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HomeMy WebLinkAbout1988-0999.Barrows et al.91-09-23 ONTARIO EMPLOYES DE LA COURONNE CROWNEMPLOYEES DECONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M50 1Z8 TELEPHONE/TELEPHONE: (416) 326-088 180, RUE DUNDAS QUEST, BUREAU 2100, TORONTO (ONTARIO). M5G 1Z8 FACSIMILE/TELECOPIE: (416) 326-1396 999/88, 1861/89, 1863/89, 1953/89, 889/90, 890/90 1163/90, 1999/90, 2098/90, 2300/90, 2346/90, 2397/90, 2551/90, 2561/90, 2562/90, 2563/89, 2564/90, 2598/90, 2599/90, 2600/90, 2601/90, 2602/90, 2603/90, 2604/90, 2605/90, 2606/90, 2607/90, 2608/90, 2656/90, 2753/90, 253/91, 346/91, 347/91, 528/91, 677/91, 684/91, 746/91 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Barrows et al) Grievor - and - The Crown in Right of Ontario (Ministry of Revenue) Employer BEFORE: T. Wilson Vice-Chairperson I. Freedman Member A. Merritt Member FOR THE R. Wells GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE P. Young EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING April 27, 28, 1989 June 7, 1989 September 26, 1989 October 4, 18, 19, 1989 November 29, 1989 December 19, 1989 January 15, 24, 1990 April 9, 1990 Z DECISION Forty - five classification grievances by property assessors from the Ottawa area were placed before the Board on the first day of hearing. During the early stages of the hearing, the parties and the Board agreed that the Board would first hear four particular grievors currently classified at the Property Assessor 3 1 level but that they were not to be considered as representative grievors. Those grievors are Richard Kubisewsky, Robert Beard, Lois McNamara, and Don Maggs. After a decision has been rendered by the Board on those four grievances, the parties are to decide the next step in handling the other grievances. This decision is therefore with respect to those four Grievors. To grasp the principal basis of the grievances before us, it is necessary to know that a major change occurred in the work of Property Assessors in the 1977-78 period. In that time frame, the Property Assessor 3s were assigned specific neighbourhoods; i.e. they became Neighbourhood Assessors. Prior to that time as Property Assessors, they each worked as part of a team. The thrust of the Union's argument is that the Class Standard for Property Assessor 3 does not, however, reflect the four Grievors' work as Neighbourhood Assessors. The Ministry does not agree with that Union position. The evidence showed that before the introduction of the neighbourhood approach, the Property Assessor 3 would have a specific function, such as residential only assessment. He would in such case, for example, measure the houses and the garages to 1 During the hearing, there was a dispute between Counsel about whether to refer to the property assessors by their contested classifications. At times during the Decision it is necessary in order to avoid awkwardness of expression to refer to various property assessors by their contested current classifications. That in itself does not indicate that their contested classifications are necessarily correct. r 3 determine their square footage; whatever was assessable. A Property Assessor 3 might be assigned to residential, commercial, industrial, farm or special exemption assessment. As Jacques Laflamme, Evaluation Manager in Ottawa testified, it was an assembly line approach. With the neighbourhood assessment approach, however, the assessor assesses all property types in the neighbourhood. In cross-examination, Mr. LaFlamme agreed with Union Counsel that in the pre-neighbourhood assessment days, the figures collected by the Property Assessor 3, such as measurements on houses would be sent to the office for someone else to evaluate. No individual property assessor was specifically responsible for the final assessed value. In a Memorandum (Exhibit 8) dated June 15, 1977 from P.G. Gillis, Executive Director, Assessment Division, Ministry of Revenue, to the Assessment Staff of the Ministry, re Geographic Reorganization, the proposed new neighbourhood assessment organization is explained. At page 8 with respect to Neighbourhood Assessor, Mr. Gillis writes: The Neighbourhood Assessor will perform the valuation activities associated with a neighbourhood of approximately 2,500 properties and will provide reassessments every two years at market value for all properties in that neighbourhood. In order to perform all the functions assigned to the neighbourhood assessor, the assessor will require the following skills and knowledge. He should be able to apply the three valuation approaches for all properties within his jurisdiction. He must be aware of all policies and directives plus normal legislative requirements regarding the assessment of properties in his neighbourhood. He should be able to interpret deeds, income/expense statement, maps, registered plans and legal property descriptions. He should be trained in coding so that he is able to make the necessary changes to documents for computer input. To this end, he will be responsible for the following functions: data collection, maintenance, administration, communication, and valuation. We will see in the review of the testimony to what extent these changes were implemented. It would be appropriate at this point to set out the Class Standards upon 4 which these duties were at the time of the four grievances classified. CLASS STANDARD: 01880-86 PREAMBLE PROPERTY ASSESSOR CLASS SERIES These classes cover positions of employees who are responsible for the valuation of real property for taxation purposes e.g. municipal tax, succession duty. Duties involved in carrying out this responsibility include the searching out of taxable properties, and the application of valuation techniques, such as: cost, income capitalization, and comparative sales methods. Employees prepare property descriptions as required, including property measurements and ratings. The series also covers positions of employees carrying out more specialized functions, such as: the developments and maintenance of valuation standards and benchmarks, the review and up-dating of regulations and procedures, the maintenance of quality control programmes, and the development of training courses for assessors. ALLOCATION CRITERIA: The primary allocation factor in "field" positions is the complexity of the valuation work being carried out; in other positions, the impact of the work on the total programme is also considered in determining class levels. (Property Assessor 1 & 2 omitted) 01884 PROPERTY ASSESSOR 3 This class covers positions of those employees who are qualified appraisers/assessors engaged in the valuation of all types of property. They must be able to justify their valuations and may be compelled to appear before the various appeal tribunals. They may be senior members of "work units" which value properties subject to normal market forces. Under minimum supervision they analyze market data as it applies to individual properties for valuation purposes: They are responsible for giving advice and guidance to 5 juniors on technical decisions of consequence, referring only problems of a contentious nature or those involving policy interpretations to their supervisor. They may also work in "units" engaged in the appraisal/assessment of complex or unique properties that are not subject to normal market forces, i.e. adequate sales, income or cost information on which to apply standard valuation procedures. They are expected to simulate a market in order to estimate the value of property location or estimate a depreciated replacement cost for the structure. This class also covers positions of employees engaged in assessment research and development of limited complexity. These employees formulate conclusions as a result of the collection and analysis of data. They prepare lesson material for training programmes, conduct seminars, evaluate assignments, assist in the preparation of Branch manuals and publications, and assist in the review of legislation and appeal decisions in order to ascertain relevance of to the Assessment Division. In addition, they may on occasion obtain from or provide information to persons in project planning. Clerical staff may be supervised. Work procedures are defined in the form of specific objectives; guidelines are provided concerning the collection of data. Employees work under direction of a.project leader with assignments reviewed for validity of conclusions and soundness of judgement. 01886 PROPERTY ASSESSOR 4 This class covers positions of employees who are responsible for valuations of large, complex, specialized or unique properties. They establish the techniques to be employed and co-ordinate the activities of a team of subordinate appraisers/assessors engaged in such specialized valuation work. Incumbents must ensure proper training and development of subordinate staff. In other positions, employees are responsible for valuations on all types of properties to be used in establishing benchmark or model property valuations. In addition properties are valued as part of a programme for monitoring the quality and level of valuations. Market factors are analyzed in order that comparative sales may be used to effectively arrive at assessment values. In other positions, employees assist in the development and application of a quality control programme to ensure an equitable and standardized approach to valuation of real property throughout the Province. In addition, employees 6 in this class may assist in monitoring the various valuation programmes for each class of property to ensure that all properties are valued according to established policy and legislative requirements. Assignments are outlined in broad terms with technical advice given only on the most complex problems. These employees know the prescribed valuation methodology, policy objectives and procedural routines and carry their work through to completion with a minimum of direct supervision. They must be able to justify their valuations and may be compelled to appear before the various appeal tribunals. This is also the full working level for employees engaged in assessment research and development. Minimal technical guidance is required and only questions of policy interpretation are referred to Senior Staff. Employees allocated to positions at this level assist in the planning of projects and the evaluation of results; they prepare reports and memoranda for Senior Staff, lecture at in-service training schools, prepare Branch manuals and publications and review legislation and court decisions. In addition contacts with Regional Office staff and persons outside the Division are extensive with respect to technical matters. Technical guidance may also be given to junior staff. Assistance is provided to senior staff in the drafting of project proposals and statements of objectives. Work is reviewed for soundness of judgement and satisfactory attainment of objectives. Revised November 1, 1973 At this point, I have not set out the Class Standard for Property Assessor 2 although reference to some parts of it will be made later. The first grievor to testify was Richard Kubisewsky. He is assigned to Neighbourhood 603 which is in downtown Ottawa bounded on the east by the Rideau Canal, Summerset Street on the north, Lyon Street on the west and the Queensway on the sovith. Bank Street runs through the centre of his neighbourhood. He produced a