Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE:
February 10, 2017
FILE NO.:
DM 145345
Moving Party(ies):
GlaxoSmithKline Inc.
Respondent(s):
Municipal Property Assessment Corporation (“MPAC”) Region 15
Respondent(s):
City of Mississauga
Property Location(s):
7333 Mississauga Road
Municipality(ies):
City of Mississauga
Roll Number(s):
2105-040-097-11460-0000
Appeal Number(s):
2971876, 2951073, 3031837, 3086539 and 3152647
Taxation Year(s):
2013, 2014, 2015 and 2016
Hearing Event No.:
670574 and 672969
Legislative Authority:
Sections 32 and 40 of the Assessment Act, R.S.O. 1990, c. A.31, as amended
Heard:
January 23 and 31, 2017 by teleconference call
APPEARANCES:
Parties
Counsel
GlaxoSmithKline Inc.
Tom Halinski and David Neligan
MPAC
Donald Mitchell
City of Mississauga
Sean Doyle
Respondents
Apotex Realty Inc.
David Fleet
Daimler Chrysler Canada Inc.
Jack Walker
Patheon Inc.
Livia Maduri
DISPOSITION OF THE BOARD DELIVERED BY TYRONE D. SKANES
DISPOSITION OF MOTION
Introduction
1GlaxoSmithKline (“GSK”) owns and operates the subject property (“SP”), a purpose built pharmaceutical manufacturing facility located at 7333 Mississauga Road North in City of Mississauga, Ontario. There are three separate aspects to the business; a manufacturing unit, a commercial pharmaceutical unit and a consumer healthcare unit.
2GSK brought this motion for production of confidential information, on twenty-four pharmaceutical companies, as well as five companies not related to the pharmaceutical industry, which is in the possession of MPAC, pursuant to s. 53 of the Assessment Act (“Act”). They also requested an order granting leave to amend their Statement of Issues “with respect to identified similar real properties, if required…”. The valuator for the Appellants affirmed that this “information is directly relevant to the matters in issue in the appeals.”
3MPAC consented to the release of the requested information for those companies within the pharmaceutical industry but objected to the release of information for those companies not related to the pharmaceutical industry.
4Counsel for three third party companies attended the motion to speak to the request for release of confidential information by the Appellants.
Legislation
5Section 53 of the Assessment Act states:
Disclosure of information
- (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
6Tom Halinski, counsel for GSK argued that the detailed information on all of the properties contained in the schedule was vital so the valuator could properly make an informed analysis of the SP’s correct current value. He said that the properties on the schedule within the pharmaceutical industry were similar lands and therefore should be included. He indicated that he included pharmaceutical properties that have manufacturing and non-manufacturing aspects of their business, as the SP is a multi-faceted business. He said that he identified five non-pharmaceutical large industrial properties as he believes there is a semblance of relevance between the comparable properties and the SP for their inclusion in the motion. He said that the information he was requesting was held by MPAC, not the affected parties and this should mitigate any objections raised by those companies.
7Donald Mitchell, counsel for MPAC agreed that the information relating to the comparable properties in the pharmaceutical industry ought to be released. However, he disagreed with information from the non-pharmaceutical industry being released, as he did not believe these companies were similar lands. He said there were significant differences between those companies and the SP and that being in the same tax class as the SP did not make them similar.
8David Fleet, counsel for Apotex Realty Inc. argued that, as the majority of comparable properties identified by GSK were Apotex related, he had concerns about the sweeping request for disclosure. He admitted that some of his client’s properties were similar to the SP and he had no objection to the information being disclosed. There were seven properties that he consented to the information being released. He also identified seven properties that he objected to the information being released as there was insufficient similarity between those companies and the SP to warrant disclosure.
9Mr. Fleet said that, in this opinion, this was a “fishing expedition” by the Appellant/Moving Party, something that he and all of the other counsel in attendance had engaged in at one time or another. He said that they would “cast a wide net” in the hopes of getting more than they needed. He said that any comparable properties for which information was being requested had to have the same nature, character and function as the SP and that the seven Apotex properties to which he was objecting did not meet this standard.
