Law and the Assessor Ken West, LL.B, J.D., LL.M Partner, Walker Poole Nixon LLP Seneca College September 27, 2012 1:00-3:00 pm
*For Educational Purposes and illustration only, all rights reserved
1
Who am I? Ken West
Memberships and Activities Called to the ON, FL and DC Bars Practice focused on assessment and Vice-President of the Ontario Property property taxation matters for both Tax Lawyers Association (OPTLA) private and public sector clients Canadian Property Tax Association throughout Ontario and Canada (CPTA) Chair of Education and Curriculum Osgoode Hall Law School (LL.M.), Institute of Municipal Assessors Michigan State University (J.D.), University of Ottawa (LL.B.) and Wilfrid (Affiliate) Canadian Bar Association (OBA) Laurier University (B.A) . International Property Tax Institute (IPTI) American Bar Association (ABA) 2
Law and the Assessor 1. Statutory Scheme 1. Taxes vs. Assessment 2. Key Provisions of the Act 2. Statutory interpretation 1. T-C-P (Placer Dome) 3. Obligations of an Assessor 4. Everyone wants to be a Lawyer 1. F-I-R-A-C 2. The Canadian Legal System 3. The Judicial System 4. Administrative Law 5. Assessment Appeals 1. The Assessment Appeal broken down 2. Expert Witnessing v Paralegalling 6. A Run-Down of the Top Assessment Cases (Opinion of the Author)
3
Law affects everything, it touches every aspect of our lives
4
Statutory Scheme 1. The Assessment Act 2. Statutory Valuation a) What are we valuing??? 3. Assessment vs. Taxation 4. Key Provisions •
Ss 3, 18, 40 5
Legal Framework for Assessment The Act has 58 sections; these are the key provisions: Section 3
All Real Property • Exemptions
Section 19.2
Valuation Days
Section 32
Correction of Errors
Section 33
Land Omitted
Section 34
Supplementary Assessments
Section 40
Appeals
6
Statutory Valuation What is being valued? “current value” means, in relation to land, 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; “land”, “real property” and “real estate” include, (a) land covered with water, (b) all trees and underwood growing upon land, (c) all mines, minerals, gas, oil, salt quarries and fossils in and under land, (d) all buildings, or any part of any building, and all structures, machinery and fixtures erected or placed upon, in, over, under or affixed to land, (e) all structures and fixtures erected or placed upon, in, over, under or affixed to a highway, lane or other public communication or water, but not the rolling stock of a transportation system; *Subject to Exemptions from assessment and/or taxation 7
Statutory Interpretation 1. Tax Statutes and the historical starting point a) The Materials 2. Notre Dame a) The Modern Rule 3. Placer Dome a) The Textual, Contextual and Purposive Approach 4. Interpretive Aids, Rules and The Principles of Legislative Drafting
8
Statutory Interpretation Tax Statutes and the Historical Starting Point • Duke of Westminster principle – tax payers entitled to arrange their affairs to minimize tax liability • Strict Interpretation – promotes loopholes • Interpretation based on textual analysis • Rules of construction
9
Statutory Interpretation 1. Notre Dame de Bonsecours a)
The Modern Rule •
Originates with Dreidger
•
Adopted by SCC in Stubart
•
“The words of an Act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament”
•
“The interpretation of the tax legislation should follow the ordinary rules of interpretation…should be given strict or liberal interpretation depending on the purpose of underlying it.”
b) Teleological Approach •
No longer the “Rule”
•
Still informs
10
Statutory Interpretation 1. Placer Dome – Mining Company Hedging Case a)
The Textual, Contextual and Purposive Approach • “Because of the degree of precision and detail characteristic of many tax provisions, a greater emphasis has often been placed on textual interpretation where taxation statutes are concerned. … taxpayers are entitled to rely on the clear meaning of taxation provisions in structuring their affairs. Where the words of a statute are precise and unequivocal, those words will play a dominant role in the interpretive process.” • “Despite this endorsement of the modern approach, the particular nature of tax statutes and the particularities of their often complex structures explain a continuing emphasis on the need to carefully consider the actual words of the [Act] (emphasis added). … Broad considerations of statutory purpose should not be allowed to displace the specific language used by Parliament.”
