The role of the Appeal Board and its composition
If a property owner is unsatisfied with an assessment, the first step is to submit a Request for Assessment Review (RFR). Assessors then review information on file and apply whatever approach(es) to value are applicable to the specific property in question, obtain information from the agent or property owner as required, and issue a decision. If the property owner still does not agree with the decision, he/she has the right to appeal to the Assessment and Planning Appeal Board.
The Appeal Board is comprised of a chairperson who ostensibly has some sort of professional expertise related to the matters at hand, as well as “two members appointed from the respective region”. These “two members” may be area politicians or others whom the government appoints on whatever basis it decides and are almost guaranteed not to have any significant degree of specialized valuation training.
(Lack of ) member training
What any system reform needs to address above all is Appeal Board member training, as the chairperson may have some legal background or other ability broadly construed as being related to assessment but rarely any training in the actual valuation process. My own experience in defending an assessment in front of the Board is that the chairperson takes far too much latitude in questioning and does not necessarily show a clear grasp of what type of evidence the valuation profession deems as acceptable evidence in supporting valuations.
Moreover, anecdotal evidence suggests that many of the other people who sit on the appeal boards do not feel comfortable rendering decisions on what can be incredibly complex matters. When discussions centre around technical concepts such as economic obsolescence or the economic forces that determine a fair capitalization rate, we can picture an untrained member either having to do a great deal of his or her own research or relying on another member to take the lead in that regard. If none of the people on the Board has any actual valuation training, it would seem that this is unlikely to lead to the best possible decision.
In contrast: the Alberta system
At the risk of overemphasizing my Alberta experience, the government requires that assessment review board members take training in both valuation and the legal structure as it pertains to assessment appeal hearings and must recertify every two years – even I personally had to adhere to this, despite my being a senior member of the valuation profession. Moreover, the government allows membership on these boards on the basis of being a successful applicant for the position – they discontinued having local politicians or other ad hoc community members on these quasi-judicial boards many years ago, thus mitigating accusations of either bias or incompetence. I find it incredible that Appeal Boards can decide cases in New Brunswick in part by Board members who may the following week be knocking on the appellant’s door soliciting votes for re-election.
Appeal boards not evidence-based quasi-judicial bodies they should be
Based on my own experience, as well as that of my colleagues, these boards are not the evidence-based quasi-judicial boards that I believe an Appeal Board should be. Assessors have no confidence that the Appeal Board’s decisions are either fair or just and speak of issues such as Appeal Board members pandering to tax agents even when their work or conduct is clearly problematic, or of their consistently rendering decisions on difficult cases on the basis of “splitting it down the middle”. The concept of two sides each presenting evidence to make its case and the Board deciding on the basis of superior evidence seems conspicuous by its absence and this does absolutely nothing to enhance the credibility of either the appeal process or the Boards themselves.
Summary of what needs to change
Overall, Appeal Boards in New Brunswick need to be:
- comprised of members who are properly trained and regularly recertified in valuation (and able to draw on a higher level of expertise in more complex cases)
- reconstituted so that they include the highest quality of applicants – no politicians, no political appointees
- structured so that they are held strictly to weighing evidence and not taking the lead in interrogation or dismissing out of hand certain types of evidence during the course of the hearing (this belongs in the decision, not the hearing)
- intolerant of poor written or verbal conduct by any of the participating parties (this applies to both tax agents and assessors alike)
- held accountable for any bias or unprofessional behaviour (yes, this happens)
A proper assessment appeal procedure is critical to engendering confidence in the assessment process in New Brunswick, and this is by no means always the case. It is high time that the government update and professionalize the Appeal Board level of assessment review.
Series summary
The objective in these five columns (the blueprint backdrop, the Assessment Act, the Real Property Tax Act, tax agents, and this column on Appeal Boards) has been both to provide a synopsis of the problematic nature of the assessment and taxation regime in New Brunswick as a direct participant in the process has seen it, and to offer suggestions on how the government could revamp the system so that citizen-taxpayers would see it as fairer, more effective, and more credible. As noted at the outset, many see the system as it is currently structured as very broken – it does not provide average taxpayers with any sense that it is designed to serve everyone either competently or fairly.
There is no question that the changes noted herein would require bold, visionary change of the type that the Government of New Brunswick has implemented in the area of municipal reform. As a province, we can do better, whether it be the current government or another government in the future. It is definitely time.
This article first appeared in the Telegraph Journal in June 2023 (not available there any longer).
Listen to a discussion on this series on the #NBPoliPod podcast!
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Taxing New Brunswick: An Insider’s Guide to Successfully Challenging Your NB Property Assessment (available on Amazon)