Grace Joubarne v. Municipal Property Assessment Corporation, 2018 CanLII 123945

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

December 21, 2018

FILE NO.:

DM 2018M22

Moving Party(ies):

Grace Joubarne

Respondent(s):

Municipal Property Assessment Corporation (“MPAC”) Region 03

Respondent(s):

City of Ottawa

Property Location(s):

279 Columbus Avenue

Municipality(ies):

City of Ottawa

Roll Number(s):

0614-031-202-17900-0000

Appeal Number(s):

3232070 and 3290163

Taxation Year(s):

2017 and 2018

Hearing Event No.:

697265

Legislative Authority:

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

Heard:

April 3, 2018 in writing

APPEARANCES:

Parties

Representative

Grace Joubarne

Self-represented

MPAC

Catherine McDonald, Garret Smits

City of Ottawa

No one appeared

DISPOSITION OF THE BOARD DELIVERED BY JOSEPH JEBREEN AND SUBUOLA AWOLERI

DISPOSITION OF MOTION

1Catherine McDonald, an MPAC assessor, had carriage of this appeal from March 2017 to approximately June 2017, after which she was on maternity leave. Garret Smits, a second MPAC assessor, then took carriage of this appeal. The moving party, Ms. Joubarne, brings this motion for an order to summons the written testimony of Ms. McDonald.

2We advised the parties on May 8, 2018 that the motion is dismissed with reasons to follow. What follows are our reasons.

REASONS FOR DISPOSITION OF MOTION

Introduction

3Ms. Joubarne has appealed MPAC’s assessment of her property located at 279 Columbus Avenue, Ottawa, Ontario (the “Property”) for the 2017 and 2018 taxation years. It appears from the materials filed on this motion that there may be three contested issues at the final hearing: (i) the classification, and possibly apportionment, of the Property as either residential or mixed residential and commercial, (ii) the current value of the Property and (iii) whether an equitable adjustment is required pursuant to paragraph 44.(3)(b) of the Assessment Act (the “Act”). On consent of the parties, the final hearing was scheduled to be heard in writing on May 22, 2018.

4Ms. Joubarne initially dealt with MPAC through its employee and property valuation analyst, Catherine McDonald (the “Original Assessor”). Although the Original Assessor did not complete a final report on the current value of the Property, she worked on the file and provided some disclosure to Ms. Joubarne. Specifically, the Original Assessor reviewed the assessment of the Property and participated in the request for reconsideration process. The Original Assessor also had carriage of this appeal until approximately June 2017. It appears from the March 2018 emails between the parties that the Original Assessor was, at the time of this motion, on maternity leave.

5Since approximately June 2017, Garret Smits, another employee and property valuation analyst at MPAC (the “Replacement Assessor”), has taken carriage of the within appeal. Mr. Smits created a valuation report and an equity analysis report for the Property, both dated September 28, 2017.

6Ms. Joubarne brings this motion for an order to summons the written testimony of the Original Assessor. In particular, Ms. Joubarne requests that we compel the Original Assessor to answer questions by sworn affidavit pursuant to either rules 51 and 52 of the Assessment Review Board (the “Board”) Rules of Practice and Procedure (the “Rules”) or subsection 5.4(1) of the Statutory Powers Procedure Act, RSO 1990, c. s22 (the “SPPA”).

7Ms. Joubarne is therefore asking us to compel the written testimony of the Original Assessor through a summons to witness or to order the written examination of the Original Assessor. Each of these procedural mechanisms is considered separately below.

Summons to Witness

8Ms. Joubarne relies on rule 51 of the Rules and requests that we issue a summons to witness to compel Ms. McDonald to provide written answers under oath to specific written questions. Although we requested for Ms. Joubarne to submit the questions for consideration on this motion, she failed to do so.

9Rule 51 of the Rules states:

51. A party may request that the Board summon a person to a hearing event in the form attached as Schedule D to these Rules, setting out:

(a) the name of the witness and his or her address for service;

(b) why the summons is required;

(c) a brief summary of the evidence to be given by the witness;

(d) an explanation of why the evidence of the witness would be relevant and necessary; and

(e) details of any documents or things which the witness should be required to bring to the hearing event.

10Pursuant to rule 51, the Board may summons a person to a “hearing event” and “hearing event” is defined in rule 3 of the Rules as including an in person hearing, electronic hearing or written hearing. So, rule 51 allows for the possibility that a summons to witness may be issued in written hearings.

11However, we find that a summons to witness is not available in written hearings. Ms. Joubarne is essentially requesting a written examination of the Original Assessor. The SPPA specifically provides for a process for the Board to make an order for the written examination of a party.

12Subsection 5.4(1) of the SPPA states that the Board:

…may, at any stage of the proceeding before all hearings are complete, make orders for,

(b) the oral or written examination of a party;

13If a party to a written hearing would like to examine another party in writing, the appropriate legislation and rule to invoke is subsection 5.4(1) of the SPPA and the Board’s corresponding rule 47. The written examination could then be introduced as evidence at the written hearing.

