Tribunals Ontario
Tribunaux décisionnels Ontario
Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE:
February 15, 2022
FILE NO.:
WR 176195
Assessed Person(s):
Vladimir Malinic, Milica Malinic
Appellant(s):
Vladimir Malinic
Respondent(s):
Municipal Property Assessment Corporation Region 09
Respondent(s):
City of Toronto
Property Location(s):
2210E Gerrard Street East
Municipality(ies):
City of Toronto
Roll Number(s):
1904-095-290-03130-0000
Appeal Number(s):
3457155
Taxation Year(s):
2021
Hearing Event No.:
759368
Legislative Authority:
Section 40 of the Assessment Act, R.S.O. 1990, c. A.31
APPEARANCES:
Parties
Representative
Vladimir Malinic
Self-represented
Municipal Property Assessment Corporation
Zoe Moraitis, Christine Giorgio
City of Toronto
No one appeared
HEARD:
January 31, 2022 by telephone conference call
ADJUDICATOR(S):
Carly Stringer, Member
DECISION
OVERVIEW
1The appeal before the Assessment Review Board (the “Board”) was filed by Vladimir Malinic (the “Appellant”). The appeal relates to the returned assessment of $673,000 for 2210E Gerrard St East in the City of Toronto (the “Subject Property”) for the 2021 taxation year.
2The Appellant has asked the Board to decrease his property taxes. As the Board explained to the Appellant at the hearing, the Board does not have jurisdiction to decrease his property taxes. The Board’s jurisdiction is limited to the Appellant’s property assessment. The Board understands that although the Appellant has asked for relief in relation to his property taxes, by virtue of the appeal filed, the Appellant is seeking a reduction in the assessment.
3The Appellant alleges that a nearby restaurant releases wood smoke directly towards the Subject Property which significantly affects the air quality, and that the Municipal Property Assessment Corporation (“MPAC”) has not properly considered the impact of the smoke on the value of the Subject Property.
4MPAC asks the Board to confirm the returned assessment of $673,000.
Issues for the Hearing
5At issue in this proceeding is:
a. What is the current value of the Subject Property as of the statutory valuation date of January 1, 2016?; and
b. Is the current value equitable with the assessments of similar lands in the vicinity?
Result
6For the reasons that follow, the Board finds that the correct current value of the Subject Property is $673,000. The Board finds there is no evidence to support a reduction in this value to make it equitable with the assessments of similar lands in the vicinity. The Board therefore orders that the returned assessment be confirmed at $673,000.
PRELIMINARY MATTERS
MPAC’s Amended Book of Authorities
7MPAC sought to file an Amended Book of Authorities on January 26, 2022, five days in advance of the hearing. This Amended Book of Authorities contained one case that had not otherwise been provided to the Appellant in advance. The other cases in the Amended Book of Authorities had previously been served on the Appellant and filed with the Board.
8The Appellant asked the Board to ignore MPAC’s Amended Book of Authorities on the basis that it was provided after the date set in the Schedule of Events.
9The Board permitted MPAC to file the Amended Book of Authorities because:
a. This is not an instance where MPAC is seeking to file new evidence outside of the timelines afforded by the Schedule of Events. MPAC is seeking to provide the Board with a copy of a decision written by the Board, being tendered to provide the Board with insight regarding how a previous case was been decided.
b. The Appellant was provided this case five (5) days in advance of the hearing, which is sufficient time to prepare responding submissions directed to the case. The Appellant provided no evidence of prejudice, nor did the Appellant request additional time to respond. There is no procedural unfairness.
Appellant’s Proposed Expert Witnesses
10At the hearing, the Appellant sought to tender Guillermo Gabrielli and Nenad Kircanski as experts in support of his case. The Appellant did not advise MPAC in advance of the hearing that he would be seeking to tender two expert witnesses, nor did he serve and file expert reports in accordance with the Board’s Rules of Practice and Procedure (the “Rules”).
11The Appellant clarified that he was seeking to tender Mr. Gabrielli as an expert in relation to documents he had previously served on MPAC and filed with the Board: first, emails written by Mr. Gabrielli regarding air quality issues affecting the Subject Property; and second, a document Mr. Gabrielli had drafted entitled “Toronto Public Services Failures” that summarizes the standards and regulations he alleges the restaurant has violated.
12The Appellant further clarified he was seeking to tender Mr. Kircanski as an expert to answer questions regarding a document the Appellant had previously served on MPAC and filed with the Board, being a 13-page document seemingly prepared by the Department of Ecology of the State of Washington, entitled “How Wood Smoke Harms Your Health.”
