Law Times

PAGE 16 FOCUS June 29/JuLy 6, 2009 • Law Times once new rules shifting the bur- den of proof come into play at the Assessment Review Board. New rules come into play at Assessment Review Board T BY GLENN KAUTH Law Times axpayers may have an easier time fighting their property tax assessments "For residential [property owners], I think it's really signifi- cant," says Jack Walker, a partner at Walker Poole Nixon LLP in Toronto and co-author of the Ontario Property Tax Assessment Handbook. The move follows years of complaints that the cards were stacked against property taxpayers who dis- agreed with house values determined by the Municipal Property Tax Assessment Corp. "Historically, the onus was on that person making the allega- tion," says Carl Davis, a partner with Conway Davis Gryski LLP whose practice predominantly involves acting for MPAC. The new rules mark a major departure from other areas of liti- gation. "It's a remarkable devel- opment," Davis says of the appeal board amendment. The changes went into effect Class Actions in Canada Everything you need to successfully initiate, defend or manage a class action lawsuit Cited with approval by the Supreme Court of Canada in the leading class action decision (2001), 205 D.L.R. (4th) 19, [2001] 3 S.C.R. 158 Class Actions in Canada is the leading text and a comprehensive guide to bringing and defending class actions in Canada. Helping you gain the unique skill of successful class action advocacy, this important work provides examples and direction through analysis of hundreds of class action cases litigated across Canada, as well as a comprehensive bibliography of class action articles. This well-organized, easy-to-read text features: • • • • • • practical direction and commentary by an expert in class action litigation guidelines for drafting appropriate class action pleadings expert guidance on the effective use of class actions in different legal areas, such as securities, environmental law and product liability analysis of case law regarding current topics including pre-certification motions, jurisdiction, costs and funding detailed Canada-wide coverage; including the full text of all class action legislation and local rules from across the country analysis of all significant case law in Canada (including Quebec) and the United States ORDER your copy today Looseleaf & binder • $230 • Releases invoiced separately (2-3/yr) P/C 0378030000 • ISSN 1206-2375 for the 2009 property tax year, which means the Assessment Review Board will likely see cases involving the new rules by the fall, Davis notes. But exceptions will apply when property owners refuse to let an MPAC assessor onto their property. In that case, the burden of proof remains with the taxpayer. "If you don't allow discovery, the other side can't do anything anyway," Davis says. For Walker, the new regime evens out the playing field for homeowners since now the onus will be on MPAC assessors to back up their claims on how they came up with a value for the property. While complainants will still need to provide evidence for their case, their job won't be as onerous as before when they had to weed their way through math- ematical formulas presented by assessors as proof they were cor- rect, Walker adds. "Quite frankly, nobody understands what they're doing," he says of MPAC staff. Davis, however, isn't quite sure For a 30-day, no-risk evaluation call: 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. Branch_class actions (LT 1-4x3).indd 1 LT0629 how the rules will play out and who will benefit. "Procedurally, it's screwed up," he says, noting MPAC's evidence won't change, and the taxpayer's duty to poke holes in it will remain. In essence, taxpayers will find themselves in the position of having to challenge a case presented by someone else rather than leading it themselves, a situation Davis believes might put them at a disadvantage. That's because, he 6/24/09 2:41:11 PM Keep up to date on the latest legislation Ontario Municipal Legislation Provides the complete text of the the both Acts. Perfectbound • 838 pp. • April 2009 • Standing order $71 P/C 0809140000 • Current edition only $81 P/C 0809010000 • ISSN 1195-0188 Ontario Planning Legislation This consolidation reflects the changes made during the past year, and includes the completely updated ; a table of contents that lists the subject matter of each section of the Act; a comprehensive subject index that simplifies your research and a page layout that allows you to quickly identify the section you're looking for. Includes 32 regulations! Perfectbound • 306 pp. • May 2009 • Standing order $61 P/C 0812140000 • Current edition only $71 P/C 0812010000 • ISSN 1198-211X , , , plus regulations under . New in this edition are the and . Perfectbound • 760 pp. • May 2009 • Standing order $69 P/C 0836140000 Current edition only $79 P/C 0836010000 • ISSN 1198-3612 Ontario Environmental Legislation This edition includes the (selected sections) , and Ontario Assessment Legislation Included in this edition are and regulations; (selected sections) and regulations; says, whoever initiates the evidence sets the tone for the hearing. "They're in a responsive position," he says, referring to the ratepayers. "There's some- thing magical about what the burden is . . . So who goes first is more important." Walker counters the changes include other important mea- sures that protect taxpayers. They preserve the right of the taxpayer to speak last during closing argu- ments, for example, something that doesn't happen in other proceedings that allow whoever is presenting the case to do so. At the same time, they require MPAC to show that it assessed the property equitably. That means if neighbouring homes are paying only part of their assessed value due to a previous cap on tax increases, the complainant will be entitled to the same rate. Walker, then, believes that if MPAC can't prove its case, the review board will simply take the taxpayers' word on what the property is worth, a number that could involve looking at what they paid for the property. Walker adds the amendments won't do much for commercial and industrial ratepayers that will still face the burden of proving their case for reassessment. But it's in that area lawyers are waiting for an important judgment from the Ontario Divisional Court. The issue is the well-known bank towers' case, in which the owners of Toronto's major finan- cial properties are seeking lower property taxes based on their reading of Ontario's Assessment Act. It stems from an Assessment Review Board ruling upholding the bank towers' arguments, a decision MPAC and the City of Toronto have appealed. The parties, whose representations include Davis and Walker's firm, argued their cases this month. Essentially, the issue came and selected regulations plus several new regulations under the and more. Perfectbound (two volumes) • October 2008 Vol. 1 – 912 pp. Vol. 2 – 592 pp. Standing order $87 • P/C 0800140000 Current edition only $97 • P/C 0800010000 ISSN 1195-163X Visit our web site in July for a 20% discount For a 30-day, no-risk evaluation call: 1.800.263.2037 CA027 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. www.lawtimesnews.com CA027 (LT 1-3x4).indd 1 6/24/09 2:17:02 PM LT0629 down to the meaning of wording in the Assessment Act that defines the current value of a property as "the amount of money the fee simple, if unencumbered, would realize if sold at arm's length by a willing seller to a willing buyer." The bank towers argue that unencumbered means the assess- ment doesn't include the value of its leases to tenants. As a result, they would pay property taxes based on an assumption that the building was vacant, Davis notes. But in allowing the appeal to go forward, Justice Andromache Karakatsanis noted assessing properties as though they were vacant would run counter to the law that requires basing values on their "highest and best use," something that normally would include a building's leases. Davis, who represents MPAC, says the ruling will be signifi- cant since it could affect both the province's and cities' ability to collect commercial property taxes and could cause a shift of the tax burden to the residential class. "If we lose, I think the City of Toronto will be in great dif- ficulty financially, as would the province," he says. LT Multiple copy discounts available 2001 Consulting editor: Quinto M. Annibale City of Toronto Act Municipal Act 2006 Consulting editor: Bruce Engell Planning Act Consulting editors: Jack Allen Walker, Q.C. and Andy Anstett City of Toronto Act, 2006 Assessment Act Legislation Act, 2006 Municipal Affairs Act Education Act Consulting Editor: Dianne Saxe Environmental Protection Act Pesticides Act H W ard Branch ollick v. Toronto (City)

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