Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE:
October 25, 2019
FILE NO.:
DM 161242
Moving Party(ies):
Jay Patry Enterprises Inc.
Respondent(s):
Municipal Property Assessment Corporation (“MPAC”) Region No. 05
Respondent(s):
City of Kingston
Property Location(s):
539 Armstrong Road
Municipality(ies):
City of Kingston
Roll Number(s):
1011-080-180-00300-0000
Appeal Number(s):
3244127, 3292469 and 3348237
Taxation Year(s):
2017, 2018 and 2019
Hearing Event No.:
716364
Legislative Authority:
Section 53 of the Assessment Act, R.S.O. 1990, c. A.31
Heard:
June 20, 2019 by written submission
Parties
Counsel
Submissions
Jay Patry Enterprises Inc.
Roberto Aburto
Moving Party
MPAC
Philip Wright
Received
City of Kingston
Not Received
DISPOSITION OF THE BOARD DELIVERED BY ANTHONY LaREGINA AND JEAN-PAUL PILON
DISPOSITION OF MOTION
1Jay Patry Enterprises Inc. (“Jay Patry”, the “Appellant” or the “Moving Party”) has appealed the property assessment for the property located at 539 Armstrong Road in the City of Kingston (the “subject property”) for the 2017, 2018 and 2019 taxation years to the Assessment Review Board (the “Board”). The returned value for each of the taxation years is $20,115,000.
2The subject property is a multi-residential building with 158,000 square feet of building area situated on a 2.9 acre lot. The building has four storeys with 110 apartments units including 27 one-bedroom units, 64 two-bedroom units and 19 three-bedroom units.
3The Moving Party brings this motion seeking documentary disclosure from MPAC on the basis that the documents it seeks are both relevant and proportionate.
Documents Requested by Jay Patry Enterprises Inc.
4Jay Patry requests an order of the Board compelling MPAC to produce the following documents to legal counsel and consultants for the Appellant, in exchange for undertakings of confidentiality and non-disclosure:
A. The Guidelines for Release of Assessment Data (“GRADs”) for each property referred to and relied on by MPAC in the determination of its capitalization (“CAP”) Rate applied to the subject property;
B. The rent roll at the time of sale for the properties included in the CAP Rate applied by MPAC;
C. Property Income and Expense Report Questionnaires for 2011 to 2016 for the properties considered comparable by MPAC to garner an upward adjustment of the fair market rent (“FMR”);
D. GRADs for the properties claimed by MPAC to be similar and in the vicinity for its equity analysis;
E. Income and expense information for the five properties requested by the Appellant in its Statement of Issues (“SOI”) and included in MPAC’s equity analysis.
LEGISLATION AND RULES
5The Assessment Act (“Act”):
- “current value” means, in relation to land, the amount of money the fee simple, if unencumbered, would realize if sold at arm’s length by a willing seller to a willing buyer.
19.(1) Assessment based on current value. – The assessment of land shall be based on its current value.
19.2(1) Valuation days – Subject to subsection (5), the day as of which land is valued for a taxation year is determined as follows:
- For each subsequent period consisting of four consecutive taxation years, land is valued as of January 1 of the year preceding the first of those four taxation years.
44.(3) Same, 2009 and subsequent years. – For 2009 and subsequent taxation years, in determining the value at which any land shall be assessed, the Board shall,
(a) determine the current value of the land; and
(b) have reference to the value at which similar lands in the vicinity are assessed and adjust the assessment of the land to make it equitable with that of similar lands in the vicinity if such an adjustment would result in a reduction of the assessment of the land.
Disclosure of information
- (1) A person employed by the assessment corporation, a municipality or a school board is guilty of an offence and on conviction is liable to a fine of not more than $2,000, or to imprisonment for a term of not more than six months, or to both if,
(a) in the course of the person’s duties, he or she acquires or has access to information collected under this Act or to information collected pursuant to an assessment appeal or a proceeding in court involving an assessment matter;
(b) the information is,
(i) proprietary information of a commercial nature prescribed by the Minister relating to an individual property, or
(ii) actual income and expense information on an individual property; and
(c) the person wilfully discloses the information or permits it to be disclosed to any person who is not entitled in the course of their duties to acquire or have access to the information.
Exception
(2) This section does not prevent disclosure of that information,
(a) to the assessment corporation or any authorized employee of the corporation; or
(b) by any person being examined as a witness in an assessment appeal or in a proceeding in court involving an assessment matter.
