200,000.

29There is a similar concern with the Decision’s statement that Mr. Chiaravalle did not provide any evidence to support an adjustment for road noise. Mr. Chiaravalle submitted a government report that addressed, in part, how land value can be impacted by road noise. That is some evidence. The Decision’s error is largely rhetorical. There was some evidence, but the evidence was not compelling of a particular adjustment for the road noise. Rather, the guideline addresses how purchasers should be warned of noise impacts. It is unlikely that the Decision’s conclusion would have changed if it had considered the noise evidence submitted by Mr. Chiaravalle.

30The Board is not satisfied that the Decision contains a significant error or law or fact, such that the Board would likely have reached a different decision, in its mischaracterization of Mr. Chiaravalle’s evidence.

ORDER

31Mr. Chiaravalle’s review is granted. The Board breached procedural fairness in denying him similar treatment to MPAC on the admissibility of late documents. The Board also breached procedural fairness is summarily dismissing expert reports due solely to the author failing to appear. As a general rule, the Board should consider all of the evidence that comes before it, especially in a summary proceeding. The appeals will be assigned a new Schedule of Events for a hearing before a different panel of the Board.