Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: June 9, 2015

FILE NO.: DM 131187

Moving Party(ies): William Nichol and Barbara Elizabeth Nichol

Respondent(s): Municipal Property Assessment Corporation (“MPAC”), Region 3

Respondent(s): City of Ottawa

Property Location(s): 188 Glebe Avenue

Municipality(ies): City of Ottawa

Roll Number(s): 0614-052-401-21700-0000

Appeal Number(s): 2995455 and 3003513

Taxation Year(s): 2013 and 2014

Hearing Event No.: 578630

Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Heard: January 15, 2015 by written submission

APPEARANCES:

Parties Representative

William Nichol Self-represented

Barbara Nichol

MPAC Stephane Rozon

DISPOSITION OF THE BOARD DELIVERED BY TERRY DENISON

INTRODUCTION AND BACKGROUND

1William and Barbara Nichol appealed the assessment of their property at 188 Glebe Avenue, in the City of Ottawa, for the taxation years with a valuation day of January 1, 2012.

2The Appellants made a motion to the Board originally scheduled to be heard on November 19, 2014. The motion was re-scheduled to a written motion on January 15, 2015.

3In this motion the Appellants seek an Order from the Board to compel MPAC:

to make full disclosure to the Appellants, such disclosure to include but not be limited to materials the Respondents used to generate the market value assessment, and the evidence it will tender on the Appeal.

4The Board must decide if the disclosure sought is fair and reasonable for the just determination of the issues to be decided in the assessment appeal while balancing economical use of the time and resources of other parties and the Board.

DISPOSITION OF MOTION

5The Board grants the motion, in part, as set out in the Reasons that follow.

REASONS FOR DISPOSITION OF MOTION

The Appellants’ Motion Materials and Submissions

6In this motion the Appellants filed a Motion Record. The record included a Notice of Motion listing the documentation sought as follows:

• Precise details of any requests for reconsideration made by any property owner classed as triplex rental or the same class as the subject property in the “homogeneous” geographical area employed by the Respondent MPAC, whether resolved or pending.
• The details of reasons why property adjustments were granted in each instance.
• A table identifying the properties in the subject property’s homogeneous neighbourhood for which adjustments have been requested, or granted through the Request for Reconsideration (“RFR”) process, or by Minutes of Settlement, or by Order of the Assessment Review Board (“ARB”).
• A comprehensive list and a property comparable report, also known as Property Assessment Detail (“PAD”) sheet, for all properties in the same class as the subject property, and not just the four “comparable” properties the respondent has cherry picked. The comprehensive list should include the assessed properties in the same class as the subject property, which the Respondent has knowledge of but doesn’t rely upon.
• In particular, the Respondent MPAC’s database includes cells that detail “equity adjustment”, “functional obsolescence” and “structural-details”. The appellant seeks this information.
• An ORDER directing Mr. Jack Santos of MPAC’s Pickering Office to release the information package that MPAC has collected and holds relating to the subject property. This information is believed to contain data cells detaining “equity adjustment”, “functional obsolescence” and “structural-details” as well as MPAC photographs from previous inspections of the subject property that are known to MPAC and admitted as reflecting current conditions. Mr. Santos has stated in writing that he will comply with an ARB Order.

7The Appellants’ Motion Record also included a supporting Affidavit of William Nichol dated November 4, 2014 with five pieces of correspondence between the Appellants and MPAC concerning the property and the documents sought.

8The Appellants also filed a “Book of Authorities and Factum of the Moving Party”. This document was divided into three sections: the first a single page titled “Factum”, the second being a copy of Board Decision DM 126770 delivered by Member J. L. Walker issued August 25, 2014, and the third being an excerpt from a document titled “Guidelines for the Release of Assessment Data (GRAD)” apparently taken from the Provincial government’s website.

9The Appellants filed written Submissions and Argument expounding on their other filings.

MPAC’s Response to the Appellants’ Motion Materials and Submissions

10MPAC filed a response to the originally scheduled motion in the form of a letter from Stephane Rozon, dated November 10, 2014. It gave MPAC’s response to each of the six points requested in the Appellants Notice of Motion. The responses were as follows, with the Appellants’ request shown in italics:

• Precise details of any requests for reconsideration made by any property owner classed as triplex rental or the same class as the subject property in the “homogeneous” geographical area employed by the Respondent MPAC, whether resolved or pending.

