Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: July 05, 2017

FILE NO.: DM 147242

Moving Party(ies): Explorer Drive Equities Inc.

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 15

Respondent(s): City of Mississauga

Property Location(s): 5800 Explorer Drive, 5750 Explorer Drive

Municipality(ies): City of Mississauga

Roll Number(s): 2105-050-115-65050-0000 and 2105-050-115-65055-0000

Appeal Number(s): 2962625, 3032553, 3082717, 3153498, 2962629, 3031912, 3083942 and 3152329

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

Hearing Event No.: 680064

Legislative Authority: Section 53 of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Heard: May 29, 2017 in writing

APPEARANCES:

Parties	Counsel+/Representative
Explorer Drive Equities Inc.	Lynne Adams
MPAC	John Scherer
City of Mississauga	No one appeared

DISPOSITION OF MOTION

Background

1The moving party/Appellant filed a motion in writing for production, to compel MPAC to produce various documents as requested in its notice of motion to its representative in exchange of declarations and undertakings executed by these representatives. Colin Francis and Lynne Adams, the moving party’s representatives have both executed declaration and undertaking of non-disclosure in advance and served it on MPAC. The moving party believes that the production of these documents are relevant to determine the Current Value Assessment (“CVA”) and test the equity and correctness of the CVA of the subject properties.

2The subject properties have been assessed by MPAC as large office buildings using the Income approach to value. The moving party disputes the fair market rent (“FMR”) applied by MPAC in determining the CVA of the subject properties and argues that it is excessive when compared to the analysis of MPAC’s office rents within the vicinity and an analysis of the leasing transactions at the subject property in or around the valuation date of January 1, 2012. The moving party further indicates that one of the subject properties; 5800 Explorer Drive has been inequitably assessed.

3The moving party seeks production relating to the subject properties and other similar properties as identified in Schedule “A” attached to this decision, some of which are barred from disclosure pursuant to section 53 of the Assessment Act (“Act“) unless a Board Order is issued authorizing such disclosure.

4MPAC in its response to the motion has consented to the production of some of the documents subject to a Board Order under section 53 of the Act. For those it disputes disclosure, MPAC argues, relevance, proportionality, settlement privilege, lack of specificity and lack of service of notice of motion on properties not included in Schedule “A”.

REASONS FOR DISPOSITION OF MOTION

Legislation

5 Section 53 of the Act states:

53 (1) A person employed by the assessment corporation, a municipality or a school board is guilty of an offence and on conviction is liable to a fine of not more than $2,000, or to imprisonment for a term of not more than six months, or to both if,

(a) in the course of the person’s duties, he or she acquires or has access to information collected under this Act or to information collected pursuant to an assessment appeal or a proceeding in court involving an assessment matter;

(b) the information is,

(i) proprietary information of a commercial nature prescribed by the Minister relating to an individual property, or

(ii) actual income and expense information on an individual property; and

(c) the person wilfully discloses the information or permits it to be disclosed to any person who is not entitled in the course of their duties to acquire or have access to the information.

Exception

(2) This section does not prevent disclosure of that information,

(a) to the assessment corporation or any authorized employee of the corporation; or

(b) by any person being examined as a witness in an assessment appeal or in a proceeding in court involving an assessment matter.

Information

(3) Subject to subsection (1), the assessment corporation shall make available to the following entities the information sufficient to meet their planning requirements:

Every municipality.

Every school board.

Every board of a local roads area established under the Local Roads Boards Act.

Every local services board established under the Northern Services Boards Act.

Purpose

(4) The information provided under subsection (3) shall not be used by the entities set out in that subsection for any other purpose.

Information for tenants

(4.1) Upon request, a tenant is entitled to receive the information maintained by the assessment corporation in respect of a property, or the portion of a property, leased by the tenant and to receive any other information about the property; the tenant is not entitled to receive the information referred to in subsection (1).

Disclosure

(5) Subject to subsection (1) and to any requirement of the Assessment Review Board concerning the disclosure of evidence, the assessment corporation may disclose any information acquired by it and may do so on such terms as it determines.

