Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: October 9, 2019

FILE NO.: WR 160498

Assessed Person(s): Gordon Ivan Moorey and Jane Rebecca Moorey

Appellant(s): Gordon Ivan Moorey

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 32

Respondent(s): Township of Terrace Bay

Property Location(s): 63 Terrace Heights

Municipality(ies): Township of Terrace Bay

Roll Number(s): 5854-000-002-22900-0000

Appeal Number(s): 3265036, 3314936 and 3368240

Taxation Year(s): 2017, 2018 and 2019

Hearing Event No.: 713585

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

Heard: May 15, 2019 in Thunder Bay, Ontario

APPEARANCES:

Parties	Representative
Gordon Ivan Moorey and Jane Rebecca Moorey	Self-represented
MPAC	Glenn Spiess
Township of Terrace Bay	No one appeared

DECISION OF THE BOARD DELIVERED BY JOANNE LAWS

OVERVIEW

1Gordon Moorey (the ‘Appellant”) is the owner of 63 Terrace Heights (the “Subject Property”), a single family detached home located in Terrace Bay.

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 (“current value”).

3MPAC has returned an assessment of $90,000 for the 2017 taxation year and $89,000 for the 2018 and 2019 taxation years.

4The Appellant filed an appeal for 2017 taxation year with the Assessment Review Board (the “Board”) and has been deemed to have brought the same appeal with respect of the Subject Property for the 2018 and 2019 taxation years pursuant to s. 40 of the Act. It is the Appellant’s position that MPAC’s assessment of current value is too high and that the correct current value is between $72,000 and $75,000. MPAC took the position at the hearing that its assessed value is correct.

5Pursuant to s. 40(11) of the Act, the Township of Terrace Bay is a party to this proceeding. It advised the Board in writing that it takes no position on the issues raised and no one appeared at the hearing on its behalf.

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. The Appellant argues that MPAC’s assessments are inequitable due to an economic downturn in Terrace Bay. MPAC takes the position that an equitable reduction is required due to a level of assessment study.

7At the completion of the hearing, I reserved my decision. For the reasons that follow, I find that for the 2017, 2018 and 2019 taxation years, the current value of the Subject Property is $100,000. I also find that an equitable adjustment to $89,000 is required, pursuant to s. 44(3)(b) of the Act.

8The Appellant’s motion for costs is dismissed.

Relevant Legislation and Rules

9The Act states that:

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.

10The Board’s Rules of Practice and Procedure (“Rules”) provide, in part:

4. These Rules shall be liberally interpreted to ensure the just, most expeditious and least expensive determination of every proceeding.

5. These Rules shall be applied in a manner proportionate to the importance and complexity of the issues in a proceeding and with a view to resolving appeals within the four year cycle.

6. Substantial compliance with the requirements of these Rules is sufficient.

7. The Board may order costs against any party that has acted unreasonably, frivolously, is vexatious, or in bad faith, on its own initiative or at the request of any party.

8. A request for costs shall be made to the Board in writing, and served on the other parties, within 30 days of the issuance of the decision or order for which costs are requested.

9. A party that opposes an award of costs shall file an objection to the request for costs within 30 days of service of the request.

10. A submission on costs shall set out the reasons for the request and the particulars of the other party’s conduct that are alleged to be unreasonable, frivolous, vexatious, or in bad faith, and the amount requested.

Procedural Matter: Disclosure in a Summary Proceeding

11Prior to the hearing the Board issued a Schedule of Events for this property which set out the deadlines for disclosure, a pre-hearing mandatory meeting and the filing of documents and submissions to the Board. No dates for reply evidence and arguments were set out in the Schedule of Events.

12During their testimony at the hearing, the Appellant gave oral evidence for a number of properties followed by documentary evidence for one property, 49 Terrace Heights. Their oral and documentary evidence was in direct reply to MPAC’s evidence and arguments. MPAC did not object to any of the oral evidence given by the Appellant, however it did object to the documentary evidence. I allowed the documentary evidence because I found it to be in direct reply to MPAC’s evidence. MPAC was offered an opportunity to review the documents before the hearing proceeded.