MPAC Response: The productions of precise details of Request for Reconsideration (RFR) will not be produced by MPAC. Details from RFRs of individual property owners contain personal information, which MPAC is obliged to protect. MPAC is bound by the provisions of the Municipal Freedom of Information and Protection of Privacy Act (“MFIPPA”).

• The details of reasons why property adjustments were granted in each instance.

MPAC Response: MPAC will provide reasons.

• A table identifying the properties in the subject property’s homogeneous neighbourhood for which adjustments have been requested, or granted through the Request for Reconsideration (RFR) process, or by Minutes of Settlement, or by Order of the Assessment Review Board (ARB).

MPAC Response: MPAC will provide table

• A comprehensive list and a property comparable report, also known as Property Assessment Detail (“PAD”) sheet, for all properties in the same class as the subject property, and not just the 4 “comparable” properties the respondent has cherry picked. The comprehensive list should include the assessed properties in the same class as the subject property which the Respondent has knowledge of but doesn’t rely upon.

MPAC Response: MPAC will provide PAD screens for all triplexes in neighbourhood B31.

• In particular, the Respondent MPAC’s data base includes cells that detail “equity adjustment”, “functional obsolescence” and “structural-details”. The appellant seeks this information.

MPAC Response: MPAC requires an objective identification of the issues in this appeal and we feel that your request for information is far too vague and large in its scope. If you can identify specific issues and request information reasonably related to those specific issues that you intend to address MPAC will of course consider your request.

• An ORDER directing Mr. Jack Santos of MPAC’s Pickering Office to release the information package that MPAC has collected and holds relating to the subject property. This information is believed to contain data cells detaining “equity adjustment”, “functional obsolescence” and “structural-details” as well as MPAC photographs from previous inspections of the subject property, which are known to MPAC and admitted as reflecting current conditions. Mr. Santos has stated in writing that he will comply with an ARB Order.

MPAC Response: As for the information package the appellant is referring to, MPAC will gladly provide the information but the appellant must first pay a fee of $99 since there are over 550 pages of material. This has already been addressed with the appellant. I’ve provided the response provided the appellant. [This is followed by the reproduction of a letter to the Appellants from Jack Santos, Manager of Freedom of Information & Records, MPAC discussing Municipal FIPPA requests and how to apply.]

11MPAC filed a Response to the Submissions and Argument of the Appellant dated December 30, 2014 detailing how MPAC had attempted to satisfy the disclosure request of the Appellants.

12MPAC stated that it had provided a list of all triplex properties in the Appellants’ homogeneous neighbourhood that is B31 listing 32 properties. It is MPAC’s position that this addresses the Appellants’ request.

13MPAC refuses to produce the requested precise details of RFR as it takes the position that detail from the RFRs of individual property owners contain personal information which MPAC is obliged to protect under the FIPPA.

14With respect to the Appellants’ request for “the details of the reasons why property adjustments were granted in each instance” and a “table identifying the properties in the subject property’s homogeneous neighbourhood for which adjustments have been requested…” MPAC”s position is that these matters were addressed in a single page of a document titled “Value changes for Triplexes in Neighbourhood B31 for 2012 CVA” that it provided to the Appellants. The document lists the roll number, CVA, Property Code, & Neighbourhood for 32 properties. Municipal addresses were not included. It also discloses that there were five RFRs among the 32 properties and provides the reason for any change with one or two words, such as “data” or “Data, class” or “Data, Prop code” or “Data, quality”.

Reply by the Appellants to MPAC’s Submissions

15The Appellants responded to MPAC’s Submissions by disputing its answers.

16The Appellants take issue with MPAC’s response regarding MFIPPA and whether MPAC has complied with its policy on releasing GRAD.

17The Appellants’ Reply states that MPAC has not followed the Board’s Decision DM126770 by Member J. L. Walker with respect to releasing PAD to the comparable properties.

18The Appellants’ Reply re-iterated their request for 2008 CVA for all of the properties.

19The Appellants re-iterated their request for information “showing any reductions and the amount of reductions for 66 properties and not just 32”.

Discussion and Analysis

20The Appellants seek broad and detailed disclosure of information from MPAC as to how it assesses properties. Such disclosure may be relevant to an examination of the efficacy of the valuation methodology and statistical model used by MPAC to assess properties. However such information may go beyond what is necessary or reasonable to determine the current value of a specific property.

