Bergeron v. Municipal Property Assessment Corporation Region 32, 2020 CanLII 66095

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: September 10, 2020

FILE NO.: RD 19-022

Assessed Person(s): Carol Lynn Bergeron and Raymond Phillibert Bergeron

Appellant(s): Carol Lynn Bergeron and Raymond Phillibert Bergeron

Respondent(s): Municipal Property Assessment Corporation Region 32

Respondent(s): Superior-Greenstone District Locality Education

Property Location(s): 2 Whitesand Lake Road

Municipality(ies): Superior-Greenstone District Locality Education

Roll Number(s): 5811-040-001-12300-0000

Appeal Number(s): 3256781 and 3315281

Taxation Year(s): 2017 and 2018

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

Parties

Counsel*/Representative

Carol Lynn Bergeron and Raymond Phillibert Bergeron

Self-represented

Municipal Property Assessment Corporation

Donald G. Mitchell*

Superior-Greenstone District Locality Education

Submissions not received

REQUEST FOR: A review of the Board’s Decision WR 154342 issued on February 26, 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 154342 dated February 26, 2019 (the “Decision”).

2The Board deferred considering the request for review of the Decision pending the Divisional Court’s issuance of a decision in Municipal Property Assessment Corporation v. Zarichansky¹ (“Zarichansky”). 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 April 16, 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 and from the Owners of the property.

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

Did the Board err in setting the assessed value at the last uncontested value?

9As set out in MPAC’s supplementary submissions, in Zarichansky, the Divisional Court stated:

32I 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.

38In 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.

41In 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.

42The 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.

43It 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” …

44What 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...

10Based 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 and the Board cannot defer to the last uncontested value unless it represents the current value.

11In its submission the Owners submit that they are in support of the Decision being cancelled and the matter be sent for a rehearing.

12The Board finds that the Divisional Court made it very clear in Zarichansky that the Board must ensure the property is assessed at the correct current value.

ORDER

13The Board cancels the Decision and orders a rehearing.

14The 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