Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: April 9, 2020

FILE NO.: RD 2020M03

Assessed Person(s): Tam Van Lam and Nu Diep

Appellant(s): Tam Van Lam and Nu Diep

Respondent(s): Municipal Property Assessment Corporation Region 14

Respondent(s): City of Markham

Property Location(s): 42 Brookhaven Crescent

Municipality(ies): City of Markham

Roll Number(s): 1936-030-234-03662-0000

Appeal Number(s): 3266255 and 3303248

Taxation Year(s): 2017 and 2018

Hearing Event No.: 701781

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

Parties	Representative
Tam Van Lam and Nu Diep	Self-represented
Municipal Property Assessment Corporation	Robert Zamozniak
City of Markham	No one appeared

REQUEST FOR: A review of the Board’s Decision WR 161542 issued on August 06, 2019

HEARD: In writing

ADJUDICATOR: Dirk VanderBent, Vice-Chair

DECISION

OVERVIEW

1On October 17, 2019, the Appellants, Tam Van Lam and Nu Diep filed a written Request for Review with the Assessment Review Board (the “Board”) respecting Lam v Municipal Property Assessment Corporation Region 14, 2019 CanLII 75480 (ON ARB), a decision issued by the hearing member (“Member”) on August 06, 2019 (the “Decision”). The Decision relates to the property located at 42 Brookhaven Crescent, Markham, which is a residential property (the “Subject Property”).

Background

2The Municipal Property Assessment Corporation (“MPAC”) conducted a general reassessment of the current value of the Subject Property pursuant to the provisions of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”). This general reassessment applies to the current assessment cycle (2017 to 2020 taxation years).

3MPAC assessed the value at $964,000. As the Appellants disagreed with this assessment, they appealed to the Board, pursuant to s. 40 of the Act arguing that the correct current value is $875,000 for the 2017 and 2018 taxations years under appeal. After hearing all the evidence, the Member found that the correct current value of the Subject Property is $1,056,000, and that there should be an equitable reduction of this value to $939,000, pursuant to s. 44(3)(b) of the Act.

4The Board requested submissions by the parties. MPAC provided a written response, but the City of Markham did not.

Issues for the Review

5In their Request for Review, The Appellants assert that they were unable to obtain some evidence prior to the hearing held on August 7, 2018, and, therefore, could not adduce this evidence at the hearing. The Appellants did not state the specific relief they are requesting, but the Board infers from their submission that they are requesting that the Board order a rehearing of the appeals so that they may adduce this additional evidence.

RESULT

6For the reasons that follow, the Board dismisses the Request for Review.

ANALYSIS

Legal Test

7In considering whether to grant a Request for Review submitted pursuant to Rule 120 of the Board’s Rules of Practice and Procedure (the “Rules”), the test to be applied is whether the requester has established any of the grounds set out in Rule 121:

Request for Review

120. A party may request a review of any final decision of the Board, other than a decision pursuant to Rule 122, by filing a request in writing no more than 30 days after the decision was issued, including:

(a) a copy of the decision to be reviewed;

(b) the written reasons for the decision, as set out in Rule 112;

(c) the reasons for the request, addressing the factors set out in Rule 121;

(d) notice of any appeals or applications for judicial review that have been filed in relation to the decision;

(e) proof of service on all other parties to the proceeding;

(f) the remedy or relief sought; and

(g) the fee specified by the Board.

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.

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.

Submissions

8The Appellants’ Request for Review provides six documents which they would adduce into evidence if their request for a re-hearing is granted. The first two documents are the Notice of Hearing and Notice of Decision, both of which are Board generated documents, that would form part of the evidence to be considered by the Member. Respecting the remaining four documents, MPAC provides the following responses.

9The first document appears to be a Multiple Listing Service (MLS®) listing respecting the residential property located at 54 Brookhaven Crescent. This document provides property description details and references a 2015 sale date. MPAC points out that data respecting this property sale was included in the Valuation Report that MPAC adduced into evidence at the hearing. MPAC submits that this document provides no new information, and, therefore, submits that it would not affect the outcome of the hearing.

10The second document is a page that contains a black negative photograph of a house, with some additional hand printed notes indicating that it is the Subject Property, and also listing the number of bedrooms, bathrooms, and kitchens in the house. MPAC maintains that this document provides no new information, and, therefore, submits that it would not affect the outcome of the hearing.

11The third document is a 2017 Tax Bill issued by the City of Markham for the 2017 taxation year. MPAC states that the taxes are not relevant to the valuation of the Subject Property, and that this document was already in the Appellants’ possession prior to the hearing.

12The fourth document is an excerpt from an Agreement of Purchase and Sale respecting Tam Van Lam’s purchase of the Subject Property, this agreement being signed by Mr. Lam on September 13, 2001. MPAC asserts that this document was already in the Appellants’ possession prior to the hearing and submits that the sale date is too far removed from the January 1, 2016 Valuation Date to be relevant.

13The Appellants assert that they, at the mandatory settlement meeting held on July 11, 2018, were unable to negotiate a resolution of the appeals. They state: “… our verbal discussion … did not seem to generate conversation to move us forward; therefore, we had to take time to find proof to go proceeding further and unfortunately, we could not deliver it on time to all parties.” In response to this submission, MPAC points out that the parties completed the mandatory Request for Reconsideration process, and that MPAC delivered its Property Valuation Report and Equity Analysis Report on March 28, 2018. MPAC also emphasizes that the due date under the Schedule of Events for the exchange of disclosure or relevant documents was April 3, 2018. MPAC, therefore, emphasizes that the Appellants only began searching for their additional documents three months after the April 3, 2018 due date.

Findings

14Under Rule 121(d), the Appellants are required to establish that there is new evidence that could not have reasonably been obtained earlier and would affect the outcome of the hearing. For the following reasons, the Board finds that the Appellants have not met the test.

15First, the term “new evidence” does not refer to a party’s decision that it needs to obtain additional existing documents in support of its appeal. “new evidence” refers to documents that did not exist prior to the hearing, or documents that could not have reasonably been identified prior to the hearing. In this case, all of the additional documents the Appellants propose to adduce existed and were available to the Appellants prior to the hearing. Furthermore, the Appellants had already proceeded through the mandatory Request for Reconsideration process, and MPAC had served its evidence on the Appellants on March 28, 2018. The Appellants were well aware at that time of the specific issues they would have to address at the hearing. As the hearing was not held until August 7, 2018, the Appellants had four months to gather their evidence. The Board finds that the Appellants have not established that they would have been unable to obtain this new evidence prior to the hearing date.

16Secondly, as MPAC has correctly pointed out, the Appellants must establish that their proposed new evidence would have affected the result. In this case, the Board accepts that their proposed evidence was either already before the Board, and, therefore, considered by the Member, or related to outdated property sales that are too far removed to be relevant. The Board also accepts that the Tax Bill is not relevant to the issues to be decided in this appeal proceeding. Taxes payable are based on the assessed value of the Subject Property, assessed values are not based on the taxes payable. Therefore, the Board finds that the proposed evidence would not affect the decision made by the Member.

ORDER

17The Appellants’ Request for Review is dismissed.