Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE: December 20, 2016
Moving Party(ies): Golden Triangle Partnership Holdings Ltd.
Respondent(s): Municipal Property Assessment Corporation (“MPAC”)
Respondent(s): City of Cambridge
Property Location(s): 800 Jamieson Parkway
Municipality(ies): City of Cambridge
Roll Number(s): 3006-150-021-11250-0000
Appeal Number(s): 3140328, 3140329, 3140330 and 3156750
Taxation Year(s): 2009, 2010, 2011 and 2012
Hearing Event No.: 649864
Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31, as amended
Heard: October 26, 2016 by teleconference call and by written submission
APPEARANCES:
| Parties | Counsel |
|---|---|
| Golden Triangle Partnership Holdings Ltd. | Courtney Toomath-West |
| MPAC | Francis X. Shea |
| City of Cambridge | David Hotson |
DISPOSITION OF THE BOARD DELIVERED BY PETER ANDREWS AND PAUL MULDOON
MOTION
1The Assessment Review Board (“Board”) had before it the Motion of the appellant Golden Triangle Partnership Holdings Ltd. (“moving party”) to obtain disclosure from MPAC of financial information regarding the property located at 800 Jamieson Parkway in the City of Cambridge, Ontario. Section 53 of the Assessment Act, R.S.O. 1990, c. A.31, as amended (“Act”) bars MPAC from providing this information absent an Order of the Board.
2Counsel for the moving party, Courtney Toomath-West provided the Board with a draft copy of the Order that was approved by MPAC and the City of Cambridge.
DISPOSITION OF MOTION AND ORDER OF THE BOARD
3The motion is granted and the Board’s Order is appended to this decision as Attachment 1.
“Peter Andrews”
PETER ANDREWS VICE-CHAIR
“Paul Muldoon”
PAUL MULDOON ASSOCIATE 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
Attachment 1
Appeal Nos. 3140328, 3104329, 3140330, 3156750
THE ASSESSMENT REVIEW BOARD
November , 2016
IN THE MATTER OF Section 40 of the Assessment Act with respect to the property located at 800 Jamieson Parkway in the City of Cambridge; Roll No.: 30-06-150-021-11250-0000 (the “Subject Property”)
B E T W E E N:
GOLDEN TRIANGLE PARTNERSHIP HOLDINGS LTD. Moving Party
- and -
THE MUNICIPAL PROPERTY ASSESSMENT CORPORATION and THE CITY OF CAMBRIDGE Respondents
ORDER
THIS MOTION, made by Golden Triangle Partnership Holdings Ltd. (“Golden Triangle) for production of financial information was heard this day via teleconference.
ON READING the motion record filed by Golden Triangle and on hearing the submissions of the lawyers and representatives for the Moving Party, the Respondents, and the Hilton Garden Inn attending at the teleconference, no one appearing for the remaining identified non-parties, although properly served as appears from the Affidavits of Service of Justin Johnstone and David Shelley:
THIS BOARD ORDERS that, within 30 days of the date of this order, the following persons will produce the actual income and expense information (“financial statements”) for the tax years 2009, 2010, 2011 and 2012 for their identified hotels to Frank Shea of Conway Davis Gryski (1901- 181 University Avenue, Toronto, Ontario, M5H 3M7), lawyer for Municipal Property Assessment Corporation (“MPAC”):
a. INNVEST NOMINEE IV LTD. Radisson Hotel Kitchener, 2960 King Street East Roll Number: 30-12-030-001-208-00
b. 1507952 ONTARIO INC Hilton Garden Inn, Cambridge, 746 Old Hespeler Rd. Roll Number: 30-06-150-015-083-00
c. 1604898 ONTARIO INC Hampton Inn & Suites, Cambridge, 4355 King Street East Roll Number: 30-12-060-008-068-02
d. VISTA WATERLOO HOTEL INC Crown Plaza-Kitchener Waterloo, Cambridge, 105 King Street East Roll Number: 30-12-040-001-011-00
e. INNVEST HOTELS XIV LTD Staybridge Suites, Guelph, 11 Corporate Court Roll Number: 23-08-060-009-449-00
THIS BOARD ORDERS that Innvest Hotels XIV Ltd., the former owner of the Staybridge Suites, Guelph, 11 Corporate Court, Roll No. 23-08-060-009-449-00, may be served by mail on its last known address at 5090 Explorer Drive, 7th Floor, Mississauga ON L4W 4T9 as it is no longer practical to serve the corporation personally.
THIS BOARD ORDERS that, upon receipt of the executed Declaration & Undertaking of Non-Disclosure from the Moving Party and the City of Cambridge, MPAC shall produce any of the ordered financial statements in its possession to the Moving Party and the City of Cambridge.
ASSESSMENT REVIEW BOARD
Municipality: Roll Number: Appeal Numbers:
IN THE MATTER OF Section 40 of the Assessment Act, R.S.O. 1990, Chapter A. 31;
AND IN THE MATTER OF appeals with respect to taxation years with respect to premises known municipally as .
