Tribunals Ontario
Tribunaux décisionnels Ontario
Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE: March 16, 2022
Assessed Person(s): 1448040 Ontario Inc.
Appellant(s): 1448040 Ontario Inc.
Respondent(s): Municipal Property Assessment Corporation Region 18
Respondent(s): City of Niagara Falls
Property Location(s): 5382 Robinson Street
Municipality(ies): City of Niagara Falls
Roll Number(s): 2725-030-002-20300-0000
Appeal Number(s): 3458167
Taxation Year(s): 2021
Hearing Event No.: 761765
Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31
APPEARANCES:
Parties
Counsel/Representative*
1448040 Ontario Inc.
Mark Blidner*
Municipal Property Assessment Corporation
Vincent Pascuzzi
City of Niagara Falls
Maranda Adamson and Stephanie Young
HEARD: February 14, 2022 by telephone conference call
ADJUDICATOR: Anthony LaRegina, Member
DECISION
OVERVIEW
11448040 Ontario Inc. (the “Appellant”) filed an appeal for the 2021 taxation year with the Assessment Review Board (the “Board”) regarding the property located at 5382 Robinson Street (“Subject Property”) in the City of Niagara Falls (“City”). It is the Appellant’s position that the Municipal Property Assessment Corporation (“MPAC”) incorrectly classified the Subject Property as Commercial Full CT for the 2021 taxation year and requests that the property be classified as Commercial Vacant Land CX. At this hearing, MPAC has taken the position that the Commercial Full CT classification should be confirmed for the 2021 taxation year.
2Both Parties agree that the current value of the property is $1,014,000 for the 2021 taxation year and that the application of an equitable reduction is not in issue.
3Both Parties are also in agreement with the Commercial classification as the property is zoned Commercial.
4MPAC has submitted a Statement of Response and a Property Profile Report.
5The Appellant has submitted no documentary evidence and relies on viva voce evidence.
6Both Parties have not relied on any case law.
7An Expedited Board Direction form (“EBD”) was filed with the Board to transfer the appeal to the General Stream with three other similar properties with similar issues in the vicinity of the Subject Property. The EBD was denied based on the fact MPAC provided no status on the appeal of the Subject Property nor any reason why the appeal warranted a change in proceedings at this late stage.
8Pursuant to s. 40(11) of the Assessment Act, R.S.O. 1990, c. A.31 (“Act”), the municipality in which the land is located is a party to this proceeding; Maranda Adamson and Stephanie Young attended the hearing as representatives of the City to observe the proceedings.
Issue for the Hearing
9At issue in this proceeding is a determination of the classification of the Subject Property for the 2021 taxation year. MPAC has taken the position that this property has been used as a parking lot and should therefore, be confirmed as Commercial Full CT while the Appellant has taken the position that to its knowledge this property has no structures, is vacant, and has never been used as a parking lot and therefore, should be revised to Commercial Vacant Land CX.
Result
10The Board finds that the classification of the Subject Property is Commercial Full CT for the 2021 taxation year.
11On consent of the Parties the Board will confirm the returned assessment value of $1,014,000 for the 2021 taxation year.
ANALYSIS
Description of Subject Property
12The Subject Property is coded by MPAC as 105 Vacant Commercial Land located at 5382 Robinson Street in the City of Niagara Falls. The lot has an area of 0.69 acres with a frontage of 102.3 feet and a depth of 293.8 feet. The lot has a regular configuration with a level topography. The property is located just east of Queen Victoria Park and south of the Skylon Tower in close proximity to the Falls. According to MPAC, the Subject Property is located in a tourist area with heavy traffic. The classification of the Subject Property for taxation purposes is Commercial Full CT.