list of property distributions for Neighbourhood 603 (Exhibit 5). It listed vacant land, many types of residential properties ranging from single detached houses through duplexes, to sixplexes, row housing, multi-residential, office buildings and various commercial buildings, institutional and special purpose buildings, government buildings and industrial properties. He testified that normally he would get little assistance from other Property Assessor 3's unless there was a special work load. Prior to a reassessment year, they have to do an inspection. It is customary to do a blitz in a neighbourhood as a group so that there is some assistance. Each assessor would do individual houses. The Property Assessors 4 would be involved only for determining market values for some properties such as offices and multi-residential buildings (more than six units). The rest Kubisewsky would do himself, that is primarily residential, commercial, industrial and special exemptions. In non-assessment years, he would do all the updates. There are three approaches to valuation: 1. comparative sales approach, 2. cost approach and 3. income approach. He gave examples of various properties that raised special problems with respect to assessment: equity co-operative housing which is not registered as a condominium but where the tenants own a share of the entire buildings, another one for which shares were listed on the Toronto Stock Exchange, taverns where value is based on profit (for which the capitalization approach is used), commercial condominiums (for which the cost approach applies), similarly a police station, renovated old houses, changed use buildings such as old homes renovated and converted to doctor's offices (a simulated market would be created). Kubisewsky was also assigned outside his neighbourhood in 1988 to assess Holland Cross, a large development containing two apartment buildings (condominiums), two office towers, a retail shopping concourse and two levels of underground parking. He worked 20 working days over a period of four months on this project. He testified that he did the entire project by himself. The condominiums were perhaps the most difficult part of this project. At the time of the 8 assessment they were still waiting to be registered, were being offered for sale but the sales analysis was not possible because they were not yet registered. There were 260 units in two towers with 47 model suites. To set market value, it was necessary to use neighbouring comparable properties and to make adjustments for various factors such as view (northside, southside, river, Gatineau Hills) height, and room lay-out. Only brochures were available and some of the condominium units would be upgraded and prices were negotiable. Neither an income nor cost approach was feasible. With respect to the retail shopping concourse, the assessed value depended on the ability to rent out retail suites. During the course of the assessing, 15-16 of the 64 suites were occupied. Information was difficult to obtain and it was necessary to get information from the tenants. The 15 leases were not indicative of the value in the area and there had to be some way of comparing with 1980. Due to the fact that most of the office workers who constituted the bulk of the shoppers were not present on week-ends, he had to compensate for absence of week-end shoppers. Similarly with the office tower itself there was only one lease for 180,000 square feet and there were no immediate properties that were comparable. Furthermore, the offices were not finished internally so an allowance had to be made for that. The parking area was being sold separately from the condominiums and certain percentages were also provided for visitors and office workers. The whole thing was being run by the Parking Authority under lease. He used an income approach for those already being used and a market approach for those to be sold to the purchasers of condominiums. He prepared the work himself formulating the estimate of market value. All Ministry guidelines were used and only approved rates were used. The estimate was then given to his manager. Another type of special project that Mr. Kubisewski assesses is the gallonage hotel. 9 These hotels are identifiable by the type of licence they have from the LLBO. They are found throughout the assessment region. The actual evaluation is based on actual sales, costs and allowable deductions. In fact, all three methods of evaluation are used. Furthermore, he does not use just one year. In Nepean, 1975 is used as the base year; in Ottawa, 1980. Once the house profit is determined, he then uses a capitalization rate supported by the other two approaches. The reason for this complexity is the enormous variation in these hotels. The class standard refers to the Property Assessor 3 as being a member of "work units". Mr. Kubisewsky testified that while there is help available in the Assessment office and he does have the benefit of staff members the ultimate responsibility falls on his shoulders as the Neighbourhood Assessor. An example given of property not subject to the normal market forces and for which comparable sales were not available were equity co-operatives. As Neighbourhood Assessor, he would prepare the analysis himself and it must be approved by his manager. The Senior Property Assessors (Property Assessors 4) are not involved in such properties. The policies and procedures for evaluating them are in place. The class standard for Property Assessor 4 provides: In other positions, employees are responsible for valuations on all types of properties to be used in establishing benchmark or model property valuations. In addition properties are valued as part of a programme for monitoring the quality and level of valuations. This provision became a matter of serious dispute during the hearing. Mr. Kubisewsky testified that to him benchmark refers to a typical property at a given time: for example to establish the 1980 Market value, he needs a 1980 bench mark property, preferably one sold in 1980. He testified: "It illustrates what one would have expected 10 a property to look like in 1980 sales. It varies from one neighbourhood to another. There may be a neighbourhood model property." Every Neighbourhood Assessor is required to maintain a list of representative properties that have been sold and that can therefore be referred to. He produced in evidence his own list for Neighbourhood 603 (Exhibit 9). Such benchmarks are required of a Neighbourhood Assessor for residential properties; (See Exhibit 36 for Benchmark Program). He personally has also kept such a list for commercial properties. An example for residential property given by this witness was 45 McLeod Street. He would have gone to the property and found out what were the factors at the time of sale. Having satisfied himself that the sale was an arms-length' transaction, he could then use that property as a benchmark property. He then had to estimate the market value from that sales price using the Ministry manual; more will be said about this manual below. Attached to his list of benchmark properties is a table of comparison properties. In the exhibit, he was able to point out both renovated and unrenovated buildings. There is a comparison table for each bench mark. Each bench mark had a sale and a comparison has been made by the witness for each one. In his opinion, as is set out in the Class Standard for a PA 4: "...properties are valued as part of a programme for monitoring the quality and level of valuations" , i.e., all market value established by the assessor is subject to quality control; at least 75% of properties sold are assessed within ± 10% of the prices paid. The witness produced a chart which he had prepared in 1987 called a Frequency Distribution Analysis Sheet in which he had plotted residential properties which showed that the sales" prices of 88% of those properties were within ± 10% of estimated market value for the sales period 1980 ± four ' i.e. one made at true market value between a bona fide vendor and a bona fide purchaser each trying to get the best price. 11 months. He also prepared what is called a histogram: it is a display of the ratios between 1980 market price values paid and the estimated market value. Exhibit 19 was the histogram for Neighbourhood 503 and is attached as Appendix "A". As long as at least 75% of the properties fall within ± 10 of the ratio, his assessments are all right. He has never prepared a histogram for commercial properties. There are quality assurance controls for all sorts of properties as for example multi-residential properties (more than six dwelling units), but these are not assessed by the witness unless specifically involved in the team but he does get the results. There are 102 multi-residential properties in his Neighbourhood but their assessment is normally done by a group of assessors. In 1987, the base year for assessment was changed to 1980. At that time Mr. Kubisewsky was also assigned outside his Neighbourhood, generally to develop market values for commercial properties. He would work alone or as part of a group; a group would usually consist of five or six assessors, primarily P.A.3's and one P.A. 4 who acts in a supervisory capacity. In his own Neighbourhood, he was the only assessor for commercial properties excluding office buildings, which he does not do. A P.A.4 did the assessment of the office buildings. That was in 1985/6 : the market values were then put in place in 1987 as the new revised estimates for the 1987 tax year. The previous base year had been established for 1980 and were done in 1977/8 using a 1975 base year. That had remained the base year until the 1985/6 assessment work. Mr. Kubisewsky also prepared a Land Residual Analysis (Exhibit 12). It is a land value table for his neighbourhood for residential properties containing one to six dwelling units. Using the 1980 sales prices in arms-length transactions he apportioned the value between the land and the building. As Neighbourhood Assessor he decided the appropriate method for determining the residual land value i.e. per square foot or per front foot with 12 adjustments for depth. Using his table, any assessor can determine the residual value of the lot. Adjustments were made under comments on the table for such things as traffic allowance, any neighbouring nuisances such as a 'hamburger joint' or for view. He included a graph on which he plotted the sales against the frontage and this enables him to read the amount to be applied to each increment of front footage. He also prepared a table of the properties which also shows the lot depths. Tables like this are also prepared in the other neighbourhoods. In cross-examination, Kubisewsky agreed that the Senior Assessors are not generally assigned to neighbourhoods, but have areas of specialty. For example, Tate does multi- residential, nursing and retirement homes. Exhibit 13 sets out the various expertises of Senior Assessors, but this witness could not testify as to whether those responsibilities were regionwide. Nor was he able to confirm that those specialized matters were the only matters they did. When asked about complexity of properties he assessed, Kubisewsky testified that complexity is nowhere defined and mere size of a property does not determine whether a property is "complex". He agreed with Counsel that P.A.4s do benchmarks for properties other than