Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: August 10, 2016

FILE NO.: DM 141592

Moving Party(ies): 100 Wynford Portfolio Inc.

Respondent(s): City of Toronto

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 9

Property Location(s): 100 Wynford Drive

Municipality(ies): City of Toronto

Roll Number(s): 1908-101-250-00100-0000

Appeal Number(s): 3147825, 3076693, 3014986, 2996944

Taxation Year(s): 2013, 2014, 2015 and 2016

Hearing Event No.: 633265

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

Heard: July 15, 2016 by Teleconference Call

APPEARANCES:

Parties	Counsel
Moving Party / Assessed Person/Appellant	Ian Andres
Respondent MPAC	Carl Davis
Amexon Realty Corporation / Don Valley Business Park Corporation	Stephen Longo

MEMORANDUM OF ORAL DISPOSITION DELIVERED BY MEMBER J.L. WALKER ON JULY 15, 2016

MOTION FOR PRODUCTION

1The Assessment Review Board (“Board”) had before it the motion of 100 Wynford Portfolio Inc. (“moving party”) to compel the production of documents from the Municipal Property Assessment Corporation (“MPAC”) to produce material to legal counsel and consultants for the moving party, in exchange for undertakings of confidentiality and non-disclosure (“undertakings”), which it argues are relevant to appeals filed under s. 40 of the Assessment Act, R.S.O. 1990, c. A.31, as amended (“Act’) for the 2013, 2014, 2015 and 2016 taxation years. Section 53 of the Act bars MPAC from disclosing third-party income and expense information absent an Order of the Board.

2The subject property is improved with a six-storey commercial office building which has been assessed by MPAC using an income approach to value. The moving party’s position is that MPAC erred on its valuation by overstating the fair market rents applied to the basement and above-grade office space (in relation to six other comparable office buildings in the vicinity), and by relying on incorrect area calculations. MPAC has indicated in its pleadings that it will rely on rental information from eight comparable properties in the vicinity to support the adjusted market rents it applied to the subject property.

3The documents that the moving party seeks relate to the assessment and valuation of comparable properties identified by the parties in their respective pleadings and listed in Schedule “B”, as well as the factors considered by MPAC in classifying and assessing office buildings on Toronto.

4Ian Andres, counsel for the moving party obtained an Order of the Board (Board Order No. 141160) permitting an alternative to personal service of the motion record pursuant to Rule 34(f) of the Board’s Rules of Practice and Procedure (“Rules”) to the third-parties listed in Schedule B. The moving party’s Affidavit of Service indicates that where service was not possible via e-mail, the motion record was served by courier, with copies of the courier delivery notifications provided.

5Carl Davis, counsel for MPAC, consents to the Order sought and to the draft undertakings for counsel and consultants provided in Schedule C of the motion record.

6Stephen Longo, counsel for Amexon Realty Corporation, assessed owner of 1200 Eglinton Avenue East (Roll No. 19 08 101 240 00300 0000) and 250 Ferrand Drive (Roll No. 19 08 101 210 00400 0000), and for Don Valley Business Park Corporation, assessed owner of 150 Ferrand Drive (Roll No. 19 08 101 210 00250 0000), consented to the Order sought and the form of draft undertakings subject to the provision of a list of documents being produced for each property prior to their release. Mr. Davis agreed to provide the list two weeks prior to the release of the documents to the moving party.

DISPOSITION OF MOTION AND ORDER OF THE BOARD

7The motion is granted. The Board finds that the moving party has complied with Rules 34(f) and 57 providing the assessed owners and their representatives with notice of its motion and an opportunity to disclosure. Upon hearing the submissions of counsel for the moving party and for the respondent MPAC, and the submissions of counsel for Amexon Realty Corporation Don Valley Business Park Corporation, it is hereby ordered that:

1. MPAC produce to legal counsel and consultants for the Appellant, by September 23, 2016:

a) With respect to each of the properties set out in Schedule “B” hereto:

i. the income, expense, rent roll and lease information supplied to MPAC and MPAC’s subsequent valuations and assessor’s notes 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 all memos, notes and documents indicating the basis of the resolution of such appeals, excluding any documents which are privileged;

ii. all memos, notes and documents relating to the age, condition, building classification, location, site plan and building layout of said properties;

iii. all memos, notes and documents 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;

b) All memos, notes, documents, internal policy statements and internal or external market publications or summaries in MPAC’s possession with respect to:

i. the classification of office buildings in Toronto (ie. Class AAA, AA, A, B, 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.

2. MPAC to provide to Stephen Longo, Walker West Longo LLP, a list of any documents to be disclosed regarding 1200 Eglinton Avenue East, Toronto (Roll No. 19 08 101 240 00300 0000), 250 Ferrand Drive, Toronto (Roll No. 19 08 101 210 00400 0000), and 150 Ferrand Drive, Toronto (Roll No. 19 08 101 210 00250 0000) two weeks prior (September 9, 2016) to releasing them to counsel for the moving party.

