Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: March 11, 2020

FILE NO.: WR 163192

Assessed Person(s): George Edward Fury and Ann Waddon

Appellant(s): George Edward Fury and Ann Waddon

Respondent(s): Municipal Property Assessment Corporation Region 22

Respondent(s): Erin Township

Property Location(s): 9516 Sideroad 17

Municipality(ies): Erin Township

Roll Number(s): 2316-000-008-04100-0000

Appeal Number(s): 3342263 and 3365440

Taxation Year(s): 2018 and 2019

Hearing Event No. 728088

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

APPEARANCES:

Parties	Counsel/Representative*
George Edward Fury and Ann Waddon	Self-represented
Municipal Property Assessment Corporation	Donald G. Mitchell*
Erin Township	No one appeared

HEARD: November 29, 2019 in person

ADJUDICATOR(S): Tyrone D. Skanes, Member

DECISION

OVERVIEW

1The purpose of this hearing was to determine if the subject property (“SP”) warranted an apportionment of the property classification to include farm land owing to the existence of two bee hives situated on the property.

Background

2The SP is classified as single family detached (not on water) and is subject to a partition of 10.77 acres (“ac”) in the conservation land program. The lot size is 20.43 ac. The dwelling has multiple floors and was originally built in 1882 but it has an effective year built of 1964, owing to a renovation in 2005. The total building area is 2,161 square feet. There are three secondary structures on the property including a large barn and a paddock for the Appellants’ three horses.

3Ann Waddon, appearing on behalf of the Appellants, advised that they had entered into a hosting agreement with the Heritage Bee Company (“HBC”) to place two bee hives on the SP. The Appellants paid HBC $860 + the harmonized sales tax for the hives. She said that in return they would receive 20 jars of honey per hive, for a total of 40 jars. The honey is not processed on site.

4Ms. Waddon said that honey bees were vital in the process of pollination and that they were now considered an endangered species. She said that if more people were incentivized to keep bees then this problem could be eased. She admitted that two hives were not a significant number but opined that if it were made attractive to keep bees, such as allowing people to claim part of the land as farm land, then more people might keep honey bees. She was asking the Board to partition one hectare of land as farm land.

5Brian Rath, appearing on behalf of MPAC, was qualified as an expert witness. He has been a farm valuation specialist for MPAC since 2009. He previously owned a working dairy farm. He advised that land has to have “50 or more hives” before MPAC will assess it as a commercial bee keeping operation. Keeping less than 50 hives is not considered a bona fide farming operation and is considered to be recreational or hobby farming. He advised that the 50 bee hive limit is not arbitrary as it is consistent with the bee keeping industry, which includes the Ontario Beekeepers’ Association, the Canadian Association of Professional Apiculturists, the Canadian Honey Council and Ontario’s Ministry of Agriculture, Food and Rural Affairs and Agricorp.

6Mr. Rath agreed with Ms. Waddon that bees were an important component with pollination and recognized that there was a shortage of honey bees. However, he disagreed with the Appellants’ application for a classification partition. He said they do not conform to the regulations pertaining to farm land. He said that in his opinion the Appellants are recreational or hobby bee keepers and there should be no change in the classification.

Issue – Tax Classification Apportionment: Farm Land

7The main issue for the Board to determine is whether the SP’s classification ought to be partitioned to include farm land. The parties made a joint submission regarding the current value of the SP and they agree that the current value as returned on the roll at $672,000, apportioned with $459,800 in the residential tax class and $212,200 in the Conservation Land – Exempt tax class was fair and reasonable and that this value was equitable with the assessment of similar lands in the vicinity.

