Zimany v. Municipal Property Assessment Corporation, 2019 CanLII 7185

Assessment Review Board Commission de révision de l’évaluation foncière

ISSUE DATE: January 30, 2019 FILE NO.: RD 2019M02 Assessed Person(s): Maria Zimany Appellant(s): Maria Zimany and John Zimany Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region No 30 Respondent(s): City of Sudbury Property Location(s): 2897 Treeview Road Municipality(ies): City of Sudbury Roll Number(s): 5307-090-018-08307-0000 Appeal Number(s): 3251360 and 3314616 Taxation Year(s): 2017 and 2018 Hearing Event No.: 396877 Legislative Authority: Rule 123 of the Assessment Review Board Rules of Practice and Procedure Request for: Review of the Board’s decision WR 153346 issued on September 7, 2018 Heard: By written submission

Parties	Counsel+/Representative	Submissions
Maria Zimany and John Zimany	Self-represented	Requester
MPAC	No one appeared	Not Requested
City of Greater Sudbury	No one appeared	Not Requested

DECISION DELIVERED BY PAUL MULDOON AND ORDER OF THE BOARD

INTRODUCTION

1Maria Zimany and John Zimany (the “Zimanys”) have applied to have the decision of the Assessment Review Board (the “Board”) in Zimany v Municipal Property Assessment Corp., Region No. 30, 2018 CanLII 84492 (ON ARB) (the “Decision”) reviewed. This Request for Review was filed with the Board on October 3, 2018.

2The Zimanys argue that the Decision contains “significant factual errors, factual omissions and omissions of law which if correct would have a significant effect on the decision.”

ISSUES AND ORDER SOUGHT

3The Zimanys seek a review of the Decision due to alleged errors in the Decision including:

a. Not addressing appeals for the 2014, 2015 and 2016 taxation years;

b. Failing to reproduce certain provisions of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”);

c. Improperly stating that a storage container was a building;

d. Stating that the property was unique;

e. Accepting MPAC’s sales evidence;

f. Finding that the property had recreational value;

g. Accepting MPAC’s assertion that the garage could be converted to living space;

h. Misstating the comparable properties presented by the Zimanys;

i. Not fully describing the extent of swampland;

j. Valuing the garage as if it had living space above;

k. Not addressing the Zimanys’ arguments about relative increases in assessed values; and

l. Not addressing the equity of the assessed value.

4The Zimanys also complain that the Member did not treat them fairly at the hearing by not accepting evidence they attempted to file late.

RELEVANT RULES

5Review requests must meet the procedural requirements of Rule 120 of the Board’s Rules of Practice and Procedure (the “Rules”) before they are considered. That Rule states:

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.

6Reviews 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.

7If 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.

PROOF OF SERVICE

8The Zimanys had one defect in their application when it was submitted. They did not include proof of service on all other parties, as required by Rule 120(e). The Board notified them of that defect, by letter, on October 4, 2018. The Zimanys responded, by letter, on October 15, 2018, providing unsworn proof of service on the parties by courier and fax. The Board is satisfied that the other parties are aware of the request. In any event, the Board finds that a review should not be granted, so no party is prejudiced by the Board’s consideration of the Zimanys request, notwithstanding their failure to prove service.

ERRORS OF FACT OR LAW

9The majority of the concerns raised by the Zimanys are errors of fact. Rule 121(b) is clear that a review will only be granted if the Board is satisfied that “the Board made a significant error of law or fact such that the Board would likely have reached a different decision.” The Board will review each allegation raised against that standard.

2014 Appeal

10The Zimanys assert that they filed an appeal in November of 2014 and therefore have deemed appeals, pursuant to subsection 40(26) of the Act, for the 2015 and 2016 taxation years. They argue that it is unfair that the Decision only dealt with the 2017 and 2018 taxation years. This Board clarified the status of the 2014 appeal in a letter to the Zimanys dated October 4, 2018.

11That letter states that the 2014 appeal was filed late. This Board can only accept late appeals if they comply with Rule 26(b) of the Rules. The Zimanys have not applied pursuant to that Rule, so the 2014 appeal was never processed by the Board. It was not an error for the Decision to only address the active appeals for the 2017 and 2018 taxation years.

Reproducing the Act

12The Zimanys say that it was an omission of law for the Decision to only reproduce subsection 44(3) of the Act. The Zimanys argue that the entirety of section 44 should have been cited. There is no requirement for decisions of this Board to reproduce any legislation.

13While it is good practice to state the legal framework, the minimum legal requirement is to properly apply the law. The amount of the Act reproduced in the Decision is appropriate. A reader can see the most relevant legal test in the Decision. There is no error in the legislation reproduction.