residential and testified that on his own he did benchmarks for properties he needs to evaluate. He has worked on projects such as gallonage hotels outside his neighbourhood under Steve McKenzie, who was either a P.A.4. or a manager. With respect to Holland Cross, this witness gave his findings to the Senior Assessor Larry Roy, but he testified that he did his consulting with the Valuation Manager LaFlamme. Although he did consult with Roy on the parking garage, he did not follow his advice because he was aware of some factors that Roy was not. With respect to the various tables such as fair market rent tables and vacancy allowance rates, they are established for each municipality and they are established by P.A. 4s. He testified that the 13 preparation of histograms is logged under quality control. With respect to appeals relating to properties in his neighbourhood, he prepares the case; the P.A. 4 might conduct the actual case. In re-examination, he testified that he spends about 30% of his time on maintenance of rolls. This includes new assessments. In 1988 although there were a lot of tribunal appearances, he spent 50% of his time on maintenance of rolls. It includes collecting data and update of functions. If he does work in some else's neighbourhood, he will consult with the Neighbourhood Assessor for that neighbourhood because a number of adjustments may be required and that Neighbourhood Assessor would know them. Robert Baird has been a property assessor since 1969 when he was first hired by the Regional Municipality. In 1970, property assessing was assumed by the province and he became a P.A.1 trainee with the province. In 1972, he was promoted to P.A.3. In 1976, he was given Area 502 when the neighbour assessment system was instituted; in 1982, he was assigned Area 503 and in February 1988 was assigned to Area 508. The Counsel agreed at the hearing that although this Grievor was currently assigned to Area 508, the evidence would be in relation to what he has done wherever that might be. Area 503 is a part of downtown Ottawa bounded on the north by Clarence, on the south by approximately Laurier, on the east by the Rideau River and on the west by a municipal park: it is the lower town area. It is a high density commercially zoned area containing the Rideau Centre south of Rideau Street which runs through the middle of the area. It is interspersed with some residential buildings of the 1910-20 period and some multi- residential and institutional buildings. It also contains the Byward Market. Some of the property in Area # 503 was assessed by a Senior Assessor: any of the office buildings, motels or hotels. They also participated in the assessment of Rideau Centre and the 14 Neighbourhood Shopping Centre (Property Code 430). And they also participated in assessing government buildings. Rideau Centre is a 200 hundred plus store retail mall with an eight storey office, a 20 storey hotel (Westin), Canada's Capital Congress Centre, a provincial building, a 250,000 square foot Eaton's store, an eight theatre Cineplex and 1,500 parking spots above and below ground. It is linked by skywalk to The Bay department store and Olgivie's annex. Three Senior Assessors were involved; they were responsible for Eaton's, the Westin Hotel, Cineplex and the Congress Centre. The rest of the assessing was done by the Grievor Baird with some direction by a Senior Assessor, Vick Melski, who helped with procedures on assessing the retail mall, and the three level Centre area. The witness stated that this was the most complex assessing he has ever done. He would rate it with the top five in the region. The Grievor was himself ultimately responsible for the retail mall component of the Centre. There he had to get rental information from the owners, analyze it as to location within the area and store size. Working with a large floor plan and an individual survey of individual stores, he had to put them on a graph and establish fair market rent. He had to make an analysis for location allowance; for example in a fast food area where the units were small he had to increase 80% per square foot. He could not just use the rent set out in the leases because there must be an average rent per foot for each equivalent retail space for assessment purposes. He also had to provide for the level of quality of finish. There is a finishing cost table. That is then converted to rental value and added to the base rent. He also assessed the Metropolitan Store complex which is inside the mall and which was converted into retail space. The Grievor did the assessment for The Hudson Bay addition which is the right-hand part of The Bay. Then he had to apportion the land to each component and add in the building values, and have 15 it entered on the rolls. There were meetings with the owners before putting on the final values. Present at these meetings representing the Ministry were the Grievor, Melski (a Senior Assessor) and Falkena, the Grievor's Manager. Some of the buildings are owned by the Complex, others by individual occupants. He worked on this over six months. There was on-going assessment as various retail spaces expanded and contracted in size. The Grievor, Baird testified that the Byward Market is behind the Bay Store and was originally a farmer's market. Now, it is like Yorkville in Toronto.' Property values increased between 1978-1989. This witness did the valuation of the buildings and a Senior Assessor did the land values. There was some in-fill building and there were some minor adjustments to the land value for large parcels of land. This was necessary because there were 16 foot lots and narrow lots tend to inflate the rates. He explained to his manager the adjustments he had made. Next he gave evidence on Area 508, which is the southeast portion of the Ottawa boundaries: it contains industrial parks and is primarily industrial with some residential pockets and some commercial areas. The Senior Assessors would have done the majority of the office buildings (Code 400); the Property Distribution List (Exhibit 18) indicates that there are nine office buildings. When asked about complex properties, he pointed out Code 575: Industrial Condominiums of which there are 132. They create their own market and for valuing them, he uses two approaches: market and cost. There is already a land value established by the market approach, but when the property becomes a condominium that value doubles or triples. The cost approach is used on the valuing of the building and the interior finishing. He stated that seven to eight involved new assessments and because '. Since this Vice-Chair lives in Toronto and is at least familiar with Yorkville, I would assume the reference is to a kind of artsy, trendy, upscale area. 16 of time problems other P.A.3s work on them. The one the witness did took two weeks: it was a new industrial condominium with five new individual buildings containing 53 units. He also assessed the Minto Arena which was a new building. This was something new for the witness: he used an in-place cost or quantitative survey approach, plus some individual cost approach methods. Although there are no others like it in Ottawa- (it has three ice surfaces) - there are other sport complexes. It has an olympic size arena, a commercial hockey arena and a studio arena. This Grievor explained his use of bench marks as being to establish sample or ideal market value for comparison to other properties. Basically he uses them for residential properties. They are also used for office buildings with the whole city as the reference point, but those are done by the P.A.4's. With respect to residential bench marks, he prepared them for Area 503 and his predecessor in 508 did them for 508. The witness also prepared a histogram for Area 503 to check the resulting market values, as set by the assessor by comparison with the sales values of the properties. The histogram prepared for January, 1987, was filed as Exhibit 19. He also developed rental tables for January, 1987, the reason being that he has to apportion retail space using fair market rents. To prepare this table, he had to obtain the figures from owners of rental property. Since the building assessment is returned on a cost approach, these figures are only used to apportion for the units in the building. With respect to quality control, the witness explained that as a neighbourhood assessor, he does the residential portion of the s. 55 program to analyze sales annually.' He checks to see that each transaction is a bona fide ' The reference here is to s. 55 of the Assessment Act which provides as follows: 55.-(1) The Ministry shall examine the amounts of the assessments of rateable property in each municipality and locality on the last returnable assessment roll of each municipality and locality and determine as nearly as may be what the total of the amounts of the assessment of each rateable property should be so that costs may 17 arms-length transaction. He also works on analysis of market factors such as traffic allowances and whether a property backs onto parkland when establishing residential land values. He produced in evidence a 1980 Land Residual Summary for Area 503 showing a 35% traffic and location allowance for Rideau Street near Cummings Bridge because the frontages are shorter as the road nears the bridge. Such summaries are prepared for all the areas in the neighbourhood. The Grievor, Baird, testified with respect to the Class Standard for the Property Assessor 4, looking at the first sentence of the fourth paragraph, that their own assignments are normally outlined in broad terms. Within the neighbourhood, the Neighbourhood Assessor initiates his own workload and then sometimes asks for technical advice such as procedures in certain complexes where the assessor is looking for comparables from another assessor who has done it before such as another Neighbourhood Assessor, a Senior Assessor or the Manager. In the second sentence, "the prescribed valuation methodology" refers to the approaches to valuing different types of properties, i.e. the three types of valuations and with respect to "policy objectives" he explained that they have a manual which sets out policies and procedures to assess different properties. His supervision is the responsibility of his Manager and as he explained: " It is not an overly abundant amount; I work at my own pace." This witness has appeared before tribunals. When he has assessed a building, normally the assessment is placed on the rolls without going through anyone else. In cross-examination, he testified that the policy dictates which of the three be apportioned and grants provided on a basis which is just and equitable as between municipalities and localities. s Comparative Sales Approach, Cost Approach and Income Approach 18 approaches to use- (see: FN 4), but he has some decision-making to do in some cases. When.they work in teams headed by a Senior Assessor, the Senior Assessor decides which approach to use. The witness was able to identify Valuation Guidelines -1980 Base Year Commercial Strip Properties shown to him by the Ministry Counsel (Exhibit 23). He stated that it was like other types of guidelines. He stated that a team developed one in the multi-residential sector but he was not on that particular team. With respect to the Guidelines, he agreed that the term "techniques" does refer to the rates and tables rather than the