8Section 19(5) of the Assessment Act (“Act”) states:

Farm lands and buildings

(5) For the purposes of determining the current value of farm lands used only for farm purposes by the owner or used only for farm purposes by a tenant of the owner and buildings thereon used solely for farm purposes, including the residence of the owner or tenant and of the owner’s or tenant’s employees and their families on the farm lands,

(a) consideration shall be given to the current value of the lands and buildings for farm purposes only;

9Ontario Regulation 282/98 states:

8. (1) The farm property class consists of land determined in accordance with this section and section 8.1 to be farmland. O. Reg. 499/99, s. 1 (1); O. Reg. 363/03, s. 4 (1).

(2) Land used for farming, including outbuildings is farmland for a taxation year if the following requirements are satisfied:

1. A farming business, within the meaning of the Farm Registration and Farm Organizations Funding Act, 1993, is carried out on the land.

2. The land is owned by,

i. an individual who is a Canadian citizen or has been lawfully admitted to Canada for permanent residence,

10To determine whether a portion of a property in the residential tax class should be found to be as farm land the Board must ask:

1. Was the land farm land?
2. Was it only used for farm purposes?
3. Is a tenant using it as a farm?

RESULT

11The Board accepts the parties’ joint submission that the current value of the SP is $672,000 as returned on the roll, apportioned with $459,800 in the residential tax class and $212,200 in the Conservation Land – Exempt tax class and that this value is equitable with the assessments of similar lands in the vicinity.

12For the reasons below the Board finds the Appellants’ argument for partitioning the tax classification to include farm land unpersuasive and denies the application.

ANALYSIS AND DISCUSSION

Joint Submission

13Donald Mitchell, Counsel for MPAC, entered Exhibit 1 on behalf of the parties, an agreed statement of facts in which they agree that current value and equity were not an issue. All parties agree that the current value as returned on the roll, at $672,000 apportioned with $459,800 in the residential tax class and $212,200 in the Conservation Land – Exempt tax class was fair and reasonable and that it was equitable with the assessment of similar lands in the vicinity.

Issue 1a – Was the land [being used as] farm land?

Land Used for Beekeeping

14Ann Waddon is one of the owners of the SP and appeared at the hearing. She entered her evidence package as Exhibit 2. She advised that the Appellants have owned the SP for approximately 25 years. They have, in the recent past, become aware of the plight of honey bees and the decline in the honey bee population to the point where they are now considered an endangered species. She testified that she completed the Environmental Farm Plan course and currently meets the requirements of an organic farm. However, the bee operation is not considered organic and the HBC is not an organic organization.

15Ms. Waddon advised of the importance of honey bees for the pollination of approximately two thirds of our food crops. She advised that approximately 15% of commercial hives die off annually, partly causing the current crisis.

16Ms. Waddon said that they became concerned about the loss of honey bees and how it may affect food production and decided to become involved in hosting bee hives. They entered into an agreement with the HBC to host two bee hives on the SP. She said that the SP was ideal for hosting, as it conforms to all of the requirements including no use of herbicides or pesticides on the SP for a specified period of time. Ms. Waddon said that to the best of her knowledge neither had been used on the SP for over 50 years. Ms. Waddon entered the HBC Approach to Bee Keeping as Exhibit 3.

17Ms. Waddon was asking that one hectare of land be designated as farm land. She said that their fields were ideal for honey bees as they are populated with all of the plants that honey bees needed for effective pollination. She said that honey bees were loyal to the land on which they foraged and would not have to venture further afield for plant life. She said that there was plenty of water nearby, which honey bees require for effective pollination.

18Ms. Waddon provided three different websites for the Board’s consideration that she said were used to form the basis of her evidence.

19Ms. Waddon completed her presentation by asking the Board to find that, by the Appellants hosting two bee hives, they had fulfilled the requirements needed to partition the tax classification of the SP to include one hectare of land as farm land.

20On cross examination Mr. Mitchell entered the host agreement between the Appellants and HBC as Exhibit 4. He questioned the arrangement between the company and the Appellants and Ms. Waddon advised that they actually pay HBC a nominal $1 fee per year, besides also paying for the hives. She said that if sufficient honey is produced they would receive an amount from HBC, which they were not allowed to sell. She said this was not a money making venture. She got involved with it because she believed in land and honey bee preservation.

