Tribunals Ontario / Tribunaux décisionnels Ontario
Assessment Review Board / Commission de révision de l’évaluation foncière
ISSUE DATE: September 07, 2023 FILE NO.: RD 23-010
Assessed Person(s): Man Ying Lam Appellant(s): Man Ying Lam Respondent(s): Municipal Property Assessment Corporation Region 14 Respondent(s): City of Markham
Property Location(s): 4300 Steeles Avenue East, Suite E78 Municipality(ies): City of Markham Roll Number(s): 1936-020-121-10571-0000 Appeal Number(s): 3419255, 3444265, 3488310 and 3512595 Taxation Year(s): 2020, 2021, 2022 and 2023 Legislative Authority: Rules 101-103 of the Assessment Review Board’s Rules of Practice and Procedure
APPEARANCES:
Parties / Representative
- Man Ying Lam / Self-represented
- Municipal Property Assessment Corporation / Submissions not received
- City of Markham / Submissions not received
REQUEST FOR: A review of the Board’s Decision WR 182194 issued on April 13, 2023 HEARD: In writing ADJUDICATOR(S): Carly Stringer, Member
DECISION
OVERVIEW
1Man Ying Lam (the “Requester”) requests a review of the Assessment Review Board (“Board”) Decision WR 182194 dated April 13, 2023 (the “Decision”).
Background
2The Requestor is the owner of 4300 Steeles Avenue East, Suite E78. This unit is in a commercial condominium shopping mall known as the Pacific Mall, located in the City of Markham. The Requestor owns three contiguous units, organized as a single store. All three units were assessed at $346,000 for the 2020 taxation year. The assessments of the Requestor’s “front unit” and “middle unit” were not under appeal – only the $346,000 assessment of the third unit, or “back unit”, was under appeal.
3The Requestor appealed this assessment pursuant to s. 40 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”), arguing it was too high and the correct value should be $132,000. Appeals were deemed for the 2021, 2022 and 2023 taxation years pursuant to s. 40(26) of the Act.
4The matter was heard on November 3, 2022 (the “Hearing”) and the Decision was issued on April 13, 2023. In the Decision, the Hearing Panel found that the January 1, 2016 value of the “back unit” is $406,000, and an equitable reduction is required pursuant to s. 44(3)(b) of the Act in the amount of $60,000. In making this determination regarding an equitable adjustment, the Hearing Panel relied on the assessment value of the “front unit” and “middle unit”, which it deemed to be similar properties in the vicinity. The Hearing Panel ultimately determined the assessed value of $346,000, and therefore confirmed the original assessment.
Requestor’s Submissions
5The Requestor asks that the Board vary the Decision and reduce the assessment to $132,000, citing the following grounds:
- The Board violated the rules of natural justice or procedural fairness.
- The Board made an error in law or fact such that the Board would likely have reached a different decision.
- The Board should consider new evidence, which was not available at the time of the hearing and could have affected the result; and
- 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.
6The Requestor filed many documents in support of this Request for Review, including a 3 page single-spaced document entitled “Reasons for Request of Review of Decision WR 182194”; a 16 page single-spaced document entitled “Feedback on Decision WR 182194”; a full copy of the 11 page Decision containing the Requestor’s notes and highlights; an affidavit sworn by the Requestor stating, among other things, that errors of fact were made; and dozens of pages of documents that the Requestor had presented as evidence at the Hearing.
7Despite the number of documents filed, the Requestor did not clearly outline their submissions in support of each ground of review. The Board distills the following from the Requestor’s materials:
a. The Requestor disagrees with the Hearing Member’s decision not to qualify them as an expert witness qualified to provide opinion evidence.
b. The Requestor disagrees with the Hearing Member’s decision not to rely on their evidence.
c. The Requestor takes issue with the fact that they were unable to screen share a presentation during the Hearing and says that, due to time limitations, they were limited in presenting evidence and cross-examining MPAC’s witness.
d. The Requestor says the Board erred in fact regarding the frontage of the Subject Property. The Requestor says the front of the Subject Property is only 10 feet wide and customers can only see it at a small angle so it has low customer visibility.
e. The Requestor disagrees with the Hearing Member’s ultimate finding that the Subject Property has the same assessment value as the two adjacent units at $346,000. As noted by the Requestor in the Form, “[w]hen well informed about the attributes and characteristics of the subject property and its adjacent front 2 units, any person with average common sense agrees on the 3 units to have differential values.”
f. The Requestor disagrees with an equitable reduction of $60,000.
Issues for Review
8With respect to the third and fourth grounds listed at paragraph 5 above, the Requestor’s materials do not identify new evidence that was not available for the Hearing, nor do they particularize any false or misleading evidence that was discovered only after the Hearing. Accordingly, the Board finds that these grounds of review are not in issue.
9The Requestor’s concerns, outlined at paragraph 7 above, fall within the first and second grounds. Therefore, the issues for this review are:
a. Did the Board violate the rules of natural justice or procedural fairness?
b. Did the Board make significant errors of law or fact such that it would likely have reached a different decision?