14There is further support for our finding that a summons to witness is not available to a party in a written hearing. Subsection 12(1) of the SPPA states:

12. (1) A tribunal may require any person, including a party, by summons,

(a) to give evidence on oath or affirmation at an oral or electronic hearing; and

(b) to produce in evidence at an oral or electronic hearing documents and things specified by the tribunal,

(c) relevant to the subject-matter of the proceeding and admissible at a hearing.

15Subsection 12(1) only allows for a tribunal to require the attendance of a witness “at an oral or electronic hearing.” Written hearings are specifically excluded. The intent of the Legislature in specifically excluding “written hearing” is clear because oral, electronic and written hearings are separately defined in section 1 of the SPPA. Further, “written hearing” is used in other sections of the SPPA. There is no reason to expand the use of the words “oral or electronic hearing” by the Legislature in subsection 12(1) to include written hearings, especially when subsection 5.4(1) of the SPPA and rule 47 of the Rules provide for a mechanism to order a written examination of a party.

16For these reasons, we find that a summons to witness is not available to parties to a written hearing.

17We shall now turn to consider whether we should order the Original Assessor to answer Ms. Joubarne’s questions.

Written Examination

18In its entirety, section 5.4 of the SPPA states:

5.4 (1) If the tribunal’s rules made under section 25.1 deal with disclosure, the tribunal may, at any stage of the proceeding before all hearings are complete, make orders for,

(a) the exchange of documents;

(b) the oral or written examination of a party;

(c) the exchange of witness statements and reports of expert witnesses;

(d) the provision of particulars;

(e) any other form of disclosure.

(1.1) The tribunal’s power to make orders for disclosure is subject to any other Act or regulation that applies to the proceeding.

(2) Subsection (1) does not authorize the making of an order requiring disclosure of privileged information.

19Rule 47 of the Rules, although not relied on by Ms. Joubarne, is also applicable:

47. A party may seek an order from the Board, by motion, ordering:

(a) the oral examination or cross-examination of any person;

(b) the written examination or cross-examination of any person; or

(c) any other method of discovery, including inspections of property.

20As long as the information sought under a written examination is not privileged, the Board may exercise its discretion to order the written examination of MPAC.

21We do not intend to set out an exhaustive list of factors to be considered in deciding whether to make an order under subsection 5.4(1) of the SPPA or rule 47. However, under the particular circumstances of this case, we decline to exercise our discretion on the basis of proportionality.

22Rule 5 of the Rules states:

These Rules shall be applied in a manner proportionate to the importance and complexity of the issues in a proceeding and with a view to resolving appeals within the four year cycle.

23The request on this motion is not proportionate. Ms. Joubarne submits that the Replacement Assessor was not a participant in the original decision-making process and has no personal knowledge of what has transpired in the Original Assessor’s decision-making process. Ms. Joubarne believes that the Original Assessor has relevant information and can provide pertinent details. However, Ms. Joubarne fails to provide concrete reasons as to why the Original Assessor’s evidence would be any different than the Replacement Assessor’s evidence.

24MPAC has advised Ms. Joubarne that the Replacement Assessor will answer her questions. Based on the supplemental submissions of the parties, the Replacement Assessor has already provided answers to Ms. Joubarne’s 45 questions and those answers have been submitted for the written hearing on the merits. There is insufficient evidence before us suggesting how or why the Original Assessor’s answers to Ms. Joubarne’s questions would be any different.

25In an email to the Board dated May 7, 2018, Ms. Joubarne admits that questioning the Original Assessor at this late date would be unproductive.

26It would be an abuse of the Board’s process to allow a party to seek to examine a second witness of a corporate party when the first witness has already been examined and has answered that party’s questions. Ms. Joubarne has not provided the details of any question that was not answered or that was answered with incomplete knowledge of the Replacement Assessor. The Replacement Assessor has provided evidence that he has informed himself through discussions with the Original Assessor and that the work of the Original Assessor is commonly done by other property valuation analysts. The Replacement Assessor has also stated that he is able and prepared to provide the required evidence. We agree.

27Ms. Joubarne’s request is not proportionate to the importance and complexity of the issues in this proceeding.

28Ms. Joubarne provides detailed examples of how the evidence of the Original Assessor conflicts with evidence provided by the Replacement Assessor. Ms. Joubarne can certainly use this evidence at the final hearing on the merits. However, this is not a justification, in and of itself, for compelling the Original Assessor to answer questions that the Replacement Assessor agreed to answer, and has answered.

29Although we dismissed Ms. Joubarne’s request for a summons to witness on the basis that it is not available in written hearings, we would similarly not exercise our discretion to issue a summons to witness on the basis of proportionality for the same reasons as set out above.

CONCLUSION

30For the foregoing reasons, we find that a summons to witness is not available to parties to a written hearing. We further refuse to exercise our discretion to order the written examination of the Original Assessor. Ms. Joubarne’s motion is dismissed.