13MPAC objected to these witnesses on the basis that the Appellant had not provided notice of these experts, nor had the Appellant previously disclosed expert reports. MPAC submitted that to allow these witnesses without notice and an appropriate opportunity to respond would violate the rules of natural justice and procedural fairness, prejudicing MPAC in its cross-examination, in particular.
Findings on Proposed Expert Witnesses
14The Board did not permit either proposed witness to provide expert testimony because the Board found that the Appellant had not complied with the Rules, particularly Rule 50 that sets the requirements for expert reports and includes information that must be provided to the opposing party in advance of the hearing. In the circumstances, the Board found it would be prejudicial and procedurally unfair to MPAC to permit expert testimony from these witnesses.
15MPAC did not object to Mr. Gabrielli providing factual evidence in relation to the documents he had drafted that had been served by the Appellant in advance of the hearing, including his emails and the document entitled “Toronto Public Services Failures.” Accordingly, the Board permitted Mr. Gabrielli to provide factual evidence only in relation to these documents.
ANALYSIS
Description of Subject Property
16The Subject Property consists of a 3 storey, 1,372 square foot (“sq. ft.”) single family semi-detached residence that sits on a 0.02 acre lot on Gerrard Street East in the City of Toronto. It has 15 feet of effective frontage and the lot is 70 feet in depth. The quality of construction of the residence is 6.5. It was built in 1998. It has 3 bedrooms and 2 bathrooms.
Issue 1 – What is the current value of the Subject Property as of January 1, 2016?
Applicable Law
17In accordance with s. 44(3)a) of the Assessment Act R.S.O. 1990, c. A.31 (“Act”), the Board must first 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.”
18Accordingly, the Board must first determine what the Subject Property would have sold for in an arm’s length transaction on the statutory valuation day. Section 19.2(1) of the Act confirms that the valuation day for the 2021 taxation year is January 1, 2016.
Evidence on Current Value
19The best evidence of current value would be the sale of the Subject Property on or close to the valuation day of January 1, 2016. If no such sale occurred, the Board considers the sales of comparable properties to establish the current value of the Subject Property.
20MPAC provided the Board a valuation report prepared by its expert. The report listed sales of 10 properties to compare with the Subject Property. MPAC’s expert applied time adjustments to reflect what the proposed comparable properties would have sold for on January 1, 2016. The properties ranged in time adjusted sale price from $645,043 to $836,441.
21MPAC’s expert confirmed the characteristics of the proposed properties were similar to the Subject Property, and provided the opinion that the returned assessment of $673,000 was reasonable in light of the range of time adjusted sale prices for the proposed comparable properties, from $645,043 to $836,441.
22In evidence, the Appellant confirmed that he does not dispute MPAC’s “process.” Rather, he took issue with the “Ordinary Assumptions” in MPAC’s valuation report, where it states at paragraph 53(e) that “no site contamination exists.” The Appellant provided extensive evidence demonstrating that wood smoke blows from an exhaust pipe from the roof of a neighbouring restaurant directly towards the Subject Property. The Appellant provided evidence including measurements of the air quality, attempts made to report air quality concerns to various public officials, and information relating to the various standards and regulations the restaurant is alleged to be violating.
23The Appellant did not provide his own list of proposed comparable property sales. Rather, the Appellant took the position that none of the property sales relied upon by MPAC are comparable to the Subject Property because none are affected by air quality issues.
24In response to the Appellant’s concerns regarding air quality, MPAC referenced Appendix H of its valuation report. Appendix H listed three sales of properties directly neighbouring the Subject Property, without time adjusting the sale prices to January 1, 2016:
a. 2210G Gerrard Street East, which sold for $1,110,000 in April 2021;
b. 2210C Gerrard Street East, which sold for $975,000 in February 2021; and
c. 2210B Gerrard Street East, which sold for $835,000 in April 2019.
25MPAC’s expert testified that the sales of these properties show that “properties are selling” and there is no evidence that the air quality concerns raised by the Appellant have an impact on market values.
26In response to MPAC’s reliance on the sales listed in its Appendix H, the Appellant pointed to emails written in 2018 and 2019 by residents of 2210G, 2210C and 2210B Gerrard Street East to various City of Toronto officials, referencing their concerns over smoke from the neighbouring restaurant. The Appellant submits that these emails demonstrate that property owners sold their properties under pressure, such that the sales listed in Appendix H are not valid market sales.
