BMCC Phase II Realty Corporation v. Municipal Property Assessment Corporation, 2015 CanLII 78766

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

November 27, 2015

FILE NO.:

DM 136489

Moving Party(ies):

BMCC Phase II Realty Corporation

Respondent(s):

Municipal Property Assessment Corporation (“MPAC”)

Respondent(s):

The Corporation of the City of Mississauga

Property Location(s):

5115 Creekbank Road

Municipality(ies):

City of Mississauga

Roll Number(s):

2105-050-117-09070-0000

Appeal Number(s):

2958215, 3008382 and 3085235

Taxation Year(s):

2013, 2014, 2015

Hearing Event No.:

602129

Legislative Authority:

Sections 40 and 53 of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Heard:

October 28, 2015 in Toronto, Ontario

APPEARANCES:

Parties

Counsel

BMCC Phase II Realty

I. Andres

MPAC

D. Mitchell

City of Mississauga

No one appearing

DISPOSITION OF THE BOARD DELIVERED BY SUSAN F. MATHER

DISPOSITION OF MOTION

1On consent of the parties the Board orders:

1. On or before November 2, 2015, the Appellant shall serve on MPAC and file with the Assessment Review Board (the “Board”) a Supplementary Affidavit of Service which includes:

a) courier delivery confirmations for those materials served by courier; and

b) email confirmations indicating receipt and acceptance from the third party authorized representatives for those materials served by email.

2. After considering the Appellant’s Motion Record and the submissions of counsel for the Appellant and MPAC, and subject to receipt of the Supplementary Affidavit of Service, the Board hereby orders MPAC to produce to legal counsel and consultants for the Appellant, within 30 days of this Order being issued:

a) With respect to the properties set out in Schedule “A” hereto:

i. the income, expense, rent roll and lease information supplied to MPAC and MPAC’s subsequent valuations and assessor’s notes for the said properties for the assessments as returned for the taxation years in question (2012 base year); and where the assessments for said properties have been appealed and settled, copies of the revised final valuations, and any memos, notes or documentation indicating the basis of the resolution of such appeals (excluding any documents which are privileged);

ii. all memos, notes or documents in MPAC’s possession relating to the age, condition, building classification, location, site plan and building layout of said properties;

iii. all memos, notes or documents in MPAC’s possession relating to MPAC’s position on typical vacancy and the determination of fair market rent for said properties for the relevant years, including the actual lease documents, extracts from leases, offers to lease, lease summaries, information related to inducements or rent free periods, rent rolls, vacancy information, any income and expense information as well as adjustments thereto, and any fair market rent or vacancy studies, reports or analyses, together with all supporting memos, notes and documentation; and

iv. all sale documents in MPAC’s possession on any of said properties that have sold during the relevant time period, including but not limited to deeds, statements of adjustment (including back-up documentation and calculations used to quantify the adjustments), MPAC sales questionnaires and any responses thereto, TIP returns, sales investigations reports, and any analysis by MPAC of the sales;

provided that legal counsel and consultants for the Appellant have first executed and delivered undertakings of confidentiality and non-disclosure to MPAC in the form attached hereto as Schedule “B” and

b) All memos, notes, documents, internal policy statements and internal or external market publications or summaries in MPAC’s possession (excluding any documents which have already been produced) with respect to:

i. the classification of office buildings in Mississauga (ie. Class AAA, AA, A, etc.);

ii. how neighbourhood boundaries are delineated and how the appropriate vicinity is determined for the purposes of identifying comparable properties in order to make assessments in the first instance and to respond to assessment appeals;

iii. the relative viability or attractiveness of business parks or commercial nodes from a market perspective, including the relative impact on market value associated with a property’s access to and visibility from major arterial roads and highways;

iv. the determination of fair market rents for each class of office building and each different neighbourhood, and how the net effective rents are calculated; and

v. the treatment of tenant inducements or rent-free periods, and the methodology used by MPAC to calculate the impact of any such inducements or rent-free periods on property value;

3. These appeals are hereby adjourned to a prehearing conference to be convened by telephone conference call (“TCC”) on March 1, 2016 at 10 a.m. (Hearing No. 613341). No earlier than five minutes prior to the indicated start time parties must dial one of the following telephone numbers:

• From Toronto: 416-212-0400 or From outside Toronto: 1-866-355-2663

After hearing the conference greeting enter the code: 8861054#. Your call will be connected to all other participants. Please remain on the line until the Presiding Member calls the hearing to order.

• Note that for a TCC event, the Board will proceed 10 minutes after the start time indicated if the parties have not yet appeared.

4. The purpose of the prehearing TCC will be to review status of the appeals and make a further procedural order if required.