10Jack Walker, counsel for Daimler Chrysler Canada Inc. argued that there was no similarity whatsoever between his client and the SP, other than the fact that they were in the same tax class. He said that for properties to be similar they had to have the same nature, character and function and his client had no relation at all to the pharmaceutical manufacturing industry. He said that his client’s company was 10 times the size of the SP and included a foundry. He said that granting this request would be an error.
11Livia Maduri, counsel for Patheon Inc. argued that although her client’s business was in the pharmaceutical industry it was substantially different from the SP. She said that there were no “clean rooms” on any of the properties as it did not engage in sterile pharmaceutical manufacturing in Canada. She said that some product was manufactured at some of these properties but was done so in a non-sterile environment. She said that the rest of the properties merely warehoused product.
12The parties submitted jurisprudence to support their various arguments. However, the Board found none of them particularly helpful or instructive when considering the issues in this motion.
13I reviewed the arguments of the parties and find persuasive the position put forward by Mr. Mitchell and Mr. Walker, as it pertains to those properties not related to the pharmaceutical industry.
14I agree with Mr. Fleet’s assertion that GSK has gone on a “fishing expedition” and has “cast a wide net” with this motion by requesting that the five non-pharmaceutical properties be included in this order. The comparable properties do not have the same nature, character and function as the SP and have no similarity, other than being in the same tax class.
15Therefore, I remove the following properties from consideration:
Number
Street
Municipality
Roll Number
Company
2000
Williams Parkway
Brampton
2110-100-025-00400
DaimlerChrysler
1400
The Canadian Road
Oakville
2401-040-211-00500
Ford Motor Company
2339
Lakeshore Road West
Mississauga
2105-020-025-05210
Holcim (Canada)
15
Westcreek Boulevard
Brampton
2110-150-116-19650
Coca Cola Bottling
385
Southdown Road
Mississauga
2105-020-024-02400
7037619 Canada Inc
16I have reviewed the remaining properties from Schedule “A” of GSK’s motion materials. I find that the remaining properties are all related to the pharmaceutical industry in some fashion. The SP is not solely a manufacturing facility as previously stated. I find that the remaining properties have the same nature, character and function as the SP.
17The Moving Party/Appellant will be granted leave to amend their Statement of Issues, if required, owing to the possibility that information may be disclosed by this order that they may not have anticipated.
18Therefore, I order full financial disclosure for the remaining properties, listed in Schedule “A” of this order. These 24 comparable properties should be a sufficient sample size for GSK’s valuator to form an opinion on its’ correct current value. Assessment data from MPAC’s standard Guidelines for Release of Assessment Data (“GRAD”) as well as sales information, inspection records, and appraisal cards will be provided on all of the properties in Schedule “A”.
19Some of the property information approved for release is from properties owned or represented by the third parties attending the motion. Counsel for GSK will enter into an undertaking of confidentiality and non-disclosure, attached to this order as Schedule “B”, and will ensure that all reasonable measures are taken to protect the confidentiality of the information.
20Consultants and/or expert witnesses retained by GSK will enter into an undertaking of confidentiality and non-disclosure, attached to this order as Schedule “C”, and will ensure that all reasonable measures are taken to protect the confidentiality of the information.
21For these reasons, I order as follows:
The Appellants’ are granted leave to amend their Statement of Issues, with respect to identified similar real properties, if required.
MPAC shall produce to legal counsel for GSK, within 30 days of this Order being issued, with respect to the properties set out in Schedule "A" hereto:
a. complete Advanced ACS costing of the properties, including assembly details and specific indication of all value attributed to “clean rooms” and the HVAC system;
b. inspection records and appraisal cards;
c. the policies and procedures used in valuing these properties;
d. all information describing the type of production (i.e., chemical, secondary or other) that takes place at these facilities; and
e. any market data relating to these properties.
- The release of the above information is conditional on:
a. counsel for GSK providing MPAC with an undertaking of confidentiality signed by all counsel and consultants who will be permitted to view the information, in the form attached as Schedules “B” and “C”;
b. all copies of the information shall be returned to MPAC at the conclusion of the hearing of the appeals;
c. the portions of the hearing which concern the information set out in paragraph 2 of this order may proceed in camera, at the parties’ request; and
d. the portion of the Board’s file which contains the information set out in paragraph 2 of this order shall be sealed at the conclusion of the hearing of the complaints.