Issues

13The issues to be determined on this appeal are:

1. The correct current value of the Subject Property for the 2017, 2018 and 2019 taxation years; and
2. Whether there should be an equitable reduction of the current value of the Subject Property pursuant to s. 44(3)(b) of the Act, and, if so, what the amount of this reduction should be.
3. Whether costs should be awarded to the Appellant.

DISCUSSION, ANALYSIS AND FINDINGS

What is the correct current value of the Subject Property for the 2017, 2018 and 2019 taxation years?

14The Subject Property is a single family detached home, one storey in height, with a building area of 1,122 square feet (“sq. ft.”), built in 1979. Due to renovations which occurred in 2000, MPAC has allocated an effective year built of 1983. The residence has one and one-half bathrooms and an unfinished basement. The house is clad in brick and siding. The driveway is unpaved. The quality of the construction of the residence, as ranked by MPAC, is 6.0 out of 10. The lot is 65 feet wide and 115 feet deep with an effective area of 0.18 acres. There is a detached garage of 437 sq. ft.

MPAC’s Evidence

15Glenn Spiess represented MPAC and gave evidence in support of the assessment corporation. He entered into evidence a valuation report in support of the current value.

16The assessment was initially returned by MPAC at $90,000. However, because of an inspection of the Subject Property and the resulting adjustments made to MPAC’s data, Mr. Spiess adjusted the assessment to $89,000. This amount was returned for the 2018 and 2019 taxation years. Mr. Spiess recommended a value of $89,000 for all three taxation years.

17Mr. Spiess used the direct sales comparison method to support the recommended assessment of $89,000. He selected six single family residential homes located in the same neighbourhood as the Subject Property, which MPAC identifies as A02-280. A copy of the data for the six properties can be found below. All of the sale properties are similar to the Subject Property in that they have similar lot sizes, are a similar age, are ranked with a quality of construction of 6, have similar above-ground building areas and have detached garages. These properties sold during 2014, 2015 and 2016 with sale values ranging from $100,000 to $140,000. MPAC time adjusted the sale prices to estimate the selling price as of the January 1, 2016 valuation day and those values range from $99,324 to $140,433.

18In order to time adjust the sale values Mr. Spiess carried out a Sales Ratio Trend Analysis study to create time-adjustment factors (“TAF”). Mr. Spiess acknowledged that the TAFs were based on sales from numerous locations, that he expanded his search beyond Terrace Bay because he was required to have approximately 600 sales. His analysis has 594 sales.

19Mr. Spiess also acknowledged that the Appellant purchased the Subject Property for $81,000 in October 2012 in an open market sale. He submits that the time adjusted sale value, as of the January 1, 2016 valuation day, is estimated at $85,000.

MPAC’s Submissions

20Mr. Spiess took the position that 6 Southridge Crescent is the most comparable of his sales to the Subject Property. It has a time adjusted sale price of $111,866 which, he argues, supports a current value of $111,000 for the Subject Property. He argued that this sale and the time adjusted sale price of the Subject Property ($85,000) support the recommended current value of $89,000 for the 2017, 2018 and 2019 taxation years.

21Mr. Spiess argued that properties near the Subject Property are selling for sums greater than their January 1, 2016 current value assessments.

Appellant’s Evidence

22The Appellant represented himself. Mr. Moorey did not seek to be qualified as an expert witness. However, he said that he has knowledge of the real estate market in the area. Mr. Moorey submitted his Curriculum Vitae which included, in part, that he sold real estate from 2005 to 2015, was a broker from 2008 to 2015, and that he has 10 years of experience appraising the market value of homes, farms and commercial buildings, including multi-residential buildings. He said he considered himself to be a ‘low level’ appraiser due to the small number of appraisals he has done. Mr. Moorey stated he has been involved in the listing of many residential properties in Terrace Bay.