three approaches mentioned by him in his examination-in-chief. With respect to amount of time he has to spend keeping up on all the sales in his area, his estimate was about half of his time. He agreed that he does benchmarks only for residential properties and that benchmarks for other types are done by Senior Assessors. He also admitted that the histograms are used infrequently, the last time being three or four years ago. He also accepted that s. 55 does not relate to quality control. He also accepted that there were guidelines for the Residential Land Residuals (Exhibit 25); adjustments deviating from these would need to be approved by the Manager. In re-examination, the Grievor testified that he prepared the tables in Exhibit 20 to break down the range for retail floor rental into a narrower range in order to deal with the properties in Area 503 from the tables provided in the Valuation Guidelines for the whole Ottawa-Carlton Region (Exhibit 23). Lois McNamara is the Neighbourhood Assessor for Neighbourhood 204 in the City of Gloucester in the Ottawa-Carleton Region to which she has been assigned since 1977. She described it as follows: there are three distinct neighbourhoods of residential properties, two of these consisting of standard middle class single family dwellings and the third of luxury type housing. There are three main streets with commercial properties of both strip and plaza types. There is a general mixture of office and retail properties and 19 some concentrated highrise. She testified that she does not do the assessments for shopping centres of which the property inventory shows (Exhibit 27) there are nine. Gloucester has had three sets of market value reassessment since she has been assigned to it: 1975, 1980 and 1984. The 1975 assessment was prepared during the 70s and put into place in 1981. The 1980 analysis was done in 1982-3 but was rejected by the City Council. The 1984 analysis was done in 1986/7/8 and again likewise rejected by City Council so that the 1975 assessment still is used for valuation. Mrs. McNamara did the market value reassessments for most shopping centres for 1975 and 1980 but not for 1984: that year, they were done by a Senior Assessor and his crew.' She also is called on to do work outside her own neighbourhood: she estimated in that in the 1986-87 period it was about 40-50% and in 1988 about 3040% of her time. For the 1984 assessment, she established fair market rent tables and for 1980 did the same for Gloucester. These were for multi-residentials in order to determine actual values to be apportioned among the tenants. The results were reported to the manager. In Vanier, the same type of tables were done by Paul Tate, a Senior Assessor. She estimated that to do the tables in the 1986-7 period she spent between six and nine months. She used the tables for 1.980 and 1984 reassessments of multi-residential. She also did the values for all the properties in Gloucester for 1980 base year. Paul Tate did the values for the multi-residential for the 1984 reassessment. A Quality Control Officer from the Special Property Branch in the Provincial Headquarters came to Ottawa and audited the tables. She wrote a memorandum on multi-residential valuation for Vanier and Gloucester. As a result, Mrs. McNamara evaluated the effect of these proposals on the tables and on the actual properties. She then made some changes in both the original tables and in the values that Tate had assigned ' The witness identified this person as Tomkins. 20 to such properties in Gloucester. Cumberland was done in 1988. Since it is more of a farming community, fair market tables were not used but rather a cost approach. This Grievor also put together the .multi-residential land value tables for 1980 and 1984 for Gloucester citywide, which is a separate function from assigning rental values. These are used for any vacant land zoned for multi-residential use and in the cost approach which was used as a back-up for the 1984 market values. She also prepared similar tables for Cumberland for 1984. She has also prepared land value tables for other types of residential properties and commercial properties. With respect to bench marks for multi-residential properties, the Grievor's evidence was that once a property sells, it is automatically used for establishing rents by way of comparison for other properties sold during the relevant assessment year. Over a number of years, she has examined such properties including sale investigation, income collection and expense collection. With knowledge of the actual income at the time of the sale, she is able to calculate the gross income multiplier i.e. the relationship of actual sale price to income.' She did this throughout Gloucester as requested by her manager. It is then used in establishing rents for the properties and shows whether a sale price was an arms-length transaction. Since copies of all land transfer documents are received by the office, every sale is known to the office. With respect to bench marks, this Grievor testified that they refer to them as Models. In her neighbourhood, she establishes the model values. On occasion, she has done it outside her neighbourhood as for example in Cumberland in 1984 for condominiums. She has also done some sale collection and prepared an overall sheet for commercial and industrial properties. As part of residential quality control, this Grievor received a memorandum dated ' i.e. a somewhat similar concept to that of price/earnings ratio. 21 January 27, 1983 (Exhibit 32) instructing staff on the quality assurance procedures that had to be completed by each neighbourhood assessor for his/her area before the land value tables could be given final approval. This required the preparation of a histogram and a Frequency Distribution Analysis Sheet. In addition to these procedures from time to time someone would come from Head Office to check but since 1987 there has been a Quality Assurance manager in the office. With respect to commercial land values, this Grievor did them for 1975 and 1980 but for 1984 they were done by a P.A.4 (Rob Lindsay). She does not have any set figures for obsolescence. She makes own values according to what she finds. In cross-examination, she testified that in most cases the approach to value is predetermined by either policy or the Manager. She has always had a PA 4 as a senior assessor. She agreed that there have been only 10 valid multi-residential sales in Gloucester between 1983-88. She agreed with Ministry Counsel that it is not a major part of her work and also looking at the log, that quality control is just incidental to her work. Most would be the day-to-day function of maintenance comparing to other properties. In fact, she agreed that the majority of her work as a Neighbourhood Assessor was maintenance of rolls. She did do shopping centres and office buildings for 1975 and 1980. When asked how much time she would spend doing bench marks, quality control, fair market rent tables and GIMs, she estimated for 1989, less than 1% but for 1987 30-40%. In re-examination, she estimated that in preparing the 1984 fair market rent tables for multi-residential, she examined 30 some odd properties. The fourth Grievor to give evidence was Don Maggs. His Neighbourhood is 205 which is also part of Gloucester and east of Ottawa. For 1980, there were 2080 rateable properties of which 1823 were residential and he estimated that over 1800 were single 22 family residential. At that time that constituted 10.5% of the rateable residential properties in the City of Gloucester. By 1989, that figure had increased to 7192 or 27.2% which gives a picture of the growth involved in his neighbourhood. He did the initial assessments for all these new subdivisions. In 1989 he had six multi-residential properties, 23 commercial, one farm and 793 vacant properties. For the 1984 base year, he did not do the assessment for the multi-residentials, the commercial or the commercial and industrial vacant land. Also he did not do the assessment for the development land, i.e. land zoned for residential or hold for residential. The shopping centres were assessed by Jacques Castonguay who is also a P.A. 3. It was Lois McNamara who did the six multi- residentials. The Grievor, Maggs, testified that maintaining and adding to the rolls for new residential, not including multi-residential, would take " pretty well all my time if not interrupted by special projects". In 1988, however, he spent 45 working days outside his neighbourhood. The reason for this was that his manager was also responsible for Cumberland Township which in 1988 returned a new return year; as a result of that assessors were seconded to Cumberland. Prior to 1983 when his neighbourhood became busy he was out of his neighbourhood frequently, but after that with the exception of 1988, he normally spent only about 22 working days a year in other areas. He has books of model homes for each subdivision. He makes up an appraisal card and fills it out with a drawing. If the developer changes the model name or makes some change in the model, he then makes up another card. At the time of the hearing there were about four or five active builders. Back a couple of years before that there were seven or eight and back even further there were as many as another 11; some of these were small. Even when the model is changed, he continues to use his model book for comparison 23 purposes. He has also prepared Frequency Distribution Analysis tables and more recently this has been replaced with a computer analysis. The Guidelines set out in Exhibit 25 did not apply to his neighbourhood; he has to make up his own based on sales analysis with respect to factors such as the effect of ravines. The Ministry's first witness was Jacques LaFlamme, the Evaluation Manager in the City of Ottawa for all the 600 series areas; i.e. the area including Centretown west to the city limits.8 This includes 12 neighbourhood assessment areas. He has held this position since October, 1984, and has been with the Ministry since 1970 when he began as a P.A. 1 and then progressed through various positions to his present position. He described the duties of the Ottawa office as primarily one of maintenance of rolls; in addition it does enumeration, s.55 equalization factors and reassessment whenever needed or requested. His testimony with respect to the change from the functional to the neighbourhood approach is examined at the beginning of this decision. When this was introduced, the P.A.4's were assigned neighbourhoods but today in Ottawa, only one of the ten Senior Assessors has a neighbourhood (i.e. Larry Roy). This change occurred about 1980. With respect to the Grievor Kubisewsky whose neighbourhood is in this witness's territory, he estimated that he spends on average more than half his time on maintenance of rolls. He reviewed the Assessor Activity Log a copy of which is annexed as Appendix B. This sets out the way in which the work of the Assessor is recorded. With respect to court appearances he estimated that in a year following reassessment, this could amount to as much as six weeks, but in a normal year would be about two weeks a year. For the Grievor Kubisewsky he estimated in 1987 it would have been about 25-30% of his time. He further testified that less than 1% of the properties in Exhibit 5 (Neighbourhood # 603) 8 See: page 3 supra 24 would be complex properties out of the