Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: June 19, 2018

FILE NO.: DM 2018M14

Moving Parties: John Robic, Kiran Malhotra, Sydney Coleman Jacobs, Harjit Kaur and Jack Nunno

Respondent: Municipal Property Assessment Corporation, Region No 15 (“MPAC”)

Respondent: City of Brampton

Property Locations: 2 Grandview Court, 10480 The Gore Road, 26 Manswood Crescent and 22 Fenton Way

Municipality: City of Brampton

Roll Numbers: 2110-080-011-36200-0000, 2110-120-001-16800-0000, 2110-120-001-28200-0000 and 2110-120-002-40000-0000

Appeal Numbers: 3262562, 3262072, 3262070 and 3262370

Taxation Year: 2017

Legislative Authority: Rule 45 of the Assessment Review Board Rules of Practice and Procedure

Heard: By written submission

APPEARANCES:

Parties	Representative
Sydney Jacobs, Kiran Malhotra, Harjit Kaur, John Robic, and Jack Nunno	Robert Baranowski
MPAC	Leslie-Jane Hisey
City of Brampton	No submissions received

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1Sydney Jacobs, Kiran Malhotra, Harjit Kaur, John Robic, and Jack Nunno (collectively the “Taxpayers”) bring this motion seeking the certain documents from the Municipal Property Assessment Corporation (“MPAC”). MPAC argues that those documents are not relevant to the appeals and that the request is made too late in the appeal process.

2For the reasons that follow I find that the Taxpayers have not discharged their burden to show why the specific documents requested are relevant to an issue in dispute. The Taxpayers motion is, therefore, denied.

Documents Requested

3The Taxpayers are the owners of four residential properties in the City of Brampton that range in value from $1,310,000 to $6,943,000.

4The Taxpayers are requesting the disclosure of five categories of documents:

1. Property Assessment Detail (“PAD”) reports for the Taxpayers’ properties;
2. The details of MPAC’s calculation of the lot size of the Taxpayers’ properties;
3. Inspection notes and photographs of the Taxpayers’ properties;
4. MPAC’s notes, analysis, and calculations applied to the comparable sales suggested by MPAC; and
5. A list of all sales of two-storey homes similar in size to each Taxpayer’s home in 2015 and 2016 in each Taxpayer’s neighbourhood.

5This request was first communicated to MPAC on April 25, 2018. That was three weeks after the disclosure deadline of March 5, 2018 and only five days before the mandatory meeting between the parties.

Law

6Rule 45 of the Assessment Review Board’s (“Board”) Rules of Practice and Procedure (the “Rules”) sets out which documents must be disclosed to other parties in a proceeding. Parties “must provide a copy… of all relevant documents in their possession, control or power to all other parties in the proceeding, except for privileged documents.” This Board has held that “the new Rules have altered [the] existing jurisprudence, such the standard is now ‘relevance’ and not a ‘semblance of relevance,’” Municipal Property Assessment Corporation, Region No. 16 v. Champlain Properties Limited, 2017 CanLII 38345 (ON ARB) at paragraph 9. This narrowing of the test for disclosure mirrors changes to the Rules of Civil Procedure made in 2010. The Ontario Superior Court has held that the change from a “semblance of relevance” test to a straight “relevance” test was “needed to provide a clear signal to the profession that restraint should be exercised in the discovery process and…strengthen the objective that discovery be conducted with due regard to costs and efficiency,” Stewart v Kempster et al, 114 O.R. (3d) 151 2012 ONSC 7236 at paragraph 11.

7A regard to cost and efficiency is embedded in the Rules. Rule 5 requires that the Rules “be applied in a manner proportionate to the importance and complexity of the issues in a proceeding.” This means that disclosure requests must be proportional to what is at issue in each dispute, see Explorer Drive Equities Inc. v. Municipal Property Assessment Corporation, Region 15, 2017 CanLII 43957 (ON ARB) at paragraph 6.

