SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 365/13

DATE: 20140211

RE: MUNICIPAL PROPERTY ASSESSMENT CORPORATION, Applicant

AND:

HUNTER DOUGLAS CANADA INC., AND CITY OF TORONTO, Respondent

BEFORE: MARROCCO, ACJSC

COUNSEL:
Chester Gryski, for the Applicant

Lubomir Poliacik and Benjamin Blufarb, for the Respondent Hunter Douglas Canada Inc.

HEARD: February 10, 2014

ENDORSEMENT

[1] The applicant applies for leave to appeal. The applicant submits that the Assessment Review Board erred in holding that, in order to meet the burden of proof which the applicant bears relating to current value, the applicant must use at least two of the three generally accepted approaches to value.

[2] Leave is denied.

[3] The Board’s task was to determine the correct current value of the subject property on January 1, 2008 and this required a decision on the proper assessment methodology to be used in determining that value.

[4] The Board determined that the best evidence of current value is an arm’s-length and market tested sale of the subject property on or close to the valuation date of January 1, 2008. The Board further indicated that, because no such sale has taken place, proper assessment methodology would be to look to the sale of comparable properties. The Board noted that the applicant’s expert witness rejected this approach because the available comparable sales required an adjustment on account of age, quality or size of the buildings on the comparable properties. The Board discounted this reservation because the property in question had a two-story building with an effective build year of 1987-1988 and, as a result, it would be difficult to find a similar building in the vicinity that did not require an adjustment. The Board considered the comparable sales relied upon by the respondent Hunter Douglas Canada Inc.’s expert and observed that two of the comparable sales occurred after the valuation day and two of the comparable sales occurred prior to the evaluation day.

[5] The applicant submits that paragraph 67 of the Board’s analysis indicates an error of law. The applicant relies upon the following: “MPAC has the burden of proof as it relates to current value. It is at liberty to use any one of the acceptable approaches to value. However, it must satisfy the board that the end result is reasonable and supportable by other acceptable approaches. This is especially so when comparing the cost approach to the direct sales comparison approach to value.” The applicant submits that this demonstrates that the Board imported a requirement that the cost approach to value be confirmed by other approaches to value before it can be accepted. The applicant’s position ignores the Board’s penultimate conclusion in paragraph 72: “the board is satisfied that, although not perfect, the sales evidence provides good indicators of value.”

[6] Appeals lie from decisions of the Board only on questions of law: Assessment Act, R.S.O. 1990, c. A.31, s. 43.1(1). There is no question of law raised in this application because, when respectful attention is given to the entire reasons offered by the Board, it is clear that the Board did not require the applicant to use at least two of the three generally accepted approaches to value. Rather, the Board simply preferred the expert evidence offered by the respondent Hunter Douglas Canada Inc. on the direct sales comparison approach to value. This evidence was in the Board’s view not perfect but nevertheless a good indicator of value. The applicant’s submission, properly characterized, goes to the weight applied by the Board to the evidence before it in determining the correctness of the current value of the property. As held by DiTomaso J. for this court in Chong v. Assessment Review Board, 2006 17750 (Ont. S.C. – Div. Ct.) at para. 27, no appeal lies to the Divisional Court on such a question of fact:

The determination of the correctness of the current value is a question of fact. An appeal does not lie from these factual determinations.

[7] Accordingly, it is not necessary to determine whether the two-pronged test for leave to appeal is met.

[8] The parties agreed that costs in this matter should be fixed at $2500, if leave was denied.

[9] This application is dismissed. The respondent is entitled to costs in the amount of $2500.

A.C.J.S.C. MARROCCO

Date: 20140211