Manitius v. Municipal Property Assessment Corporation, 2020 CanLII 5711

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

January 23, 2020

FILE NO.:

RD 2019M29

Assessed Person(s):

Elzbieta Malgorzata Manitius

Appellant(s):

Elzbieta Manitius

Respondent(s):

Municipal Property Assessment Corporation (“MPAC”) Region 09

Respondent(s):

City of Toronto

Property Location(s):

1Brule Gardens

Municipality(ies):

City of Toronto

Roll Number(s):

1904-011-270-05000-0000

Appeal Number(s):

3252357, 3294165 and 3353973 (deemed 2018 and 2019 appeals)

Taxation Year(s):

2017, 2018 and 2019 (deemed appeals)

Hearing Event No.:

688365

Legislative Authority:

Rule 123 of the Assessment Review Board’s Rules of Practice and Procedure, as amended

Request for:

A review of the Board’s Decision WR 151993 issued on May 31, 2019

Heard:

In writing

Parties

Counsel⁺/Representative

Submissions

Elzbieta Manitius

Self-represented

Requester

MPAC

Not Received

City of Toronto

Not Received

DECISION AND ORDER OF THE BOARD DELIVERED BY DIRK VANDERBENT

INTRODUCTION

1On July 2, 2019, the Appellant, Elzbieta Manitius, filed a written Request for Review with the Assessment Review Board (the “Board”) respecting Manitius v Municipal Property Assessment Corporation, Region 9, 2019 CanLII 50341 (ON ARB), issued on May 31, 2019 (“Member’s Decision”). The Member’s Decision relates to the property located at 1 Brule Gardens, Toronto which is a residential property (the “Subject Property”).

2The background relevant to this Request for Review is as follows. At the hearing, Ms. Manitius maintained that an equitable reduction of the correct current value was required, pursuant to s. 44(3) of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”). MPAC disagreed. MPAC adduced an equity analysis report based on Assessment Sales Ratio (“ASR”) analysis of properties which MPAC asserted were both similar to and located in the vicinity of the Subject Property. Ms. Manitius challenged the validity of this analysis. After considering the evidence and submissions of the parties, the Hearing Member found that an equitable adjustment was not required.

3In her Request for Review, Ms. Manitius requests that the Board cancel the Decision and order a rehearing by another Board Member. In overview, she cites four grounds in support of her request are as follows:

1. There is a discrepancy between paragraph 9 of the Decision where the Member states that an equitable reduction is required, and the Hearing Member’s analysis and decision at paragraphs 40 and 42, which states that an equitable reduction is not required.

2. The Hearing Member committed an error of fact and law in accepting that the properties proposed in MPAC's Equity Analysis are similar to the Subject Property, as this “goes against the very well-established principle of similarity.”

3. The Hearing Member committed an error of fact and law by creating his own evidence, more specifically, that he made his own calculations which were not provided into the evidence by either party.

4. The Hearing Member committed an error of law and a denial of natural justice in failing to acknowledge or reference in the Decision, 11 decisions cited by Ms. Manitius.

4The Board has reviewed the Request for Review and finds that the issues raised can be addressed without further submissions from the other parties to the appeal proceeding.

5For the reasons that follow, the Board concludes that the Request for Review should be dismissed in accordance with Rule 123:

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.

DISCUSSION, ANALYIS AND FINDINGS

Legal Test

6In considering whether to grant a Request for Review submitted pursuant to Rule 120, the test to be applied is whether the requester has established any of the grounds set out in Rule 121).

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.

Ground 1

7Ms. Manitius has correctly pointed out that, in the Background section of the Decision, at paragraph 9, the Hearing Member states that an equitable reduction is required, which contradicts his subsequent analysis and conclusion that an equitable reduction is not required. The Board has drawn this discrepancy to the attention of the Hearing Member, who has confirmed that paragraph 9 is in error and he has accordingly amended the Decision to correct this misstatement, pursuant to Rule 114:

Correcting Minor Errors

114. The Board may, on its own initiative or at the request of a party, correct a technical or typographical error, error in calculation or similar minor error made in a decision or order, and may clarify a misstatement, ambiguity or other similar problem.