23Despite his background, Mr. Moorey did not submit any comparable sale properties. Instead, he relied on MPAC’s sale properties. He challenged the comparability of MPAC’s sale properties to the Subject Property. His position is that all six of MPAC’s sales are superior to the Subject Property and that Southridge Crescent is a desirable and superior street to Terrace Heights Drive and provided the following oral evidence:

• MPAC’s first sale, 49 Terrace Heights Drive, is superior in many aspects and that accounting for the differences, the Subject Property’s value should be between $72,000 and $75,000 is reasonable.
• With regard to MPAC’s second sale, 6 Southridge Crescent, the garage is larger, it has a partially finished basement and it is located across the street from a large park.
• With regard to MPAC’s third sale, 48 Southridge Crescent, it, too, is located across from a large park, it is a tri-level side split (as reflected in MPAC’s photographic evidence) rather than a single storey, has a partially finished basement, a high-end hot tub and there is a heated workshop in the garage.
• With regard to MPAC’s fourth sale, 14 Southridge Crescent, is a tri-level side split (as reflected in MPAC’s photographic evidence) rather than a single storey, it has a partially finished basement and it is located across from a large park.
• With regard to MPAC’s fifth sale, 32 Southridge Crescent, it has a backyard view of Lake Superior and it was not an arm’s length sale because it was a marriage break-up.
• With regard to MPAC’s sixth sale, 87 Terrace Heights drive, it has a heated garage which is significantly larger than the Subject Property’s, a partially finished basement, and, it is adjacent to a vacant lot that cannot be developed due to underground infrastructure (sewer and hydro). Mr. Moorey testified that he believes the owner maintains this vacant lot and is permitted to store his boats and trailers. Mr. Moorey argues that due to this vacant lot, this property is superior to the Subject Property.

24Mr. Moorey submitted the real estate listing for MPAC’s first sale, 49 Terrace Heights Drive, along with a one-page analysis of the value attributed to the differences between it and the Subject Property. He identified superior characteristics and their estimation of value for those characteristics which are: a partially finished basement at $4,000, all brick veneer at $8,000, a heated workshop within the garage at $4,000, a paved driveway at $10,000, new doors at $1,500, new windows at $21,000 and four appliances at $250 each. He submits that, based on these differences the Subject Property’s value should be $65,500 (the 2014 sale price of $115,000 less the total ‘deviation’ value of $49,000). However, because Subject Property’s windows are newer, he takes the position that a value between $72,000 and $75,000 is reasonable.

25Mr. Moorey provided a history of Terrace Bay, explaining that it has had a downturn in population and that homes are difficult to sell because supply exceeds demand. He presented data on a large number of properties indicating how long they were listed for sale before the listing expired or the property sold. Some were listed in excess of a year and, he submits, only 56% of the listings resulted in a sale. He testified that Realtor.ca statistics garnered from Statistics Canada indicate that Terrace Bay’s population has dropped from 615 people in 2009 to 610 people in 2014 and that the population continued to decrease until 2018.

26Mr. and Mrs. Moorey testified that while living in Thunder Bay, they planned to return to the Terrace Bay area; Mrs. Moorey was originally from Terrace Bay and Mr. Moorey from nearby Schreiber. Due to health reasons, they require a single storey residence. They had been looking for a home in the area for over a year and had missed purchasing a lower priced property. Because their home in Thunder Bay had sold, they had limited time to find another home to purchase. For these reasons, they submit that the purchase price of $81,000 exceeded the market value of the Subject Property.

Appellant’s Submissions

27Relying on his experience in the real estate profession, Mr. Moorey submits that the correct current value for 2017, 2018 and 2019 taxation years is between $72,000 and $75,000.

28He argued he and his wife overpaid for their property because they were under pressure to find a home.

29The Appellant argued that the TAFs presented by MPAC cannot be accurate because they are derived from numerous locations, some as far as 100 kilometers away. He argued that Terrace Bay is a lower priced market within the District of Thunder Bay and that the sample used by MPAC cannot accurately measure the market changes in Terrace Bay.

