John Barry Allen v. Municipal Property Assessment Corporation Region 15, 2021 CanLII 44157

Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

May 21, 2021

FILE NO.:

WR 168992

Assessed Person(s):

Carolyn Fiona Ribbons; John Barry Allen

Appellant(s):

John Barry Allen

Respondent(s):

Municipal Property Assessment Corporation Region 15

Respondent(s):

Town of Oakville

Property Location(s):

236 Carlini Court

Municipality(ies):

Town of Oakville

Roll Number(s):

2401-030-170-00605-0000

Appeal Number(s):

3417028 and 3445023

Taxation Year(s):

2020 and 2021

Hearing Event No.

739483

Legislative Authority:

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

APPEARANCES:

Parties

Representative

John Barry Allen

Robert Baranowski

Municipal Property Assessment Corporation

Marissa Cheddi

Town of Oakville

No one appeared

HEARD:

March 4, 2021 by telephone conference call

ADJUDICATOR(S):

Subuola Awoleri, Member

DECISION

OVERVIEW

1John Barry Allen (the “Appellant”), the owner of 236 Carlini Court (the “Subject Property”), appealed the 2020 assessment of the Subject Property to the Assessment Review Board (the “Board”) under s. 40 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”) on the grounds that the assessment is too high. Pursuant to s. 40(26) of the Act, the Appellant is deemed to have brought the same appeal in respect of the 2021 taxation year. The Appellant argued that the Board should determine that the current value of the Subject Property is in the range of $650,000 to $760,000 without any reduction for equity.

2The Subject Property was assessed by the Municipal Property Assessment Corporation (“MPAC”) and returned at $948,000 for the 2020 taxation year. MPAC submits that the current value assessment (“CVA”) of the Subject Property is $1,022,000, however, MPAC did not serve the Appellant with a notice of increase in assessment pursuant to Rule 40(b) of the Board’s Rules of Practice and Procedure (the former Rules Effective April 1, 2017 and Amended May 2019), therefore, MPAC requested that the Board confirms the CVA as returned at $948,000.

3At the completion of the hearing, the Board reserved its decision.

Issues for the Hearing

4The issues to be determined are:

Should the Board find inadmissible, MPAC’s evidence of “opinion” of value given by a non-expert witness?
What is the correct current value of the Subject Property for the 2020 and 2021 taxation years?
Is the current value as determined by the Board equitable in reference to the assessments of similar lands in the vicinity?

5In addition to these issues, the Appellant also asked the Board to determine whether MPAC has a right to "appeal” its own assessment. However, given that MPAC is not seeking an increase in the assessment of the Subject Property, a determination on this issue is not necessary.

Result

6The Board determines that MPAC’s evidence of opinion of value from a non-expert witness is admissible. The Board has the discretion to determine the appropriate weight to attach to this evidence.

7The Board finds that the evidence indicates that the correct current value of the Subject Property is $948,000, as returned for the 2020 and 2021 taxation years.

8The Board finds that there is no evidence to support a conclusion that the Subject Property requires a reduction in its determined current value in order to make it equitable with the assessment of similar properties in the vicinity.

ANALYSIS

Description of the Subject Property

9The Subject Property is a one-storey residential condominium located in the Town of Oakville. The structure was built in 2004 with a construction quality of 5.0. It has a building total area of 1,660 square feet (“sq. ft.”), with a basement area of 1,698 sq. ft. of which 400 sq. ft. is finished. It has an attached garage of 380 sq. ft. with construction quality of 2.0. The Subject Property is located on a Cul-De-Sac, however, MPAC did not make any adjustment for this on-site variable.

Issue 1 - Should the Board find inadmissible, MPAC’s evidence of “opinion” of value given by a non-expert witness?

10The Appellant argued that MPAC’s evidence in its valuation report presented to the Board has no evidentiary value, since it contained the evidence of an opinion of value from MPAC’s witness, an MPAC employee, who was not presented by MPAC as an expert witness but a witness of fact.

11 Section 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("SPPA") provides:

Evidence

What is admissible in evidence at a hearing

(1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,

(a) any oral testimony; and

(b) any document or other thing,

relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

12This section reiterates the jurisprudence that tribunals are not bound by the strict rules of evidence as courts; therefore, a tribunal may admit any evidence subject to being relevant, unduly repetitious, privileged and statutory exclusions.

