Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: April 20, 2016

FILE NO.: DM 135587

Moving Party(ies): Municipal Property Assessment Corporation (“MPAC”), Region 15

Respondent(s): Papillon Investments Limited

Respondent(s): City of Mississauga

Property Location(s): 2720 2770 Windwood Drive

Municipality(ies): City of Mississauga

Roll Number(s): 2105-040-100-11400-0000

Appeal Number(s): 3038567 and 3086517

Taxation Year(s): 2014 and 2015

Hearing Event No.: 573079

Legislative Authority: Sections 32 and 40 of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Heard: October 14, 2015 by Telephone Conference Call

APPEARANCES:

Parties	Counsel+/Representative
MPAC	Damian Bernacik
Papillon Investments Limited	Nila Hooda
City of Mississauga	Sandy Turnbull

MEMORANDUM OF ORAL DISPOSITION DELIVERED BY SANDRA DRIESEL ON OCTOBER 14, 2015

DISPOSITION OF MOTION

1MPAC moves to have these appeals dismissed for failure to comply with an order of the Assessment Review Board (“Board”).

BACKGROUND

2These appeals first came before the Board at a Prehearing event Number 572230 held October 6, 2014.

3Presiding Member Wyger adjourned the appeals to this event through Board Order (“Order”) Number 133580 that also ordered the parties to complete the pleadings as shown, based on their proposal to the Board:

a. Statement of Issues by June 16, 2015

b. Responses to the Statement of Issues by September 14, 2015

c. Inspections of the subject property are to be completed by July 31, 2015.

4Further to this, the Order notes that “No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Board’s Rules apply to such requests.”

5In review of the aforementioned Order this Member finds the tone of the Order is quite clear: the Board, in being generous with the amount of time granted the parties to complete pleadings had a concern with non-compliance with such far reaching dates causing further delays. The Order addresses this concern with a warning to the parties that costs may be considered on a per diem basis for every day of non-compliance with “what should be achievable dates.” (Citing Board Rules of Practice and Procedure (“Rules”) 130, 133 and 134).

6The Order was specific on the roles of both MPAC and Cushman & Wakefield Property Tax Services (“Cushman & Wakefield) to advise the Board detailing compliance/non-compliance with the order (having granted an exception to Rule 43). It goes on to note that late compliance will not necessarily forestall an award of cost and that the Board will consider all the circumstances to determine whether a party has acted unreasonably in failing to comply in a timely manner with the dates in the Board Order.

7At today’s event, Nila Hooda reports that a Statement of Issues (“SOI”) has not been completed because a GRAD has not been provided from MPAC as requested on June 10, 2015 and subsequent dates.

8I related the details of the Order and dates for a SOI by the Appellant/Cushman & Wakefield to Ms. Hooda. She replied that she could deliver a SOI by October 16, 2015, two business days.

9MPAC is asking the Board to dismiss these appeals for non-compliance to the previous Order. The Municipality supports this request.

DISPOSITION OF MOTION

10For the reasons set out below I dismissed these appeals for failure to comply with the Order.

REASON FOR DISPOSITION OF MOTION

11Cushman & Wakefield does not dispute that they have failed to comply with the Order, but argues that they made best efforts to obtain a GRAD from MPAC and because of MPAC’s failure to deliver the GRAD they could not comply.

12MPAC records are not clear regarding if/when the GRAD was sent out after the June 10th request and doesn’t have record of the follow up request(s).

13Notwithstanding any clarification regarding the delivery of the GRAD to Cushman & Wakefield I have several issues with the excuse from Cushman & Wakefield:

1. The Order states the Board set the dates for pleadings based on proposed dates submitted by the parties. There is no mention of any date for a delivery of the GRAD. As a professional party, experienced in the ‘Standard Stream’ process, I would expect that Cushman & Wakefield, being reliant on the GRAD to be compliant would have at best requested a delivery date for the GRAD be part of the Order and at least had some agreement with MPAC on the delivery of the GRAD before committing to a date for the SOI. The fact that Ms. Hooda reports that a request for the GRAD was made on June 10, 2015 it seems the requirement for the GRAD was not considered before establishing the SOI date.

2. The fact that a first request is made for the GRAD only four working days prior to a delivery of a SOI and (above) it is suggested that the a SOI could be delivered in two working days it would seem that this is not such a massive task that couldn’t have been completed in a year. Granting any extension of time to complete the SOI would result in the delay of this process (at minimal another four months) and this delay is not a result of serious hardship or illness.

3. The Boards Rules provide Cushman & Wakefield options to address any concern for non-compliance. They could have contacted the Board with a motion to request the information from MPAC instead of waiting approximately 12 months to report this issue. They could have, prior to the SOI delivery date contacted the Board explained the situation and sought an extension of time.

14With Cushman & Wakefield failing to exercise any of the options available to them to address their non-compliance and waiting approximately a year after the first event to provide an explanation; I suggest that they did not hold the Order in any regard and they did not take seriously any consequence for non-compliance. Because of this, I believe that these appeals should be dismissed.

15Although the Order mentions a potential sanction for non-compliance may be the Board consider award of costs and it specifically cites Rule 133. I considered this:

1. Neither MPAC nor the Municipality requested an award of costs and the Board has other sanctions available for non-compliance.

2. The Order (specifically) put some onus on MPAC to report any non-compliance to the Board. I believe that MPAC must share some responsibility for enabling this situation of non-compliance to go on for such an extended period of time and failing to seek any remedy.

3. An award of costs might address the negligence on the part of the parties but it could still enable the parties to proceed to further delay the process.

16In conclusion I feel that the dismissal of these appeals is the most appropriate action for the fact that Cushman & Wakefield failed to comply with the Order of the Board.