Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: July 15, 2015 FILE NO.: WRC 2015M2

Assessed Person(s): Windsor Tool & Die Ltd Complainant(s): Windsor Tool & Die Ltd Respondent(s): City of Windsor Property Location(s): 1680 Kildare Road, Plan 1323 Lot 51 to Lot 74 Municipality(ies): City of Windsor Roll Number(s): 3739-020-240-14700-0000 Appeal Number(s): 2925964 Taxation Year(s): 2011 Hearing Event No.: 543192 Legislative Authority: Section 364.(14) of the Municipal Act, 2001, S.O. 2001, c. 25, as amended Heard: By written submission

DECISION OF THE BOARD DELIVERED BY PAUL MULDOON

1Windsor Tool & Die Ltd. (the “Windsor Tool & Die") seeks costs of $14,646.15 against the City of Windsor (the “City”).

Background

2Windsor Tool & Die’s request for costs arises out of a proceeding before the Assessment Review Board (the “Board”) concerning a complaint made under s. 364.(14) of the Municipal Act, 2001 against the City’s determination of the amount of the vacant unit rebate for taxation year 2011 in respect of the property at 1680 Kildare Road, in the City of Windsor.

3Windsor Tool & Die had previously made a complaint under s. 364.(24) of the Municipal Act, 2001 against the City’s recovery of a portion of the vacancy unit rebate for taxation year 2010 in respect of the same property. In its October 11, 2012 decision, the Board determined that the vacant unit rebate that the City claimed was paid in error was properly payable to Windsor Tool & Die.

4With respect to the 2011 complaint, a hearing was scheduled before the Board in Windsor for June 10, 2013. At the hearing, the parties sought and received an adjournment to July 10, 2013 on the grounds that they had agreed to the amount of the rebate but required additional time to record the details.

5A hearing took place on July 10, 2013 and the Board released its Notice of Decision on August 9, 2013, finding, on consent of the parties, that the rebate owing was determined to be $2,539.59.

6The Complainant made a written request to the Board for costs, dated August 20, 2013.

Relevant Legislation and Rules

7Section 17.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c S.22, (the “SPPA”) provides that a tribunal shall not make an order to pay costs unless the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith.

8Pursuant to s. 17.1(4), the Board has made rules with respect to the ordering of costs and the circumstances in which costs may be ordered.

9The Board’s rules respecting costs are set out in Rules 133 to 139 of the Board’s Rules of Practice and Procedure (the “Rules”).

10Rules 137 to 139 of the Board’s Rules state:

137. Considerations by the Board

The Board in determining whether a party has acted unreasonably, frivolously, vexatiously, or in bad faith shall consider all of the circumstances, including, without limiting the generality of the foregoing:

(a) a party failing to attend a hearing before the Board or to send a representative when properly given notice, without contacting the Board and other parties to the hearing;

(b) a party failing to comply in a timely manner with a Procedural Order, case or appeal(s) management plan or direction of the Board where the result therefrom is undue prejudice or delay to another party or parties in the proceedings before the Board;

(c) a party failing to comply in a timely manner with the disclosure or discovery requirements set out in the Board’s Rules of Practice or order or direction of the Board, including, without limiting the generality of the foregoing, the disclosure requirements respecting documents, particulars, or constitutional issues, provisions of responses to undertakings given on discovery including document disclosure; or

(d) a party knowingly presenting false or misleading evidence.

138. When Costs may be Awarded

Where the Board finds that a party has acted unreasonably, frivolously, vexatiously, or in bad faith, the Board may order that party to pay the costs of another party or parties to the proceedings subject to Rule 139 respecting the amount of costs that may be ordered.

139. Amount of Costs Awards

Where the Board determines that an order for costs may be made under Rules 133 to 138:

(a) the Board when determining the appropriate award of costs shall consider all the circumstances, including without limiting the generality of the foregoing, factors such as the seriousness of the misconduct, the amount of costs incurred by the party requesting costs, the conduct of the party requesting costs and offers to settle; and

(b) the amount of costs shall not exceed the sum of $1500.00 per day or up to $750.00 for each half day or less.

Submissions

11Windsor Tool & Die submits that the City’s representative acted in an unreasonable manner with regard to the complaint under s. 364.(14) for the taxation year 2011.

12Windsor Tool & Die’s application for costs relates to the failure by the City to submit relevant documents and respond to the Windsor Tool & Die’s disclosure prior to the hearing scheduled on June 10, 2013. Windsor Tool & Die provided the Board with an email in which the City’s Manager of Property Assessment, Roger Lauzière, declined a request by the Windsor Tool & Die representative to meet to discuss the matter prior to the hearing before the Board.

13Windsor Tool & Die submits that upon arriving at the June 10, 2013 hearing, the City’s representative requested a recess to accommodate a meeting with the Windsor Tool & Die’s representative in order to discuss a settlement.

14Windsor Tool & Die also refers to the City’s failure to disclose documents prior to a scheduled hearing in the proceeding for the 2010 taxation year.

15The Board did not seek written submissions from the City.

Discussion and Analysis

16As with all costs applications, the starting point for the determination of whether costs should be awarded is Rule 137 of the Board’s Rules. Essentially, costs are only awarded when a party acted unreasonably, frivolously, vexatiously, or in bad faith. This language emanates from s. 17.1 of the SPPA.

17In this matter, Windsor Tool & Die is submitting that costs should be awarded because the City’s conduct was unreasonable in that: (1) the City refused to meet prior to the hearing and (2) the City did not disclose documents in a timely manner.

18The Board will not make a cost award in this instance. Generally speaking, costs are only awarded in exceptional circumstances where the threshold test in Rule 137 is met. While the City’s conduct in this matter is less than satisfactory, the Board finds that the manner in which the City conducted itself does not meet the threshold outlined in Rule 137. Certainly, the City should take seriously its duty to disclose documents in a timely manner. Further, the Board encourages the parties at every hearing to discuss the matters in hope of resolving them or at least narrowing the issues for adjudication.

19The fact that the City did eventually meet and come to a settlement with Windsor Tool & Die suggests that the City was acting in good faith and did try to resolve the matter in a reasonable and efficient manner. The Board also notes that Windsor Tool and Die states that the City had not appropriately disclosed documents in a previous hearing. As a general rule, costs requests are limited to the actions or behaviour relating to the proceeding before the Board. Further, the Board notes that there are limits to the costs awards as outlined in Rule 139 where the amount of costs shall not exceed the sum of $1,500 per day or up to $750 for each half day or less. Hence, even if the Board was to grant costs, it is restrained to the cost limits outlined in the Rule.

20The test for costs outlined in Rule 137, therefore, is not met and the cost request is denied

ORDER

21The Complainant's application for costs against the City of Windsor is dismissed.