COURT FILE NO.: 538/00
DATE: 20021204
SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: IN THE MATTER OF an Application for leave to appeal made
under s. 43.1 of the Assessment Act, R.S.O. 1990, c. A.31, as amended
AND IN THE MATTER OF complaints made by the assessed owner
against the assessments for the land municipally known as 80 Bloor Street
West, in the City of Toronto for taxation years 1998 and 1999
KRUGARAND CORPORATION
Appellant
- and -
THE ONTARIO PROPERTY ASSESSMENT CORPORATION,
REGION NO. 09 and the CITY OF TORONTO
Respondents
BEFORE: McNEELY, J. de P. WRIGHT & HOWDEN JJ.:
Michael S. Steinberg, for the Appellant
Donald G. Mitchell, for the Respondents
HEARD: November 20, 2002
E N D O R S E M E N T
HOWDEN J.
[1] Krugarand Corporation owns a nineteen-storey office building situated on the south side of Bloor Street West near Bay Street. The building's assessment was returned at $21,601,000 for the taxation years 1998 and 1999. On appeal, the Assessment Review Board reduced it to $20,799,000.
[2] The appellant appealed, with leave, to this court on the ground that the Board addressed 'current value' (as defined and directed in the Assessment Act, R.S.O. 1990, ch. A.31 as amended, sections 1 and 19), but failed to utilize the equitable purpose and effect of s. 44(2) of the Act. The appellant asserts that the Board used the 1996 sale of 150 Bloor Street West as the best indicator of the current value of 80 Bloor, but failed to consider that 150 Bloor had been assessed at 86% of current value. Counsel for the appellant argued strongly that in failing to reduce the assessed value of 80 Bloor to a similar percentage of its current value, the Board failed to consider "the value at which similar lands in the vicinity are assessed", as required by s. 44(2).
[3] Section 44(2) reads:
44.(2) In determining the value at which any land shall be assessed, reference shall be had to the value at which similar lands in the vicinity are assessed. R.S.O. 1980, c. 31, s. 48(2); 1997, c. 5, s. 29(2).
[4] Unfortunately, the case presented to the Board and the pre-hearing statement of issues filed on the appellant's behalf pursuant to the Board's pre-hearing order raised only the issue of whether 'current value' had been correctly determined. The appellant stated in its pre-hearing filing that the appeal was with respect to the appropriate assessment applicable under section 19(1) of the Act, and the particulars therein dealt exclusively with the various factors used by the assessor in determining current value in accordance with s. 19(1), including fair market rent, vacancy rate and ground floor area. Pre-hearing exchange of expert reports occurred, both reports focussing on the 'current value' issue only. It is conceded that at the hearing, the appellant led evidence solely directed at the correctness of the assessor's 'current value', supplying no evidence whatsoever of assessed values of similar properties in the vicinity. The assessor's evidence was adduced in-chief, also directed at the issue of 'current value' only. Then, during cross-examination, the agent asked a few questions of the assessor to elicit assessment: sale-price ratios of properties the assessor had referred to in his report. Equity with other assessments in the vicinity was argued only on this narrow evidentiary base.
[5] The appeal before this court is therefore the first time at which the issue of equity was raised squarely as a live issue. The result is that this court has a less than complete evidentiary record on the issue upon which the appellant now wants to focus; the skewed record was caused by the position taken on this appellant's behalf both before and at the Board hearing (Mr. Steinberg did not act for the appellant before the Board). Counsel for the respondent points out that the assessor prepared for, and testified at, a hearing at which the issue was to be the appropriateness of the 'current value'-based assessment of 80 Bloor. Therefore, no canvassing and selection of similar properties in the vicinity of 80 Bloor showing their assessed-value to current-value ratios was before the Board.
[6] We are not satisfied that the evidentiary record is such that we can properly deal with the appeal on the basis urged by the appellant that the present assessment is inequitable as compared to the assessment of similar properties in the vicinity.
[7] We did hear argument from both sides regarding the purpose of the Assessment Act through its three historic regimes – pre-1969; 1970-1997; and post-1997. In view of the foregoing deficiency of the record, we deem it necessary to limit our conclusion in this regard also. However, it must be noted that for the first time, the statutory reference to assessed values of similar properties in the vicinity in s. 44(2) is in mandatory language. Therefore, while no doubt the aim of the new assessment regime is to adopt 'current value' as the base of assessment and to focus on the correctness of 'current value', it is the duty of the court or the Board on an appeal also to have reference to the value at which similar lands in the vicinity are assessed. The Board or Court can only do so, however, if proper evidence as to the assessed value of similar lands in the vicinity is before them. Section 44(2) clearly does not go further than requiring the tribunal to have reference to such evidence. But on an appeal of the assessment, considerations of equity in assessment are not simply to be dispensed with by ascertainment of the current value for the property under appeal, according to the terms of the Act.
[9] The parties in this case failed to produce satisfactory evidence as to the assessment of similar lands in the vicinity. The evidentiary record does not permit finding otherwise than the Board did. The appeal is dismissed.
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McNEELY J.
_____________________________
J. de P. WRIGHT J.
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HOWDEN J.
DATE: 20021204