total number of properties using his definition of complex properties. The decision as to which of three techniques for evaluation to use, the Ministry policy determines which approach to use. Kubisewsky might be part of a team under the supervision of a P.A.4 which determines which techniques such as whether to use a gross income multiplier for multi-residential properties. Another example is capitalization rates for commercial properties. These must be established regionwide. Turning to the language in the class standard for the P.A. 4: "They establish the techniques to be employed and co-ordinate the activities of a team of subordinate appraisers/assessors engaged in such specialized valuation work.", he testified that Kubisewsky does not do that. Normally in hearings before either the Assessment Review Board or the Ontario Municipal Board, the Senior Assessor would testify if these rates such as capitalization rates were challenged. Turning to the language in paragraph 4 of the class standard for P.A. 4 "establishing benchmark or model property valuations," he understood that as referring to the benchmarks found in a cost manual; Exhibit 35 represents the residential portion of the cost manual. It is provincewide to establish consistency. Exhibit 9 on the other hand is a program done on a neighbourhood basis as a consistency check. It would be done only on reassessment years and would take only a week at most to do. Similarly, with the histogram and the Frequency Distribution Analysis sheet, they are made on assessment years as consistency checks and would each take only a day to prepare. With respect to Holland Crossing, LaFlamme and the Grievor did discuss work together from time to time on how it was progressing and on methodology. Then near the end of the project, the two of them along with Larry Roy visited the office tower to work out an allowance for finishing costs. With respect to capitalization rates were used on the shopping and office building portion; in the case of 25 the shopping concourse, it would have been from other shopping concourses in Ottawa and these would have been put together by Terry Tompkins. In the early 1980's, when this witness was a P.A. 4 he was a multi-residential building specialist. At that time they were trying to establish fair market value tables for the region. A team of about 10-15 assessors were involved including Lois McNamara. She was responsible for setting tables for Gloucester. It had been established as a rental area on its own. In cross-examination, Mr. LaFlamme admitted that the term "benchmark" is not used in the Cost Manual (Exhibit 35). He testified that something like it was used in the classroom when he was a student; it tells you what to look for and was obviously intended to be a guide or benchmark. He agreed that there is a benchmark program in the Ottawa office. Neighbourhood Assessors are asked to select typical properties on a neighbourhood basis. But its purpose is to check the consistency of valuations already made whereas the ones in the manual are used to value properties and are based on a provincewide application. The witness identified a memorandum dated November 5, 1986, from himself and J. J. Falkena, also a Valuation Manager, of which the subject matter was "Benchmark Program - Level and Consistency check of unsold Properties" (Exhibit 36) and which includes the detailed procedures for the Benchmark Program. The documents that the Grievor Kubisewsky had produced in evidence had been prepared pursuant to that benchmark program. The Cost Manual contains pictures and specifications of various types of houses and assigns a class to them. It gives 1969 costs which then have to be factored up to 1980 numbers. It provides the most important basic ingredient for valuing properties on a mass scale. He agreed that he had not been referring to the Cost Manual as a benchmark section. He also outlined other quality control checks carried out by other 26 head office people. His explanation for Mrs. McNamara doing Gloucester by herself as distinguished from the teams that did Ottawa together was that it was more uniform and does not have the diversity of buildings. He admitted that there are complex properties in Kubisewsky's neighbourhood. He agreed that Holland Cross was a large complex property. In re-examination, he stated that the piece of the puzzle aspect of the functional approach applied as well to the team approach. Jatze Falkena is a Senior Valuation Officer which he has been for six months. He has been in Ottawa prior to that as a Valuation Officer since 1980. Before that he was with the Ministry in Hamilton where he progressed through the assessor positions. The Grievor Beard works in his district which is basically everything east of the Rideau Canal and includes Vanier and the Village of Rockcliffe and 12 Ottawa neighbourhoods. While all the P.A.3s are assigned to neighbourhoods, the P.A.4s are not. Of those Claydon does strip commercial and vacant land, Potvin does industrial property on a regionwide basis and Tomkins does shopping centres, motels and hotels also on a regionwide basis. They do not do residential, but do multi-residential as part of a team. He testified that it is practically impossible for any assessor to reassess all the programs in his neighbourhood. He estimated that in any typical average year, the Grievor Beard would spend more than 50% of his time on the maintenance of rolls; 10-20% on court work with the high end in the year after reassessments. Looking at the first sentence of the Class Standard for P.A. 4s9, he stated that Beard would only do it in limited situations, i.e. the Rideau Shopping Centre, but unique properties are the exception. Beard had been one of the teams of assessors in the finalization of shopping centres, strip commercial, industrial properties, income data collection and a building permit blitz. In the case of the Rideau Centre a 9 "responsible for valuations of large, complex, specialized or unique properties." 27 number of Senior Assessors worked on it. Beard worked on the retail aspect of the shopping centre. With respect to histograms and Frequency Distribution Analysis, his evidence was that these were done every four years or during reassessments. The histogram should take a day or two to prepare. In cross-examination, he stated that the text of the material sent with the Memorandum of November 5, 1986 (Exhibit 36) was prepared in head office. The Union filed a similar document of the Institute of Municipal Assessors of Ontario and used as part of the teaching materials of Fanshawe College in its assessors course. With respect to commercial condominiums, the Neighbourhood Assessor under the general supervision of the area manager elects which of the three approaches to use though the basic approach is factoring of sales, i.e.comparative sales approach. All the building permits go first to the assessor and he will adjust the valuation of the relevant properties; again under the general supervision of his manager. In re-examination, he testified that there are a handful of commercial condominiums in the area including mixed use. There is only one complete commercial condominium and it was assessed by Tompkins when he was a P.A.3. Lauren Hess has been the Valuation Manager for Cumberland Township and the City of Gloucester since 1984. He has worked with the Ministry beginning in 1971 in Ottawa and worked progressively through higher assessor positions. Both the Grievors McNamara and Maggs are under his jurisdiction. The Senior Assessors in his area are not assigned to neighbourhoods. They do not assess residential property or farms unless there is an appeal in which case they might get involved assisting the assessors. He testified that McNamara did not do quality control or external training but does do the rest of the things listed on the log at Tab 8 of Exhibit 3, i.e Maintenance of Rolls, Courts, sec.55 municipal enumeration, programmed re-inspections, analysis and market value finalization. He 28 estimated that she would spend about 50% of her time on maintenance of rolls. Her work on fair market rent tables for multi-residential would be coded under analysis on the log. He testified that neighbourhood 204 was 85% residential with very few multi- residential buildings and the rest being small shopping centres. With respect to shopping centres for which she testified she had established valuations, this witness testified that for 1984 Tompkins, a Senior Assessor, established the capitalization rates and vacancy and expense allowances. Larry Roy, a Senior Assessor did them for office buildings and Tate did the Gross Income Multipliers; Tompkins did them for hotels and motels. In 1984 there were 34 multi-residentials in Gloucester and two in Cumberland. Based on 34 properties and a four year reassessment cycle, he estimated that it would take her an average of two weeks per year to prepare the Fair Market Rent tables; viewed as a total project it would be about two months. He considered that Maggs and McNamara both being Neighbourhood Assessors in Gloucester have basically the same functions. After McNamara had prepared the fair market rent tables, this witness reviewed them and then assigned them to Tate to review and then to apply the Gross Income multiplier and calculated the market values. The information on expense rates would have been obtained by McNamara directly from the property owners. In cross-examination, he agreed with Union Counsel that McNamara does do histograms and Frequency Distribution Analysis sheets. He was not aware of her having done any benchmarks in the last five years. He agreed with Union Counsel that the preparation of the Fair Market Rent tables by McNamara was not spread out over a four year period. Counsel reviewed the parts of the Manual as they related to costing freestanding fast food shops and restaurants. It gives the cost factors for 1969. The witness agreed that it did not mention benchmarks. 