Analysis and Decision

6The documents requested by the moving party must be relevant to the issue in dispute. The issues in dispute are the FMR applied by MPAC in determining the CVA for the subject properties and for one of the properties (5800 Explorer Drive) the moving party suggests has not been equitably assessed. In accordance with the principle of procedural fairness the moving party is entitled to have productions relevant to these issues. “Relevance” has been the standard utilized by tribunals and courts at discovery. Sequel to this, the request must also be proportional to these issues, in accordance to Rule 5 of the Board’s Rules and the lack of specificity is akin to requesting MPAC to go on a fishing expedition.

7Furthermore, it will be improper for MPAC to provide notes and memo’s or any documentation relating to any settlements on the subject properties and properties identified in Schedule A, as these are confidential documents and as correctly argued by MPAC are protected by settlement privilege and would impede further settlement negotiations in the future.

8MPAC in its response to the notice of motion made reference to a “without prejudice” settlement offer it made to the Appellant which was not accepted and had expired. This settlement offer was included as part of the Appellant’s evidence in the Affidavit of Ms. Adams. MPAC has requested that the assigned Member that hears this motion should not be assigned to the full hearing of the appeals. For the same reasons earlier furnished by the Assessment Review Board (“Board”) regarding settlement privilege, this document should not have been provided before the Board. Settlement was being contemplated by the parties and a without prejudice offer was made by MPAC. Accordingly, I am not seized in this appeal.

9MPAC has also argued in its response to the Notice of Motion that it cannot provide financial disclosure of properties not included in Schedule “A”, as the moving party has not filed affidavit of service with most of these properties. The Board agrees with MPAC as the owners of these properties ought to have notice of this matter and further have the execution of a declaration and undertaking of non-disclosure executed in exchange of productions (if any).

10For these reasons the Board Orders that:

MPAC shall produce to the representatives of the moving parties/Appellants within 30 days of the date of this Order with respect to the subject properties and properties set out in Schedule “A”:

a. The income, expense, rent roll and lease information for the 2009 - 2015 taxation years;

b. Copies of original and subsequent valuations in Lotus and Realware format;

c. The current valuation records for any comparable properties relied upon by MPAC; specifically 2012 CVA valuation records (Lotus and Realware) for properties identified in paragraphs 20, 21 and 23 of MPAC’s Response to the Statement of Issues for 5800 Explorer Drive and paragraphs 12 and 13 of its Response to the Statement of Issues for 5750 Explorer Drive;

d. Any Assessment to Sales Ratio (“ASR”) study relied on by MPAC to support their position that the assessment returned on only 5800 Explorer Drive is equitable with similar property in the vicinity, including properties considered and discarded;

e. The current valuation records, in Lotus and Realware format, for any similar property in the vicinity relied upon b MPAC to establish equitable assessment of only 5800 Explorer Drive.

Consultants and expert witnesses retained by the moving Party/Appellant shall execute and deliver Undertakings of Confidentiality and Non-Disclosure in the forms set out in Schedule "B" hereto, to legal counsel for MPAC, prior to production of documents noted in paragraph 9 hereof; and
Legal counsel and/ or Agents retained by the moving Party/ Appellant shall execute and deliver Undertakings of Confidentiality and Non-Disclosure in the forms set out in Schedule "C" hereto, to legal counsel for MPAC, prior to production of documents noted in paragraph 9 hereof.

“Subuola Awoleri”

SUBUOLA AWOLERI

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 “A”

Roll	Address
2105 050 115 65100	5700 Explorer Dr
2105 050 115 85000	2920 Matheson Blvd E
2105 050 115 85010	2810 Matheson Blvd E
2105 050 115 65045	5900 Explorer Dr
2105 050 115 64090	5255 Solar Dr
2105 050 115 63050	5225 Satelitte Dr
2105 050 115 63055	5205 Satelitte Dr
2105 050 115 69950	5290 Orbitor Dr
2105 050 115 78800	5310 Explorer Dr

SCHEDULE “B”

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]

SCHEDULE “C”