13There is a presumption that opinion evidence is inadmissible as witnesses are to testify based on facts and not opinions deduced from facts. Experts provide their opinion on specialized areas to assist the Board in making decisions in appeals. Asoka Jayalath, MPAC’s witness confirmed during cross-examination that she is not an expert witness but a witness of fact. She testified that MPAC assessed the Subject Property at $948,000, however, based on her opinion of value the current value of the Subject Property should be $1,022,000.

14The Board finds that MPAC’s evidence is admissible and reliable, even though it contained the opinion of value from a non-expert witness, as it was presented by an MPAC employee. Pursuant to s. 15 (1) of the SPPA, the Board has a broad discretion on admissibility of evidence. Furthermore, the Board may adjust the weight given to Ms. Jayalath’s evidence, if on hearing the evidence, the Board is concerned about its reliability.

15In Ganges Kangro Properties Ltd. v. Shepard, 2015 BCCA 522, (“Ganges Kangro Properties”), the British Columbia Court of Appeal (“BCCA”) dismissed the appellant’s appeal from an award of damages for breach of contract to the seller. The appellant and the seller entered a contract of purchase and sale of a property. The appellant breached the terms of the contract by not completing the transaction, alleging that the seller did not disclose flooding risk on the property. The judge awarded damages to the seller for breach of contract. On appeal, the appellant argued amongst other things that the judge relied on inadmissible lay opinion.

16In dismissing the appellant’s appeal, the BCCA referred to the modern approach to the compendious statement of fact exception articulated by Mr. Justice Dickson in Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 SCR 819 (“Graat”). The issue before the court in Graat was whether “non-expert witnesses could testify about the appellant’s degree of alcohol impairment”. Dickson J. stated:

I can see no reason in principle or in common sense why a lay witness should not be permitted to testify in the form of an opinion if, by doing so, he is able more accurately to express the facts he perceived.

17He further stated that the non-expert witnesses:

… are merely giving a compendious statement of facts that are too subtle and too complicated to be narrated separately and distinctly":

18He concluded that:

The judge in the instant case was not in as good a position as the police officers or Mr. Wilson to determine the degree of Mr. Graat's impairment or his ability to drive a motor vehicle. The witnesses had an opportunity for personal observation. They were in a position to give the Court real help. They were not settling the dispute. They were not deciding the matter the Court had to decide, the ultimate issue. The judge could accept all or part or none of their evidence. [Emphasis added]

19The BCCA in Ganges Kangro Properties concluded that,

the compendious statement of facts exception is limited to inferences drawn by non-expert witnesses who have personally observed the facts from which their inferences are drawn. This exception is also broad in scope, the real issue being one of weight, not admissibility. [Emphasis added]

20In this appeal, MPAC provided facts of market sales analysis to make its submissions on the current value of the Subject Property. In line with this evidence, it drew a conclusion expressed as an opinion of value by its witness, an MPAC employee. Ms. Jayalath admitted during cross-examination that as a property valuation analyst she can create a valuation report and give an opinion of value. The Appellant did not object to Ms. Jayalath’s qualification as a property valuation analyst employed by MPAC. Ms. Jayalath reviewed the features/factual evidence of the Subject Property, and drew an inference based on what she observed. Although MPAC did not present Ms. Jayalath as an expert witness, her qualification as a property valuation analyst and an MPAC employee allows her to create a valuation report and give an opinion of value. In determining the correct current value of the Subject Property, the Board still has to review the evidence from the parties and determine which is the best evidence to find the correct current value.

Issue 2 - What is the correct current value of the Subject Property for the 2020 and 2021 taxation years?

21In accordance with s. 44(3)(a) of the Act, the first mandate of the Board is to determine “the current value of the land”. Section 1 of the Act defines current value as “the amount of money the fee simple, if unencumbered, would realize if sold at arm’s length by a willing seller to a willing buyer”. That is, for the 2020 and 2021 taxation years, the Board must determine what the Subject Property would have sold for in an arm’s length transaction on the January 1, 2016 valuation day set by the Act.

22The best evidence the Board can receive of current value is an arm’s length and market-tested sale of the Subject Property on the valuation date or close to it. If no such transaction took place, the next best measure of current value is arm’s length and market-tested sales of comparable properties located nearby, as close as possible to the legislated valuation date of January 1, 2016.

23The Board finds that the correct current value of the Subject Property is $948,000 as returned for the 2020 and 2021 taxation years.

MPAC’s Proposed Comparable Property

24MPAC presented the 2013 sale of the Subject Property as its evidence of current value. Ms. Jayalath testified that the Subject Property is a unique property and MPAC was unable to find comparable property sales despite expanding the sales range from 2013 to 2017. According to Ms. Jayalath, the Subject Property sold November 1, 2013 for $875,000, for a time adjusted sale price of $1,022,000. MPAC submitted that this should be the current value of the Subject Property.