29 Malcom Hamon is the Manager of the Cost Manual Development Unit of the Ministry. He and his unit are located in the Ministry Head Office in Oshawa. The unit is responsible for the Ontario Valuation Manual which is a book broken into various kinds of buildings on a cost per square foot basis. It was formerly called the Assessment Valuation Manual. The Cost Analysts are responsible for building up rates in the Ontario Valuation Manual. They gather construction information from the field from general contractors in Ontario with respect to all types of buildings. Because the manual is based on a classification system, the information is then broken into elements of the buildings: foundations, floors, walls rooms, interiors, finish and electrical and mechanical trades. They then develop model or bench mark types which go with the classifications in the manual. The purpose is to come up with rates in the manual to which all assessments resort. Using these base rates, the assessor arrives at valuation. Attached as Appendix C to this Decision is a copy of the Position Specifications for the Cost Analysts. The geographic area involved is the entire province. However, there are other factors: location and the time period a factor relating to labour rates and the cost of materials. The Cost Analysts are classified as Property Assessor 4s. In cross-examination, Hamon testified that he no longer has any Cost Analysts reporting to him since all those who worked for him in 1988 have since retired and not been replaced. When asked whether there was no one in his department in 1988 who was classified as a P.A.4, he replied that it could be so. He was not really aware of it. At some point there was a reclassification done. He agreed that the manual and the work that his department did all related to the cost approach only. 30 ARGUMENT Mr. Wells for the Union argued that in his view the evidence adduced at the hearing pointed towards a uniform decision with respect to all four Grievors. The Class Standards date back to 1973 when the work was done along functional lines; it is possible, he argued, that the classifications may have been right at that time. However, the 1979 change to the neighbourhood approach constituted a fundamental change. Under the functional approach, the Assessor had a specific category such as residential or commercial for an extended period of time. In the end someone else would be responsible for the bottom line, i.e. attaching a valuation to the properties. The change from that is highlighted by the Memorandum of June 15, 1977 (Exhibit 8). This has to be contrasted, he submitted, with the testimony of LaFlamme. In his view the document does show the magnitude of the job assigned to the Grievors. It shows that the Neighbourhood Assessor is responsible for the assessment of the properties in his neighbourhood, even granted that other individuals do come and do special properties. The Grievors are no longer just doing a component while leaving someone else to be responsible for the bottom line. Specifically, Counsel relies on the following: At page 10 In fulfilling his responsibility of placing values on all properties in the neighbourhood, he will use at least one of the recognized valuation methods; the comparative sales, cost, or income approach. At page 11 I mentioned earlier that I was concerned about the immediate requirements for training in the Division.... In Mr. Wells submission, it is not clear whether this is referring to all or just 31 Neighbourhood Assessors. But it does verify that the changes are significant. Turning next to the Class Standards,10 he notes that in the standards for both the P.A. 2 and P.A. 3, it states that the class covers positions "... engaged in real property valuation"; however, when you turn to the P.A. 4 position, the standard speaks of being "responsible for valuations ...." In his view, this is compatible with the assembly-line approach used prior to the changes instituted by the Gillis memorandum. The language is that of the functional approach. In 1977, the Neighbourhood Assessors were made responsible for the majority of properties. Next Mr. Wells turned to his specific arguments that the Grievors fit the class standards for P.A. 4 and, in the alternative, fora Berry order", i.e. that the Ministry should either find or create an appropriate classification for the Grievors. In Mr. Wells view, the Class Standard for the P.A. 4 actually sets out standards for four different types of Assessors, namely in paragraphs 1, 2, 3, and 5 respectively. To the extent that the Ministry contends that paragraph 1 describes the Senior Assessors, he argues that that classification is also in contention since there are a number of Senior Assessors among the many grievances filed. In his submission, the four Grievors before us fit paragraph 2 of the P.A.4 class standard (argued in detail in the next paragraph). But even with respect to paragraph 1, the Grievors, he contends, do have "responsibility for valuations of [some] large, complex, specialized or unique properties." He referred us to the Grievor Kubisewsky's responsibilities in Holland Crossing and the Police Station which is a 10 See pages 4-6 above for the text of the Class Standard. " The reference here is to the decision of the Divisional Court in O.P.S.E.U. and Berry v. Ontario (Ministry of Community and Social Services (1985), 15 O.A.C. 15 reaffirmed and applied in O.P.S.E.U. and Anderson v. Ontario (Ministry of Natural Resources (1990) 75 O.R. (2d) 212 (Div. Ct.) 32 unique property; for Beard the example is Minto Arena. With respect to the second sentence: "They establish the techniques to be employed....", Mr. Wells argued that the evidence showed that although Ms McNamara did that, the other Grievors did not and certainly they are not arguing that they coordinate the activities of a team etc. Furthermore, they are classified along with other people who are responsible for complex work which does not find itself within the P.A. 3 Class Standard. With respect to paragraph 2, all the grievors testified with respect to benchmarks especially Kubisewsky. Every Neighbourhood Assessor is responsible for a list of neighbourhood benchmarks. Exhibit 9 prepared by Kubisewsky is an example.12 and the Memorandum from Falkena and LaFlamme provides them with the directions on how to prepare them. Furthermore, the testimony shows that the Cost Manual does not deal with benchmarks. And the evidence of Falkena in cross-examination showed that in establishing benchmark or model property valuations you must actually visit the properties - something which the Oshawa group never does. Even Hamon himself conceded that valuation is done in the field. In Mr. Wells' submission, the Ottawa group does not establish benchmarks; it creates a cost manual. Even though the establishing of benchmarks is only a small part of their work, they are in fact the only ones who do it. Furthermore, even though the Position Specifications for the Cost Analysts state that they establish " model or benchmark property valuations of various building sizes and price unit items to determine costs.", in fact they do not do it since they do not go to properties and set values. The quality control work of the Grievors fits the second sentence of the second paragraph of the P.A. 4 Standard. Furthermore, there is no evidence that anyone other than the Grievors values properties for quality control. With respect to "market factors" referred to in the 12 See pages 10 and 23 above. 33 last sentence in paragraph two of the P.A. 4 Standard, it is clear that the local assessors analyzed the local market factors, such as traffic allowance and they are analyzed " in order that.comparative sales may be used to effectively arrive at assessment values." Only Beard testified that he had the 1980 Residential Land Residuals Guidelines (Exhibit 25). The other Grievors have to rely on their own experience. The fourth paragraph describes functions which are generic to a P.A. 4 and in Mr. Wells view are applicable to the Grievors. Finally, the evidence shows that the Standards for P.A. 3 do not apply to the Grievors. Mr. Young for the Ministry took the position that the proper test is to look at the core functions of the Grievors. He does agree with Mr. Wells' point that the result should be uniform with respect to all four Grievors. Furthermore, he submitted that the change from the functional to the neighbourhood approach does not alter the interchangeability of the Grievors. He then referred to the Preamble of the Class Standard where it states: "The series also covers positions of employees carrying out more specialized functions, such as : the development and maintenance of valuation standards and benchmarks, the review and up-dating of regulations and procedures, the maintenance of quality control programmes, and the development of training courses for assessors." He also emphasized the Allocation Criteria which provide that in the case of field positions, it is the complexity of the valuation work being carried out. Turning to the Class Standard for a P.A. 2, we are told what valuation of limited complexity means: "i.e. residential, farm land, and less complex commercial property, where market information is readily available and reliable." The P.A.3 Standard, on the other hand, specifically covers those who do all types of property, while the P.A. 4s do large, complex, specialized or unique properties. He argued that they do only those. The exhibits show that with the exception of the 34 Grievors Maggs and to some extent McNamara the Grievors' neighbourhoods have properties running the entire range but are for the most part residential or less complex commercial properties. Maggs has no complex properties. And even in Kubiesewsky's case, in terms of raw numbers the complex constitute only 3% of his properties. They spend 50% of their time on data collection.13 All have worked as part of teams. In Mr. Young's submission, Maggs on the evidence fits only the P.A. 2 classification, but because all Neighbourhood Assessors are interchangeable i.e. transferable to other neighbourhoods, he gets the P.A. 3 classification along with his fellow Grievors. The Grievors are responsible for attaching a valuation to the properties because under the P.A. 3 Standard, they must be able to justify it before the Assessment Review Board. So it is, in his submission a red herring, to argue that because they put a number on the valuation of property that they are therefore "responsible for valuations" within the P.A.4 Standard. The Grievors with the exception of Maggs are senior members of "work units" as set out in the P.A. 3 Standards. Making adjustments for traffic allowance falls within : "Under minimum supervision they analyze market data as it applies to individual properties for valuation purposes." With respect to the point made by Mr. Wells about the distinction between "engaged in the valuation" and "responsible for valuations", Mr. Young refers us to the second sentence of the first paragraph of the Class Standard for a P.A.4: "They establish the techniques to be employed and co-ordinate the activities of a team of subordinate appraisers/assessors engaged in such specialized valuation work." There are many of these, like capitalization rates, which are determined on a regionwide basis. Even in the case of McNamara who determined the Gross Income Multiplier for Gloucester, it was a part of " That in itself is not determinative of their classification. 