“Susan F. Mather”

SUSAN F. MATHER

VICE-CHAIR

Assessment Review Board

A constituent tribunal of Environment and Land Tribunals Ontario

Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

SCHEDULE “A”

LIST OF THIRD PARTY PROPERTIES TO WHICH THIS PRODUCTION ORDER APPLIES

1. 5150 Spectrum Parkway, Mississauga (Roll No. 21 05 050 115 60010 0000)

2. 5060 Spectrum Parkway, Mississauga (Roll No. 21 05 050 115 60040 0000)

3. 5570 Explorer Drive, Mississauga (Roll No. 21 05 050 115 63000 0000)

4. 5750 Explorer Drive, Mississauga (Roll No. 21 05 050 115 65055 0000)

5. 5985 Explorer Drive, Mississauga (Roll No. 21 05 050 115 66000 0000)

6. 2680 Matheson Blvd East, Mississauga (Roll No. 21 05 050 115 78025 0000)

7. 1855-1875 Buckhorn Gate, Mississauga (Roll No. 21 05 030 094 30010 0000)

8. 4880 Tahoe Boulevard, Mississauga (Roll No. 21 05 030 094 30200 0000)

9. 4720 Tahoe Boulevard, Mississauga (Roll No. 21 05 030 094 30300 0000)

10. 4701 Tahoe Boulevard, Mississauga (Roll No. 21 05 030 094 30500 0000)

Schedule “B”

ARB Appeal Nos. 2958215,

3008382, 3085235

ARB Hearing No. 602129

ASSESSMENT REVIEW BOARD

IN THE MATTER OF Section 40 of the Assessment Act (R.S.O. 1990 c. A31) as amended.

AND IN THE MATTER OF appeals against the assessment of the property known municipally as 5115 Creekbank Road, in the City of Mississauga, on assessment roll no. 21 05 050 117 09070 0000, for the 2013, 2014 and 2015 taxation years.

B E T W E E N:

BMCC PHASE II REALTY CORPORATION

Appellant

• and –

MUNICIPAL PROPERTY ASSESSMENT CORPORATION and THE CORPORATION OF THE CITY OF MISSISSAUGA

Respondents

UNDERTAKING OF NON-DISCLOSURE

To the Municipal Property Assessment Corporation:

I, , of the City of , of ______________________, expert consultant in this matter for BMCC Phase II Realty Corporation, undertake that no one (including our client and other members of my firm), other than Goodmans LLP, lawyers for BMCC Phase II Realty Corporation, will have access to any confidential information produced by the Municipal Property Assessment Corporation (“MPAC”) (such information will hereinafter be referred to as "Confidential Information").

I agree that Confidential Information will be presented at discovery in a manner which will preclude disclosure to any person besides lawyers and expert witnesses.

Confidential Information shall not be reproduced or copied in whole or in part in any manner (including electronically) except as is strictly necessary to comply with the Rules of Civil Procedure, the ARB's Rules of Practice and Procedure, or an order of the Court or of the ARB. In no circumstances shall Confidential Information be transmitted by way of the Internet. All Confidential Information, including reproductions or copies, shall be returned to MPAC at the conclusion of the proceedings. Any Confidential Information that is stored electronically shall be erased and written confirmation of the erasure shall be provided to MPAC at the conclusion of these proceedings.

I undertake to immediately inform Goodmans LLP of any breach of this undertaking, including any instance, inadvertent or otherwise, where Confidential Information has or may have been disclosed to any person contrary to this undertaking.

Dated at Toronto this day of , 2015.

[Name, Firm and Business Address]

ARB Appeal Nos. 2958215,

3008382, 3085235

ARB Hearing No. 602129

ASSESSMENT REVIEW BOARD

IN THE MATTER OF Section 40 of the Assessment Act (R.S.O. 1990 c. A31) as amended.

AND IN THE MATTER OF appeals against the assessment of the property known municipally as 5115 Creekbank Road, in the City of Mississauga, on assessment roll no. 21 05 050 117 09070 0000, for the 2013, 2014 and 2015 taxation years.

B E T W E E N:

BMCC PHASE II REALTY CORPORATION

Appellant

• and –

MUNICIPAL PROPERTY ASSESSMENT CORPORATION and THE CORPORATION OF THE CITY OF MISSISSAUGA

Respondents

UNDERTAKING OF NON-DISCLOSURE

To the Municipal Property Assessment Corporation:

I, , of Goodmans LLP, lawyers in this matter for BMCC Phase II Realty Corporation, undertake that no one (including our client), other than expert consultant(s) retained by us for the purposes of assisting us in this complaint(s) and who have executed the same form as this undertaking and delivered an original executed copy of same to counsel for the Municipal Property Assessment Corporation (“MPAC”), will have access to any confidential information produced or disclosed by MPAC (such information will hereinafter be referred to as "Confidential Information"). We may, however, provide our client with conclusions and opinions derived from Confidential Information for purposes of seeking instructions.

We agree that Confidential Information will be presented at discovery in a manner which will preclude disclosure to any person besides lawyers and expert witnesses.

Confidential Information shall not be reproduced or copied in whole or in part in any manner (including electronically) except as is strictly necessary to comply with the Rules of Civil Procedure, the ARB's Rules of Practice and Procedure, or an order of the Court or of the ARB. In no circumstances shall Confidential Information be transmitted by way of the Internet. All Confidential Information, including reproductions or copies, shall be returned to MPAC at the conclusion of the proceedings. Any Confidential Information that is stored electronically shall be erased and written confirmation of the erasure shall be provided to MPAC at the conclusion of these proceedings.

I undertake to immediately inform MPAC’s counsel in this proceeding of any breach of this undertaking, including any instance, inadvertent or otherwise, where Confidential Information has or may have been disclosed to any person contrary to this undertaking. This includes the obligation to report any breach or potential breach of any expert’s undertaking.