21The Board asked the Appellant if she believed that a person who partitioned a small part of their property, for example the backyard of a residential property and planted fruits and vegetables, ought to be able to claim a farm land partition because of growing produce. Ms. Waddon answered no but could not give a clear answer why she thought this.

22Ms. Waddon summed up her presentation by saying that despite not adhering to the regulations pertaining to a farm land designation, she believed that the plight of the honey bee required the assistance of people like her who would step up and host hives in an effort to stem the tide of a declining honey bee population. She said that there had to be some incentive that would make it attractive for people to become involved. She said that despite only having two hives she believed she was providing a valuable service. She said that their land conformed to all of the regulations for hosting hives. She said there was a rich source of food supply near the hives that did not require the bees to travel great distances. She implored the Board to designate one hectare of land as farm land and partition the classification.

Threshold to Find Farming

23Brian Rath, representing MPAC was affirmed as an expert witness. Exhibits 5 to 7 were entered and included Mr. Rath’s C.V., Expert Witness acknowledgement and his witness statement. Mr. Rath testified that he had considerable experience as a farm land assessor, as he had been a farm valuation specialist with MPAC since 2009 and he had once owned a working dairy farm.

24Mr. Rath testified that he visited the SP and observed where the two hives were located. He referred to page two of Exhibit 7. This was an aerial photograph with a radius graph with a line emanating from the centre, which Mr. Rath said indicated the location of the hives. He said that the graph clearly showed that from where the hives were currently located, a one hectare radius extended onto a neighbouring property.

25Ms. Waddon was asked to view this picture and she agreed that the radius did extend past her property line onto a neighbour’s property.

26Mr. Rath testified that he had conducted in-depth research into bee keeping. He advised that MPAC had a 50 bee hive limit as the threshold for determining if an operation was considered farming or not. He advised that this threshold was not set arbitrarily by MPAC but was in fact set by various provincial and federal agencies regulating bee keeping as farming.

27Mr. Rath testified that during his research he discovered that contrary to the Appellant’s assertion that bees are loyal to the land on which they forage, older bees will travel up to three kilometers in search of a food source while younger bees will only travel a few hundred meters. He said it was reported that 75% of all bees will travel approximately one kilometer. He said that scout bees would go from the hive in search of food sources and report back at the hive where those sources were located. Other honey bees would then attend at the food source to forage.

28Mr. Rath said that there was no definitive way, at present, of determining if honey bees would stick to one specific food source near a hive, as speculated by the Appellant.

29On cross examination there was a great deal of discussion between Ms. Waddon and Mr. Rath about the sources he used in his research and how reliable they were. Mr. Rath testified that he researched the websites of the Ontario Beekeepers’ Association, the Canadian Association of Professional Apiculturists, the Canadian Honey Council and Ontario’s Ministry of Agriculture, Food and Rural Affairs and Agricorp. He said that he believed that those sources were sufficient to answer all of the questions he had about bee keeping. There was much further discussion about how honey bees identify food sources and how far they would travel from the hive in search of a food source. Mr. Rath maintained that scout bees would travel as far as three kilometers in search of good food sources, while Ms. Waddon emphasized that the bees from her hives would only have to travel a short distance, owing to the rich food source near the hives.

Issue 1b – Used Only for Farm Purposes

30Mr. Mitchell summed up MPAC’s presentation by asking if the sole use of the land was for farming. He said that it was not and for that reason the Appellants’ application should be denied. He said that there were three aspects of the application that had to be considered:

1. Was the land farm land?
2. Was it only used for farm purposes?
3. Is a tenant using it as a farm?

31Mr. Mitchell said that at one time the land had been used as a farm but ceased to be so in the 1920s. Therefore, it was not currently being used for farming. He said that despite the fact that there was a large barn and paddock for the Appellants’ horses its purpose was not farming. Lastly, the agreement between the Appellants and HBC clearly stated that there was never any intention of a partnership between the parties. They were independent contractors. In fact, the Appellants had to pay HBC for both hosting the hives and the hives themselves.