35 one for the region. In that sense she too is a part of a team. The responsibility is that of the coordinator. As for the Gilles Memorandum of 1977, it was contemplating a system in which Senior Assessors (P.A.4s) would also be assigned to their own neighbourhoods. That never happened and so the document is only of historical significance. Similarly, the Position Specifications were not relied upon in this case because also drafted in that time frame. With respect to the issue of benchmarks, it is the Ministry's position that that language refers to the manual done by the Head Office group on which Hamon testified. It is described in paragraph 2 of the Class Standard for P.A. 4s. To have provincewide consistency, there must be provincewide benchmarks. Although the Grievors may do benchmarks, they are done for a different purpose from that in paragraph 2 of the P.A. 4 Standard, which is " to be used in establishing benchmark or model property valuations;" in his submission, none of the valuations the Grievors do are to be used to establish benchmark valuations. They are after the fact checks The second sentence of the second paragraph, namely valuation as part of a programme for monitoring the quality and level of valuations is likewise provincewide. In Mr. Young's view, the Grievors are seeking reclassification not on the core functions of their positions but on a fair percentage of their job - a theory based on the old line of classification cases. Paragraph 2 describes a full-time position, while the Grievors argue that they do some of it and no one else does it so they fit. In fact what the Grievors do along this line is not to establish benchmarks but to act as a check afterwards. Only Kubisewsky does all types of properties. Mr. Wells had argued that paragraph 5 referred to the Oshawa group, but Mr. Young said that decision cannot be reached since there is no evidence before us on paragraph 3. In his view, paragraph 5 describes a research 36 section, the Ministry used to have. In reply, Mr. Wells challenged Mr. Young's characterization of the Grievors' work as being 50% data collection. He says that that includes such properties as Holland Cross. It is properly described as maintenance of rolls. With respect to the Gillis Memorandum, LaFlamme had agreed that it was still accurate with respect to Neighbourhood Assessors. Exhibit 39 shows that the Oshawa group (Ramon) fit paragraph 5: they are a research group. Provincewide programs are those described as done in paragraph 5. The Grievors core duties are the valuation of properties but the change to Neighbourhood Assessing changed the quality of their work. REASONS FOR DECISION This was a protracted and detailed arbitration. There is much at stake since the decision will bear on the thousand and more other Property Assessors who have filed grievances. Counsel did not engage in a protracted review of specific authorities. As we see from their arguments, they restricted themselves to certain general principles. As a framework for analysis, I will set out what I said in Schrader and MCS GSB 378/89 issued on 5 March, 1991 at page 11: The impact of that decision [Berry] was in my view nothing short of revolutionary. In essence, it changed the nature of the inquiry: the Board does not now simply try to determine as it did under the old line of cases whether the grievor fits one classification or another, i.e. his current classification or the one he may be claiming to be appropriate . It now determines whether he is currently properly classified and if the answer is no, and if the grievor does not fit a classification put in evidence before it, it directs the employer to find or create one. That of course with a variation, is what the Vice-Chair in Townsend14 did: she invited the Employer either to modify the Agricultural series so that the Grievor Townsend might fit or alternatively, reclassify him as an Industrial Officer 2. When the " Townsend (Zinger) and MCS GSB 4/85 37 Employer reclassified the Grievor to a modified A.W. 3 classification, modified in a manner the Board found unacceptable, it then cut the Gordian Knot by directing a reclassification of the Grievor Townsend to I.O. 2 .... The Neighbourhood Assessors are currently classified as P.A.3s. In my view, the first question is therefore: are they properly classified as P.A.3s? This brings us to the question of the proper interpretation of the Class Standards. Mr. Young's comment that the Allocation Criteria found in the Preamble is important is well taken. The testimony of the various witnesses supports the decision that the rule found in the Preamble that "the complexity of the valuation work being carried out " is the primary allocation factor. This to me gives an indication of the meaning of the language "engaged in real property valuation" in the first sentence of the P.A. 2 & 3 Standards as compared to the language in the P.A. 4 Standard of "responsible for valuations of large, complex, specialized or unique properties." This distinction seems to be one of whether the assessor is simply playing a part in the assessment process or whether he is responsible for the actual assessment figure. We know from the evidence that at the time that the Class Standard was created, the P.A. 3 did not actually himself/herself take responsibility for assigning a value to property to be placed on the assessment rolls. Now the Neighbourhood Assessors are fully responsible for the actual assessment value that goes on the rolls for the residential and commercial property in their neighbourhoods. Setting aside for the moment the more complex properties that Kubisewsky and Beard assessed, namely, Holland Cross and the Rideau Centre, the responsibility for the actual assessed value assigned by the four Grievors to residential and commercial properties is a qualitative shift from the work that was involved in the pre-Neighbourhood Assessment days. That therefore represents a movement within the Allocation criteria from the requirement in the P.A. 3 standard of being simply "engaged in the valuation of all types of property." 38 Although we do not have much detailed evidence on the actual team work performed in the pre-Neighbourhood Assessment days, the testimony by Beard and Kubisewsky with respect to their own major complex assessment work clearly indicates that this is indeed complex work which again does not seem to be adequately reflected in the language of the third sentence of the first paragraph of the P.A. 3 Standard nor indeed in the language of the second paragraph. Their appraisal responsibilities for the "bottom line" are clearly beyond those descriptions as merely "senior members" or simply "working in units". This also appears true for Ms McNamara's work on the fair rent tables for Gloucester. She appears in fact to have done these by herself for Gloucester. I am satisfied that the reason for this is that in pre-Neighbourhood Assessor days they in fact had less responsibility for the actual assessed value assigned to any properties that they worked on. On these grounds alone, I am convinced that substantial duties of the Grievors performed as required obligations of their positions are not reflected in the language of the P.A. 3 Class Standard. As I stated in Goforth and MCS 18/85 (decided 17 May, 1991) at page 10: "In deciding what is significant in determining a proper classification, both qualitative and quantitative aspects of a Grievor's duties are relevant." The work in actually deciding the valuation to be attached to properties by the Grievors even those that are just straight forward residential and the work done by some of them on assigning values to properties in large complex centres like Rideau Centre and Holland Cross or in assessing industrial condominiums are not insignificant in either quality or quantity. They are not spelled out in the P.A. 3 Standard. Having decided that the Grievors do not find their work adequately reflected in the P.A. 3 Standard, I next ask whether the Grievors are within the P.A. 4 Standards. With 39 the greatest respect to Mr. Wells' gallant effort to fit them into the P.A. 4 Standards, I think not. I agree with Mr. Young that you cannot pick and choose. The P.A. 4 Standards appear to describe four different groups of employees. The Grievors clearly do not fit paragraph one. Since none of the Grievors is a Senior Assessor, we received only limited evidence on the work done by Senior Assessors and only then to illuminate the evidence with respect to the work of the Grievors. There is evidence in the case of the Grievors Kubisewsky and Beard in particular that they have been responsible for the valuations of some properties that are complex, specialized or unique and some of which were within large complexes such as the retail part of the Rideau Centre and the condominiums and garage in the Holland Cross. But on its face, paragraph one envisages more exposure than that quantitatively and probably qualitatively as well. And while their work in that respect is clearly not reflected in the P.A. 3 Standard, it still in my opinion falls short of the wording of paragraph one of the P.A. 4 Standard. Mr. Wells did not vigorously argue the contrary. Mr. Wells' more vigorous effort to fit the Grievors within the second paragraph of the P.A. 4 Standard, however, fails for similar reasons. I do not accept Mr. Young's argument that the term "benchmark" is restricted to provincewide models or benchmarks. There is nothing in the language of the paragraph to support that and indeed where such a distinction is intended the language is more specific as in the case of the third paragraph. I am not aware of anything in the concept of "benchmark" that makes it necessarily provincial in scope. Clearly the residential models selected and used by the Grievors are benchmarks by any normal criteria" albeit they are of local reference rather " As the old saw goes: "If it looks like a duck, and it swims like a duck and quacks like a duck, it's a duck." 40 than provincial. In that regard they may in fact carry more weight as relevant in an assessment appeal than a more general benchmark developed for provincial standards. But although it is a part of their work, the second paragraph in my view envisages a position which has as it primary function the valuation of properties to be used in establishing benchmark or model property valuations. But I do agree with Mr. Wells that this is not a just research position. I tend to agree with him that the group in Oshawa probably more properly fits the last paragraph, but that is essentially a theoretical issue from our point of view. Be that as it may this work done by the Grievors is not reflected in the P.A.3 Standard. On these grounds alone, it is clear that the Grievors not only are not properly classified within the P.A. 3 standard but that that cannot be remedied by assigning them to the P.A. 4 classification. The result is that the Ministry must create a proper classification. Both Mr. Wells and Mr. Young at the end of the case argued for a uniform result for the four Grievors. There are as we have seen differences among the four Grievors in the work done by them. Because of the Ministry's desire to continue transferability and the Union's concurrence in that, I do not at this time make any determination whether some of the Grievors should be classified differently from any of others. It is not my desire to judge that intention. The Ministry must now create a class standard or standards that properly reflect the duties performed by the Grievors. We restrict ourselves at this point to that ruling but of course remain seised of the grievances pending a satisfactory implementation of this Order. There is also the question of the many other classification grievances of other Property Assessors that have been waiting for this decision and specifically the question of whether this particular panel is seised of any or all of them. In respect of whether this panel is seised of them, we are prepared to 41 receive further submissions from the parties if there is any disagreement between them with respect to it. Dated at Toronto this 23rd day of September, 1991 r, lei Q. Thomas H. Wilson Vice-Chairperson I. Freedman Member A. Merritt Member -I 31 De a n C\ o a n h I P i 1 � 3 � h 0 O � Q p• M c' L IL ID i w Q b 4 i 4 ti �I N �I APPENDIX B ASSESSOR ACTIVITY LOG MUNICIPALITY NBHD WEEK ENDING OPERATIONAL DAILY COUNTS TIME INDICATORS NUMBER OF MON TUES WED THUR FRI TOTAL (DAYS) 1.I.M.A.O. MEETINGS TRAINING 2. I.M.A.O.COURSE(SPECIFY) (EXTERNAL) 3.OTHER 1.SALES (a)ENTERED ON A.C. (b)INVESTIGATED (c)INSPECTED 2.496's PROCESSED 3. IN-HOUSE INQUIRIES(TIME) 4.COMM. UNITS ENUMERATED 5. BLDG. PERMITS (a)RECEIVED (b)COMPLETED MAINTENANCE (c)OUTSTANDING OF ROLLS (d)INSPECTIONS (a)VISITS 6.SEC. 32's(OMITTED ASSM'T) 7.SEC.33's(SUPPLEMENTARY) 6.ASSM'T UPDATES(a)SEC-630)(EquftYl (b)SEC.63(2)(>5000) 9.OTHER CHANGES (a)CHANGE 1-5000 (b)CODE 016 10.SEVERANCES/CONSOLIDATIONS 11.INCOME COLLECTION s 1. PREPARATION b PROCESSING(TIME) 2.PROPERTIES INSPECTED COURTS 3. PROPERTIES VISITED 4.A.R.B.APPEALS DISPOSED 5.O.M:B.APPEALS DISPOSED SEC. 55 RECORD TIME. COMMENT MUNIC. ENUM. RECORD TIME COMMENT PROGRAMMED I.INSPECTIONS(INT. 6 EXT.) ( RE-INSPECTIONS 2.VISITS(EXT. ONLY) ANALYSIS RECORD TIME. COMMENT MARKET VALUE 1•UNITS FINALIZED FINALIZATION 2•PROPERTIES FINALIZED 3.MAINTENANCE(TIME) QUALITY CONTROL RECORD TIME COMMENT DAYS WORKED IN FIELD (THIS NBNO.) IN OFFICE KILOMETERS DRIVEN (EXPENSE CLAIM) DAYS RECORDED IN OTHER NBHD. DAYS OFF s.H..V.,s.,a O.T. (t), ETC. TOTAL DAYS WORKED NOTE: RECORD TIME IN A MINIMUM OF A QUARTER DAY. COMMENTS: DATE ASSESSOR APPENDIX C POSITION SPECIFICATION AND CLASS ALLOCATION.FA �j 6 � lITION COMIC • U[t ONLY I1Mt Pit CLAMBIFICATION OICIf10N{ARI MADC VNOL It AOAI �D l 1. A A Of PUTT MINISTiR ANO TMt CMAIAMAN OF TMf CIVIL{fIIVICL COMMUf1O1.. 