For greater certainty, MPAC shall produce the information, together with an accompanying electronic index, in a searchable electronic format, on two identical USB jump drives, (“USB drives”). Counsel for MPAC shall notify counsel for GSK when the USB drives are ready for pick-up at the offices of counsel for MPAC. Counsel for GSK will be responsible for the safety and security of the USB drives and ensure that only those parties who have signed an undertaking of confidentiality will have access to the information.
Counsel for GSK shall execute and deliver to counsel for MPAC the Undertakings of Confidentiality and Non-Disclosure as set out in Schedule “B” of this order prior to the production of the requested information.
Consultants and expert witnesses retained by GSK shall execute and deliver Undertakings of Confidentiality and Non-Disclosure in the form set out in Schedule “C” of this order to legal counsel for MPAC.
These appeals are hereby adjourned to a prehearing conference to be convened by telephone conference call ("TCC") on April 19, 2017 at 10:00 a.m. Hearing No. 675264. 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#. Your call will be connected to all other participants. Please remain on the line until the Presiding Member calls the hearing to order.
Note that for a TCC event, the Board will proceed 10 minutes after the start time indicated if the parties have not yet appeared.
- The purpose of the prehearing TCC will be to review status of the appeals and make a further procedural order if required.
“Tyrone D. Skanes”
TYRONE D. SKANES
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”
Number
Street
Municipality
Roll Number
Company
77
Belfield Rd.
Toronto
1919-038-090-00600
Bayer Inc
890
Woodland Rd.
Guelph
2308-040-017-19205
Johnson & Johnson
4100
Weston Rd.
Toronto
1908-013-441-01500
Jinglecroft Ent.
34-46
Spalding Dr.
Brantford
2906-010-007-24700
Apotex Pharm
200
Barmac Dr.
Toronto
1908-013-443-00631
Apotex Realty
11
Spalding Dr.
Brantford
2906-010-007-25550
Apotex Pharm
25
Wolseley Ct.
Cambridge
3006-150-015-14125
Novocol Phamr
150
Ormont Dr.
Toronto
1908-013-351-01202
Apotex Realty
20
Kenhar Dr.
Toronto
1908-013-330-01201
Apotex Realty
400
Ormont Dr.
Toronto
1908-013-350-00600
Apotex Realty
285
Garyray Dr.
Toronto
1908-013-351-00501
Apotex Realty
601
Ormont Dr.
Toronto
1908-013-442-00100
Apotex Realty
440
Garyray Dr.
Toronto
1908-013-430-00600
Jinglecroft Ent.
465
Garyray Dr.
Toronto
1908-013-441-01300
Apotex Realty
1755
Steeles Ave. W.
Toronto
1908-053-550-00100
Sanofi Pasteur Limt.
50
Steinway Blvd.
Toronto
1919-044-574-01201
Apotex Realty
150
Signet Dr.
Toronto
1908-013-330-00600
Jinglecroft Ent.
380
Elgin Mills Rd. E.
Richmond Hill
1938-010-010-62410
Apotex Realty
30-40
Novopharm Crt.
Toronto
1901-122-050-00300
30 Nably Court Holdings
2100
Syntex Crt.
Mississauga
2105-040-098-22410
Patheon Inc.
111
Consumers Dr.
Whitby
1809-040-026-23500
PatheonWhitby Inc
3650
Danforth Ave.
Toronto
1901-012-310-01401
Eli Lilly Canada
5691
Main St.
Whitchurch-Stouffville
1944-000-205-45100
Novopharm Ltd.
575
Hood Rd.
Markham
1936-020-123-22000
Novopharm Ltd.
SCHEDULE “B”
ASSESSMENT REVIEW BOARD
Region Number: 15
Municipality: City of Mississauga
IN THE MATTER of the Assessment Act, R.S.O. 1990, c. A.31, Section 32 & 40, as amended;
AND IN THE MATTER OF appeals by GlaxoSmithKline for the taxation years 2013-2016, with respect to a property municipally known as 7333 Mississauga Road North, in the City of Mississauga, being roll number 21 05 040 097 11450 0000 (the “Property”).