21In an assessment appeal of the current value of a property pursuant to s. 40 of the Assessment Act (“Act”), this Board is charged with a very specific task: it is to determine the correctness of the current value of the property under appeal after it hears the evidence and submissions of the parties. The Board has the further task under s. 44.(3)(b) to consider if the assessment must be reduced from the correct current value for reasons of achieving equity with the assessments of similar properties in the vicinity.

22For taxation year 2009 and subsequent years the Act places the burden of proof of the correctness of an assessment on MPAC where value is in issue on appeal to the Board. Thus, it is the assessment of the specific property that is under appeal, not the efficacy of the methodology MPAC may have used to arrive at the assessment. MPAC must provide sufficient evidence to the Board to satisfy this burden and can choose what evidence it determines to be appropriate to do so. The Board’s Rules of Practice and Procedure require MPAC to disclose the evidence it proposes to rely on prior to a hearing.

23In this appeal the statutory valuation day is January 1, 2012. Therefore to be useful and relevant in determining the current value of the subject property evidence will have to relate to that date.

24The Act’s definition of current value may be paraphrased as the value of the property in money that a property would be sold for in a transaction on the valuation day between a willing seller and willing buyer. Typically evidence before the Board will include sales information about the subject property if it sold on or near the valuation day and, where that is not available, sales information about identical or similar properties so as to arrive at a reasonable estimate of value for the subject property by use of comparable properties. That is the kind of information that parties should disclose to each other before a hearing.

25The Board encourages parties to an assessment appeal to provide each other with as full disclosure of relevant evidence before a hearing as is practical and reasonable. This is necessary so that parties can know what case they have to meet and also because it may encourage settlement without the necessity of a hearing. Sometimes this information exchange occurs during the Request for Reconsideration process that is a prerequisite to an appeal to the Board.

Admissibility of Evidence in an ARB Hearing Compared to Right to Disclosure Under the MFIPPA.

26The Board was advised that the Appellants have also sought disclosure of information from MPAC relying on the Municipal FIPPA. While there may be some overlap between that request and the Order for disclosure sought in this motion, this Board does not make a determination of that issue, but only of the matters to be disclosed for the purpose of the Appellants’ assessment appeal and the resulting hearing before the Board.

27The tests applied under MFIPPA and in a hearing of an assessment appeal before the Board are not the same. It may be possible for a citizen to obtain disclosure of information under the MFIPPA and for that same information to be rejected as evidence in an assessment appeal because it is not relevant. That is, the fact that information may be subject to disclosure under MFIPPA does not automatically make it admissible at an assessment hearing. The Board will determine admissibility based on relevance as part of the hearing. Similarly, the Order by the Board for disclosure of information by the Board on a motion such as this does not determine the subsequent admissibility of the information as evidence in the hearing. Admissibility will be determined by the member of the Board presiding at the hearing of the appeal.

Disclosure Before a Board Hearing

28In considering requests for orders for disclosure prior to a hearing the Board must achieve a balance. MPAC has voluminous data about the assessment and valuation of all properties in the Province, including data from past years as well as the most recent assessment year. It has access to all of the publically recorded property transfer transactions in the Land Titles Registry Offices, as well as access to various commercial sales information data bases. Individual property owners do not have the same easy access to this information as does MPAC, but they may have more specific and detailed information about their own property and neighbourhoods than MPAC does.

29The test for admissibility of evidence on an assessment appeal hearing is relevancy. The test for what should be disclosed before a hearing is also relevancy or at least a semblance of relevancy. Does the information sought bear on the question to be proved? If it does not have relevance then it need not be disclosed and probably will not be admissible at a hearing.

30The courts, in weighing questions of disclosure, apply a principle of proportionality. That is, not only must the evidence to be disclosed relevant to the question, but the volume of material sought to be disclosed must be proportional to the issue.

31Tribunals governed by the Statutory Powers Procedure Act (“SPPA”) must make decisions on disclosure that achieve the most expeditious and cost-effective determination of a dispute on its merits. Fairness to all of the parties must be considered. The following excerpts from the SPPA dealing with disclosure and evidence apply in determining this motion:

Statutory Powers Procedure Act

Liberal construction of Act and rules

2. This Act, and any rule made by a tribunal under subsection 17.1 (4) or section 25.1, shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits. 1999, c. 12, Sched. B, s. 16 (1); 2006, c. 19, Sched. B, s. 21 (1).