22-6200-13 nNIA111U MIMI it:$I NvN:r -l1a I.IF.1TTiTi1C- PART 1 Iwlt'vN flnr DEC 14 1981 NI W Cost Analyst_ MR 1111 VISED P1IEVIOU6 FSYItioNilttr ._._�caAUTit�i" . ---�---'-•� 11N Ii,wEoiAii iin{KVlwri•{Tifie'" '°�" - "" "' '� ►birifdN Goer -` Senior coat Anal at 22-6200-11 iu1i1>1TNT .. .... ...._y....-.._.... ...�...-----•,. ...... _...._. ...,... ...DivllfbFl•.._��._. _..e_ Revenue _ Pr rty Assessment tRANCN' lfCT10N LOCATION IAOOR{Y-I �' � '•""' -'"'•-�`- Special.Properties Cost 777 III r Street West No,OP IMCUMttMT! POfIT10Nf ;UP`NVI{!O INCUMtl NTt lYI[RVI{CD 19th Floor DIRCCTWr NOIFtCTLT DUIfCTLT INOIRICTLT 2. Toronto, Ontario 2.PURPOSE OF POSITION IWNV Gait TNI{FouT1oN SXI{TP STAY{GOALS OSACTIVI{W= %b assist with the development, revision and updating of cost adhadules for all classes of property based on muket cost data: Ilb'asaist in the development of average life tables, depreciation schedules and procedural techniques for estimating-values for all classes of property throughout the Province of Cbtario. 3.3UMMARY OF OUTIESANO RESPONSIBILITIES aNOICAT[PCRC[NTAOC OF TIMt VINTON tACNOGNIFICANTFUNCTION. INDICAT[ICOPL.►GU1FM{M1,WORKING CONDITION!UNMAL FIATURU ITC.I A Assists with the development, revision and updating of cost schedules for all classes of property by performing such duties as 1. Ths conducting of researdh and collecting of cost data to establish unit rates for building items from[ 25% a) published building rates. b) a breskdawn of actual building costs yo�f�la�bour and materials for residential, canna vial, industrial, farm, institutional and Special type property. 2. Maintaining liaison with and obtaining data from owners, ardiitects, contractors, suppliers end all professional, construction, labour and marketing groups of the building industry. Possess a continuing awareness of current technological developments, marketing conditions, building codes, material costs and labour rates. 8 Assist in the analysis of the data collected by performing duties such as 1. Analysing arcbitectural and engineering drawings for the purpose of taking Wquantities. Sol 2. Establishing nodal or benchmark property valuations of various building sizes and price unit items to detannine oats. 3. Establishing classification grades for all types of building structures in !c=lones with established policy and legislative requirements and based upon the type and quality of the materials used. 4. Gbtherirtg the data in the most appropriate format and determining the manner in which it can best be presented. C Presenting the collected data by[ 1. Asseabling the data in reference manual format in draft form for printing for eventual use lei by all assessment staff throughout the province. 2. Training field staff throughout the province in the proper use of the ompleted manual. (see over) 4.SKILLS ANO KNOWLEDGE REQUIRED TO PERFORM THE WORKwuTI tDLICATION,TRAINING.UPIMIRMC[etel (See over) S.SIGNATURES IMM[OIATC Q-%PVIOOV. GATT MINItTAT OFFICIAL DATE Fm.—"" ���__ �iiii�i'PM tN .F.I 1DN "_.��l.O.•� I�L.._ �• ; Manager, Costing Mnuals C.E. hunter, Director, 1' t.AVI ASS ALLOCATION 11hCLMt �O��� UI 1 NO. �IIL [-FMiVZ'S�7T CLASS I{F'4 ?ION t4AUTNOW-F GCLiiAT6Q TO MC BY TN[G�MIN`ISTCH A43 IN —MOANC(M ITN TN�v L i[K V IC COM�I�� CLAMPICA110N ST ANUANas FOR FOLLOWING R{A/ONi: A Incumbent participates in the development and maintenance of cost edLedules for all classes CC paroparty to serve as standards in establiehinq'life tables, depareciation aduRfulas and procedural techniques in establishing property values. H Penrfor, analysis of eoMiled data from various sources to establish categories and classification grades for all types of building structures. �• WWI II ses initiative and judgement in developing fIarmst and content of Schedules and o standards for moat effective prementation. + D4 Develops systems and procedures to maintain and adjust rates and indexes relative to tins 3 and locality factors. C. ftrrra�g.h. ,,yD.�irector . e. NONATVAf O, � •—` CMPT.f "�tQ�I II�1fN 1 iiV1.YlQ.A WAIr�� 6 WKWTO� 1 V 11•�.��o SUMld4k3Y CP DUTIES AMID RESPCNSIS=TIES (Cont d) eni►np: D Maintaining the Coat Data by,psrforming duties such asz 1. Establishing geographic modifiers and/or indexes to make adjustments in the rates becau teyd of time end/or locality. 1. Performing data collectim and analysis on a continuing basis in order that the cost schedules will be current. WMZ3 AMD ME3==-MVIMM TO PWO M THE WORK (Cant'-d) ftxmgn knowledge of and experience in dealing with construction and building aatarialsishdustries as well as being aware of recent relevant advances in methodology i sinple and coaplex buildings " structurest sound knowledge of legislation, policy an procedures related to the operations of the Property Assessment Program m, hieAh level oomnasircaticns dxi.11s are'sasentialt nut have demonstrated ability to maintain infexmatica flows. iAM�I►�ly.Nr j1lttlrra .,,,. APPENDIX D During the course of the hearing of this arbitration, a dispute developed over the attendance of certain Union officials at the hearing. This culminated in the bringing of a Motion by the Union on 22 November, 1989. On November 27, the Board issued the following order: The Board hereby orders and directs the parties that the Union's two advisers, Ed Faulknor and Bill Henry, be made available for attendance at all the hearings on the grievances of Richard Kubisewsky, Robert Beard, Don Maggs and Lois McNamara. That order was a unanimous decision of -the panel. This Appendix provides the written reasons for that decision. At the Motion hearing, Mr. Wells explained that the problem had arisen at the last previous day of hearing (October 29, 1989). Mr. Wells explained that during the hearing of these grievances, he has two Union advisers: Ed Faulknor"and Bill Henry. Mr. Faulknor was denied leave by the Ministry to attend that hearing. Mr. Henry was in attendance and was given leave to attend the hearing scheduled for November 29. However, since Faulknor was denied leave to attend hearing scheduled for November 2 &3 and does not know whether he would receive leave to attend the hearing scheduled for November 29, the Union brought this Motion. At the time of the Motion, there were already 900 grievances filed with respect to classifications for Assessment Officers located in 31 offices throughout the province. Although this panel is hearing only four grievances at this time, it is seised of about 42 grievances for the Ottawa area. Falkner and Henry are also grievors: Faulkner is from the Hamilton office and Henry is from Barrie. Under Article 35 of the Collective Agreement, there is a Ministry-wide Employee Relations Committee which negotiates with management. Mr. Falknor is the Union chair of that committee. It meets quarterly to deal with matters. Henry is the Vice-Chair. Mr. Kirk who advises Mr. Young is part of the Management team of that committee. Mr. Wells advised us that once the Board has decided the four grievances before it in these hearings, the Union will have to advise Ottawa and travel around the province in order for decisions to be made on the next steps. What is being done through the present procedure is an attempt to streamline the procedure, one in which technically every one of the many Grievors could actually come to 'the Board. In that respect, Mr. Kirk is performing the same function on the management side as Mr. Falknor and Mr. Henry on the Union side. Mr. Falknor and Mr. Brown are both assessors so that there Union functions are added on to their regular employee duties; Mr. Kirk, on the other hand, is a full-time management labour relations officer. Mr. Wells speculated that in fact two Union representatives might not in fact be sufficient. So far as the jurisdiction of the Grievance Settlement Board is concerned, its jurisdiction is clearly set out in subsection 20 (8) of CECB Act. The order requested is that Falknor and Henry be given the time off without pay under a Board order to attend the hearings. Mr. Young stated for the Ministry that it had refused to allow Mr. Henry and Mr. Falknor any more time to attend because of the number of days they had missed due to attendance at hearings and meetings of various kinds. Henry had missed 46 days to date i.e. about 20% of his work-time. Mr. Faulkner has missed 29 days, 17 of which had been without pay. At the same time they have their own work to do for the Ministry. The granting of leave is discretionary. He challenged Mr. Wells statement that they were needed to be here by the Union. The Ministry is prepared to give 48 hours notice of a refusal to give leave to attend and will consent to an adjournment of the hearing. The problems created by Mr. Young's approach in the opinion of the Board are as follows: 1. It is not desirable to run the risk of repeated adjournments of Board hearings on 48 hours notice. These are long complicated proceedings and the hearings need to proceed as smoothly and regularly as possible. Mr. Wells has represented to the Board that he needs these advisers present to enable him to go forward with these multiple grievances. As a Counsel who regularly appears before this Board, his personal representations to that effect are entitled to respect and acceptance unless there are serious grounds for challenging them. In fact, there are just arguments by Mr. Young intended to raise doubts as to the real seriousness of those needs. This Board under those circumstances will not go behind Counsel's representations. If Mr. Wells asserts that to get on with these numerous grievances, they ought to be accepted unless a serious challenge is raised which might necessitate the reception of sworn evidence on the issue. If their roles were reversed, obviously, Mr. Young's representations would similarly be entitled to such respect.' Mr. Wells says that these two Union representative must hear the evidence and see the process and report back on it. This panel is satisfied that on these representations in order to facilitate the smooth and orderly operation of these grievance arbitrations, it should make the order requested and for which it clearly has the power under CECBA. ' Just as in a Court of Law, so in an arbitration hearing, the tribunal must assume that Counsel are dependable honest persons. If the day came that this could no longer be relied upon, the whole process would be in serious trouble.