8The appeals are adjourned to a pre-mediation conference to be convened by Telephone Conference Call on October 14, 2016 at 10 a.m. Hearing No. 634990. The purpose of the conference call / pre-hearing is to fix further steps for any properties on the status report that are not resolved.

For a Telephone Conference Call, no earlier than five minutes prior to the indicated start time parties must dial one of the following telephone numbers:

From Toronto: 416-212-8012 or From outside Toronto: 1-866-633-0848

After hearing the conference greeting enter the code: 8861054#.

You will not be placed into the call with the other participants in the conference until the presiding member is on the line.

Please remain on the line until the presiding member calls the hearing to order.

If experiencing technical difficulties, press “0”, to access the I-Serve operator for assistance.

Note that for a Telephone Conference Call event, the Board will proceed 10 minutes after start time indicated if the parties have not yet appeared

“J.L. Walker”

J.L. WALKER

MEMBER

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 “B”

LIST OF THIRD PARTY PROPERTIES FOR WHICH INFORMATION IS BEING SOUGHT FROM MPAC

1. 150 Ferrand Drive, Toronto (Roll No. 19 08 101 210 00250 0000)
2. 250 Ferrand Drive, Toronto (Roll No. 19 08 101 210 00400 0000)
3. 1200 Eglinton Avenue East, Toronto (Roll No. 19 08 101 240 00300 0000)
4. 1150 Eglinton Avenue East, Toronto (Roll No. 19 08 101 500 00204 0000)
5. 90 Wynford Drive, Toronto (Roll No. 19 08 101 250 00200 0000)
6. 20 Wynford Drive, Toronto (Roll No. 19 08 101 250 00800 0000)
7. 1500 Don Mills Road, Toronto (Roll No. 19 08 102 180 01400 0000)
8. 801 York Mills Road, Toronto (Roll No. 19 08 102 390 08600 0000)
9. 789 – 793 Don Mills Road, Toronto (Roll No. 19 08 101 230 00100 0000)
10. 101 Duncan Mill Road, Toronto (Roll No. 19 08 103 130 00200 0000)
11. 225 Duncan Mill Road, Toronto (Roll No. 19 08 103 145 00100 0000)
12. 26 Lesmill Road, Toronto (Roll No. 19 08 103 141 03700 0000)
13. 95 – 105 Moatfield Drive, Toronto (Roll No. 19 08 103 140 02000 0000)

Schedule “C”

ARB Appeal Nos. 2996944, 3014986, 3076693, 3147825 ARB Hearing No. 633285

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 100 Wynford Drive, in the City of Toronto, on assessment roll no. 19 08 101 250 00100 0000, for the 2013, 2014, 2015 and 2016 taxation years.

B E T W E E N:

100 WYNFORD PORTFOLIO INC. Appellant

• and -

MUNICIPAL PROPERTY ASSESSMENT CORPORATION and THE CORPORATION OF THE CITY OF TORONTO Respondents

UNDERTAKING OF NON-DISCLOSURE

To the Municipal Property Assessment Corporation:

I, , of the City of , of ______________________, expert consultant in this matter for 100 Wynford Portfolio Inc., undertake that no one (including our client and other members of my firm), other than Goodmans LLP, lawyers for 100 Wynford Portfolio Inc., 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. Confidential information provided may be entered on a computer disk. Such information placed on a computer disk shall remain on the computer disk and not be transferred or copied onto a computer hard drive or computer network, and in no circumstances shall such information be transmitted by email or by the internet or by other electronic means. The computer disk shall remain in the exclusive possession of the person executing the non-disclosure undertaking. The computer disk shall be erased, and written confirmation of the erasure shall be provided to counsel for MPAC at the conclusion of these proceedings. All Confidential Information, including reproductions or copies, shall be returned to MPAC at the conclusion of the proceedings.

Dated at Toronto this day of , 2016.

[Name, Firm and Business Address]

ARB Appeal Nos. 2996944, 3014986, 3076693, 3147825 ARB Hearing No. 633285

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 100 Wynford Drive, in the City of Toronto, on assessment roll no. 19 08 101 250 00100 0000, for the 2013, 2014, 2015 and 2016 taxation years.

B E T W E E N:

100 WYNFORD PORTFOLIO INC. Appellant

• and -

MUNICIPAL PROPERTY ASSESSMENT CORPORATION and THE CORPORATION OF THE CITY OF TORONTO Respondents

UNDERTAKING OF NON-DISCLOSURE

To the Municipal Property Assessment Corporation:

I, , of Goodmans LLP, lawyers in this matter for 100 Wynford Portfolio Inc., 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. Confidential information provided may be entered on a computer disk. Such information placed on a computer disk shall remain on the computer disk and not be transferred or copied onto a computer hard drive or computer network, and in no circumstances shall such information be transmitted by email or by the internet or by other electronic means. The computer disk shall remain in the exclusive possession of the person executing the non-disclosure undertaking. The computer disk shall be erased, and written confirmation of the erasure shall be provided to counsel for MPAC at the conclusion of these proceedings. All Confidential Information, including reproductions or copies, shall be returned to MPAC at the conclusion of the proceedings.