Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE:
April 05, 2018
DM 2018M06
Moving Party(ies):
Home Depot Holdings Inc.
Respondent(s):
Municipal Property Assessment Corporation (“MPAC”)
Respondent(s):
Municipalities - See Schedule “A”
Property Location(s):
See Schedule “A”
Municipality(ies):
See Schedule “A”
Roll Number(s):
See Schedule “A”
Appeal Number(s):
See Schedule “A”
Taxation Year(s):
2017
Legislative Authority:
Rule 33 of the Assessment Review Board’s Rules of Practice and Procedure, as amended
Heard:
By written submission
APPEARANCES:
Parties
Counsel+/Representative
Mark Blidner
Home Depot Holdings Inc.
DISPOSITION OF THE BOARD DELIVERED BY CAROLINE KING
INTRODUCTION
1This disposition considers a written request to alter the commencement dates for numerous general stream appeals.
2Home Depot filed 2017 property tax appeals for numerous properties located throughout the province. In accordance with Rule 33 of the Assessment Review Board’s (“Board”) Rules of Practice and Procedure (the “Rules”), each of these appeals was assigned a date on which the parties were to commence working through the schedule of events and the appeal process (the “Commencement Date”). The Commencement Dates were assigned by the Board in consultation with the parties. The parties to the appeals were given until December 1, 2017 to request an alteration of the Commencement Dates.
3Before December 1, 2017, Home Depot submitted a written request to alter the Commencement Dates for 161 appeals to a common Commencement Date of April 15, 2018.
4Home Depot was directed to contact all statutory parties to ask for their consent or position on the request for April 15, 2018 common Commencement Date, and for confirmation or position of those parties on their ability to comply with the Schedule of Events for each of the appeals. Due to the large number of appeals and the correspondingly large number of statutory parties, the Board asked Home Depot, as the requesting party, to compile relevant information in an Excel spreadsheet format which included all statutory parties’ positions on the common Commencement Date, their ability to comply with the new Schedule of Events timelines, confirmation of which appeals related to properties located in shopping centres, and other information. Home Depot was directed to submit the revised request with the completed Excel spreadsheet and to copy all statutory parties on this communication with the Board. Home Depot, submitted their revised request for 84 appeals and provided the requested information (copied to all statutory parties) in the requested format on February 14, 2018. Numerous municipalities also confirmed their position in emails to the Board (copied to all other parties).
5Home Depot’s February 14, 2018 revised request for a common April 15, 2018 Commencement Date for 84 appeals was heard through written submissions.
ISSUE
6Should the Board grant Home Depot’s request to alter the Commencement Date to April 15, 2018 for numerous 2017 general stream property tax appeals?
DECISION
7The request to alter the Commencement Dates to April 15, 2018 for the Home Depot 2017 general stream property tax appeals listed in the attached Schedule A is granted in part, excluding those appeals where any of the statutory parties opposed the request, and excluding appeals related to Home Depots located in shopping centres. The Commencement Date for each appeal is set out in the tenth column of Schedule A under the heading “Board’s Commencement Date”. The Commencement Dates which have not been altered are highlighted in yellow.
REASONS FOR THE DECISION
Background
8The Board’s April 1, 2017 Rules and the Board’s new approach to scheduling appeals were established to create a more predictable, stable framework for the fair and efficient resolution of appeals within the current four year tax cycle. In previous assessment cycles, the uneven distribution of appeals at the beginning of the cycle caused systemic challenges for the parties in managing their workload, which frequently resulted in adjournments and delays in resolving the appeals in a timely manner. In consultation with stakeholders, the Board created a framework where the appeals are distributed evenly throughout the four year cycle, with a set timeline (Schedule of Events) for each appeal. This distributes the workload evenly throughout the cycle for the parties and for the Board. The dates on which the parties are to commence working on the appeals were set by the Board in consultation with the parties. On November 14, 2017, Commencement Dates for existing appeals in the general stream were set. The parties were given until December 1, 2017 to request a change in Commencement Dates. The deadline for requests to alter the Commencement Dates was set in order for the Board to finalize the appeal hearing schedule and to effectively manage the scheduling of tens of thousands of appeals.
Administrative Process
9The scheduling of appeals is essentially an administrative function of the Board. This scheduling function has an impact on both the parties and the Board. By providing statutory parties with the opportunity to participate in the initial setting of Commencement Dates, and by providing parties with a subsequent opportunity to request to alter the Commencement Dates by December 1, 2017, the Board has, where feasible, accommodated the parties’ preferences for the scheduling of their appeals.
10The Board acknowledges that the Rules and administrative procedures are new and, therefore, the Board provided directions to ensure that all parties were copied on all communications with the Board as required by Rule 9, and to ensure that Home Depot compiled the information in a manner which would be transparent and functional for the parties and for the Board. On February 14, 2018, the Board received Home Depot’s request copied to all parties, including the compilation of the information in an Excel spreadsheet format which sets out particulars of the appeals, and the statutory parties’ response to the request for a common April 15, 2018 Commencement Date. Home Depot’s spreadsheet, as amended by the Board, is attached to this decision as Schedule A. The sole amendment made by the Board is in the tenth column under the new heading “Board’s Commencement Date” which sets out the Commencement Date for each appeal.
