Industrial Malls (Re), 2016 CanLII 35407

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: June 08, 2016 FILE NO.: WR 140804

Assessed Person(s)/ Appellant(s): See Schedule A Respondent(s): Municipal Property Assessment Corporation (“MPAC”), Region 15 Respondent(s): City of Brampton, City of Burlington, City of Mississauga and Town of Oakville Property Location(s): See Schedule A Municipality(ies): City of Brampton, City of Burlington, City of Mississauga and Town of Oakville Roll Number(s): See Schedule A Appeal Number(s): See Schedule A Taxation Year(s): 2013, 2014, 2015 and 2016 Hearing Event No.: 625968

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

ARB Case Name: Industrial Malls (Re) Heard: May 26, 2016 by Telephone Conference Call

APPEARANCES:

Parties See Schedule A MPAC City of Brampton City of Burlington City of Mississauga Town of Oakville

Counsel⁺/Representative Peter Milligan⁺ and Jamie Walker⁺ Frank Shea⁺, Jennifer Barlow⁺ and John Scherer Aida Karreman Paul Lacelle Sandra Turnbull Susan Price and Mark Cheyne

MEMORANDUM OF ORAL DECISION DELIVERED BY JOSEPH M. WYGER ON MAY 26, 2016

INTRODUCTION

1On May 26, 2016, a telephone conference call (“TCC”) took place (Hearing No. 625968) in which the Assessment Review Board (“Board”) heard submissions from a number of taxpayer representatives and MPAC concerning the application of a revised capitalization rate of 6.6% to the 2012 current value of Industrial Mall properties (Property Code 580) located in the Halton and Peel Regions (Region 15) for the taxation years listed in Schedule A.

2During the call, MPAC identified several comparable properties whose proprietary confidential financial information (“confidential information”) served as the basis for revising the capitalization rate from 7% to 6.6%. Absent an Order of the Board, s. 53 of the Assessment Act, R.S.O. 1990, c. A.31, as amended (the “Act”) bars MPAC from providing this information.

3Mr. Milligan and Mr. Walker, counsel for various appellants and other representatives (the “Appellants”), require this information in order to litigate their assessment appeals.

4The Appellants requested an Order that the Board hold a motion under Rule 57 of the Rules of Practice and Procedure (“Rules”) to compel MPAC to produce documents containing confidential information, which is received from property owners and subject to s. 53 of the Act.

5The Appellants further requested an Order that their motion be served by way of registered mail to the last known mailing address of those (typically vendors of the properties) whose information is being sought. The Appellants submitted that the alternative method of service to the vendors is the most just, expeditious and least expensive method of advancing the motion.

6At the conclusion of the call, the Board agreed to assist with the case management of the Region 15, 580 appeals and scheduled a hearing event to adjudicate a number of representative cases dealing specifically with the capitalization rate issue.

ORDER

7The Board Orders, on consent of the parties, that:

1. The Appellants’ Rule 57 production motion shall be served by way of registered mail to the last known mailing address of those (typically vendors of the properties) whose information is being sought. The service shall be directed toward the “President or Chief Operating Officer”.

2. In the event that the vendor has outstanding appeals before the Board, the production motion will also be copied to the vendor’s representative. The Appellants shall provide the Board with an affidavit of service and copies of the electronic signature from Canada Post for the registered mail, confirming that the package was actually received by the addressee.

3. The Appellants shall provide a copy of this Order in the production motion.

4. The Appellants’ Rule 57 production motion shall take place by way of TCC on June 22, 2016 at 2:00 p.m., Hearing No. 634264, entry code 3612806#. Only the existing appeals on the May 26, 2016, TCC docket will be scheduled to the June 22, 2016, TCC, while all others will be scheduled to the August 10, 2016 hearing event.

5. A hearing event to address the capitalization rate issue shall be held on August 10 and 11, 2016, at 9:30 a.m. (Hearing No. 634265) at:

Assessment Review Board Room No. 2 655 Bay Street, Suite 1500 Toronto Ontario M5G 1E5

6. The format of the hearing event will be determined in advance.

7. Notice of the August 10, 2016 hearing event shall be provided to Appellants with property code 580 appeals involving a capitalization rate issue who were not present during the May 26, 2016 TCC.

8. Any Appellants with outstanding appeals of an Industrial Mall where the capitalization rate has been or is raised by MPAC as an issue shall have the option of adjourning their appeals to the August 10, 2016 hearing event, pending the Board’s adjudication on this capitalization rate issue. The Appellants are not obligated to adjourn their appeals and shall have the option of continuing to deal with their outstanding appeals with MPAC and the Board directly.

9. Notice will be given to all Appellants with outstanding appeals involving a capitalization rate issue in advance of the August 10, 2016 hearing event.