32Mr. Mitchell said that having two hives on the land did not change the nature or characteristics of the land. He emphasized the requirement that 50 bee hives were required for an operation to be considered a farming operation. This was the threshold that MPAC used when assessing whether land was to be assessed as farm land, along with other considerations. He said that it was clear that the presence of two bee hives did not materially change the land and asked that the Board deny the Appellants’ application.

Issue 1c – No Tenant Using as Farm

33Mr. Rath advised that there was nothing in the hosting agreement with HBC that indicated that the company was a tenant, with a right to farm. In the hosting agreement, Exhibit 4 at Clause 23, it says that the relationship between the parties is one of independent contractors. It stipulated that “there is nothing in the agreement intended to create or shall create a partnership.”

34Mr. Rath said that the regulations for land to be considered for farming are very specific. He said that the property must be used as a farm business and the farm business must have a Farm Business Registration Number, issued by the regulatory body. He said that to the best of his knowledge the Appellants did not comply with any of these requirements. He recommended that the Appellants’ request to partition the classification to include farm land be denied.

Findings and Decision

35The Board has carefully considered the witnesses’ testimony and the parties’ evidence.

36The Board accepts the joint submission of the parties in regards to the current value of the SP. The Board accepts that the return on the roll at $672,000 apportioned with $459,800 in the residential tax class and $212,200 in the Conservation Land – Exempt tax class is fair and reasonable and that this value is equitable with the assessments of similar lands in the vicinity.

37The Board finds laudable the Appellants’ concerns about the apparent declining honey bee population and that they wish to be part of the solution, by hosting hives on their property.

38However, the Board was unconvinced by the Appellants’ argument that the presence of two hives on the SP warrants a partition of the classification of the land to include farm land.

39Ms. Waddon was passionate in her presentation and the Board believes that her intention to try and assist in stemming the tide of a declining honey bee population is genuine. However, the Appellants’ argument fails, because their position was not supported by the evidence.

40Ms. Waddon admitted to not knowing about the regulations on how property is classified as farm land.

41The existence of only two hives was a significant barrier, in the Board’s view, to having the SP’s classification partitioned. MPAC requires 50 bee hives on land for an operation to be considered as a farm and considers all others to be recreational or hobby farms. The Appellant admitted that she did not think that a person having a small backyard garden ought to be able to have their classification partitioned to include farm land. Yet, the parallel is virtually the same, with each contributing the same result to farming, namely a farming product.

42The Appellants asked that one hectare of the SP be partitioned as farm land but it was pointed out by Mr. Rath that a radius of one hectare from where the hives were located actually infringed on a neighbouring property. When this was pointed out to the Appellant she could not specify just how much land ought to be partitioned.

43The issue of how much land the bees would actually use caused some concern for the Board. Ms. Waddon was not an expert in bee keeping and while Mr. Rath was accepted as an expert witness, it was as a farm assessor, not as a bee keeper. Both Ms. Waddon and Mr. Rath submitted materials for the Board’s consideration that were presented in a straight forward, forthright manner. However, each presented testimony that contradicted the other’s position. The Board would have been comforted by having a bee keeping expert testify about honey bee habits and behavior. The presence of an independent expert witness would have aided the Board immensely.

44The Board finds that the Appellants’ evidence does not clearly answer the three questions asked as part of the main issue. The land is not farm land and while keeping two bee hives may be a farming activity or purpose it only raises to the level of a recreational or hobby farm. Lastly, there is no tenant using it as a farm.

CONCLUSION

45In answering the main issue for consideration the Board denies the Appellants’ application to designate one hectare of land as farm land.