THE ELEPHANT IN THE CLOSET THE CHICKEN IN THE OVEN Jack A. Walker, QC. Institute of Municipal Assessors June 15 th 2010 Walker Poole Nixon LLP Property Tax Counsel Toward Equity, Transparency, and Fairness

Walker Poole Nixon LLP Property Tax Counsel (From left) Chris Schulze, Brian Dargel, Jack Walker and Jerry Grad

Walker Poole Nixon LLP Property Tax Counsel Advent of OFAS Hon. Al Leach (Minister of Municipal Affairs) Jan “[T]he taxation changes we’re bringing in, the Assessment changes, are going to bring fairness and equity right across this province. I think everybody recognizes that the assessment and tax system in this province has been fractured and broken for many years. It’s about time that some government stepped in and brought back the fairness and equity aspects to it.”

Walker Poole Nixon LLP Property Tax Counsel Advent of OFAS Cont.. Hon. Ernie Eves (Minister of Finance) Jan “The bill I’m introducing today will establish the Ontario fair assessment system, which will be based on current value; ensure regular updates of properties’ assessed values; make the property tax system fairer and easier for taxpayers to understand... People and businesses who have been paying more than their fair share will see their taxes reduced. The Ontario fair assessment system will bring fairness back into property taxation across the province. Similar properties with a similar value within a municipality will now pay similar taxes. That’s common sense.”

Walker Poole Nixon LLP Property Tax Counsel Advent of OFAS Cont.. Hon. Ernie Eves (Minister of Finance) Feb “The evidence is clear: The Ontario fair assessment system will be a fairer and better system for both property taxpayers and municipalities. It will be more stable and manageable. It will cost less to run. It will not be prone to appeals like the current system.”

Walker Poole Nixon LLP Property Tax Counsel Advent of OFAS Cont.. And then moving forward: Greg Sorbara (Minister of Finance) 2007 “We are working toward the fairest possible property tax system for homeowners across the province. We know that Ontarians have asked for changes to the system and these improvements are designed to provide property tax stability and predictability for all homeowners.”

Walker Poole Nixon LLP Property Tax Counsel Creation of the Level Playing Field I.Legislative Changes 1)Adjudicative Tribunals Accountability, Governance and Appointments Act, )Assessment Act 3)Law Society Act II.Judicial Changes 1)Supreme Court of Canada Decisions III.Rule Changes 1)Rules of Civil Procedure

Walker Poole Nixon LLP Property Tax Counsel 1) Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 Purpose 1 The purpose of this Act is to ensure that adjudicative tribunals are accountable, transparent and efficient in their operations while remaining independent in their decision-making c.33, Sched. 5, s.1 I. Legislative Changes

Walker Poole Nixon LLP Property Tax Counsel 1) Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 Adjudicative Tribunal members to be selected by competitive, merit-based process 14(1) The selection process for the appointment of members to an adjudicative tribunal shall be a competitive, merit based process and the criteria to be applied in assessing candidates shall include the following: 1.Experience, knowledge or training in the subject matter and legal issues dealt with by the tribunals 2.Aptitude for impartial adjudication 3.Aptitude for applying alternative adjudicative practices and procedures that may be set out in the tribunal’s rules. 2009, c.33. Sched.5, s 14(1)

Walker Poole Nixon LLP Property Tax Counsel 1) Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 Tribunal-specific Qualifications 14(2) If a member of an adjudicative tribunal is required by or under any other Act to possess specific qualifications, a person shall not be appointed to the tribunal unless he or she possesses those qualifications. 2009, c.33, Sched. 5, s.14 (2)

Walker Poole Nixon LLP Property Tax Counsel 1) Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 Designation of Clusters 15 The lieutenant Governor in Council may by regulation designate two or more adjudicative tribunals as a cluster if, in the opinion of the Lieutenant Governor in Council, the matters that the tribunals deal with are such that they can operate more effectively and efficiently as part of a cluster than alone. 2009, c.33, Sched. 5, s.15 Executive Chair Michael Gottheil has been appointed Executive Chair 16(1) The Lieutenant Governor in Council may appoint an executive chair to be responsible for all of the adjudicative tribunals included in a cluster. 2009, c.33, Sched.5