Disclosure

5.4 (1)If the tribunal’s rules made under section 25.1 deal with disclosure, the tribunal may, at any stage of the proceeding before all hearings are complete, make orders for,

(a) the exchange of documents;

(b) the oral or written examination of a party;

(c) the exchange of witness statements and reports of expert witnesses;

(d) the provision of particulars;

(e) any other form of disclosure. 1994, c. 27, s. 56 (12); 1997, c. 23, s. 13 (11).

Other Acts and regulations

(1.1)The tribunal’s power to make orders for disclosure is subject to any other Act or regulation that applies to the proceeding. 1997, c. 23, s. 13 (12).

Exception, privileged information

(2)Subsection (1) does not authorize the making of an order requiring disclosure of privileged information. 1994, c. 27, s. 56 (12).

32The SPPA sets out what evidence is admissible or inadmissible at a hearing.

Evidence

What is admissible in evidence at a hearing

15. (1)Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,

(a) any oral testimony; and

(b) any document or other thing,

relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

What is inadmissible in evidence at a hearing

(2)Nothing is admissible in evidence at a hearing,

(a) that would be inadmissible in a court by reason of any privilege under the law of evidence; or

(b) that is inadmissible by the statute under which the proceeding arises or any other statute.

Conflicts

(3)Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence in any proceeding.

Copies

(4)Where a tribunal is satisfied as to its authenticity, a copy of a document or other thing may be admitted as evidence at a hearing.

Photocopies

(5)Where a document has been filed in evidence at a hearing, the tribunal may, or the person producing it or entitled to it may with the leave of the tribunal, cause the document to be photocopied and the tribunal may authorize the photocopy to be filed in evidence in the place of the document filed and release the document filed, or may furnish to the person producing it or the person entitled to it a photocopy of the document filed certified by a member of the tribunal.

Certified copy admissible in evidence

(6)A document purporting to be a copy of a document filed in evidence at a hearing, certified to be a copy thereof by a member of the tribunal, is admissible in evidence in proceedings in which the document is admissible as evidence of the document. R.S.O. 1990, c. S.22, s. 15.

Use of previously admitted evidence

15.1 (1)The tribunal may treat previously admitted evidence as if it had been admitted in a proceeding before the tribunal, if the parties to the proceeding consent. 1994, c. 27, s. 56 (30).

Definition

(2)In subsection (1),“previously admitted evidence” means evidence that was admitted, before the hearing of the proceeding referred to in that subsection, in any other proceeding before a court or tribunal, whether in or outside Ontario.

Additional power

(3)This power conferred by this section is in addition to the tribunal’s power to admit evidence under section 15. 1997, c. 23, s. 13 (18).

33The Appellants want MPAC to provide information that they think will assist them to challenge MPAC’s assessment. To the extent that they are requesting specific identifiable documents such disclosure could be ordered. But there are limits: the SPPA contemplates that the Board could reject evidence that is “unduly repetitious”.

34Another consideration is whether a disclosure requests is simply the gathering of reams of information that either has little bearing on the case at hand or will be onerous beyond whatever probative value may result. Is the request a “fishing expedition”? Does the request blindly seek information without having a reasonable expectation that it will be relevant to the question in issue. If the information sought is clearly likely to have bearing on the issue of the hearing then it is reasonable for it to be disclosed. But the person making the request must illustrate the potential probative value and relevance.

The Board’s Rules of Practice and Procedure

35The Board addresses disclosure and evidence in its Rules of Practice and Procedure. In particular, Rule 45 speaks to disclosure prior to a hearing. In Rule 45(1) MPAC is required for matters in the Direct Hearing Stream (which this appeal is) to “disclose to the appellant and the municipality any assessment data together with the basis or analysis that supports the assessment that has been appealed” and to do so “within 90 days of filing of an appeal of the assessment”.

36Further, Rule 45.(2) also require parties who intend to rely on documentary evidence at a hearing to provide other parties with a copy of the document at least 21 days prior to the hearing, failing which the Board may refuse to accept the document at the hearing.

37This appeal is in the Direct Hearing Stream, which is meant to be a speedier process for straightforward appeals. It is used for most residential appeals. In the Standard Stream, which are typically more complicated appeals, the Board issues a Procedural Order that sets out timeframes for disclosure of information.