Legal Framework
13Section 8(1) of the Act states:
Subclasses for tax reductions
8 (1) For the purposes of providing tax reductions, the Minister shall prescribe the following subclasses of real property for land located in municipalities
- A subclass for vacant land for each of the following classes of real property,
i. the commercial property class and such other classes of real property prescribed by the Minister for the purposes of this subparagraph,
14Section 19.3 of the Act states:
Classification day
19.3 The day as of which land shall be classified for a taxation year is June 30 of the previous year.
15sections 1(1) and 1(2) of Ontario Regulation 282/98 state:
Vacant Land
(1) The following land, if it is not being used, is vacant land for the purposes of this Regulation:
Land that has no buildings or structures on it.
Land upon which a building or structure is being built.
Land upon which a building or structure has been built if no part of the building or structure has yet been used.
Land upon which a building or structure has been built if the building or structure is substantially unusable. O. Reg. 282/98, s. 1 (1).
(2) For greater certainty, any occupation of a building or structure is a use for the purposes of paragraph 3 of subsection (1) and once a building or structure has been occupied the land upon which the building or structure is located cannot be vacant land unless the building or structure becomes substantially unusable.
16Section 5 of Ontario Regulation 282/98 states:
COMMERCIAL PROPERTY CLASS
(1) The commercial property class consists of the following:
Land and vacant land that is not included in any other property class.
17Sections 20(1) and 20(2) of Ontario Regulation 282/98 state:
VACANT LAND
- (1) A subclass for vacant land is prescribed for each of the commercial property class and the industrial property class.
(2) The subclass for vacant land for the commercial property class consists of the following land in the commercial property class:
Vacant land.
Land that is a railyard, owned and used exclusively by a railway company, upon which no building or structure other than railway tracks is located.
MPAC’s Case
18Vincent Pascuzzi, representing MPAC, acknowledged that he has been working at MPAC for 16 years and is currently in the position of Property Valuations Analyst.
19MPAC submits that the Subject Property is zoned Tourist Commercial and is located in a very high traffic tourist area in close proximity to the Skylon Tower and Queen Victoria Park.
20MPAC further submits that the Subject Property has been cleared of grass and vegetation and now has a paved asphalt surface with painted parking lines. The property also has a proper egress and ingress and no barricades to prevent vehicles from accessing the property.
21During cross-examination Mr. Pascuzzi acknowledged that the Subject Property is taxed as Commercial Full because it is occupied and being used as a parking lot. When presented with his Property Profile Report Mr. Pascuzzi further confirmed that the property was coded 105 Vacant Commercial Land but was treated as Commercial Occupied for taxation purposes as it is being used as a parking lot.
22Again, during cross-examination, Mr. Pascuzzi acknowledged that he was not aware whether the property was owner occupied or if some other person or entity was occupying the property.
23Finally, when asked whether MPAC had any information that the property was used as a parking lot on the classification day of June 30, 2020, Mr. Pascuzzi replied he had no information to confirm that the property was being used as a parking lot on June 30, 2020.
24Mr. Pascuzzi also confirmed that the property has had the same Commercial Full CT classification in years prior to the 2001 year under appeal and that the last sale of the property was in 2001. He stated that he did not know when the property was paved but believes that originally it was a gravel surface and that it was recently paved and painted with parking lines on the asphalt.
MPAC’s Submissions
25MPAC submitted that the Subject Property is being used as a parking lot, has historically been classified as Commercial Full CT and should be confirmed as Commercial Full CT for the 2021 taxation year.
Appellant’s Case
26Mark Blidner, representing the Appellant, argued that MPAC has not met its onus to prove that the Commercial Full CT classification is correct, and that no information has been presented by MPAC supporting a Commercial Occupied class. The Appellant further argued that the property classification should be revised to Commercial Vacant Land CX.
27The Appellant called Lisa Osinga, the Director of Finance for 1448040 Ontario Inc., as well as other corporations controlled by the owner, as a witness.
28Ms. Osinga confirmed that she has been working for the owner for four years and that during her time with the company she has no knowledge or information that this property was being used as a parking lot. Furthermore, Ms. Osinga confirmed that she has no evidence that on or before the classification day of June 30, 2020 the property was being used as a parking lot.