B E T W E E N:
[name of person] Appellant
- and -
MUNICIPAL PROPERTY ASSESSMENT CORPORATION and [municipality] Respondents
DECLARATION & UNDERTAKING OF NON-DISCLOSURE (EXPERT WITNESS)
I, [name] of [municipality], have been engaged by [name of party] to provide my expert opinion and, if permitted by the adjudicator, expert evidence in these appeals.
The Municipal Property Assessment Corporation (MPAC) has been ordered by the Assessment Review Board or a competent court to disclose information or documentation that is proprietary information of a commercial nature prescribed by the Minister relating to an individual property or actual income and expense information on an individual property (Confidential Information). I acknowledge that this declaration and undertaking is legally binding and enforceable and describes how I must treat Confidential Information.
I acknowledge that Confidential Information may only be received, viewed, and used by me for the purpose of providing my expert opinion and participating as an expert witness in these appeals. Subject to the exceptions and limitations described below, I undertake not to disclose Confidential Information to any person, including the party in these appeals that retained me, [name of party]. Notwithstanding the foregoing, I acknowledge that administrative assistants employed by me or my firm may handle documents containing Confidential Information in the course of their duties assisting me in these appeals. I undertake to limit any such incidental exposure to Confidential Information as much as is reasonably possible and to instruct such administrative assistants in a manner that ensures that my obligations under this agreement are fulfilled.
I acknowledge that I may discuss Confidential Information with MPAC’s lawyers and experts, with the lawyers and paralegals of record in these appeals that have executed a Declaration and Undertaking of Non-Disclosure (Lawyer/Paralegal) and with other expert witnesses in these appeals that have executed a Declaration and Undertaking of Non-Disclosure (Expert Witness).
Except as described below, I undertake not to make copies of any Confidential Information, including parts thereof, and I acknowledge that I may only open or retrieve and view the Confidential Information in the format it was provided. Notwithstanding the foregoing, I acknowledge that I may make paper copies of Confidential Information, or parts thereof, as strictly necessary for my own use for the purposes of these appeals; incorporate Confidential Information into draft or final reports; and make copies of Confidential Information to provide to the Assessment Review Board or a competent court in connection with these appeals, provided that I follow all applicable rules of procedure concerning the treatment of confidential information. I undertake to keep a record of any such copies so that they can be destroyed, deleted or returned as required by paragraph 9.
I undertake to keep in my control at all times all Confidential Information. If the Confidential Information is contained on a physical medium (including, without limitation, paper, CD, USB storage device), I undertake to store any such physical medium in a locked safe, cabinet, or similar secure location, when not in use. I undertake not to disclose any password provided by MPAC necessary for retrieving or viewing Confidential Information. I undertake to password protect any draft or final report containing Confidential Information, to password protect any device that has access to such a report, and not to disclose any such passwords to any individuals not authorized to view Confidential Information. I undertake not to transmit any Confidential Information over the internet.
I undertake to immediately inform my instructing lawyer(s) or paralegal(s) 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. I undertake to take all possible steps in consultation with MPAC’s lawyers to mitigate the effects of any such breach.
I acknowledge that disclosure of Confidential Information contrary to this undertaking may cause serious and irreparable harm to the businesses and interests of MPAC and the persons whose Confidential Information is disclosed, and acknowledge my liability to them in law (including, without limitation, damages) and equity (including, without limitation, injunctive relief and specific performance) for any such breach.
I will indemnify and hold harmless MPAC and its affiliates, and their respective officers, directors, agents, employees, lawyers, and contractors (collectively the MPAC Releasees) from and against any and all liabilities, claims, proceedings, losses, damages, fines, judgments, awards, costs and expenses of any nature (including taxes) and all related costs and expenses (including any and all reasonable legal fees; court, board, or tribunal awarded costs; and reasonable costs of investigation, litigation, settlement, judgment, appeal, interest, and penalties) incurred by or asserted against any MPAC Releasees as a result of any breach of this undertaking.
I undertake to permanently destroy, delete or return to MPAC all Confidential Information within forty (40) days after the Assessment Review Board releases a final decision on the merits of these appeals, or, if there is an appeal from the decision of the Assessment Review Board, within forty (40) days of the assessment being finally determined. Alternatively, if these appeals is finally resolved before such a decision, such as through settlement or withdrawal, I undertake to permanently destroy, delete or return any Confidential Information within ten (10) days of such final resolution. If not returned, I undertake to confirm in writing to MPAC within the timeframes set out above that I have permanently destroyed or deleted all Confidential Information.
DATED: [date]
[Name] [Address]
ASSESSMENT REVIEW BOARD
Municipality: Roll Number: Appeal Numbers:
IN THE MATTER OF Section 40 of the Assessment Act, R.S.O. 1990, Chapter A. 31;
AND IN THE MATTER OF appeals with respect to taxation years with respect to premises known municipally as .