Result
10For the reasons that follow, this request for review is dismissed.
ANALYSIS
The Rules
11Rule 101(b) of the Board’s Rules of Practice and Procedure effective April 1, 2021 (the “Rules”) provides that “a party may request a review of any final decision or order of the Board by filing a request for review in writing no more than 30 days after the decision was issued, which shall include…the reasons for the request, addressing the factors set out in Rule 102.”
12Rule 102 provides that:
- 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; or
(d) there is new evidence that could not have reasonably been obtained earlier and have affected the result.
Issue 1 – Did the Board violate the rules of natural justice or procedural fairness?
Submissions
13The Requestor takes issue with the fact that they were unable to screen share a presentation during the virtual Hearing, and says that, due to time limitations, they were limited in presenting evidence and cross-examining MPAC’s witness.
Findings on Issue 1
14The Board finds that the Requestor has not satisfied the Board there were violations of the rules of natural justice or procedural fairness.
15While the Requestor may not have been able to share their screen at the virtual Hearing, this did not diminish their right to be heard in this case. The Hearing Member had copies of the Requestor’s evidence properly filed in accordance with the Rules, which could be referenced.
16Moreover, the Board finds that the Requestor was provided notice of the length of the Hearing. There is no evidence before the Board that the Requestor asked for additional time, and in any event, the Board finds that the circumstances were not so complex as to require additional time. The time afforded to give evidence and cross-examine is not unlimited, and each party is required to organize their time to properly present their case. The Board finds that the Requestor was afforded a reasonable period of time to fully and fairly present their case, and there was no violation of natural justice or procedural fairness.
Issue 2 – Did the Board make significant errors of law or fact such that it would likely have reached a different decision?
Submissions
17The bulk of the Requestor’s submissions repeat the evidence and submissions made at the Hearing. The Requestor’s overarching argument appears to be that the Hearing Member erred in his ultimate determination of value on the basis that the Subject Property should have a different value than the two units in front of it.
18The Requestor alleges the Hearing Member “totally scrapped” their evidence and analysis, and takes issue with the Hearing Member’s decision not to rely on it. The Requestor states that the Hearing Member erred regarding the frontage of the Subject Property, stating that it was 16 feet by 9 feet when the front of the Subject Property is only 10 feet wide with low customer visibility and virtually no customer traffic.
19In addition, the Requestor disagrees with the Hearing Member’s decision not to qualify them as an expert witness qualified to provide opinion evidence.
Findings on Issue 2
20First, the Board notes that a Request for Review is not a rehearing of the appeal. It is the Board’s task on Review to determine whether errors were made. The Requestor is re-arguing the same points and evidence raised at the Hearing, including items already considered and addressed by the Hearing Member in the Decision: see Canadian Property Holdings (Ontario) Inc v Municipal Property Assessment Corporation Region 14, 2023 CanLII 21636 (ON ARB), at paragraph 39. The fact that the Requestor disagrees with the Hearing Member’s Decision on current value and equitable adjustment is not a sufficient basis for granting a Request for Review.
21Other than the frontage, the Requestor has not clearly identified errors of fact leading to the Hearing Member’s determination that the assessed value of the Subject Property is $346,000. The Board finds that any error regarding frontage is not so significant that it would have led to a different decision in this case. The Requestor has not satisfied the Board there was an error with respect to the equitable adjustment. Overall, the Board finds there are no significant errors of fact in this case that would have led to a different decision.
22The Board notes that the Requestor did not present sales evidence to establish value – their evidence was based on their experience in real estate and as an owner within the Pacific Mall. The Hearing Member specifically noted the Requestor’s argument that there should be a differential value among each unit, with the front unit having the most value and the back unit having a lesser value. The Hearing Member simply did not accept the Requestor’s position because there was no sales evidence to support it. The Hearing Member was entitled to make this finding and rely on MPAC’s sales evidence instead.
23With respect to the Hearing Member’s decision not to qualify the Requestor as an expert witness qualified to provide opinion evidence, the Board finds there was no error in this regard. The law requires that, in order to be considered “properly qualified”, expert witnesses must i) be aware of their duty to provide the court with “fair, objective and non-partisan” evidence, and ii) be able and willing to carry out that duty: see White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR (“White Burgess”) at paragraph 46. At the Hearing, the Requestor was testifying on their own behalf, for their own financial interest. The Hearing Member reasonably determined that this fact rendered them unable to comply with a duty to the Board to provide evidence that is objective, fair, and impartial. In addition, the Requestor was not precluded from presenting evidence of facts within their knowledge. They were also able to express their views in their submissions regarding current value which were considered by the Hearing Member. In all of the circumstances, the Board finds there is no error.
CONCLUSION
24The Board finds that there have been no violations of the rules of natural justice or procedural fairness. The Board further finds that the Decision does not contain any significant errors of law or fact such that the Board would likely have reached a different decision.
ORDER
25The Board orders that this request for review is dismissed.
"Carly Stringer"
CARLY STRINGER MEMBER Assessment Review Board
Website: www.tribunalsontario.ca/arb