29Ms. Osinga stated that the Subject Property, as well as other properties controlled by the owner in the City, is being held for future development opportunities.
30During cross-examination Ms. Osinga confirmed that she is familiar with the area surrounding the Subject Property. Initially, Ms. Osinga could not remember if the property was paved but she ultimately confirmed that it was paved but could not remember when it was paved.
31Ms. Osinga did not know how long the current owner has owned the property. MPAC confirmed that the last purchase date of the Subject Property was 2001.
32When asked by the Board whether she had had any discussions with the owner pertaining to any aspects of the Subject Property at any time in advance of the hearing, Ms. Osinga replied “no”.
Appellant’s Submissions
33The Appellant submitted that it is not disputing the Commercial classification for the Subject Property as it is zoned Commercial, and that the Act specifically provides for subclasses for Vacant Land in the Commercial classification. The Appellant asserted that the current taxation is slightly higher at Commercial Occupied as opposed to Commercial Vacant Land. Regarding MPAC's position that this property is paved, not vacant, and being used as a parking lot, the Appellant submitted that, as of the classification day of June 30, 2020, MPAC has no evidence to support the fact that it was occupied and used as a parking lot.
34In support of this position, the Appellant emphasized that the Subject Property has no building, is not being used as a parking lot and is not being occupied by the owner. Therefore, the Appellant submitted that the Board should revise the classification of the Subject Property from Commercial Full CT to Commercial Vacant Land CX.
Board’s Analysis – Classification of the Subject Property
35The issues in this case are two-fold:
Under s. 19.3 of the Act what was the use of the subject property on the classification day of June 30, 2020, and
Under s. 1(2) of Ontario Regulation 282/98, the fact that the property cannot be classified as vacant land if it was previously occupied or used as a parking lot.
36The Board has considered all the evidence in this case and concludes that neither Party has presented evidence to demonstrate that on or before the classification day of June 30, 2020 the Subject Property was used as a parking lot or was vacant land.
37Based on MPAC’s submission, the existence of a paved parking lot suggests that it has been used in the past for parking, but MPAC has no evidence to support that the Subject Property has ever been used as a parking lot and therefore, the requirements of s.1(1) and (2) of Ontario Regulation 282/98 have not been met.
38The Board therefore finds that while there is no evidence the Subject Property was used as a parking lot on or before classification day, the land was, or has since been improved, and can be used as a parking lot.
39The Appellant has submitted that MPAC has not met its onus to produce evidence to prove that on the classification day the property was being used as a parking lot but, at the same time, the Appellant has also not provided any evidence to confirm that the Subject Property was a vacant lot.
40Section 40(17) of the Act states:
Burden of proof
(17) For 2009 and subsequent taxation years, where value is a ground of appeal, the burden of proof as to the correctness of the current value of the land rests with the assessment corporation.
41The Board notes that the burden of proof provision applies only to the correctness of the current value, not classification. Therefore, if the Appellant asserts that the Subject Property falls within the vacant land subclass, the onus rests with the Appellant to establish that, on a balance of probabilities, the property has never been used as a parking lot.
42While the evidence is unclear, the Board observes that the fact that the property has been improved as a paved lot with parking lines indicates a clear intention that it is to be used as parking lot, and the Appellant has provided insufficient evidence on which to find that the property has never been used as a parking lot. For this reason, the Board finds that the Appellant has failed to establish the criteria set out in s.1(1) and (2) to qualify the Subject Property as vacant land.
43Consequently, the Board confirms the classification of the Subject Property as Commercial Full CT for the 2021 taxation year.
ORDER
44The Board orders that:
the classification of the Subject Property as Commercial Full CT is confirmed; and that
on consent of the Parties, the Current Value Assessment of $1,014,000 for the 2021 taxation year is confirmed.
“Anthony LaRegina”
ANTHONY LaREGINA
MEMBER
Assessment Review Board
Website: www.tribunalsontario.ca/arb