30He argued that Terrace Bay is a buyer’s market and that with a declining population the property values must be declining as well. He argued that the data he provided in relation to his listings is a “clear indication of declining values” and it contradicts MPAC’s Valuation Report that shows an upward trend in values.

Findings on Current Value

31Pursuant to the definition of current value found in s. 1 of the Act, the best evidence of the current value of a residential property is an arm’s length sale of that property on or near the valuation day. When that evidence is not available, arm’s length sales of similar properties on or near the valuation day are the next best evidence.

32I received no evidence that the Appellant’s purchase of the Subject Property was not an arm’s length and open market sale. However, I find that the date of this sale, which occurred in 2012, is too far from the January 1, 2016 valuation day to be relied upon. Accordingly, I give that sale no weight in my determination of current value.

33The Appellant argues that the TAFs used by MPAC are not relevant to the Terrace Bay Market. MPAC’s evidence is that it used “sales of vacant and/or improved land from the subject property’s neighbourhood and adjacent areas from 2012-01-01 to 2016-12-31.” The Appellant’s undisputed evidence is that some of the sales used are located 100 kilometers from Terrace Bay in markets that are not as depressed as Terrace Bay. Based on both the physical distance from Terrace Bay and time distances of the sales from the valuation day, I find that the resulting TAFs are likely unreliable when determining the current value for this property. Accordingly, for the purpose of determining current value, I will use the actual sale values rather than the time adjusted sale values.

34The Appellant did not present any suggested comparable sales and MPAC presented six. Of MPAC’s six sales, I am disregarding Sales 3 and 4, 48 Southridge Crescent and 14 Southridge Crescent, because they are multi-level side-splits which are not directly comparable to single storey buildings.

35Based on the evidence of the parties, I find that MPAC’s remaining proposed comparable sale properties are superior to the Subject Property.

36The first sale, 49 Terrace Heights, shares many similar characteristics with the Subject Property however, the Appellant’s undisputed evidence show that it has additional characteristics which the Subject Property does not have. Therefore, I find that it is superior to the Subject Property. While I appreciate Mr. Moorey’s short appraisal, I am not satisfied that his conclusions reflect the open market value of the Subject Property. I received no sales information that similar lands are selling between $65,000 and $75,000 in Terrace Bay. In addition, I prefer an analysis of a number of property sales for the determination of current value rather than a single property. Accordingly, I find it difficult to give this document much weight. What I can conclude from the evidence is that the Subject Property would sell for less than its sale price of $115,000.

37The second sale, 6 Southridge Crescent, is superior to the Subject Property. The Appellant’s undisputed evidence is that it is located on a superior street and that it is located across from a park. The parties’ evidence is that it has a larger garage and a partially finished basement. Based on this I conclude that the Subject Property would likely sell for less than $110,000.

38The fifth sale, 32 Southridge Crescent, is, on balance, similar to the Subject Property. The Appellant argues that this sale should be disregarded because the vendors’ marriage ended. While this circumstance may impact a sale, I received no evidence that this was the case or that it was not an open market sale. This property has a one half less bathrooms and no basement however the residence is slightly larger, and it is located on a superior street. In this instance, I find that the negative features balance the positive features. It sold for $100,000 in June 2016, very near the valuation day, which is a better indication of current value than a sale date that is farther from the valuation day.

39The sixth sale, 87 Terrace Heights Drive, is also superior to the Subject Property. MPAC’s evidence is that the garage is more than twice the size of the Subject Property’s and it has a partially finished basement and the Appellant’s undisputed evidence is that the garage is heated. The Appellant also argues that it is superior to the Subject Property because it abuts an undevelopable lot. However, I received no evidence which supports their supposition that the abutting vacant lot adds value. On balance, I find that the Subject Property would likely sell for less than its sale price of $125,000.

40Based on the above, I find that the Subject Property is most similar to MPAC’s Sale 5, 32 Southridge Crescent, which sold for $100,000 very near the valuation day. This is the current value of the Subject Property.

