Jia Yan Yu v. Municipal Property Assessment Corporation, 2019 CanLII 44281

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: May 13, 2019

FILE NO.: RD 2019M13

Assessed Person(s): Jia Yan Yu, Bao Zhong Li

Appellant(s): Jia Yan Yu, Bao Zhong Li

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

Respondent(s): City of Toronto

Property Location(s): 100 Whitehorn Crescent

Municipality: City of Toronto

Roll Number(s): 1908-112-340-10400-0000

Appeal Number(s): 3210146 and 3294407 (deemed 2018 appeal)

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

Hearing Event No.: 693064

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

Request for: A review of the Board’s Decision WR 151145 issued on July 13, 2018

Heard: By written submission

Parties	Counsel+/Representative	Submissions
Bao Zhong Li	Self-represented	Requester
MPAC	No one appeared	Not Requested
City of Toronto	No one appeared	Not Requested

DECISION DELIVERED BY PAUL MULDOON AND ORDER OF THE BOARD

INTRODUCTION

1Bao Zhong Li (“Requester”) filed a written Request for Review with the Assessment Review Board (“Board”) respecting the Decision of Member Weagant issued on July 13, 2018, WR 151145 (“Decision”) Yu v Municipal Property Assessment Corporation, Region 09, 2018 CanLII 65304 (ON ARB).

2The background to this Request for Review is as follows. The Requester is the owner of 100 Whitehorn Crescent in the City of Toronto (“Subject Property”). The Subject Property is a split-level four-bedroom detached home built in 1970 and renovated in 2005. The assessment of the Subject Property was returned at a current value of $1,122,000 for the 2017 and 2018 tax years. The Requester filed an appeal of the assessment with the Board seeking a reduction in the assessed value of the Subject Property to $805,000.

3The hearing was conducted on February 14, 2018 in the City of Toronto. The main issue before the Board was determining the correct current value of the Subject Property for the 2017 and 2018 tax year as of the valuation day, January 1, 2016 specified under s. 19.2(1) of the Assessment Act, R.S.O. 1990, c. A. 31 (“Act”). Once the correct current value is determined, the Board was required to determine whether the assessment is equitable with similar properties pursuant s. 44(3)(b) of the Act.

4At the hearing, MPAC and the Requester both presented the Board with oral submissions and evidence on their respective approaches in support of the correct current value. The City of Toronto did not appear at the appeal or present the Board with any submissions.

5MPAC’s representative, Tyler Nastich, submitted a valuation report and an equity analysis report in support of its returned assessment of $1,122,000. MPAC’s assessment of the Subject Property was based on four comparable properties that sold between March and December of 2015. Due to market conditions and the change of sale prices over time, MPAC applied Time Adjustment Factors (“TAF”) to calculate the likely sale prices of these properties as if they sold on January 1, 2016. The TAF used to estimate these sale values were calculated from 126 residential properties in the market area that sold between February 2014 and September 2017. MPAC’s valuation analysis indicated that the median Time Adjusted Sale (“TAS”) value of the comparable properties was approximately $530 per sq. ft., while the current value assessment (“CVA”) of the Subject Property was $475 per square foot (“sq. ft.”).

6The Requester submitted the current value of the Subject Property should be reduced to $805,000, The Requester’s submissions pointed to flaws in MPAC’s direct comparison approach. In particular, the Requester argued that the two-storey dwellings are not comparable to a split-level; that properties sold in early 2015 are not a reliable source of data; and, MPAC’s Sales Ratio Trend Analysis (“SRTA”) and sale to assessment ratios (“SARs”) are subjective in nature and are therefore unreliable. The Requester argued the use of SRTA is a subjective approach to determining current value because one of the variables in the formula used is the assessment rendered by MPAC.

7The Requester presented an alternative approach to direct comparison that focused on sales that occurred as close as possible to the valuation day. The sales of these seven properties were adjusted based on their differences from the Subject Property by attributing specific values to various property characteristics. These values are set out in the chart below:

Element	Value Adjustment
Bedroom	$100,000
+ Bedroom (basement Bedroom)	$15,000
Family Room	$50,000
Washroom	$30,000
Exterior Finish	$20,000
Outside Parking Space (each)	$5,000
Finished basement	$80,000
Separate Entrance	$10,000
Garage	$30,000
Time Adjustment	$5,000 per month

8Out of the seven properties proposed as comparable, the Requester submitted 23 Baroness Crescent is the most comparable to the Subject Property. The Requester supported a current value of the Subject Property as $805,000 by subtracting $55,000 from the sale price of 23 Baroness Crescent based on adjustments for distinct property characteristics derived from the chart above.