38It is helpful to consider the approach to discovery the Board takes if there is an order pursuant to Rule 56 regarding discovery. The Board may impose conditions “concerning the timing, manner and scope of discovery; no party shall, in conducting oral examinations for discovery exceed a total of 2 hours of examination, regardless of the number of parties or other persons examined except with leave of the Board”. The point of this Rule is to avoid unduly repetitive discovery and prolix and excessive evidence at a hearing.

39It is not MPAC’s statistical model that is challenged at an assessment appeal before the Board. It is the correctness of the current value assessment of an individual property that results from MPAC’s analysis. Typically MPAC does not rely on its statistical assessment model to support the correctness of a current value before the Board but rather provides sales information about the subject property and comparable properties that have sold on or near the valuation day. This is referred to as the direct sales comparison approach to value. Other valuation approaches are sometimes used, such as the income approach to value for income properties, and the cost approach for industrial properties. There is a difference in the valuation methods used for individual properties and that used for mass assessment. On an assessment appeal it is the individual property valuation that is tested, not the mass appraisal approach used by MPAC.

40If MPAC is not proposing to rely on a mass appraisal approach to demonstrate the correctness of an individual assessment, but will rely on a direct sales comparison approach, then the statistical data and methods used for mass appraisal may not be relevant to the issue before the Board on an individual property assessment appeal.

41Most of the information sought by the Appellants relates to how MPAC has dealt with other properties either during the assessing process or in consideration of RFRs without establishing that the properties are comparable to the subject. These are not matters that are directly relevant to the determination of the current value of the subject property under appeal.

Case Law

42In Municipal Property Assessment Corporation, Region No. 3 v. Via Rail Canada Inc. [2013] O.A.R.B.D. No. 291 Member Whitehurst considered the principles guiding the Board for ordering pre-hearing production of documents. Quoting from Municipal Property Assessment Corporation, Region No. 27 (an unreported decision under Board File No. DM51730), he noted that,

a clear principle evolves: the production must have some semblance of relevance to the pleadings and issues in the case but the degree of relevance is broader when it is being sought at the production and discovery stage than what may be permitted at the trial of the issue.

43The Appellants rely on Board Decision DM126770 (Comete v. Municipal Property Assessment Corporation Region 9, [2014] O.A.R.B. N. 432, August 14, 2014) to support their request for release of RFR information. In examining this decision it must be remembered that the Board’s decisions, particularly in pre-hearing motions, are rooted in the facts of the matter being decided. The decisions are not binding precedents, although the Board strives to be consistent in its rulings. The only issue in Comete was whether or not MPAC should be ordered to produce reasons why adjustments were granted through the RFR process. The Board’s reasons for ordering disclosure of summary reasons for RFR in Comete was that the Board found some relevancy to the issue in dispute in that “the age and condition of his property have not been taken into consideration”. This case cannot be interpreted to mean that the Board is bound to grant a request for such information in every case. The seeker of the information must relate the request to an issue at the hearing.

44In the present case the Appellants have not demonstrated that their request for MPAC to provide information, beyond what has been provided, seeks information that has a semblance of relevancy to an issue in their appeal. The Board finds that the requests made in this instance are closer to the “fishing expedition” request than to a specific request related to an issue in the hearing. This is not to say that MPAC is free to ignore the Board’s Rules to provide disclosure of evidence it proposes to tender at the hearing.

45In seeking an order that MPAC is to provide a “comprehensive list and a property comparable report, also know as a Property Assessment Detail (”PAD”) sheet, for all the properties in the same class as the subject property, and not just the 4 comparable properties that the respondent has “cherry picked” the Appellants cast their net too wide. It is not information on all properties in the same class as the subject property that is relevant or proportional to the determination of the current value of the subject property. What would have a semblance of relevancy is the disclosure of properties that MPAC proposes to be comparable to the subject and intends to put forward as evidence at the hearing. However, it is noted that MPAC has agreed to provide PAD screens for all triplexes in neighbourhood B31, which satisfies part of the Appellants’ request and would be relevant at the hearing of this matter. Therefore the Board orders MPAC to provide this information.

Conclusion

46For all of the foregoing reasons the motion is allowed in part, that is, to the extent that MPAC has agreed to provide disclosure in its response. MPAC shall complete disclosure to the Appellants within 30 days of the release of this decision.