NEWMARKET COURT FILE NO.: 75954/05

DATE: 2006/05/29

ONTARIO

SUPERIOR COURT OF JUSTICE

(DIVISONAL COURT )

B E T W E E N:

ALBERT CHONG

Albert Chong, Self-represented

Applicant

• and -

ASSESSMENT REVIEW BOARD a.k.a. BOARD, MUNICIPAL PROPERTY ASSESSMENT CORPORATON a.k.a. MPAC, RICHARD F. STEPHENSON, J. TERSIGNI and LUCY GIAMMARCO

Donald Mitchell, for the Municipal Property Assessment Corporation and Lucy Diammarco

Respondents

HEARD: May 25, 2006

REASONS FOR DECISION

DiTOMASO J.

[1] This is motion brought by Albert Chong (“Chong”) for leave to appeal to the Divisional Court from a decision of the Assessment Review Board (“Board”) dated May 12, 2005, pursuant to section 43.1 of the Assessment Act (“Act”).

[2] By way of a preliminary matter, the respondents took the position that Chong is out of time to bring this motion. He brought an application for judicial review of the Board’s decision which application was dismissed on December 12, 2005, by a full panel of the Divisional Court (Greer, MacDonald, Lax JJ.).

[3] The respondents took the position that Chong should have brought an application for leave to appeal within 30 days of the mailing of the Board’s decision pursuant to s. 43.1 of the Act as opposed to launching his application for judicial review. Chong was given the opportunity to forego his application and proceed by way of motion for leave to appeal. He refused to abandoned his application for judicial review and opted instead to “let the court decide”. The full panel of the Divisional Court dismissed his application for judicial review on the basis that a statutory appeal route was available, and in the absence of exceptional circumstances, the full panel did not have discretion to hear this application. In the circumstances, the full panel exercised its discretion not to hear the application for judicial review.

[4] Simply put, the respondents’ position is that Chong ought to be estopped from proceeding by way of motion for leave to appeal, having previously chosen to proceed by way of unsuccessful judicial review.

[5] For his part, Chong’s position was that he was lead to believe there was an option to proceed either by way of judicial review or for leave to appeal to the Divisional Court. There is some factual basis on the record to support this position. Having found no prejudice that would accrue to the respondents should Chong’s motion be allowed to proceed, this court ruled in favour of Chong and heard his motion for leave to appeal.

OVERVIEW

[6] The complaints before the Board concerned the correctness of the current value of Chong’s home for the 2004, 2005 taxation years.

[7] The issue before the Board for determination was whether an adjustment in the assessment should be made to the subject property as a result of the nuisance factors that Chong had outlined for the Board. The Municipal Property Assessment Corporation (“MPAC”) assessed the property for $362,000. MPAC stated that sales supported the assessment which should be confirmed.

[8] The Board found that the assessments for the 2004, 2005 taxation years were correct and confirmed the assessment for both years at $362,000. See Reasons for Decision, Assessment Review Board, Respondents’ Motion Record, Tab 1.

[9] Chong’s position was that the Board, in arriving at its decision, broke laws, abused its statutory powers and ignored his concerns. He itemized a number of specific complaints in support of his position.

[10] By contrast, the respondents’ position was that the test for granting leave to appeal had not been met. Chong had not raised a question of law nor was there any reason to doubt the correctness of the Board’s decision.

ANALYSIS

[11] It was made very clear to Chong by this court and by the full panel that heard his judicial review application that neither court was involved in a rehearing of the matter which was heard by the Board. This was acknowledged and understood by Chong certainly before this court.

[12] Further, this court took great pains to explain to Chong the test for granting leave to appeal under s. 43.1 (1) of the Act.

[13] An appeal lies from the Board to the Divisional Court, with leave of the court, only on a question of law. There is a 2-pronged test for granting leave to appeal being, first, whether there is some reason to doubt the correctness of the decision of the Board and, second, whether the decision involves a point of law of sufficient importance to merit the attention of the Divisional Court. Mullabrack Inc. v. Ontario Property Assessment Corp., Region No. 16, [2001] O.J. No. 1047 (Div. Ct.).

[14] This court finds that the test for granting leave to appeal has not been met. Chong’s application does not raise a question of law. Further, neither has it been established that there is any reason to doubt the correctness of the Board’s decision. The Board is required to determine the correct current value after hearing the evidence and submissions of the parties. The reasons demonstrate that the Board heard the parties and that there was evidence upon which the Board could make its decision. In any event, the determination of the correctness of the current value is a question of fact. There is no appeal from factual determinations.