Walker Poole Nixon LLP Property Tax Counsel 1) Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 April 7, 2010 s.2, 15, 16, 17, 19, 22 and 23 came into force and Reg 126/10 Reg 126/10 designated the following adjudicative tribunals as a cluster 1. Assessment Review Board 2. Board of Negotiation 3. Environmental Review Tribunal 4. Conservation Review Tribunal 5. Ontario Municipal Board The 5 Boards are known as ELTO (Environment and Land Tribunals Ontario)

Walker Poole Nixon LLP Property Tax Counsel I.Legislative Changes 40(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.” 40(15) “At any hearing, the person or persons whose assessment is the subject of the appeal shall be given the opportunity to make a closing statement after all other parties have made their submissions.” Walker Poole Nixon LLP Property Tax Counsel 2) Assessment Act

Walker Poole Nixon LLP Property Tax Counsel 2) Assessment Act 44(2) “For taxation years before 2009, 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.” 44(3) “For 2009 and subsequent taxation years, in determining the value at which any land shall be assessed, the Board shall, (a) determine the current value of the land; and (b) have reference to the value at which similar lands in the vicinity are assessed and adjust the assessment of the land to make it equitable with that of similar lands in the vicinity if such an adjustment would result in a reduction of the assessment of the land.” Walker Poole Nixon LLP Property Tax Counsel

Walker Poole Nixon LLP Property Tax Counsel I.Legislative Changes Walker Poole Nixon LLP Property Tax Counsel 1(5) “… A person provides legal services if the person engages in conduct that involves the application of legal principles and legal judgement with regard to the circumstances or objectives of a person.” 3) Law Society Act

Walker Poole Nixon LLP Property Tax Counsel 3) Law Society Act Walker Poole Nixon LLP Property Tax Counsel 1. Gives a person advice with respect to legal interests, rights or responsibilities of a person or another person. 2. Selects, drafts, completes, or revises, on behalf of a person: i. A document that affects a person’s interests in or rights to or in real or personal property … vii. A document for use in a proceeding before an adjudicative body 3. Represents a person in a proceeding before an adjudicative body 4. Negotiates the legal interests, rights or responsibilities of a person Subsection 1(6) of the Act elaborates on the definition of legal services to include a person who:

Walker Poole Nixon LLP Property Tax Counsel II. Judicial Changes 1) Supreme Court of Canada Decisions Dunsmuir v New Brunswick (2008) SCC9 In early 2008 the Supreme Court of Canada issued a decision that has altered the landscape of administrative law and judicial review … The main determination in Dunsmuir was that there are now only two standards of review in judicial review of an administrative tribunal decision: correctness and reasonableness. The correctness standard is applicable to matters of jurisdiction and fundamental questions that impact the common law. The reasonableness standard is applied when a tribunal is interpreting its home statute and operating within the field in which it has specific expertise.

Walker Poole Nixon LLP Property Tax Counsel 1) Supreme Court of Canada Decisions City of Montreal v Montreal Port Authority Canadian Broadcasting Corporation (2010) SCC14 Principle of deference by Courts and concept of reasonableness relates primarily to transparency and intelligibility of the reasons but it also includes a qualitative requirement.

Walker Poole Nixon LLP Property Tax Counsel III. Rule Changes Rule 4.1 now directs that: It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules, a) to provide opinion evidence that is fair, objective and non- partisan; b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and c) to provide such additional assistance as the court may reasonably require to determine a matter in issue. O.Reg. 438/08, s.8. Under Rule 4.1(2) The duty prevails “over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged.” 1) Rules of Civil Procedure

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