8The Board accepts that this is a minor error, as clearly the text in paragraph 9 is completely at odds with the Hearing Member’s findings. It is a simply a misdescription of the Hearing Member’s final conclusion. Therefore, the Board accepts that this is a minor error. Assuming the error is not minor, it is, nonetheless, only an error in describing the Hearing Member’s final conclusion. The erroneous text, itself, does not include any substantive analysis or findings. For this reason, the Board finds that the error is not a significant error of law or fact such that the Board would likely have reached a different decision.

Ground 2

9Ms. Manitius asserts that the Hearing Member did not properly apply the correct legal test in finding that the properties utilized in MPAC's Equity Study are similar to the Subject Property. In support of this submission she relies on a review decision of the Board, Trimble v Municipal Property Assessment Corporation, Region 15, 2018 CanLII 116137 (ON ARB) (“Trimble”), where the Board overturned a decision of a hearing member respecting the issue of equitable reduction. She maintains that the same circumstances exist here.

10In Trimble, the Board first noted that, when determining similarity, the test is that all points of comparison must be considered (see Municipal Property Assessment Corporation v Loblaw Properties Limited., 2017 ONSC 1299. The concern in Trimble, was the application of this test to the facts of the case. The relevant findings of the Board are:

9The Decision assessed the similarity of the properties in evidence at paragraph 40. The Decision states that 30 properties are similar because they “are of the same general nature, character or function, with the same Property Code 301 Single Family as the subject property, and are located within a reasonable proximity to the subject property.” Mr. Trimble correctly notes that “general nature, character or function” was a framing of the similarity test that was specifically rejected by the Divisional Court at paragraph 26 of Loblaw. The Board agrees with Mr. Trimble’s submission that the Decision applied the wrong test to the facts of this case.

10The further question to be determined in Rule 121(a) is if the error is such that the Board “would likely have reached a different decision.” The Decision sets out two explicit points of comparison when addressing the properties: their property code and location. The Decision’s reference to function seems to be a finding that the suggested similar properties are similar in use. That is three points of the comparison. The test adopted in Loblaw is “all points of the comparison.” That does not, of course, mean that any party that can point to one aspect that was not considered and then mount a successful review. The Board understands the test to mean that properties must be compared in a global way, not simply on a small number of metrics. [emphasis added]

11The Board cannot determine with complete confidence if the Decision would have been different if the proper test had been applied, but it is likely that there would have been a different result. The Decision, in fact, states at paragraph 39 that “characteristics such as (total building area, lot size, frontage, quality etc.)…may be of assistance,” but did not use those points of comparison in determining similarity. A careful consideration of similarity on all points of comparison would have included those factors and may have led to a different finding on which properties are similar. The properties used in an equity analysis will always impact the result of the analysis. The Board is satisfied, therefore, that the Decision contains an error of law that likely would have impacted the outcome. Rule 121(a) is met.

In summary, the Board found that the decision in Trimble did not consider all points of comparison.

11In this case, the Decision does not expressly state the test to be applied when determining similarity. As noted below, the Hearing Member does refer to “character, form, and function” as relevant criteria, but these criteria are part of the “all points of comparison test.” The Board notes that Ms. Manitius’ submission in her Request for Review does not identify that a specific point of comparison was overlooked or excluded by the Hearing Member.

12The remaining question, therefore, is whether the Hearing Member failed to compare the properties in a global way, relying, instead, on a limited number of metrics. Regarding MPAC's proposed similar properties, the Hearing Member’s finding at paragraph 35 states:

35The Board finds that MPAC's criteria for selecting the 14 property sales used in its equity analysis, namely character, form and function is reasonable. The Board is not persuaded by the Appellant’s argument that insufficient information is available about the properties. The Appellant provided no evidence to convince the Board these properties are not a suitable sample. The Board finds that MPAC has provided sufficient data respecting the 14 properties to satisfy the Board that these properties are similar to the Subject Property and, therefore, it is appropriate for the Board to consider them when determining whether an equitable adjustment is required.

