Municipal Property Assessment Corporation v. Research in Motion, 2015 CanLII 46824

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: June 23, 2015

FILE NO.: DM 132187A

AMENDED DECISION ISSUED ON: July 28, 2015

Moving Party(ies): Municipal Property Assessment Corporation (“MPAC”) Region 21

Respondent(s): Research in Motion

Respondent(s): City of Waterloo

Property Location(s): 300 Hagey Boulevard and 455 Phillip Street

Municipality(ies): City of Waterloo

Roll Number(s): 3016-041-250-06407-0000 and 3016-043-500-03300-0000

Appeal Number(s): 2610524, 2610515, 2010514, 2010513, 2010523, 2010522, 2610521, 2610520, 2610519, 2610518, 2610517, 2610516, 2689977, 2919416, 2919613, 2690172, 2342469 and 2130861

Taxation Year(s): 2009, 2010, 2011 and 2012

Hearing Event No.: 588430

Legislative Authority: Sections 33 and 40 of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Heard: May 5, 2015 in Waterloo, Ontario

APPEARANCES:

Parties

Counsel+/Representative

MPAC

Tony Pileggi

Research in Motion

Gerry Carr

City of Waterloo

No one appeared

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1MPAC moves to have the appeals related to 300 Hagey Boulevard dismissed for

Amended pursuant to Rule 130 of the Assessment Review Board’s Rules of Practice and Procedure, effective April 2, 2013

failure to comply with an order of the Assessment Review Board (“Board”) issued by Member Plumstead on January 14, 2015 (the “Order”). MPAC also moves to have Robert Patterson barred from acting in the capacity of a witness for the appeals related to both 300 Hagey Boulevard and 455 Phillip Street.

2Research in Motion (“RIM”) does not dispute that they failed to comply with the Order, but argues that they made best efforts and should not have those appeals dismissed. RIM also argues that Mr. Patterson should not be barred from being a witness as he was under the impression that the appeals were in the Direct to Hearing Stream.

DISPOSITION OF MOTION

3For the reasons set out below both motions are granted. The appeals related to 300 Hagey Boulevard are dismissed for failure to comply with the Order and Mr. Patterson is barred from appearing as a witness at the appeals related to 455 Phillip Street.

REASONS FOR DISPOSITION OF MOTION

4The Order required RIM to provide information to MPAC, including rent rolls and finish costs for the building, by February 6, 2015. RIM did not provide that information until March 31, 2015. The agent for RIM takes the position that they used best efforts to comply with the Order and should not have their appeals dismissed as a result. The evidence before me of the efforts made are an email from Mr. Patterson to RIM on December 16, 2014 requesting the information and a response from RIM on December 22, 2014 stating that they do not have that information. There is no other evidence except the provision of the information to MPAC on March 31, 2015.

5I cannot accept that those are adequate excuses to justify the clear breach of the Order. Rule 7 of the Board’s Rules of Practice and Procedure provides the Board with a broad power to “grant the necessary relief.” MPAC is asking that the appeals be dismissed for non-compliance. RIM suggests that the appeals not be dismissed but did not suggest an alternative remedy for their non-compliance with the Order. While I acknowledge that dismissal is an extreme remedy, it is important that parties comply with orders of the Board in order to ensure a timely resolution of appeals.

6RIM and their agent, AEC Paralegal Professional Corp., have not demonstrated that they gave the Order any weight. They did not notify MPAC that they were having difficulty complying with the Order. They did not seek an extension of time from the Board. They took no reasonable steps to mitigate their non-compliance. RIM and AEC are also both large, sophisticated parties and should have known that there would be consequences for non-compliance. In that situation I have no difficulty in concluding that the appeals ought to be dismissed. This is an appropriate remedy for the contempt RIM has shown the Order.

7MPAC also moves the have Mr. Patterson barred from appearing as a witness. Rule 11(2) prohibits a representative from being both an advocate and witness, unless ordered by the Board on application. No application was made at the relevant time and RIM does not argue that Mr. Patterson was not an advocate on the file. Rather, Mr. Patterson swears that these appeals were in the Direct to Hearing Stream and so fall under Rule 11(1), which permits a representative to take on both roles. Mr. Patterson is quite mistaken as to which stream these appeals are in.

8The Board’s streaming strategy places properties into either the Direct to Hearing Stream or the Standard Stream based on the valuation of the property and other factors. The property at 455 Phillip Street was placed into the Standard Stream. Mr. Patterson should have known it was in the Standard Stream as a number of steps have been taken that only apply to properties in the Standard Stream. Pre-hearing conferences have been held, see Rule 86, and expert reports were exchanged, see Rule 48. These appeals are not in the Direct to Hearing Stream and Rule 11(2) applies.

9The evidence is clear that Mr. Patterson has acted as an advocate on the appeals related to 455 Phillip Street. Rule 11(2) prohibits him from now acting as a witness. I therefore order that his expert report on those appeals be struck and that he is prohibited from appearing as a witness at the hearing of those appeals.