Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE: April 06, 2018
Moving Parties: Nuance Group Canada Inc., The Nuance Group Canada Inc., and Nuance Global Traders Inc.
Respondent: Municipal Property Assessment Corporation (“MPAC”) Region No. 15
Respondent: Greater Toronto Airports Authority (“GTAA”)
Respondent: The Corporation of the City of Mississauga (“City”)
Property Location(s): Airport Road
Municipality(ies): City of Mississauga
Roll Number(s): 2105-050-113-60041-0000
Appeal Number(s): As per Schedule “A” attached
Taxation Year(s): 2001 to 2016
Hearing Event No.: 688366
Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31, as amended
APPEARANCES:
Parties
Counsel
Nuance Group Canada Inc. The Nuance Group and Nuance Global Traders Inc.
Peter A. Milligan and James G. Walker
Greater Toronto Airports Authority
Thomas W. Barlow
Municipal Property Assessment Corporation
Melissa VanBerkum
The Corporation of the City of Mississauga
Brad Teichman
DISPOSITION OF THE BOARD DELIVERED BY TYRONE D. SKANES AND DAN WEAGANT
DISPOSITION OF MOTION
The Motion
1On September 13, 2017 a motion for the production of evidence was filed on behalf of Nuance Group Canada Inc., The Nuance Group Canada Inc., and Nuance Global Traders Inc. (“Nuance”) by their Counsel, Peter A. Milligan.
Nuance’s position
2Nuance’s motion was for an Order, pursuant to Rules 45 and 47 of the Board’s Rules of Practice and Procedure, directing MPAC and the Greater Toronto Airports Authority (“GTAA”) to produce the rents and current value from the settlement between MPAC and the GTAA of premises occupied by the GTAA in Terminal 1, Terminal 2, Terminal 3, and Terminal 1 New (the Identified Properties) as it is relevant information for these appeals.. Nuance submitted that the rents and current values from the settlement between MPAC and GTAA were important indicators of the values in their appeals. Nuance further submitted that it was not seeking any privileged information from the settlement. Rather, Nuance is seeking production of details of the rents and values that were negotiated and subsequently placed on the Roll which is public information.
MPAC’s Position
3MPAC opposed the motion. On October 6, 2017, MPAC, represented by Melissa VanBerKum filed an objection to the motion. MPAC raised four main objections.
4First, MPAC argued that the Board lacks jurisdiction to order the production of privileged information.
5Secondly, MPAC argued that the information Nuance is seeking is protected under settlement privilege. It was submitted that the negotiations regarding the previous settlement of the GTAA’s appeals are protected on the basis of settlement privilege and that privilege may only be waived by the parties who participated in the negotiations. There was no such waiver in this case.
6Thirdly, MPAC argued that the information sought by Nuance is not relevant to their appeals. It was submitted that relevance is measured against pleadings. In this case, Nuance’s Statement of Issues relate to assessed values being too high as they are based on the rents paid by Nuance on the premises they occupy under lease and not based on issues relating to comparable property. MPAC submitted that Nuance’s pleadings did not envision the application of a different valuation methodology using GTAA-occupied areas at Pearson Airport as comparable property and therefore the information sought in Nuance’s motion is not relevant.
7Lastly, MPAC argued that this motion was brought too late in the process. MPAC provided an exhaustive list of steps taken by the parties in advancing these appeals to hearing. Ms. VanBerkum submitted that the need for this information was not contemplated earlier on in the process and so its use should not be granted now as it would constitute an abuse of process.
8GTAA did not respond to the Nuance motion.
Board’s Disposition
9On October 19, 2017, the motion was granted in part. The Board ordered MPAC to produce to Nuance, the returned values attached to the Identified Properties prior to the settlement negotiations and the values that resulted from those negotiations that appear on the Minutes of Settlement and were subsequently placed on the Roll. MPAC was ordered to make this production forthwith.
10The Board’s decision was issued with reasons to follow.
REASONS FOR DISPOSITION OF MOTION
Board’s Analysis
11The Board has considered the submissions of both Nuance and MPAC about privilege, relevance and the timing of the motion.
12The Board finds that the process the parties took, in the settlement referenced in this motion, from the applicable actual rents to the final valuation determination, is privileged. Settlement processes, undertaken without prejudice provide a safe environment for parties to discuss issues and arrive at common ground. Without these discussions being privileged the parties risk their strategies and desires for settlement being revealed. This can be harmful for future negotiations.
13The Board agrees with MPAC, in that the discussions undertaken in the process are privileged, that Nuance has not demonstrated that there is a public interest in its disclosure and, most importantly, to divulge that process in the current case would serve to undermine confidential discussions that are meant to lead to settlement.
14However, the returned values prior to the settlement negotiations and the resulting values post-settlement which were placed on the rolls are relevant to the subject appeals and should be disclosed. While Nuance’s original Statement of Issues does not specifically address current values of other airport properties, these current value and apportionment figures would assist the Board with relevant contextual information with which to make a reasonable decision, without the disclosure of any details of the privileged settlement process. The returned values attached to the Identified Properties prior to the settlement negotiations, and final values reflected in the Minutes of Settlement which were subsequently placed on the roll are information that is readily accessible by the public and is not considered privileged.
15Because the information the Board ordered to be disclosed is accessible by the public, and therefore not privileged, it is not necessary for the Board to make a decision about the Board’s jurisdiction to order disclosure of privileged evidence.
16In the context of this case, the timing of the motion for disclosure is not a bar for it to be considered because: the information ordered to be disclosed is publically available and easily accessible to MPAC, it is relevant to provide a contextual background for the upcoming hearing; and MPAC will have an adequate opportunity to respond and provide submissions to this information at the hearing;. In other words, the Board does not find the timing of the motion to be an abuse of process because the information ordered to be disclosed has been within MPAC’s control and possession, and because MPAC will have an opportunity to respond and make submissions about this evidence at the hearing.
17In Summary:
The information ordered for disclosure is publicly accessible information and therefore the Board finds it is not privileged; and
As no privileged information was ordered to be disclosed, it isn’t necessary for the Board to make a finding on jurisdiction.
The information ordered for disclosure is relevant to the subject appeals;
The motion was filed in sufficient time for MPAC to disclose what is relatively simple information;
The Motion was filed in sufficient time for MPAC to respond and make submissions regarding this information at the hearing. Accordingly, the Motion does not constitute an abuse of process.
“Tyrone D. Skanes”
TYRONE D. SKANES
MEMBER
“Dan Weagant”
DAN WEAGANT
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”