Outbuilding

14The Zimanys allege that the Decision erred in finding, at paragraph 1, that the property contains “another outbuilding measuring 116 sq. ft.” They say that there is no other building on the property, only “an aluminum portable/moveable storage container.”

15There is no error in that finding in the Decision. Each decision will weigh the evidence before it. A storage container could fairly be considered a shed. The Board cannot say that the Decision is wrong in describing that structure as an outbuilding. Even if that description were in error, the Decision does not assign any value to the outbuilding, so the alleged error would not have impacted the outcome.

Unique Property

16The Zimanys take issue with the Decision describing, at paragraph 19, the “unique quality of the subject property.” They say that a small house with a large garage is not uncommon and that small homes are becoming more popular.

17The Decision clarifies the concern at paragraph 26: the “property is such an unusual design makes it difficult to compare to other lakefront properties in the area.” That is, the difficulty was that the property was unlike anything in the immediate area. That makes it unique, even if it is a style that may be common in other areas. The Decision made no error in describing the property as unique.

MPAC’s Evidence

18The Zimanys claim that it was unfair for MPAC to rely on the sales evidence it did. The Decision notes, at paragraph 18, that MPAC’s “comparable properties were all on superior bodies of water.” The Decision found, at paragraph 26, that “none of the suggested comparable property sales were actually similar to the subject property.” However, the Decision goes on, at paragraph 28, to find that those sales could be used to determine value, even though they “are widely variable.”

19It is not an error for a Decision to use the best evidence before the Board. While MPAC did not provide excellent sales evidence, which could be because such evidence was not available, the Board must work with the evidence that is provided. The Decision’s use of MPAC’s sales evidence is not an error.

Recreational Value

20The Decision describes the property as “cottage or recreational lakefront property,” see paragraph 27. The Zimanys say that the property is not recreational, it is only residential. The note that they have no dock, or water toys. They argue that the Decision made an error in using the term “recreational.”

21The Board does not see how the use of the term “recreational” was a significant error. All lakefront property provides access to water. That is some recreational potential. While the Zimanys may not use the waterfront for personal enjoyment, it is likely that potential purchasers would see recreational potential in this land. The use of the term “recreational” is not an error.

Garage

22The Zimmanys say that the Decision erred in stating, at paragraph 23, that “the use of ceramic tile on the garage floors, for example, would allow the building to be turned into more living area and less garage area in the future if the Zimany family wished.” They argue that tile and heating in a garage is not unusual and does not make the space any more habitable than other garages, attics, or basements. They also note that they have no zoning or building code approval to occupy the garage.

23The Decision put a great deal of weight on the use of the garage space as living area. The Decision, at paragraph 31, found that the garage should be valued at the high end of MPAC’s suggested garage values because it “has special characteristics, including in-floor radiant heating and ceramic tiles.” But the Decision is also explicit, at paragraph 30, that “the garage area of this property is not living area per se at the time of the valuation day.” That is, the Decision did not treat the garage area as living space. It was open to the Decision, on the evidence presented, to treat the garage space as having higher end finishing. There is no error in the treatment of the garage space as potential living space.

Zimany Properties

24The Zimanys say that the Decision misstated their evidence. At paragraph 22 the Decision sets out three sales presented for the Zimanys: “(a) 1023 Delwood Court (Robinson Lake); (b) 301 Middle Lake Road (Middle Lake); (c) 2234 Hulda Street (Still Lake).” The Zimanys assert that these properties were presented as superior properties, not “comparable residential sales in the area,” as set out in the Decision. They also argue that the proper comparable sales are 2903 Treeview Road, 2891 Treeview Road, and 2879 Treeview Road.

25The Decision used all of the sales it considered to arrive at a value for the living space on the property, see paragraph 28. It is a core duty of every decision of this Board to consider the evidence and determine what the evidence shows. That discretionary power was exercised here. The Zimanys may not agree with the Decision’s assessment of the evidence, but that does not amount to an error.

26The Zimanys second allegation is that the Decision failed to consider evidence that was before the Board. The Decision only references 2903 Treeview Road at paragraph 24, when discussing photographs. It does not consider it in its assessment of the sales data at paragraph 28. This is due to the fact that none of those properties had recent sales in evidence. The documents submitted by the Zimmanys indicate that 2903 Treeview Road had no sales in the las five years, 2891 Treeview Road sold for $630,000 in June 2012, and 2879 Treeview Road had no recent sales. The property with a sale sold 3.5 years before the valuation day and is, therefore, not good evidence of what properties in the area would have sold for on the valuation day. The Decision was not in error in not considering those properties in determining current value.

Swampland

27The Decision states, at paragraph 24, that “photographs depicted… the swampland surrounding both the subject property and the neighbouring property at 2903 Treeview Road.” The Zimanys say that the swampland is more extensive, surrounding all of the neighbouring properties. They do not, however, make submissions on what was depicted in the photographs that were before the Board. The Decision does not comment on the extent of the swampland, only what the photographs show. There is no error in that description.