Whether there should be an equitable reduction of the current value pursuant to s. 44(3)(b) of the Act, and, if so, what the amount of this reduction should be.

Appellant’s Evidence

41The Appellant presented a number of real estate listings. He argues there has been an economic downturn in Terrace Bay and that the supply of residential properties listed for sale exceed demand. He argues that, as a result, property values must be decreasing in the area. With regard to his property, he argued that MPAC’s assessed value does not reflect the market.

MPAC’s Evidence

42MPAC presented an equity study of 30 single family detached residential sales which occurred from January 1, 2012 to December 31, 2016. The search parameters were limited to properties located within 1 kilometre from the Subject Property, with a total building area between 1,008 and 1,259 sq. ft., built between 1978 and 1980, with a lot size between 0.17 and 0.21 acres and with a 6 quality of construction. The median assessment to sale ratio (“ASR”) presented is 0.93 and the coefficient of dispersion is 14.8.

43Relying on its evidence, MPAC’s submits that an equitable reduction of the current value is required.

Findings on Equity

44The goal of the Act is to determine the correct current value. Any equitable reduction in the current value results in an incorrect current value. Consequently, an equitable reduction should only be made where there is clear evidence to support that such a reduction is warranted.

45Clause 44(3)(b) of the Act provides that, in determining whether an adjustment of the current value is required to make it equitable, I must “have reference to the value at which similar lands in the vicinity are assessed.” The word ‘similar’ is not defined in the Act.

46In Municipal Property Assessment Corporation v Loblaw Properties Limited, 2017 ONSC 1299, the Divisional Court contemplated the meaning of ‘similar lands’ in relation to clause 44(3)(b) of the Act. Referencing Trizec Equities Ltd v Ontario (Regional Assessment Commissioner, Region No 27), [1988] OJ No 182, 27 OAC 203, 37 MPLR 175, 8 ACWS (3d) 399 (Div. Ct.) (“Trizec”) it found, at paragraph 25, that “the proper approach to be taken to determining what are “similar lands in the vicinity” is that set out by Saunders J. in Trizec, that is, that all points of comparison must be considered.” In Trizec the court also determined that “The board must make a factual finding based on such a consideration. One point of similarity such as use may be, but is not necessarily, determinative. Some similarities may be overridden by other characteristics and some differences may be subordinated.”

47The Appellant’s evidence is a thorough analysis of residential property real estate listings in the vicinity of the Subject Property. However, there is insufficient data for me to make a finding on equity. I was not provided with the dates and values of sales or assessments nor did I receive property details such as lot size, building sizes, etc.

48MPAC submits that an equity adjustment is required and presented an analysis of 30 very similar properties located in the vicinity of the Subject Property. They are all residential properties, located within 1 kilometre of the Subject Property, are similar in lot and building sizes as well as age and they have the same quality of construction.

49MPAC utilized a level of assessment analysis, comparing assessments to time adjusted sale values. The resulting ASRs provide an indication of whether an equitable adjustment of the current value is required. The median ASR of the 30 properties is 0.93. As in my current value analysis, I find that the TAFs may not be relevant because the physical distance from the Subject Property and time distances of the sales from the valuation day are too great. Using only sales that occurred 12 months from the valuation day (i.e. 2015 and 2016) and the actual sale values, I calculate the median ASR to be 0.87. Applying the median ASR of 0.87 to the current value results in a value of $87,000.

50An equitable reduction of the current value of the Subject Property, pursuant to s. 44.(3)(b) of the Act, is required. The current value of the Subject Property is reduced from $100,000 to an equitable value of $87,000 for the 2017, 2018 and 2019 taxation years.

Motion for Costs

51At this hearing the Appellant sought costs, arguing that MPAC acted unreasonably and in bad faith.