25The Board determines that MPAC’s Time Adjustment Factors (“TAF”) are not reliable to determine the current value of the Subject Property. Ms. Jayalath admitted during cross-examination that the TAF used by MPAC may contain errors. In order to reflect the sale values on the valuation date of January 1, 2016, MPAC used TAF, based on a Sales Ratio Trend Analysis (SRTA) and a Sale to Assessment Ratio ("SAR") study. The Appellant argued that the TAF are incorrect due to errors in the SRTA and that the plotted line on the graph in MPAC’s valuation report, on January 1, 2016, should be 1.00, which will prove that MPAC’s analysis is accurate. Ms. Jayalath admitted that it is slightly over 1.00. This difference could not be explained by MPAC; therefore, the Board places no weight on MPAC’s TAF. Furthermore, Ms. Jayalath also admitted during cross-examination that most of the properties MPAC used in generating the TAF, were stacked condominiums, which are not comparable with the Subject Property, which is a one-storey residential condominium.

26The Board finds that the sale of the Subject Property in 2013, is too far removed from the valuation date of January 1, 2016. This sale is 26 months from the valuation date. The Board prefers sales of comparable properties within 12 months on either side of the valuation date of January 1, 2016, referred to as the shoulder years. The Board can also go as far back as 18 months on either side of the valuation date of January 1, 2016. The caution being that the further a sale is from the valuation date, the less likely it reflects the market value on the valuation date.

27However, this evidence suggests that the market value of the Subject Property on January 1, 2016, should be higher, especially when the Appellant did not produce evidence of a decline in the market after the sale date of November 1, 2013.

Appellant’s Proposed Comparable Property Sales

28The Appellant presented seven condominium properties, on the same street as the Subject Property. Only two of these properties sold in 2012 and 2014. The Appellant also presented three non-condominium properties, out of which only two sold.

29The Board finds that the three non-condominium comparable properties are not comparable to the Subject Property. The Subject Property is a condominium property without a site area. These three non-condominium properties have a site area ranging from 0.16 to 0.22 acres. The Appellant objected to MPAC using mostly sales of stacked condominium properties to generate its TAF but has presented non-condominium properties as evidence for the Board to determine the current value of the Subject Property. On a balance of probabilities, a property with a site area, will have more value than the Subject Property without a site area. Therefore, the Board places no weight on this evidence and the Appellant’s suggested approach to find the current value of the Subject Property using the non-condominium properties.

30The details of the Appellant’s proposed seven condominium comparable properties are attached to this Decision. (See Attachment 1)

31The Appellant used the average of the assessment of the seven condominium properties on Carlini Court to provide an assessment rate per sq. ft. of $430. The Appellant applied it to the building total area of the Subject Property of 1660 sq. ft. to obtain a value of $713,800, rounded to $714,000. The Appellant further rounded it down to $700,000, which he submits should be the current value of the Subject Property.

32The Appellant referred the Board to its prior decision in Singh v. Municipal Property Assessment Corp. Region No. 15, [2012] O.A.R.B.D. No. 65, where the Board agreed with Mr. Baranowski, who was also the appellant’s representative in the appeal, to use the assessment of similar properties in the vicinity to determine the current value of the property, since the Board could not make this determination based on the sales of similar properties in the vicinity. This prior decision is not binding on this panel. Moreover, this panel is able to determine the current value of the Subject Property based on the sales of condominium comparable properties provided by the Appellant.

Finding on Current Value

33In determining the correct current value of the Subject Property, the Board used the Appellant’s comparable property Sale 5 - 221 Carlini Court, to find the current value range of the Subject Property. MPAC argued that the Subject Property is not comparable to the Appellant’s seven condominium properties, since they all have two stories compared to the Subject Property with one storey and that the building area of the Subject Property is smaller. The Board finds that comparable property Sale 5 provides the best evidence to establish the current value range of the Subject Property in terms of the following identical features:

a. Location – located within the same court;

b. Year built – same year built of 2004; and

c. Quality of Construction – same quality of construction of 5.0;

34Comparable Property Sale 4 - 216 Carlini Court, Unit 9 sold, May 2012 for $750,000. This sale is too far removed from the valuation date of January 1, 2016.