9The Board ultimately found that the best evidence of the correct current value of the Subject Property was a combination of the Requester’s and MPAC’s evidence.

10The Board rejected the Requester’s comparison approach since it was missing important data and the adequacy of the proposed adjustments could not be tested at the hearing. The Board agreed with the Requester’s submissions concerning the TAF’s used by MPAC, and did not consider properties with sales that occurred earlier than December 2015, and later than January 2017. From the remaining properties, the Board accepted two properties as the most comparable; 46 Cobblestone Drive submitted by the Requester with a sold date of December 22, 2015; and, 44 Axsmith Crescent, submitted by MPAC with a sold date of December 30, 2015. The Board held that the correct current value of the Subject Property was the median value of these two comparable properties, $1,176,500. Since MPAC did not seek an increase in its assessment, the Board confirmed the assessment of $1,122,000 of the Subject Property. The Board determined based on the evidence that no equity adjustment was required.

11The Requester asks that the Board vary the Decision, and reduce the current value of the Subject Property to $805,000, or in the alternative, cancel the Decision and remit the matter to the Board for another hearing.

12For the reasons that follow, the Board concludes that the Request for Review is denied.

RELEVANT RULES

13The Board’s Rules of Practice and Procedure (the “Rules”):

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.

ISSUES

14The Requester does not specify which grounds for review they are relying on. Based on the arguments submitted, the Board finds this Request is most appropriately assessed on the grounds set out in Rule 121(a) and (b).

15The Requester submits the Board and the Presiding Member breached the principles of procedural fairness resulting in a reasonable apprehension of bias; and that the Decision committed significant errors of law and/or fact, such that the Board would have likely reached a different decision had these errors not been made.

Issue No. 1: Whether there was a reasonable apprehension of bias

Requester’s Submissions

16The Requester submits the Board created a reasonable apprehension of bias by failing to remain neutral. Namely, the Requester submits the Board did not have any concern that MPAC returned their Request for Reconsideration (“RfR”) after its statutory deadline and would not consider the records of correspondence between MPAC and the Requester during the RfR process. The Requester further alleges that the Presiding Member suggested arguments to MPAC’s representative to advance their assessment at the hearing.

Findings

17Under Rule 121(a), the Board must be satisfied that the Board breached the principles of natural justice, procedural fairness, or acted outside its jurisdiction during the proceeding or in the Decision. Disagreement with the Board’s findings is not alone sufficient to raise a reasonable apprehension of bias; rather, the Requester must establish a real likelihood of bias exists.

18With respect to the allegations of bias, the Requester does not indicate why the Board should have considered the RfR process or how it may have altered the Decision. The RfR process set out under s. 39.1 and s. 40(3) of the Act is a pre-appeal process between the property owner and MPAC. When an appeal of current value is brought to the Board, the Board is legislatively required to determine the correct current value of the property and determine whether an adjustment is required to make the assessment equitable with similar lands in the vicinity. The Board is not required to consider the actions of parties during the RfR process, nor does it have the jurisdiction to depart from its finding of correct current value and equity based on pre-appeal proceedings.

19With respect to allegation that the Board suggested arguments to MPAC during the hearing, there is an expectation that allegations of bias concerning the conduct of Members are raised at the earliest practical opportunity (Canada (Human Rights Commission v. Taylor, 1990 CanLII 26 (SCC), [1990] S.C.J. No. 129, at 661). The Board notes the hearing was conducted on February 14, 2018, yet this allegation was not raised until July 25, 2018. Further, the Requester does not provide any details on what allegedly transpired at the hearing or how it amounted to a reasonable apprehension of bias. Without any details of what created the Requester’s perception that the Board was assisting MPAC at the hearing, it is difficult for the Board to evaluate the merits of this submission.

20Based on the reasons above, the Board is not satisfied that the Presiding Member created an apprehension of bias during the hearing or in the reasons set out in Decision.

Issue No. 2: Whether the Board erred in fact or law in understanding and applying different approaches to value

21The Requester submits the Board made a number of errors in understanding the evidence presented at the hearing. The Requester submits that had the Board understood their approaches to value and the weaknesses in MPAC’s approach, the outcome of the Decision likely would have been different. In particular, the Requester submits the Board misunderstood that they applied the sold date from the Toronto Real Estate Board as opposed to the closing date applied by MPAC; and that they applied a direct comparative market analysis to support current value, which is superior to MPAC’s approach to direct comparison. Further, contrary to the Decision’s concern at paragraph 25 that the source of the adjustment information was not identified and therefore could not be tested, the Requester submits their approach to assessing value is regularly used in the real estate industry and is therefore reliable.