Findings on Issue 1
27The Board finds as follows:
a. The Board does not accept MPAC’s Proposed Comparable Property number 1 (55 Kildonan Road). This property has a slightly larger site area than the Subject Property, is a slightly higher quality of construction, has 2 ¾ storeys and has a building total area 284 sq. ft. larger than the Subject Property.
b. The Board does not accept MPAC’s Proposed Comparable Properties numbers 4 (32 Norwood Terrace), 6 (2263 Gerrard Street East), 7 (21 Hodge Lane), and 9 (2264 Gerrard Street East). The Board finds these sales too far removed from the January 1, 2016 valuation day to be reliable.
c. The Board does not accept MPAC’s Proposed Comparable Property number 8 (7 Hodge Lane, Unit 9) as it is a townhouse, whereas the Subject Property is a semi-detached dwelling.
d. Much of the Appellant’s evidence and submissions relating to wood smoke affecting air quality at the Subject Property are not relevant as the Board is not tasked with determining whether or not the restaurant is breaching standards and regulations relating to air quality, nor is the Board tasked with determining impacts of wood smoke on health, if any. The Board must determine the current value of the Subject Property for the 2021 taxation year. The evidence submitted by the Appellant is not helpful in assisting the Board with that task. While wood smoke from a nearby restaurant may affect air quality at the Subject Property, the Appellant did not connect that issue with the current value of his property. It is not enough to simply establish that an air quality issue exists. The Board requires sufficient evidence regarding how that issue affects property value. There is no evidence before the Board that the air quality concerns raised by the Appellant have an impact on market values.
e. MPAC suggests that the sales of other 2210 Gerrard Street East properties is evidence that these “properties are selling.” The Board finds that MPAC’s evidence of property sales several years passed the valuation day, without time-adjusting the sale prices, is not useful to the Board in determining whether and to what extent air quality issues may have affected the value of the Subject Property on January 1, 2016. The Board does not rely on this evidence as the properties sold too far removed from the valuation day.
28The Board finds the following properties submitted by MPAC are the best comparable properties:
MPAC’s Proposed Comparable Properties and Sales Information
Property Address
48 Norwood Terrace
38 Norwood Terrace
27 Littleyork Road
30 Norwood Terrace
Sale Date
May 2016
July 2015
June 2015
October 2015
Time Adjusted Sale Amount
$723,306
$754,297
$667,939
$666,272
Building Area (sq. ft.)
1,338
3,376
1,338
1,338
Effective Site Area (sq. ft.)
0.02
0.02
0.03
0.03
Effective Year Built
1999
2009
2000
1999
Quality of Construction
6.5
6.5
6.5
6.5
Storeys
3
3
3
3
29These properties are comparable to the Subject Property for the following reasons:
a. They are all semi-detached residences;
b. They all sold in 2016;
c. They are all within 0.16 km of the Subject Property;
d. They all have frontage of between 15 and 17 feet;
e. They were all built within 2 years of the Subject Property;
f. They are all 6.5 quality of construction;
g. They are all 3 storeys;
h. They all have a building area within 15 sq. ft. of the Subject Property; and
i. They all have a lot size of 0.002 or 0.003 acres.
30While none of the properties appear to experience wood smoke emanating from a neighbour, 27 Littleyork Road is in close proximity to a railway which the Board is satisfied provides some indication regarding how the market will treat a nuisance like wood smoke.
31The time adjusted sale prices for the above-noted comparable properties range from $666,272 for 30 Norwood Terrace to $754,297 for 38 Norwood Terrace. The Board notes that 38 Norwood Terrace has an effective year built of 2009, which may explain why it is on the upper end of the range. 27 Littleyork Road, with the railway in close proximity, is in the lower end of the range. The Board finds that the sale prices of these four comparable provides a range of value, and that this is the best evidence of the current value of the Subject Property. The Board finds that a current value of $673,000, which is within that range, is correct.
32Based on the best evidence and in accordance with the findings outlined above, the Board finds that the current value of the Subject Property is $673,000.
Issue 2 - Is the current value equitable with the assessments of similar lands in the vicinity?
Applicable Law
33Section 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.”
Evidence on Equity
34Neither party provided evidence regarding equitable assessment.
Findings on Issue 2
35The Board finds that there is no evidence supporting a reduction in the current value of the Subject Property to make it equitable with the assessments of similar lands in the vicinity.
CONCLUSION
36The Board finds that the correct current value of the Subject Property is $673,000. The Board also finds that no reduction in the current value of the Subject Property is necessary to make it equitable with the assessments of similar lands in the vicinity.
ORDER
37The Board orders that the assessment for the 2021 taxation year be confirmed at $673,000, in the Residential property class.
"Carly Stringer"
CARLY STRINGER
MEMBER
Assessment Review Board
Website: www.tribunalsontario.ca/arb