Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: November 01, 2016

FILE NO.: DM 139944

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

Respondent(s): T-Hampshire Gate Holdings Ltd.

Property Location(s): 2501-2525 Hampshire Gate

Municipality(ies): Town of Oakville

Roll Number(s): 2401-010-010-02620-0000

Appeal Number(s): 3043017, 3061257, 3085557 and 3153017 (deemed 2016)

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

Hearing Event No.: 620070

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

Heard: April 28, 2016 in Oakville, Ontario

APPEARANCES:

Parties

Counsel⁺/Representative

T-Hampshire Gate Holdings Ltd. and Philip Pincus

Steven Longo⁺

MPAC

Damian Bernacik

Town of Oakville

No one appeared

MEMORANDUM OF ORAL DISPOSITION DELIVERED BY RICK LIMOGES ON APRIL 28, 2016

DISPOSITION OF MOTION

1At the outset of the hearing, without prior notice and in advance of any evidence being submitted, Damian Bernacik, representing MPAC arose to object to Dean Petrovic appearing as a witness for the appellant T-Hampshire Gate Holdings Ltd. He explained that Mr. Petrovic represented the appellant in all matters and pre-hearing events and also submitted the ‘statement of issues’ for these same complaints acting as the representative for the appellant. In advance of the hearing, MPAC advised Mr. Petrovic that they would object to him appearing as both the appellant’s representative as well as a witness for the appellant at the hearing. They now object since rather than obtaining another witness, he has retained an alternative representative and still plans to act as an expert witness for the appellant. Mr. Bernacik insisted that Mr. Petrovic disqualified himself and demonstrated partiality through his prior representation and that his testimony would be an offense of the code of conduct for paralegals and the Board’s Rule of Practice and Procedure, Rule11.(2) (the “Rules”). In support of their position, MPAC submitted a copy of Municipal Property Assessment Corp. Region 21 v. Research in Motion [2015] O.A.R.B.D. No. 171, (DM 132187) issued June 23, 2015.

2Steven Longo rose to explain that he had recently been retained to act on behalf of the appellant. He complained that he had no advance warning of this motion and that it seemed like an ambush. He noted that Bernacik had already exchanged email with him and feels that he is estopped from raising the matter now at the last minute. Longo said that the circumstances are different and there is no indication that Petrovic lacks impartiality. He advised that should the Board not accept Mr. Petrovic as a witness that the appellant’s case would be compromised, placing them at a tremendous disadvantage if the hearing were to proceed today. In such a situation he would request that the matter be adjourned in order to allow the appellants to hire a new expert witness who would need time to draft a new report on the matters at hand. MPAC did not object to such adjournment.

3The Board’s Rule 11.(2) states:

11. Witness and/or Advocate

(2) In the Standard Stream, no representative may be both advocate and witness, unless the Board orders otherwise, and the representative is not a lawyer appearing as counsel. If a representative (except a lawyer appearing as counsel) is applying to be both a witness and an advocate notice in writing must be given to the other parties no later than the time at which witness statements are exchanged.

4The Board’s Rule 49, Duty of Expert Witness, states:

49. Duty of Expert Witness

It is the duty of every expert engaged by or on behalf of a party who is to provide opinion evidence at a proceeding under these Rules to acknowledge either prior to (by executing the acknowledgment form attached to the Rules) or at the proceeding, that they are to:

(a) provide opinion evidence that is fair, objective and non-partisan;

(b) provide opinion evidence that is related only to the matters that are within the expert’s area of expertise; and

(c) provide such additional assistance as the Board may reasonably require to determine a matter in issue.

These duties prevail over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged.

5When approved by the Board, as outlined in the Board’s Rule 11.(2), a person who is not a lawyer appearing as counsel may be a representative as well as a witness. Neither party provided evidence concerning the notice of this intention in writing. It is also now clear that it was Mr. Petrovic’s intention to appear as an expert witness. The Courts and the Board reasonably place additional conditions and expectations upon the conduct of ‘expert’ witnesses. The function of an expert witness is to provide testimony and guidance in matters within their expertise in order to assist the Board to make a fair decision. In doing so, an expert witness may offer a written report or oral testimony including opinion evidence on such matters within their qualification.

6The additional weight given to expert evidence comes with additional responsibilities and duties. These duties are outlined in the ‘Acknowledgement of Expert’s Duty’ form in Appendix A of the Board’s Rules, which is to be filled out, signed and witnessed when requesting such qualification. Neither party submitted a copy of any such form during the deliberations. In making a decision on whether or not to qualify a witness as an ‘expert’ for purposes of testifying before the Board, the panel should determine that it has a use or need for such expertise in order to assist with their deliberations. The Board should then review the witness’ specific professional qualifications while taking into account any objections or prior behaviour that point to a potential character flaw, may create an apprehension of bias or suggest a conflict with the duties expressed in the ‘Expert’s Duty Form’.

7Notwithstanding the last minute motion before the Board and Longo’s objections, the Board noted that Mr. Longo had not yet called Mr. Petrovic as an Expert Witness and in fact no testimony or evidence had been proffered on the appeals in question. If asked to qualify Mr. Petrovic as an expert witness, the Board determined that it would find that he had already demonstrated through his previous representations on these appeals, that he does not meet the requirements to function as an impartial expert, capable of guiding the Board to a fair decision.

8Both parties agreed that in the circumstances, the only fair disposition of the appeals at this hearing was to have them adjourned to a later date, allowing the appellants to obtain a new expert witness and report. The adjournment request was granted to a later hearing date with parties to be notified in advance.

2016 DEEMED APPEAL

9An appeal for the 2015 taxation year is presently before the Board. Section 40.(26) of the Assessment Act provides that the appellant is deemed to have made the same appeal for the subsequent taxation year if the appeal is not finally disposed of before March 31 of the subsequent taxation year. The Board has not disposed of the 2015 appeal before March 31, 2016. For that reason, this decision also applies to the 2016 taxation year.

10Section 40.(26) of the Act directs:

Deemed appeals, 2009 and subsequent years

(26) For 2009 and subsequent taxation years, an appellant shall be deemed to have brought the same appeal in respect of a property,

(a) in relation to the assessments under sections 32, 33 and 34 for the year; and

(b) in relation to the assessment, including assessments under sections 32, 33 and 34, for a subsequent taxation year to which the same general reassessment applies, if the appeal is not finally disposed of before March 31 of the subsequent taxation year or, if an assessment has been made under section 32, 33 or 34, before the 90th day after the notice of assessment was mailed.