35Comparable property Sale 5 - 221 Carlini Court sold October 2014, which is 15 months from the valuation date of January 1, 2016. This sale is still within 18 months from the valuation date. The Board could not time adjust the sale price to reflect the sale value on the valuation date of January 1, 2016, since the Appellant did not provide the time adjusted sale price and the Board was unable to use MPAC’s TAF as the Board finds that it is not reliable. This comparable property sale sold for $970,000 in 2014, with a larger building area of 2,438 sq. ft. If the sale price was time adjusted to January 1, 2016, it may provide a higher value, depending on the TAF. The Appellant did not object to the validity of the 2013 sale of the Subject Property, with a sale price of $875,000 and did not present the Board with any evidence that there was a decline in the market after the sale of the Subject Property in 2013. Therefore, the current value range of the Subject Property should not be lower than its 2013 sale price of $875,000 and not higher than the sale price of 221 Carlini Court at $970,000. The assessed value of the Subject Property at $948,000 fits into the current value range. This is not the mid-range, as it tilts closer to the sale price of 221 Carlini Court, due to the Subject Property’s finished basement of 400 sq. ft.

36The Board finds that the current value of the Subject Property is $948,000 as returned for the 2020 and 2021 taxation years.

Issue 3 - Whether there should be an equitable reduction of the current value pursuant to s. 44(3)(b) of the Act, and, if so, what the amount of this reduction should be.

37 Section 44(3)(b) of the Act directs that after determining current value, the Board shall have reference to the value at which similar lands in the vicinity are assessed and

adjust the assessment of the land to make it equitable with that of similar lands in the vicinity if such an adjustment would result in a reduction of the assessment of the land.

38The Appellant advised during the hearing that this is not an issue.

39The Board finds that there is no evidence provided by the parties to support a reduction in the current value of the Subject Property, in order to make it equitable with the assessment of similar properties in the vicinity.

CONCLUSION

40The Board determines that the current value of the Subject Property is $948,000, as returned with no adjustment for equity for the 2020 and 2021 taxation years.

“Subuola Awoleri”

SUBUOLA AWOLERI

MEMBER

Assessment Review Board

Website: www.tribunalsontario.ca/arb

Telephone: 416-212-6349 TollFree: 1-866-448-2248

Attachment 1 - Appellant’s Evidence

Roll Number

2401 030 170 00605 0000

2401 030 170 00604 0000

2401 030 170 00606 0000

2401 030 170 00608 0000

2401 030 170 00609 0000

2401 030 170 00602 0000

2401 030 170 00603 0000

2401 030 170 00607 0000

Property Address

236 CARLINI CRT

229 CARLINI CRT

232 CARLINI CRT

224 CARLINI CRT

216 CARLINI CRT

221 CARLINI CRT

225 CARLINI CRT

228 CARLINI CRT

Legal Description

HALTON CONDO PLAN 468 LEVEL 1 UNIT 5

HALTON CONDO PLAN 468 LEVEL 1 UNIT 4

HALTON CONDO PLAN 468 LEVEL 1 UNIT 6

HALTON CONDO PLAN 468 LEVEL 1 UNIT 8

HALTON CONDO PLAN 468 LEVEL 1 UNIT 9

HALTON CONDO PLAN 468 LEVEL 1 UNIT 2

HALTON CONDO PLAN 468 LEVEL 1 UNIT 3

HALTON CONDO PLAN 468 LEVEL 1 UNIT 7

Property Description

370 - Residential Condominium

Location Identifier

LH3

Valuation

Current Assessment Value

$948,000

$1,123,000

$969,000

$896,000

$1,041,000

$982,000

Realty Tax Classes

RT $948,000

RT $1,123,000

RT $969,000

RT $896,000

RT $1,041,000

RT $982,000

Returned Base Year

2016

Sale Date

2013 Nov

No valid sales since

Jan 1, 2012

No valid sales since

Jan 1, 2012

No valid sales since

Jan 1, 2012

2012 May

2014 Oct

No valid sales since

Jan 1, 2012

No valid sales since

Jan 1, 2012

Sale Amount

$875,000

$750,000

$970,000

Site

Effective Frontage

Effective Depth

Effective Site Area

Site Area

Structure

Year Built

2004

Quality of Construction

Heat Type

Forced Air

Full Baths

Half Baths

Bedrooms

Full Storey

Partial Storey

No part storey

Building Total Area

1660 F

2946 F

2017 F

2946 F

2438 F

2092 F

Basement Area

1698 F

1982 F

1276 F

1982 F

1650 F

1356 F

Finished Basement Area

400 F

1500 F