22The Requester submits the Board erred by using unreliable methods of assessment, such as relying on the median value of two accepted properties as comparable to assess the current value of the Subject Property; and, assessing value on a sq. ft. calculation of comparable properties without considering distinct property characteristics. The Requester also argues the Board failed to demonstrate how the acceptable comparable properties are comparable to the Subject Property, and further, erred by not accepting 23 Baroness Crescent as a comparable property.

23Finally, the Requester submits the Board failed to make an equitable analysis of the Subject Property contrary to s. 44(3)(b) of the Act. The Requester submits the Board should accept two properties in their equity analysis, 27 Whitehorn Crescent and 88 Whitehorn Crescent. The Board notes these properties were not submitted to the Board as comparable in the Requester’s evidence at the appeal hearing.

Findings

24To meet the threshold for review under Rule 121(b), the Requester must satisfy the Board that: (i) the Board made significant errors of fact and law; and, (ii) had the errors not been made, the Board likely would have reached a different decision.

25The Requester’s submissions make numerous inferences and assertions that the Board did not understand the evidence submitted and therefore did not attribute sufficient weight to the Requester’s evidence and submissions. The weight attributed to evidence and submissions are within the discretion of the Presiding Member. Absent a significant error of fact or law, the Board will not interfere with the findings.

26The Requester’s submissions and evidence were appropriately summarized at paragraphs 12 to 17 of the Decision. At paragraph 12, the Board clearly set out the Requester’s arguments with respect to the flaws and the subjective nature of MPAC’s approach and statistics. At paragraph 13 and 14, the Board provided a detailed explanation of the Requester’s approach to direct comparison. At paragraph 15 and 16, the Board provides a summary of the Requester’s arguments with respect to the comparability and adjustments of 23 Baroness Crescent.

27At paragraph 23, the Board noted that the best evidence of current value is a sale of the subject property on the valuation day, however, where no such sale occurs, the sales of comparable properties with proximity to the valuation day is the next best evidence. At paragraph 24, the Decision acknowledged that the Requester’s approach to determining current value had some merit; however, the Presiding Member found that there were a number of weaknesses in its reliability. In particular, the Board found that the Requester’s arguments focused on the comparability of a single property, 23 Baroness Crescent. As a general rule, the Board prefers multiple comparable properties when available. The Board further found adjustments of the sale price of 23 Baroness Crescent were based on the valuation of property characteristics that could not be tested by the Board and that the Requester submitted arbitrary time adjustments of $5000 per month without sufficient support.

28After weighing the evidence before it, the Board found that the best evidence of the correct current value was a combination of the Requester’s and MPAC’s evidence. At paragraph 28, the Board found that 46 Cobblestone Drive (submitted by the Requester), and 44 Axsmith Crescent (submitted by MPAC) were the most comparable since they are demonstrably similar to the Subject Property and sold within 28 days of the valuation day. The Board set out the details of these properties in a side-by-side comparison with the Subject Property in charts found at paragraphs 11 and 14 of the Decision. The Board does not accept that the Requester’s unsupported and late argument alleging that 44 Axsmith Cresent was not sold at arms-length.

29The Requester submits that 23 Baroness Crescent should have been included as comparable. The Board notes that the Requester submitted 23 Baroness Crescent sold on November 26, 2015. However, MPAC’s Equity Report submits the same property sold on January 7, 2016. This distinction is because the parties determine sale dates based on different events, i.e. the Requester used the signing date, while MPAC applied the property closing date. 23 Baroness Crescent could have been considered to fall within the 28 day criteria of the Board; however, a sale date near the valuation date does not necessarily mean the property should be accepted as comparable. There were numerous distinctions between the Subject Property and 23 Baroness Crescent, and these distinctions were noted by the Requester in the evidence on adjustments. The Board also notes from the Requester’s evidence that 23 Baroness Crescent is distinct from the Subject Property since it abuts a highway, has a smaller building area, and has not undergone any notable renovations since its construction in 1969. The Board is not satisfied the Decision made a significant error by not accepting 23 Baroness Avenue as comparable.

30The Requester’s submission that that Board did not conduct an equity analysis is unsupported. The Board conducted an equity analysis at paragraphs 30 and 31 of the Decision in which the Board considered the equity analysis report submitted by MPAC. The equity report included TAS values and 2016 current value assessments of 50 similar properties. The Board accepted MPAC’s evidence and found the assessed value was within the acceptable range of set out by the International Association of Assessing Officer’s and therefore no downward adjustment was required. The Requester did not make submissions with respect to equity adjustments and offers no explanation of why they did not submit 27 or 88 Whitehorn Crescent in their evidence at the appeal.

31Based on the reasons above, the Board finds the Requester did not meet the threshold for review required under Rule 121(a) or (b).

ORDER

32The Request for Review is dismissed.