13It is clear that the Hearing Member specifically considered Ms. Manitius’ assertion that MPAC's evidence did not include all points of comparison and he found that the evidence adduced did not support this assertion. Therefore, the Hearing Member did consider the “all points of comparison” test, and applied it, based on the evidence adduced at the hearing.

14Furthermore, unlike the decision under review in Trimble, the Hearing Member did not restrict his analysis to only a limited number of points of comparison. In fact, the Hearing Member applied the same analysis in accepting that the properties suggested by Ms. Manitius are similar. The Board notes that Ms. Manitius does not suggest the Hearing Member erred in making this finding in her favour. In any event, as noted in Trimble, a party cannot point to one aspect that was not considered and then mount a successful review.

15In conclusion, the Board finds that there is nothing in the Decision to indicate that the Hearing Member did not correctly apply the test set out in Loblaw. For this reason, the Board finds that Ms. Manitius has not established that the Hearing Member’s made a significant error of fact or law such that the Board would likely have reached a different decision.

Ground 3

16Ms. Manitius submits that the Hearing Member committed an error of fact and law by creating his own evidence, more specifically, that he made his own calculations which were not put into evidence by either party. In support of this submission, she relies on Marathon Realty Co v Ontario (Regional Assessment Commissioner, Region No 7), [1979] OJ No. 1090 (“Marathon”), at paragraph 33, which states:

33 Counsel for the respondent submitted that the Board was entitled to reject the opinions of all four experts. … In conducting the hearing of an assessment appeal it is my opinion that the Board functions in a judicial capacity; … It is required to hear and determine the case on the evidence adduced. No doubt the members of the Board do have a certain degree of expertise in assessment matters which assists in understanding, assessing and weighing evidence. In deciding assessment appeals, if the Board were permitted to act on its own expertise in complex matters and substitute its unsupported opinions for those expressed in evidence, then the exercise ceases to be judicial in character.

17The Board first notes that the Court’s decision in Marathon addressed circumstances where the member rejected all the opinion evidence adduced at the hearing in favour of the member’s own unsupported opinion. The Court’s findings must be considered in this context. As the Court stated, members of the Board do have expertise which assists in assessing and weighing evidence.

18In this case, the Hearing Member considered, and accepted, that the properties suggested by both parties are similar. Therefore, the Board does not accept that the Hearing Member’s finding is unsupported by the evidence adduced at the hearing. Ms. Manitius does not dispute that a comparative ASR analysis is a correct methodology to apply. The Hearing Member appropriately applied this methodology to the dataset of properties that he accepted were similar to and within the vicinity of the Subject Property. As such, his conclusion was clearly supported on the evidence.

19For these reasons, the Board finds that Ms. Manitius has not established that the Hearing Member’s made a significant error of fact or law such that the Board would likely have reached a different decision.

Ground 4

20Ms. Manitius submits that the Hearing Member committed an error of law and a denial of natural justice in failing to acknowledge or refer to 11 case authorities cited by Ms. Manitius. For the following reasons, the Board does not accept this submission.

21The Board first notes that there is nothing in the Decision to suggest that the Hearing Member did not fully consider all of the submissions of the parties, including the case authorities cited by Ms. Manitius.

22The Board further observes that, in rendering a decision, a hearing member is not required to report every submission made by each of the parties. Instead, a hearing member must provide an analysis and findings that are sufficient to support his/her determination of the issues in dispute.

23In this Decision, the Hearing Member provided a clear analysis and findings, based on the evidence adduced, to support his determination than an equitable reduction is not required. While this determination may not accord with Ms. Manitius’ position, the Board’s function on a Request for Review is not to re-hear the case. Consequently, the Board finds that Ms. Manitius has not established that the failure to reference the cases she cited constitutes a significant error of law or denial of natural justice such that the Board would likely have reached a different decision.

CONCLUSION

24The Board finds that Ms. Manitius has not raised a convincing and compelling case to establish any of the grounds set out in Rule 121. Therefore, the Board finds that the Request for Review must be dismissed.

ORDER

25The Request for Review is dismissed.