Assessment Act, supra, R.S.O. 1990 c.A.31 as amended, ss. 40 (11), 43.1.

Re A. Merkur & Sons Ltd. and Regional Assessment Commissioner, Region No. 14 et al. (1978), 1978 1530 (ON CA), 21 O.R. (2d) 797 at p. 799-800 (C.A.)

Reasons for Decision of the Assessment Review Board, released May 12, 2005, Respondent’s Motion Record, Tab 1, p.1-9

Transcript of Divisional Court proceeding in Chong v. MPAC, exhibit H to the supplementary affidavit of Albert Chong sworn May 1, 2006, Applicant’s Motion Record, Tab 4H, at pp.22-23 and 27 of the transcript.

[15] Chong argued that the Board erred in not considering the OMB’s decision on the negative impact of the nuisance factors for the 2004 taxation year. The issues before the OMB and the Board were not the same. They involved different taxation years with a different valuation date and under a different statutory regime. In these circumstances, issue estoppel cannot apply.

[16] Chong submitted that the Board erred by allowing Mr. Tersigni to preside over the 2004 taxation year hearing while the 2003 taxation year hearing in which he had also presided was currently under complaint and investigation by the Ombudsman Office of Ontario.

[17] The record does not disclose any reasonable apprehension of bias. There is no evidence that Chong requested that Mr. Tersigni recuse himself and there is no evidence that Chong sought and was denied an adjournment of the complaint for the 2004 taxation year pending the outcome of the Ombudsman’s investigation.

[18] Chong further submitted that the Board erred in not allowing a recording of the hearing upon his request.

[19] There is no statutory or common-law requirement that the Board arranged to record the proceedings before it. Rule 105 of the Board’s rules provides for the recording and transcription of the Board’s proceedings. With leave of the Board, any party may arrange for a qualified verbatim reporter to attend at the parties own expense for the purpose of recording all testimony. Chong did not arrange for a qualified verbatim reporter to attend at his expense, notwithstanding his stated intention that he wanted the proceedings recorded. He did not request leave from the Board to arrange for such a reporter to attend at his own expense.

[20] Chong contends that the assessor and MPAC were negligent in their responsibilities and duties with regards to due procedural fairness towards him.

[21] Chong alleges that the assessor submitted “careless and misleading evidence”. This is entirely without foundation. The Board considered the assessor’s comparables as well as Chong’s comparables.

[22] After careful review, the Board selected certain properties as the best comparables from the assessor’s Property Report. It was open to the Board to do so and it was open to the Board to weigh the evidence before it. See Decision of the Assessment Review Board, May 12, 2005, supra, at p. 5 - The Board’s Deliberations.

[23] Chong also argued that both the Board and MPAC were negligent in not allowing in certain evidence at the hearing.

[24] MPAC does not determine what evidence the Board will or will not hear. There is no evidence that the Board declined to admit evidence presented by Chong. The presiding tribunal member admitted Toronto Real Estate Board data submitted by Chong. Such data was filed as part of exhibits 3, 4, 5, and 6 to the hearing and were part of the approximately 60 plus pages of exhibits filed by the applicant at the hearing. The Board is entitled to accept or reject some or all of said data which entirely went to a question of fact.

[25] Chong complained that the Board erred in not finding that nuisance factors negatively affected the value of his property.

[26] It is clear from the Board’s reasons that the Board looked for evidence to support Chong’s position that a series of nuisance factors did negatively affect the value of his property. The Board found no such evidence.

[27] In the end, this court is not satisfied that leave should be granted to appeal the decision of the Board. Chong has failed to establish that first, there is some reason to doubt the correctness of the Board’s decision and, second, the decision involves a point of law of sufficient importance to merit the attention of the Divisional Court. The determination of the correctness of the current value is a question of fact. An appeal does not lie from these factual determinations.

DISPOSITION

[28] For the reasons given, Chong’s motion for leave to appeal to the Divisional Court is dismissed. This court may be spoken to in respect of costs by making the necessary arrangements through the trial co-ordinator at Newmarket. Prior to any attendance to speak to costs, the parties are required to serve and file a bill of costs and costs outline pursuant to Forms 57A and 57B of the Rules of Civil Procedure.

Justice G.P. DiTomaso

Released: May 29, 2006