Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: September 10, 2020

FILE NO.: RD 20-011

Assessed Person(s): Eli Sherk Martin, Mary Martin

Appellant(s): Township of Johnson

Respondent(s): Eli Sherk Martin, Mary Martin

Respondent(s): Municipal Property Assessment Corporation Region 31

Property Location(s): 987 Gordon Lake Road

Municipality(ies): Township of Johnson

Roll Number(s): 5716-000-002-04300-0000

Appeal Number(s): 3343578, 3378955, 3378956, 3378957, 3378958 and 3378959

Taxation Year(s): 2018 and 2019

Legislative Authority: Rules 120-123 of the Assessment Review Board’s Rules of Practice and Procedure

Parties	Counsel
Eli Sherk Martin and Mary Martin	Submissions not received
Municipal Property Assessment Corporation	Donald G. Mitchell
Township of Johnson	Submissions not received

REQUEST FOR: A review of the Board’s Decision WR 162546 issued on December 20, 2019

HEARD: In writing

ADJUDICATOR(S): Maureen Helt, Acting Associate Chair

DECISION

OVERVIEW

1The Municipal Property Assessment Corporation (“MPAC”) requests a review of the Assessment Review Board (“Board”) Decision WR 162546 dated December 20, 2019 (the “Decision”).

2The Board deferred considering the request for review of the Decision related to the property pending the Divisional Court’s issuance of a decision in Municipal Property Assessment Corporation v. Zarichansky¹. This request for review called into question the correctness of the Board’s analysis in determining the correct current value. The Board set the assessment at the last uncontested assessed value on the basis that there was inadequate evidence filed to determine the correct current value.

3In its decision released on February 20, 2020, the Divisional Court in Zarichansky found that the Board has a statutory obligation as set out in the Assessment Act to determine the current value of a property, and it could not assign a value to a property that it knew not to be current.

4Subsequent to the Zarichansky decision MPAC filed a letter with the Board asking the Board to consider cancelling the Decision and sending the matter back to rehearing citing the Divisional Court’s decision in Zarichansky.

5By way of letter dated June 18, 2020, the Board asked parties to file submissions as to whether or not the Decision should be cancelled, and the appeal(s) be sent for rehearing.

6The Board received supplementary submissions from MPAC. No other submissions were filed.

ISSUE

7Did the Board err in finding that the correct assessment for the property was the last uncontested value applying the reasoning as set out in Patry Enterprises² and Zarichansky v. the Municipal Property Assessment Corporation?³

RESULT

8The Board erred in setting the assessment at the last uncontested assessed value. The Board allows the request for review, cancels the Decision and directs that the matter be scheduled for rehearing.

ANALYSIS

Legal Test

9In considering whether to grant a Request for Review submitted pursuant to Rule 120 of the Board’s Rules of Practice and Procedures (“Rules”), 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.

10MPAC has taken the position that not only did the Board err in law by not making a finding of current value of the subject property based on a January 1, 2016 valuation date, the Board also denied natural justice by not asking the parties for submissions on the Jay Patry Enterprises Ltd. v. Municipal Property Assessment Corp⁴ decision which it relied on to set the assessed value of the property as the last uncontested value. It is MPAC’s contention that neither party relied on the Patry Enterprises decision in their submissions and therefore should have been allowed the opportunity to make submissions if the Board was going to rely on Patry in its final decision. Based on the forgoing MPAC requests that the Board cancel the decision and orders a rehearing.

11As set out in MPAC’s supplementary submissions, in Zarichansky, the Divisional Court stated:

[32] I agree with MPAC that the four-step decision making process the Board followed is contrary to the scheme of the Assessment Act …The Board is an adjudicative tribunal and it cannot abdicate its statutory duty to determine the current value of a property pursuant to sections 40(19) and 44(3) of the Assessment Act, and instead assign a value to a property that it knows is not current.

[38] In my view, it is evident that the Board’s approach to determining the current value of property is inconsistent with the scheme of the Assessment Act and the relevant statutory provisions. The Board has placed undue emphasis on MPAC’s burden of proof without sufficient regard to the purposes of the Assessment Act and its own obligations under the statute.

[41] In combination, these provisions make clear that an assessment must be based on the current value of the property. The Board has no power to dodge this responsibility based on a finding that MPAC has not met its burden of proof.

[42] The Assessment Act requires all property owners in Ontario to pay their fair share of taxes. The Act is based on a requirement that taxation be based on the current value of the property. The Board’s decision to rely on an earlier assessment in circumstances where MPAC has failed to meet its burden is contrary to this statutory scheme and intent.

[43] It is evident that the Board’s decision in Patry Enterprises was a response to frustration with MPAC’s inadequate evidence. However, the Board’s solution to this problem is not authorized by the statute. Ultimately, the Board has no authority to fix the value of a property at an amount that it knows does not represent the “current value” …

[44] What is the Board to do in circumstances where MPAC has failed to meet its burden? It is not for this Court to prescribe what should be done in all circumstances. There may be cases in which it is appropriate for the Board to require MPAC to obtain additional evidence. There may be cases in which the taxpayer’s evidence is sufficient to assess the current value of the property. And there may be cases in which the Board can find that the previous assessed value is justifiably the current value. However, what the Board cannot do is avoid its responsibility to determine the current value of the property...

12Based on the above, the direction from the Divisional Court is clear. The Board has a responsibility, as set out in the Assessment Act, to determine the correct current value of the property. It is up to the Board to determine the correct current value and cannot defer to the last uncontested value unless it represents the current value.

13The Board clearly erred in law by not making a finding of current value and furthermore relied on the Patry decision to set the current value at the last uncontested assessment without giving the parties an opportunity to make submissions on case law they did not introduce.

ORDER

14The Board cancels the Decision and orders a rehearing.

15The Board will issue a 14-week Schedule of Events that the parties are expected to follow to ensure all the necessary evidence is put before the Board on a timely basis. Should the parties request, on consent, that the matter proceed immediately to a hearing, the parties are expected to file with the Board an Expedited Board Direction Form confirming this request.

Footnotes

1. 1Municipal Property Assessment Corporation v. Zarichansky, 2020 ONSC 1124
2. 2Jay Patry Enterprises Inc. v Municipal Property Assessment Corporation, Region 05, 2019 CanLII 39629 (ON ARB), 2018 CanLII 70338
3. 3Zarichansky v Municipal Property Assessment Corporation, Region 2, 2018 CanLII 70341
4. 4Jay Patry Enterprises Ltd. v. Municipal Property Assessment Corp., 2019 CanLII 39629 (ON ARB), 2018 CanLII 70338 (ON ARB).