B E T W E E N:
[name of person] Appellant
- and -
MUNICIPAL PROPERTY ASSESSMENT CORPORATION and [municipality] Respondents
DECLARATION & UNDERTAKING OF NON-DISCLOSURE (LAWYER/PARALEGAL)
I, [name] of [municipality], am the [lawyer / paralegal] of record for [name of party], in these appeals.
The Municipal Property Assessment Corporation (MPAC) has been ordered by the Assessment Review Board or a competent court to disclose information or documentation that is proprietary information of a commercial nature prescribed by the Minister relating to an individual property or actual income and expense information on an individual property (Confidential Information). I acknowledge that this declaration and undertaking is legally binding and enforceable and describes how I must treat the Confidential Information.
I acknowledge that Confidential Information may only be received, viewed, and used by me for the purpose of participating as an advocate in these appeals as [lawyer / paralegal] of record for [name of party]. Subject to the exceptions and limitations described below, I undertake not to disclose Confidential Information to any person, including my client, [name of party]. Notwithstanding the foregoing, I acknowledge that administrative assistants employed by me or my firm may handle documents containing Confidential Information in the course of their duties assisting me in these appeals. I undertake to limit any such incidental exposure to Confidential Information as much as is reasonably possible and to instruct such administrative assistants in a manner that ensures that my obligations under this agreement are fulfilled.
I acknowledge that I may provide my client with conclusions and opinions derived from Confidential Information for the purpose of seeking instructions, but only when such conclusions and opinions do not directly or indirectly disclose, by implication or otherwise, any Confidential Information.
I acknowledge that I may disclose Confidential Information to an expert engaged for the purpose of these appeals by my client, [name of party], upon the expert’s execution of the attached Declaration and Undertaking of Non-Disclosure (Expert Witness).
I acknowledge that I may discuss Confidential Information with MPAC’s lawyers and experts, with other lawyers and paralegals of record in these appeals that have executed a Declaration and Undertaking of Non-Disclosure (Lawyer/Paralegal) and with expert witnesses in these appeals that have executed a Declaration and Undertaking of Non-Disclosure (Expert Witness).
Except as described below, I undertake not to make copies of any Confidential Information, including parts thereof, and I acknowledge that I may only open or retrieve and view the Confidential Information in the format it was provided. Notwithstanding the foregoing, I acknowledge that I may make paper copies of Confidential Information, or parts thereof, as strictly necessary for my own use for the purposes of these appeals, or to provide to the Assessment Review Board or a competent court in connection with these appeals, provided that I follow all applicable rules of procedure concerning the treatment of confidential information. I undertake to keep a record of any such copies so that they can be destroyed, deleted or returned as required by paragraph 12.
I undertake to keep in my control at all times all Confidential Information. If the Confidential Information is contained on a physical medium (including, without limitation, paper, CD, USB storage device), I undertake to store any such physical medium in a locked safe, cabinet, or similar secure location, when not in use. I undertake not to disclose any password provided by MPAC necessary for retrieving or viewing Confidential Information. I undertake not to transmit any Confidential Information over the internet.
[Municipal version only] I acknowledge on behalf of [municipality] that any Confidential Information provided by MPAC is confidential third party commercial information for the purposes of the Municipal Freedom of Information and Protection of Privacy Act.
I undertake to immediately inform MPAC’s lawyers in these appeals 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. I undertake to take all possible steps in consultation with MPAC’s lawyers to mitigate the effects of any such breach.
I acknowledge that disclosure of Confidential Information contrary to this undertaking may cause serious and irreparable harm to the businesses and interests of MPAC and the persons whose Confidential Information is disclosed, and acknowledge my liability to them in law (including, without limitation, damages) and equity (including, without limitation, injunctive relief and specific performance) for any such breach.
I will indemnify and hold harmless MPAC and its affiliates, and their respective officers, directors, agents, employees, lawyers, and contractors (collectively the MPAC Releasees) from and against any and all liabilities, claims, proceedings, losses, damages, fines, judgments, awards, costs and expenses of any nature (including taxes) and all related costs and expenses (including any and all reasonable legal fees; court, board, or tribunal awarded costs; and reasonable costs of investigation, litigation, settlement, judgment, appeal, interest, and penalties) incurred by or asserted against any MPAC Releasees as a result of any breach of this undertaking.
I undertake to permanently destroy, delete or return to MPAC all Confidential Information within forty (40) days after the Assessment Review Board releases a final decision on the merits of these appeals, or, if there is an appeal from the decision of the Assessment Review Board, within forty (40) days of the assessment being finally determined. Alternatively, if these appeals are finally resolved before such a decision, such as through settlement or withdrawal, I undertake to permanently destroy, delete or return all Confidential Information within ten (10) days of such final resolution. If not returned, I undertake to confirm in writing to MPAC within the timeframes set out above that I have permanently destroyed or deleted all Confidential Information.
DATED: [date]
[Name] [Address]