Canadian Tire Corporation Limited v. Municipal Property Assessment Corporation, 2017 CanLII 87111

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

December 22, 2017

FILE NO.:

DM 2017M10

Moving Party:

Canadian Tire Corporation Limited, Canadian Tire Properties Inc., and Canadian Tire Real Estate Limited

Respondent:

Municipal Property Assessment Corporation

Respondents:

See Schedule “A”

Property Locations:

See Schedule “A”

Municipalities:

See Schedule “A”

Roll Numbers:

See Schedule “A”

Appeal Numbers:

See Schedule “A”

Taxation Years:

2017

Hearing Event No.:

Legislative Authority:

Rule 78 of the Assessment Review Board Rules of Practice and Procedure, as amended

ARB Case Name:

Heard:

In writing

APPEARANCES:

Parties

Counsel⁺/Representative

Canadian Tire Corporation

Brad Nixon

MPAC

Carl Davis

DISPOSITION OF THE BOARD DELIVERED BY CAROLINE KING and DIRK VANDERBENT

1Canadian Tire Corporation, Canadian Tire Properties Inc., and Canadian Tire Real Estate Limited (collectively “Canadian Tire”) applied to combine the appeals before the Board on October 17, 2017. They argued that there were two issues in common between the 155 properties. First, there is a Memorandum of Understanding (“MOU”) between Canadian Tire and MPAC, pertaining to how the properties are valued. Secondly, Canadian Tire stated that the question of whether development charges should be included in a cost analysis of land was a common question to all of the appeals. MPAC consented to Canadian Tire’s request to combine the appeals. Shortly after the Board received that request, objections to combining the appeals were received from some municipalities. Other municipalities indicated their consent.

2Vice Chair King sent a letter to the parties on November 2, 2017, seeking clarification of the request, further information, and confirmation of all parties’ consent. Canadian Tire provided responses to that request on December 4, 2017, which only included those appeals where all parties consented to the combined proceeding. Canadian Tire also sought a common commencement date of March 30, 2018 for the appeals where there was not consent from the municipality. That request was filed with the Board on December 1, 2017. Since that time some of the municipalities have indicated their consent to a common commencement date of March 30, 2018.

3Canadian Tire’s request to combine the appeals is denied, but those appeals with all parties’ consent will be assigned the same March 30, 2018 commencement date.

REASONS FOR DISPOSITION

4There are two requests before the Board, both of which were brought by way of an expedited directions form. The Board is disposing these requests with written reasons in order to provide clarity on the new Board processes. Each issue will be dealt with in turn.

Combining Appeals

5The first request before the Board is to combine certain appeals. Combining appeals is governed by Rule 78 of the Assessment Review Board’s Rules of Practice and Procedure, which states:

Combining Hearings or Hearing Matters Together

78 When the Board considers that two or more proceedings involve the same or similar questions of fact or law or policy the Board may:

(a) with the consent of the parties, order that the proceedings be combined or heard at the same time;

(b) order that the proceedings be heard one after the other; or

(c) stay or adjourn any proceeding until the determination of any other proceeding.

6Pursuant to Rule 78(a), the combining of appeals requires the consent of all of the parties. That requirement is consistent with the requirement of combining proceedings set out in section 9.1(a) of the Statutory Powers Procedure Act. There are a number of municipalities that do not consent to having these appeals combined. On that basis alone, all of the appeals cannot be combined. However, in Canadian Tire’s December 4, 2017 submission, only those appeals with the consent of all parties were submitted for consideration.

7The remaining clauses of Rule 78 do not require consent, but all clauses require the same or similar questions of fact, law or policy. Consequently, the Board can only combine appeals if there are same or similar questions of fact, law, or policy, which the Board has jurisdiction to adjudicate. This is a pre-requisite condition which must be satisfied before the Board has jurisdiction to exercise its discretion to grant the request under any of these clauses.

8The same or similar questions of fact, law, or policy raised by Canadian Tire are related to the application of the MOU and development charges. The Board has no jurisdiction to adjudicate disputes about the application of a private agreement, such as the MOU. The application of development charges is also framed as the proper application of the MOU, and cannot be a common issue for the same reason. Even if development charges were outside of the MOU, there is no clear indication that each appeal has development charge issues in common, or the scope of that question on each appeal.

9Without the same or similar questions of fact, law, or policy, the Board cannot combine the appeals. The Board is not satisfied that it has any jurisdiction over the issues were put forward by Canadian Tire. The appeals therefore cannot be combined.

Altering Commencement Dates

10Commencement dates are set by the Board’s administration in consultation with the parties, see Rule 33 ( the “Commencement Date”). The goal of the Commencement Date initiative is to create a stable framework in which parties can arrange their work. To achieve that outcome, efforts were taken to distribute the processing of all appeals filed with the Board over the four year assessment cycle. This evenly distributed the workload for the Board and all parties. The Board directed that MPAC prepare a proposal for Commencement Dates for all appeals currently before the Board. The Board notes that, in developing its proposed dates, MPAC consulted with the main representative firms who file appeals with the Board. The Board then set a December 1, 2017 due date for responding parties to request alterations of Commencement Dates proposed by MPAC. This due date was set in order that the Board could finalize the assignment of Commencement Dates for the appeals currently before the Board. In order to effectively manage the processing of literally tens of thousands of appeals, the Board cannot consider a late request to amend a Commencement Date once it has been confirmed by the Board.

11However, the Board notes that Canadian Tire submitted a request by December 1, 2017 for a common Commencement Date for these appeals. As this request has been submitted within the time allowed by the Board, the Board will consider altering the Commencement Dates for these appeals.

12Assigning the same March 30, 2018 commencement date to the 155 properties at issue here will have significant implications for the parties:

• a common commencement date will alter the workload of the parties by requiring all requirements outlined in the Schedule of Events to be undertaken for all properties with the common commencement date at the same time; and

• pursuant to Rule 82, as the start of a proceeding (March 30, 2018), the Board will not alter any timeline set out in the Schedule of Events, other than in exceptional circumstances.

Having requested a common Commencement Date, the Board will not extend due dates mid-way through the Schedule of Events, on the basis that a party finds the workload associated with processing all the appeals on the same Schedule is too onerous. Consequently, the parties should carefully consider and plan for the workload and resource commitments a common Commencement Date will impose on them.

13The scheduling of Commencement Dates requires, to the extent possible, the consent of the parties. As such, when confirming the Commencement Date for an appeal, the Board must consider the interests of all parties. As noted above, the Commencement Dates proposed by MPAC, were established on the Board’s direction to evenly distribute the workload of all parties over the four-year cycle. Altering this distribution could create resource and workload challenges for parties in terms of the other appeals they must address. Therefore, in this particular case, the Board will only alter the proposed Commencement Dates for these appeals, if all parties have consented to this change.

14In deciding whether to alter the proposed Commencement Dates for these appeals, the Board must also consider the overall distribution of workload over the four year cycle and the integrity of the Board’s new scheduling process. In this case, the number of appeals involved is not so significant that the requested amendment will negatively impact this goal.

15It should be noted that assigning the same commencement date only results in the same procedural dates applying to these appeals. There will be no joint settlement conferences, mediations, or hearings for these appeals because they have not been combined. Common commencement dates only serve to help organize the workload of the parties.

16For the above reasons, the Board assigns the same Commencement Date to those appeals to which all parties have consented. More specifically, the following appeals are assigned a commencement date of March 30, 2018.