Garage Value

28The Zimanys are concerned that the Decision, at paragraph 31, applied a value per square foot to the garage taken from MPAC’s value for “a garage with living quarters attached.” This flowed from the Decision’s finding, at paragraph 30, that the property “bears most similarity with garages with separate living quarters above.” The Zimanys argue that there is no living space above the garage so it should not be valued at the rate adopted in the Decision.

29As noted above, the way evidence is analysed is at the discretion of the Member in each case. The Decision, read as whole, is clear that the garage was viewed as having high end finishes and the Decision was seeking a fair value for a high end garage. The use of the MPAC rate was a proxy for a garage with higher end finish. It was open to the Decision to make that determination. The Board is not satisfied that there is an error in how the garage was valued.

Increases in Assessments

30The Decision notes, at paragraph 21, that the Zimanys “began by pointing out the properties in the neighbourhood that had experienced a decrease in value between 2015 and 2016.” But the Decision did not consider that issue at all. The Board is satisfied that the Decision is in error in not considering that argument. However, this error did not impact the result. The Zimanys argue that this was an error that would have changed the outcome. The Board disagrees.

31The law is well settled that relative changes in the assessed values of land are not a valid consideration in an appeal. One example is in Bath Road Car Wash Inc v Municipal Property Assessment Corporation Region 05, 2015 CanLII 74338 (ON ARB), where Member McAnsh held, at paragraph 8:

I can put no weight on the increases of other properties over time. Assessments change as MPAC changes its methodologies and gathers more information. I do not know if any of those assessments are correct so can put no weight on how they changed. Secondly, there can be no reasonable expectation that property values will move in lockstep over time. The real estate market is complex, unpredictable and varied. Variations in the changes in value over time should be expected. Finally, I note that s. 44.(3)(b) requires that I look to “the value at which similar lands in the vicinity are assessed” not how those assessments have changed over time. I therefore put no weight on the argument that the assessment should be adjusted to make it equitable with changes in other assessments.

32Those reasons could have been given here. It was not open to the Decision to decide otherwise. Relative changes in assessed values can be attributed to many different sources and do not, in themselves, prove any unfairness. While the Board is satisfied that the Decision was in error in not providing reasons for why the relative increases in assessment could not be considered, that error could not have impacted the outcome.

Equity

33The Zimanys’ final alleged error is that the Decision states, at paragraph 34, that they “did not lead evidence in respect of equity,” when they did argue that the assessment was inequitable. They presented a number of equity arguments with their Request for Review. However, none of those calculations are in the material that was presented at the hearing. A review is not a second opportunity to argue a case, it is a check on the decision that the Board has already been made.

34There is a narrow opportunity to introduce new evidence on review set out in Rule 121(d). That is if the “new evidence… could not have reasonably been obtained earlier and would have affected the result.” The two requirements are that the evidence could not have reasonably been presented at the hearing, and that the evidence likely would have impacted the result. The Zimanys do not meet the first component of the test.

35The equity arguments presented in this review could have been presented at the hearing. The Zimanys have provided no explanation for why those arguments were not presented at the hearing. The information in those analyses was available at the hearing, and the Zimanys knew the case to meet at the hearing. The Board is satisfied that the evidence could have reasonably been obtained earlier. The new evidence cannot, therefore, be considered in this review.

PROCEDURAL FAIRNESS

36The Zimanys also complain, pursuant to Rule 121(a), that the Member did not treat them fairly. That Rule permits a review if the Board is satisfied that “the Board acted outside its jurisdiction or violated the rules of natural justice or procedural fairness.” They say that the Member accepted evidence from MPAC at the hearing, but would not accept evidence from them. They argue that this unequal treatment was unfair and that the Decision should be cancelled on that basis.

37Procedural fairness is a flexible doctrine. This means that what is required in one situation may not be required in another situation. The principle is, at its core, concerned with ensuring that all parties have a chance to present their case to the Board. The Board is not satisfied that the alleged conduct of the Member breached procedural fairness.

38The Member accepted MPAC’s assertion that their materials had not been filed in compliance with the Rules due to a clerical error. That was not an unreasonable course of action. The Member also declined to accept a summary prepared by the Zimanys. That was a new document that had not previously been filed, so it not improper for the Member to decline to accept that document. The Zimanys final complaint is that the Member only took some of the copies of their previously filed material, not all of it. That material would have been in the Board’s file, so the Member had that material and did not need to accept any of it again at the hearing. There was nothing unfair in the Member’s conduct.

ORDER

39Based on submissions received, the Board denies the Zimany’s Request for Review.