52In her post-hearing written submissions, MPAC’s counsel, Sarah W. Corman, objected to the costs request being made prior to the release of the decision for which the costs are being sought. While this has been a common practice of the Board, there is nothing in the Rules to suggest that a decision on costs must be made after the issuance of a decision. MPAC references the Board’s Rule 116 which provides that a “request for costs shall be made … within 30 days of the issuance of the decision or order for which costs are requested.” This rule sets out the latest day such a request can be made but is silent on the earliest day.

53In his submission, the Appellant referred to the Board’s previous Rules. Over time the Board’s Rules have been amended. The Rules, amended in May 2019, have been set out, in part, earlier in this decision. Rules 116 through 119 relate to costs and provide that behaviour by a party that is unreasonable, frivolous, vexatious or in bad faith may trigger a cost award. I must determine whether or not any of these terms match the conduct of any of the parties.

54The Oxford Dictionary provides the following definitions for the four terms contained in Rule 116:

a. “unreasonable” - not guided by or based on good sense. b. “frivolous” - not having any serious purpose or value. c. “vexatious” - brought without sufficient grounds for winning purely to cause annoyance to the defendant. d. “bad faith” - the intention to deceive.

55I must find whether one or more of the elements of Rule 116 have been demonstrated in the behaviour of a participant in this matter. If the behaviour of a party leads me to conclude that one or more of the four elements defined above occurred, then I must determine what amount of money would be an appropriate award.

The Evidence Presented

56The issues raised by the Appellant with regard to costs include MPAC’s failure to respond to his May 2, 2017 email, MPAC’s failure to accept his offer to settle prior to the hearing and that MPAC’s representative, Glenn Spiess, intentionally misquoted the Act and concealed information. The Appellant takes the position that because of MPAC’s actions he incurred unnecessary costs preparing for the appeal before the Board.

57The Appellant argues that MPAC demonstrated bad faith and acted in an unreasonable manner because it did not respond to his May 2, 2017 request for additional information. The Appellant’s request was made along with his rejection of MPAC’s offer to settle. In response to his email request for additional information, the Appellant received an automated reply to his email from MPAC as well as an email reply from a customer service person, both indicating that MPAC would contact the Appellant within a matter of days. However, this did not occur.

58The Appellant further argues that MPAC acted unreasonably and in bad faith by not accepting his offer to settle during the pre-hearing mandatory meeting and that had MPAC accepted his offer, he would not have incurred the travel costs.

59The Appellant argues that the hearing should have taken place in Terrace Bay rather than Thunder Bay and, therefore, he has incurred travel costs. MPAC correctly pointed out that it is the Board, not MPAC, that schedules hearings for particular locations. MPAC’s undisputed evidence is that Mr. Moorey agreed to have the hearing in Thunder Bay, rather than Terrace Bay.

60The Appellant claims that Mr. Spiess intentionally omitted part of s. 44(3)(b) of the Act when paraphrasing it in his Equity Report. He argues that MPAC acted in bad faith and in an unreasonable manner by omitting the provision that an equity adjustment is only made if it results in a reduction in the assessment. He argues that the omission is misleading and that it was done intentionally to circumvent the intention of the Act.

61The Appellant argues that Mr. Spiess attempted to hide the fact that his time adjustment study included properties from different communities located up to 100 kilometres from Terrace Bay. In his report, Mr. Spiess identified the properties by roll numbers and street addresses and described them as “from the subject property’s neighbourhood and adjacent areas.” Based on the Appellant’s arguments, I found that the time adjustment study was not reliable for determining the current value for the Subject Property.

62Counsel for MPAC submits that MPAC responded to this appeal in a reasonable manner and acted in good faith, that the Appellant has provided no evidence of conduct by MPAC to justify the exceptional remedy of a costs award, and if they had, costs are not generally available to self-represented litigants. She presented a number of decisions in support of her arguments.

Discussion and Analysis

63When determining whether costs should be awarded the starting point for that determination is Rule 116 of the Board’s Rules which provides that costs are only awarded when a party has acted unreasonably, frivolously, vexatiously, or in bad faith. The wording of Rule 116 is derived from s. 17.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

64There are a number of decisions that address costs, particularly in relation to tribunal matters. Of these, there are two decisions of this Board which I find useful in determining whether the actions of a party might lead to an award of costs at this Board.