11
Statutory Interpretation Professional Drafters vs. U.S. Model Rules, guidelines, and other noteworthy items • Ejusdem generis • Expressio unius est exclusio alterius • Aburdity o The legislature is not stupid • Changes • Tautology – No superfluous words -> every word has meaning without redundancy • Dictionaries o Xerox (C.A.) • Same words, same meaning
12
Obligations of an Assessor • • • • • • • • •
Compiling the assessment roll Duty of care Statute and common law duties Legal liability if damage occurs Confidential Negligent misrepresentation Torts and public officials Abuse of Public Office Duty to act judicially o Generally characterized as judicial in nature where it involves discretion, and is likely to result in a decision affecting the rights of people
• Judicial review o Mandamus: compelling an action (requiring a particular action to be done); o Declaration: a binding declaration of the parties’ rights (e.g., certain properties are assessable and certain properties are not assessable) o Centiorari: quashing a decision (declaring the decision to be invalid)
13
Obligations of an Assessor Confidentiality Every person employed by the assessment corporation, a municipality or a school board who in the course of the person’s duties acquires or has access to actual income and expense information on individual properties, and who wilfully discloses or permits to be disclosed any such information to any other person not likewise entitled in the course of the person’s duties to acquire or have access to the information, is guilty of an offence and on conviction is liable to a fine of not more than $2,000, or to imprisonment for a term of not more than six months, or to both. • Can also get Board Order 14
15
Everyone wants to be a lawyer
LAW SCHOOL IN 3 SLIDES Caselaw F-I-R-A-C The Legal System The Judicial System Administrative Law
16
F-I-R-A-C Facts Issue Rule (Ratio) Analysis Conclusion
Caselaw
THIS IS HOW YOU BRIEF A CASE
17
The Legal System -Tiers From OCJ TO SCC The Judicial System Terms: “Precedent”, “Ratio”, “Obiter”, Power from the Constitution Administrative Law - Delegated Power - Decision makers, Quasi-Judicial - Less formal - No less important (Major Impacts)
18
Appeal Procedures Key Dates: • Assessments:
usually around November
• Appeal Deadline:
March 31st
The ARB: • Prehearings and teleconferences – Procedural Rules to streamline the process and ensure “timely” hearing • Productions and Discovery • ADR – Formal/Informal • Hearings o The courtroom o The process from opening statements to closing arguments 19
Assessment Appeals The Tribunal The Assessment Review Board (ELTO) The layout of a Courtroom/Boardroom The Timing and Order of a hearing Stare Decisis What is binding? 20
The Courtroom ADJUDICATOR
WITNESS
COURT REPORTER COUNSEL
COUNSEL
AUDIENCE 21
Appeal
THE PROCESS FROM APPEAL FILING TO A DECISION Direct to
Notice to 3rd Parties
Hearing
Responses of Respondent
Prehearing
Productions
Statement of Issues (Pleadings)
City Process Tax Implications
Undertakings Decision
Appeal Divisional Court
Discovery (In Person)
Appeal Court of Appeal
Appeal Superior Court
Motion
Hearing
22
Assessment Appeals Expert Witnessing Rule 53: Every person employed by the assessment corporation, a municipality or a school board who in the course of the person’s duties acquires or has access to actual income and expense information on individual properties, and who wilfully discloses or permits to be disclosed any such information to any other person not likewise entitled in the course of the person’s duties to acquire or have access to the information, is guilty of an offence and on conviction is liable to a fine of not more than $2,000, or to imprisonment for a term of not more than six months, or to both.
Paralegalling • Providing legal service • Responsibility 23
A Run-Down of the Top Assessment Cases Methods • Montreal v. Sun Life Assurance Co. of Canada Income Approach • A Merkur & Sons Ltd. v. Ontario, (1977), 17 O.R. (2d) 339, Revised, 91 D.L.R. (3d) 764 • Cardinal Plaza v. R.A.C., (1985), 15 D.L.R. (4th) 156 Highest and Best Use • Ontario Jockey Club Equity • Vancouver Assessor, Area No. 9 v. Bramalea Ltd. • Chrysler Canada Inc. et al v. MPAC et al Assessable Interests • BCE Place Limited et al. v. MPAC et al (C.A.) • Carson’s Camp Classification • Enbridge
24
A Run-Down of the Top Assessment Cases Definition of Building/Structure • Nabisco Brands v. Regional Assessment Commissioner Fixtures • Northern Broadcasting • Carson’s Camp Cost Approach • Dominion Bridge Co. v. Mississauga, (1974) 45 D.L.R. (3d) 38 Sales Comparable Approach • Samson v. MPAC • Campeau Developments Ltd. v. Ontario Regional Assessment Commissioner, No. 29, (1982) 144 D.L.R. (3d) 632 • Regional Assessment Commissioner v. Nesse Holdings Ltd., (1984) 47 O.R. (2d) 766 Interpretation • Xerox of Canada Ltd. v. Ontario Regional Assessment Commissioner • Placer Dome Canada Ltd. v. Ontario (Minister of Finance)
25
A Run-Down of the Top Assessment Cases Sun Life v. Montreal Xerox of Canada Ltd. v. Ontario Regional Assessment Commissioner Placer Dome Canada Ltd. v. Ontario (Minister of Finance) Montreal v. Sun Life Assurance Co. of Canada Vancouver Assessor, Area No. 9 v. Bramalea Ltd. Chrysler Canada Inc. et al. v. MPAC et al BCE Place Limited et al v. MPAC et al. (C.A.) Nabisco Northern Broadcasting Enbridge Carson’s Camp Ontario Jockey Club
26
What else can I offer? KISS Principle Plain English Courtesy and Respect goes a long way • It is a small world and an even smaller industry, it does not pay to be a jerk
27
Summary
• Questions?
28
29