B E T W E E N:
GLAXOSMITHKLINE INC.
Moving Parties / Appellants
- and -
MUNICIPAL PROPERTY ASSESSMENT CORPORATION, REGION NO. 15
and THE CITY OF MISSISSAUGA
Respondents
UNDERTAKING OF CONFIDENTIALITY AND NON-DISCLOSURE
I, , for GlaxoSmithKline Inc. (“GSK”), acknowledge and agree that the confidential information concerning (the “Taxpayer”), disclosed by the Municipal Property Assessment Corporation (“MPAC”) pursuant to an Order of the Assessment Review Board dated February ,2017(the “Confidential Information”), will be safeguarded and disclosed only as set out in this Undertaking. I acknowledge that all of the Confidential Information is valuable and confidential to MPAC and the Taxpayer, remains the property of MPAC and/or the Taxpayer, and will be kept by me in strict confidence.
Subject to the rights and qualifications set out herein, the Confidential Information may be disclosed only to lawyers, expert witnesses, paralegals and consultants retained by GSK in connection with the appeals herein, who have signed an Undertaking in substantially the same form as this Undertaking, and delivered either an original signed copy or an electronically transmitted copy to counsel for MPAC and to counsel for the Taxpayer. I undertake not to provide, or make available to GSK, including its directors, officers and employees, any of the Confidential Information.
This Undertaking does not extend to disclosure of information or part thereof, if, prior to its disclosure by MPAC, such information was in my possession, custody or control as a result of my own independent investigations. This Undertaking does not preclude me from disclosing to GSK opinions and conclusions so long as Confidential Information is not disclosed in so doing.
Any of the Confidential Information presented at examinations for discovery or hearings will be presented in a manner which will preclude any and all disclosure to any person besides counsel for GSK, the Assessment Review Board or Court, the court reporter, and persons authorized to receive the Confidential Information by the terms of, and in accordance with this Undertaking. All materials, including transcripts and exhibits, which refer to the Confidential Information, shall be sealed at the end of the proceedings. If any Confidential Information is to be included in a report, exhibit or submissions to be made to the Assessment Review Board or Court, I undertake to advise counsel for the Taxpayer well in advance of any such report being filed, marking of such an Exhibit or any such submissions.
The Confidential Information provided by MPAC to counsel for GSK may be photocopied to provide working copies to GSK’s consultants or experts who have executed an Undertaking as set out herein. All originals shall be returned to counsel for MPAC upon the conclusion of the proceedings and any appeals relating thereto. All copies made shall be destroyed at the end of all aforesaid proceedings, including any appeals arising therefrom, and counsel for GSK shall advise counsel for MPAC in writing that the documents have been destroyed. In addition, the information provided by MPAC may be entered on a computer disk or USB drive (the “digital copy”). Such digital copy shall remain on the computer disk or USB drive and shall not be copied or transferred onto a computer hard drive, computer network or another storage medium. The digital copy shall remain in the exclusive possession of the person executing the non-disclosure undertaking. Such computerized information shall not be communicated via the internet. The digital copy shall be erased and written confirmation of the erasure shall be provided to counsel for MPAC, at the conclusion of these proceedings.
I acknowledge that a breach of any obligations contained in this Undertaking may cause MPAC and/or the Taxpayer to sustain damage or injury for which MPAC and/or the Taxpayer would not have an adequate remedy at law for monetary damages and which may cause irreparable harm. Accordingly, in the event of any such actual or apprehended breach, MPAC and the Taxpayer will be entitled to the remedy of specific performance and to preliminary, provisional, interim, temporary, interlocutory and permanent injunctive relief, in addition to any other remedy to which MPAC or the Taxpayer may be entitled at law or in equity. MPAC and the Taxpayer need not demonstrate irreparable harm, deposit any security or post any bond as a condition to any remedy.
The provision of the Confidential Information will not diminish in any manner or constitute a waiver of any privilege or protection applicable to that information. No failure or delay by MPAC or the Taxpayer in exercising any right or privilege under this undertaking will operate as a waiver thereof nor will any single or partial exercise thereof preclude any other or future exercise of any right or privilege hereunder. This undertaking may not be amended or waived in any manner whatsoever, except by a writing signed by the parties and counsel for the Taxpayer.