65In Scrimgeour v Municipal Property Assessment Corporation, Region 24, 2015 CanLII 40065 (ON ARB) (“Scrimgeour”), Associate Chair Paul Muldoon reiterates the Board’s position that “generally speaking, costs are only awarded in exceptional circumstances where the threshold test [in the Rules] is met and that there must be some evidentiary basis to establish unreasonableness or bad faith by MPAC.”

66In Biskey v. Municipal Property Assessment Corporation Region 26, 2016 CanLII 42758 (ON ARB), at paragraph 13, Member Denison reiterated Mr. Muldoon’s reasons in Scrimgeour and, at paragraph 13 added:

13. Unlike litigation in the courts, costs do not follow the event in matters before this Board, or most administrative tribunals. Costs awards are very rare in matters before the Board. The Board’s Rules concerning the awarding costs treats it as an extraordinary possibility when a party has acted “unreasonably, frivolously, vexatiously, or in bad faith”. The discretionary power to award costs is meant to be a tool that the Board can use in the most egregious cases to control its own process and to deter improper conduct before it. Short of pursuing contempt orders through the Divisional Court, the awarding of costs is the capital punishment in proceedings before this Board.

67Prior to the hearing, both parties rejected the other party’s offer to settle. After rejecting MPAC’s offer, the next option available to the Appellant was to file an appeal with this Board, which he did. In the context of this case and the directly relevant information already provided by MPAC to the Appellant, I find nothing unreasonable in MPAC not providing the Appellant with additional data after it received the Appellant’s refusal to settle.

68In Scrimgeour, AC Muldoon provided that “the very purpose of the hearing process is to test the evidence submitted by the parties in order for the Board to assess the “best evidence.” Specific dates were provided to the parties for disclosure as well as other steps that lead to the hearing of these appeals. Perhaps as a courtesy, MPAC should have responded to the Appellant’s email however the Appellant provided no evidence to show that, in the circumstances of this adversarial process, MPAC acted in bad faith or unreasonably by not providing a response or the additional information.

69With regard to MPAC’s omission in paraphrasing s. 44(3)(b), I received no evidence that the omission was an intent to mislead. I do not know why part of 44(3)(b) was omitted but I have no evidence that it was intentionally omitted from the paraphrasing. Without the evidence of intent, I cannot make a finding that MPAC acted unreasonably or in bad faith.

70The Appellant argued that MPAC acted unreasonably or in bad faith by not setting out the location of the properties used in its time adjustment study and sought costs for the time spent researching their locations. MPAC described the properties in this study as being located in the Subject Property’s “neighbourhood and adjacent areas”, the plain meaning of which would not mean properties located 100 kilometres from the Subject Property. The time a party spends reviewing another party’s evidence and preparing for the hearing is an integral part of the hearing process and, in this case, lead to my determination that the time adjustment study was not reliable. The time adjustment study was not significant and would not have had a large impact on the current value, had it been used. As such, I do not find that this is a circumstance to exercise my discretion in the award of costs. I agree with Member Denison who, in Biskey, said that the award of costs is meant to be a tool used in the most egregious cases. Accordingly, in this instance, I find that the omission of property locations in the time adjustment study was not so egregious that it should be sanctioned by an award of costs.

DECISION

71The current value of the Subject Property is $100,000 for the 2017, 2018 and 2019 taxation years.

72An equitable reduction of the current value of the Subject Property, pursuant to s. 44(3)(b) of the Act, is required.

73Accordingly, the assessment as returned is reduced from $90,000 for the 2017 taxation year and $89,000 for the 2018 and 2019 taxation years to $87,000 for all three taxation years.

74The motion for costs is dismissed.

“Joanne Laws”

JOANNE LAWS MEMBER Assessment Review Board A constituent tribunal of Tribunals Ontario - Environment and Land Division Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

Schedule “A”