8A party seeking the disclosure of a document must prove, on a balance of probabilities, that the desired document is relevant to a specific issue in dispute, see GlaxoSmithKline Inc. v. Municipal Property Assessment Corp., Region No. 15, [2011] O.A.R.B.D. No 234. Arguments as to the proportionality of producing a particular document should be raised by the party in possession of that document. Only the party in possession can speak to the difficulties involved in producing that document.

Property Assessment Detail

9The Taxpayers seek a particular document that was formerly prepared by MPAC, known as the PAD. MPAC’s evidence is that it no longer produces that document. Instead it releases a property profile to all property owners on its aboutmyproperty.ca website. That is, MPAC states that it has already disclosed the equivalent of the PAD to the Taxpayers. I accept MPAC’s evidence on that point. Given that the information has already been disclosed, I will not order disclosure of the PAD.

Lot Size Calculations

10The Taxpayers would like to know how MPAC calculated the lot size of their irregularly shaped lots. MPAC argues that lot size was not put into dispute in the Taxpayer’s disclosure package. The Taxpayers have not set out how the lot size calculations will help them prepare and argue their appeals. The burden is on the Taxpayers as the party seeking these documents. I am not persuaded that MPAC’s lot size calculations are relevant to an issue in dispute, there is no evidence that lot size is disputed. I will not, therefore, order disclosure of those calculations.

Inspection Notes

11The Taxpayers are requesting MPAC’s notes from inspections that have been done of their properties, as well as any photographs taken during those inspections. MPAC states that the Taxpayers would have their own notes of the inspection and that it has already disclosed the photographs from their inspection of 10480 The Gore Road. MPAC was silent on photographs from inspections of the other Taxpayer properties.

12The Taxpayers’ evidence and submissions are unclear on how the notes from MPAC’s inspections are relevant to the issues in dispute. It is not sufficient to simply argue in the abstract that “the disclosure will assist the Board” or that “not obtaining the disclosure may result in a denial of natural justice.” The evidence required in a disclosure motion must show how the proposed disclosure relates to a specific issue that is in dispute between the parties. The Taxpayers did not bring that evidence here and I, therefore, decline to order the disclosure of the notes and photographs from MPAC’s inspections of the Taxpayers’ properties.

Comparable Sales Analysis

13The Taxpayers seek MPAC’s notes on the comparable sales that they are relying upon for value. MPAC argues that those documents are not relevant for current value. I agree with MPAC that their analysis of the sales is not directly relevant for current value, rather it is the facts of the sales that drives the value assessment. Again, the Taxpayers’ request is broad and contains little detail on what specific documents they are seeking, or how those documents might relate to the issues in dispute. The Taxpayers have not explained why MPAC’s notes are relevant to the issues in dispute. They have not discharged their burden with respect to these documents.

Sales

14The final category of documents sought by the Taxpayers is a list of all sales of a certain type in specific areas of the City of Brampton. MPAC states that the Taxpayers can find all of that information on its aboutmyproperty.ca website. The evidence is that the website was built to provide sales information to taxpayers. What these Taxpayers seek is a complied and organized list of the information they already have access to through MPAC’s website. MPAC is not required to compile sales information in the manner requested by a Taxpayer. They are required to provide relevant documents, not a particular arrangement of those documents. The Taxpayers’ request for those lists of sales is denied.

Timing

15MPAC raised concerns with when the Taxpayers filed this motion. It was filed several weeks after material had been exchanged, but before the mandatory meeting between the parties. I agree that the timing of this motion is far from ideal, but there is nothing improper about seeking relevant documents after the disclosure date in summary proceedings. Unlike general proceedings, there is no staggered disclosure of documents in a summary proceeding. A party will not know the case to made, or where the issues truly lie, until it is served with the other parties’ documents. It is proper to seek relevant documents promptly when the issues become clear. In a summary proceeding that is not likely to be until the disclosure deadline. I would not have denied this motion on its timing alone.

CONCLUSION

16The Taxpayers motion lacks the specificity and evidence necessary to discharge its burden. I am not persuaded, on the evidence before me, that any of the documents sought by the Taxpayers are relevant to an issue in dispute. The Taxpayers’ motion is denied.