Wiens v. The Queen, 88 DTC 6243, [1988] 2 CTC 6 (FCTD)

Reed, J. [Orally]: —1 will deal first with an explanation of my reasons for allowing the evidence with respect to Mr. Bremault's tax assessment to be called. While Mr. McMechan argued that such evidence should not be considered because it was precluded by section 241 of the Tax Act, I do not read section 241 that way. It seems to me that the exemption set out in 241(3) allows the calling of such evidence when it is relevant for the purposes of tax litigation. Even when that evidence relates to the tax assessment of another taxpayer. What is more, I suppose in this case, and what is quite important, is the fact that Mr. Bremault expressly allowed or agreed that that evidence should be called, or could be called.

With respect to Mr. McMechan's argument that the evidence was irrelevant, this is something that I felt could not be determined until the evidence was heard. Had that evidence, for instance, disclosed the existence of other comparables that had not been addressed in the valuation report by Mr. Price, it would have been relevant. Therefore, I entertained it at least in the first instance.

To turn then to the heart of the claim. The plaintiff is alleging that the land was worth $160 an acre on Valuation-Day, and the Department is alleging $115. As I understand your argument, it is based on two grounds. One of those grounds is that Miss McDougall said to you at the time that the assessment was in issue that if you could find another farmer in the region whose land was assessed at the value you were claiming, your land would be reassessed at that level as well.

The second aspect of your argument is as I understand it, really a criticism of the underpinnings of the Department's valuation, Mr. Price’s appraisal report.

With respect to the first argument, I think it is clear from the evidence that while Mr. Bremault's tax assessment may not have been changed, the valuation given to his land was indeed around the same as that given to yours, $115, $116 an acre. The tax assessment was not changed because the buildings were evalued [evaluated] upwards and that led to no change. But the land itself, as I understood the evidence, was valued at approximately the same amount as the plaintiff's, as Mr. Wiens.

With respect to the second aspect of your argument, that Mr. Price's appraisal was inaccurate, unfair. The evidence given by various witnesses, Mr. Carter, Mr. Karlowsky, indicates that while they had personal reasons for selling their land, it could not be concluded, from the basis of that evidence, that they thought or they expected or that they indeed sold their land below market value. Now I suppose it was Mr. Mannesss who was different, but then his land on a per acreage basis was sold at so much less than market value that indeed the evidence he gave corroborates the appraisal of Mr. Price.

The basic problem I have with this case is that the onus is on the plaintiff to prove the value of the land that he asserts. You have to prove the $160 value, or estimated value. And there really has not been put in evidence, in front of me, anything that would lead me or allow me to conclude that that was the value of the land. The Court simply has to have strong, precise evidence.

The plaintiff challenged the appraisal on the ground it did not take into account other comparables which sold for a higher value. The problem I have is that there is really no evidence, before me, that these were true comparables. That almost has to come from a land appraiser and valuator. Mr. Price indicated that some of the alleged comparables, as far as he was aware, were a considerable distance from the subject property, that they were in a different area, in an area where the valuation was higher for reasons of speculation.

But when all is said and done, in order to find for the plaintiff, I have to have some firm, solid, exact, precise evidence that demonstrates to me that the value of the land was $160; that is simply not on the record.

Mr. Wiens indicated at one point that he was sure that if he had spent $1,000 and obtained a land appraiser's report, the same as Mr. Price's, that he could have substantiated his claim that the land was worth $160. That is the kind of evidence a court needs to reach the conclusion that the land was indeed worth $160 an acre. It is not sufficient for a plaintiff to question or to challenge the Department's appraisal. I need the concrete evidence — I have no choice — I need the concrete evidence that would allow me to conclude that $160 was the value. If I do not have that concrete evidence, any court of appeal would oveturn any decision I might make to the contrary because the evidentiary underpinnings simply are not there.

So, unfortunately, in this case I really do not have any choice, and your appeal must be dismissed. And the defendant is entitled to costs.

Appeal dismissed.