Parties’ Positions
11Home Depot’s request to set a common Commencement Date for the appeals related to Home Depot’s and MPAC’s stated interest in coordinating and organizing their work for these appeals. Specifically, Home Depot indicated that after discussions with Carl Davis (counsel for MPAC), Home Depot and MPAC wanted a common Commencement Date for all Home Depot properties as Home Depot and MPAC were interested in working on all the Home Depot appeals at the same time. Home Depot indicated to municipalities that, in most instances, a common Commencement Date of April 15, 2018, would result in an earlier Commencement Date than currently assigned.
12The majority of municipalities consented, or did not object to Home Depot’s request for a common Commencement Date. Some of these municipalities indicated that notwithstanding their consent for a common Commencement Date, they expected a statement of issues specific to their particular appeal.
13Some municipalities did not consent to the request for a common Commencement Date. Included concerns of these municipalities was that setting a common Commencement Date could slow down the appeals process (some municipalities questioned the suggested uniformity of current valuation issues for all appeals), and setting a common Commencement Date, was inconsistent with the Board’s new scheduling process.
14The summary of the parties’ positions was collected, compiled, and consolidated by Home Depot and submitted to the Board (copy to all parties) in an Excel spreadsheet format.
Reasons
15In reviewing this request, the Board finds that factors to be considered regarding setting a common Commencement Date include the parties’ consent, the parties’ confirmation that they can and will comply with the Schedule of Events timelines for each appeal, and the integrity of the Board’s scheduling process.
16The Rules do not specifically require all parties’ consent to alter Commencement Dates. However, because scheduling common Commencement Dates for appeals has significant resource implications for the parties, consent of the parties is an important factor to consider.
17A common Commencement Date for a group of appeals results in having the same procedural dates and timelines apply to the appeals, but each appeal remains separate and will proceed separately and individually through the appeals process. In other words, unlike combined appeals, there are no joint statement of issues, settlement dates, Board mediations, or hearings. The Schedule of Events requires the parties to complete their workload for the appeals within specified timelines that will not be altered by the Board other than in exceptional circumstances (Rule 82). This means that the Board will not extend due-dates mid-way through the Schedule of Events on the basis that the concurrent timing of the work to be done for each of these individual appeals may become onerous. In the Board’s communications with the parties, the Board expressly requested that the parties consider their ability and agreement to meet the timelines in the Schedule of Events, if a common Commencement Date is set for the appeals.
18The Board has relied on the accuracy and completeness of the information collected and compiled by Home Depot. Home Depot and MPAC have each consented to the April 15, 2018 common Commencement Date, and have each expressly indicated their ability and agreement to adhere to the timelines in the Schedule of Events for each of the appeals listed in Schedule A. This confirmation and agreement by Home Depot and MPAC is critical as they are the two parties with the largest volume of work to be done, and by their agreement, they have indicated that there will be no delay in the appeals process arising from the large volume of concurrent work required by a common Commencement Date.
19The majority of municipalities consented or did not object to the April 15, 2018 common Commencement Date. Home Depot has indicated that the majority of Municipalities did not respond to Home Depot’s inquiry about the Municipalities ability to comply with the Schedule of Events. However, as each municipality is involved in only a few of these appeals, the Board finds it reasonable to consider the municipalities’ consent to change the Commencement Dates is an indication that they can comply with the Schedule of Events. Home Depot has also indicated that many municipalities did not respond to Home Depot’s request to set an April 15, 2018 common Commencement Date. For the purpose of a request to alter Commencement Dates, the Board finds that a non-response is akin to taking no position.
20Where municipalities opposed the common Commencement Date, the request to alter the Commencement Date is not granted as each party’s ability and agreement to comply with the timeline in the Schedule of Events is essential to avoid delays in the appeals process.
21Home Depot’s request to alter the Commencement Dates for Home Depot stores located in shopping centres is not granted. Based on prior stakeholder consultations, the Board accepted the stakeholders’ recommendation that appeals for any parcels with tenant and owner appeals, including shopping centres, should be scheduled with the same Commencement Date with all other tenant and owner appeals in the same parcel (shopping centre). The Board applied this recommendation in setting Commencement Dates in November 2017. The Board’s maintains its approach to schedule together all tenant and owner appeals located in each shopping centre.
22The alteration of Commencement Dates for appeals has an impact on the integrity of the Board’s scheduling process and workload. When the Commencement Dates for the general stream were set in November 2017, it was done so in consultation with the parties to evenly distribute the workload at the Board throughout the four year tax cycle. Changing the Commencement Dates consequently changes the equal distribution appeals over the tax cycle and the Board’s workload. In this case, the request to alter the Commencement Dates was made prior to the deadline of December 1, 2017, and the Board is satisfied that the number of appeals is not so significant that it will have a negative impact on the overall integrity of the scheduling process.
CONCLUSION
23Except as noted in paragraph 24 below, the request for a common April 15, 2018 Commencement Date is granted for all appeals where the parties consented to the common Commencement Date, or take no position regarding it because:
Home Depot’s request to alter Commencement Dates was made before the deadline of December 1, 2017;
Both Home Depot and MPAC have agreed that they can adhere to the Schedule of Events for each appeal; and
The parties’ consent and/or non-opposition to the request: and
The integrity of the scheduling process is not negatively impacted by this request.
24The request for a common April 15, 2018 Commencement Date is not granted for those appeals where a municipality opposes the common Commencement Date, and for those appeals related to shopping centres.
“Caroline King”
CAROLINE KING
VICE-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
Schedule “A”