I will at all times protect the Confidential Information in accordance with the terms of this Undertaking.
Dated at this day of 2017.
Per
SCHEDULE “C”
ASSESSMENT REVIEW BOARD
Region Number: 15
Municipality: City of Mississauga
IN THE MATTER of the Assessment Act, R.S.O. 1990, c. A.31, Sections 32 & 40, as amended;
AND IN THE MATTER OF appeals by GlaxoSmithKline Inc. for taxation years 2013-2016, with respect to a property municipally known as 7333 Mississauga Road North, in the City of Mississauga, being roll number 21 05 040 097 11460 0000 (the “Property”).
B E T W E E N:
GLAXOSMITHKLINE INC.
Moving Parties / Appellants
- and -
MUNICIPAL PROPERTY ASSESSMENT CORPORATION, REGION NO. 15
and THE CITY OF MISSISSAUGA
Respondents
UNDERTAKING OF CONFIDENTIALITY & NON-DISCLOSURE
EXPERT WITNESS/CONSULTANT
To The Municipal Property Assessment Corporation and its Counsel:
I, , of the City of ,property tax consultant/valuation expert/expert witness at ______________________, acting for the Moving Parties/Appellants in these proceedings, undertake that I will not disclose to any person, except as expressly permitted by the terms of this Undertaking, information provided by the Municipal Property Assessment Corporation pursuant to the Order of the Assessment Review Board dated February ___, 2017 (the “Confidential Information”).
Subject to the rights and qualifications set out below, the Confidential Information may be disclosed only to lawyers, expert witnesses, paralegals and consultants retained by the Moving Parties/Appellants in connection with the appeals herein, who have signed an Undertaking in substantially the same form as this undertaking and delivered either an original signed copy or an electronically transmitted signed copy thereof to counsel for MPAC. No Confidential Information can be disclosed to any person, including a lawyer, expert witness, paralegal or consultant, who is an owner of, or an employee of, the Moving Parties/Appellants in these proceedings. The Confidential Information will not be used for the purposes of any other proceeding or for any other purpose but the assessment appeal relating to the Moving Parties/Appellants.
This undertaking does not extend to disclosure of Confidential Information or part thereof, if prior to its disclosure by MPAC, such information was in my possession, custody, or control as a result of my own independent investigations. This Undertaking does not preclude me from disclosing opinions and conclusions so long as Confidential Information is not disclosed in so doing.
Except as expressly permitted in this Undertaking, I will not make copies of any of the Confidential Information. The Confidential Information may be entered on a computer disk or a memory stick. Any Confidential Information entered on the computer disk or memory stick is not to be transferred or copied in any way except as expressly permitted herein. The computer disk or memory stick is to be kept in a secure location and is to remain in the exclusive possession of persons who have signed this Undertaking, or an undertaking in substantially the same form as this undertaking and delivered either an original signed copy or an electronically transmitted signed copy thereof to counsel for MPAC.
The computer disk or memory stick will be erased at the conclusion of the proceedings and I will provide written confirmation of the erasure to counsel for MPAC and counsel for the Moving Parties/Appellants.
Confidential Information may be included in reports and other Exhibits to be submitted to the Board. If that happens, I will take all reasonable and necessary steps to assist in ensuring that there is no disclosure of the documents except as permitted in this Undertaking.
I acknowledge that, subject to any Order of the Assessment Review Board or a Court, it is the intention of the parties to these proceedings that reference to or disclosure or production of the Confidential Information in the course of these proceedings, or any application for leave to appeal or appeal proceedings, will be done in such a manner that will preclude disclosure of the Confidential Information to any person, other than legal counsel, expert witnesses, paralegals and consultants acting for the parties and the presiding members of the Assessment Review Board or the Court.
At the conclusion of the proceeding, including any appeals from a decision of the Board, I undertake to either return all of the Confidential Information to MPAC, including any information supplied to another person through me, or to confirm that the Confidential Information has been appropriately destroyed. In either event, I will provide written confirmation of my actions to counsel for MPAC and counsel for the Moving Parties/Appellants.
DATED at Toronto, this _______ day of , 2017 .
(Signature)