Information
(3) Subject to subsection (1), the assessment corporation shall make available to the following entities the information sufficient to meet their planning requirements:
Every municipality.
Every school board.
Every board of a local roads area established under the Local Roads Boards Act.
Every local services board established under the Northern Services Boards Act.
Purpose
(4) The information provided under subsection (3) shall not be used by the entities set out in that subsection for any other purpose.
Information for tenants
(4.1) Upon request, a tenant is entitled to receive the information maintained by the assessment corporation in respect of a property, or the portion of a property, leased by the tenant and to receive any other information about the property; the tenant is not entitled to receive the information referred to in subsection (1).
Disclosure
(5) Subject to subsection (1) and to any requirement of the Assessment Review Board concerning the disclosure of evidence, the assessment corporation may disclose any information acquired by it and may do so on such terms as it determines.
6The Board’s Rules of Practice and Procedure (“Rules”):
Proportionality
- 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.
Statement of Issues and Responses
- Statements of issues and responses must contain:
(1) If the issue is current value:
a) the current value requested and how it is calculated;
b) a full statement of every issue that the party intends to raise, including identification of comparable property to be referred to, if any;
c) a list of all facts, legal grounds and documents that the party relies on in support of its position.
(2) If the issue is the equity of the assessment pursuant to section 44(3)(b) of the Assessment Act:
a) the assessment requested;
b) identification of the vicinity claimed by the party;
c) identification of similar lands in the vicinity to be relied on by the party;
d) how the party proposes to calculate the adjustment for equity; and
e) a list of all facts, legal grounds and documents that the party relies on in support of its position.
Disclosure
- All parties must provide a copy, in paper or electronic form, of all relevant documents in their possession, control or power to all other parties in the proceeding, except for privileged documents.
7Rule 45 of 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.” In Walmart Canada Corporation and Target Canada Corporation v. Municipal Property Assessment Corporation, Region 01, 2018 CanLII 67789 (“Walmart”) at paragraph 18, the Board decided that “relevance is determined in relation to whether a document is relevant to a dispute.” The Board then set out criteria to assess proportionality, including but not limited to those set out in Rule 29.2.03(1) and (2) of the Ontario Rules of Civil Procedure. These include considerations such as: whether requiring the requested disclosure would be unreasonably time-consuming, expensive, unduly prejudicial to the party required to produce it, the availability of the requested disclosure and whether it would result in an excessive volume of documentation. At paragraph 19 of Walmart, the Board further determined that these criteria determining proportionality need to be balanced with relevance, and, if relevant, how probative that evidence would be.
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 (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.
ANALYSIS AND DISPOSITION
A The GRADS for each property referred to and relied on by MPAC in the determination of its CAP Rate applied to the subject property. List of properties in Appendix 1 of this decision.
D GRADs for the properties claimed by MPAC to be similar and in the vicinity for its equity analysis. List of properties in Appendix 2 of this decision.
9MPAC clearly states in its motion material that it agrees to produce the requested information in A and D as it is relevant and proportionate and that a Board order is not required.
Disclosure of Documents for B, C and E
10MPAC has taken the position that it cannot produce the material in B, C and E as it is prohibited from doing so by virtue of s. 53 of the Act and s. 10 of the Municipal Freedom of Information and Protection of Privacy Act (“MFIPPA”). MPAC claims that it is statutorily prohibited from producing the material absent the consent of the individual parties or a Board order.
11MPAC requested that the Appellants also serve the Notice of Motion on the affected third-parties with regards to rent rolls and Income and Expense Information for the properties listed in Appendices 3, 4 and 5.
12The Appellant mailed the Record of Motion to the 15 property owners on June 7, 2019 and received replies from only four property owners concerning six properties. Three of the four owners had no objection to their financial information being disclosed. Carolyn Blommestyn of CaraCo Group of Companies (“CaraCo Group”), the owner of 860 Norwest Road, 2727 Princess Street, and 2753 Princess Street through CJM Property Management (“CJM”), all in the City of Kingston, objected to the release of the information relating to the above three properties.
13The Appellant offered to execute an undertaking of non-disclosure with respect to the above three properties, with only the lawyers and consultants having access to the financial information in relation to the CaraCo Group properties.
14Ms. Blommestyn submits that the Appellant is a competitor which operates in the same market as CJM and that any disclosure related to CJM’s property holdings is prejudicial to CJM and cannot be remedied by a non-disclosure agreement. Therefore, Ms. Blommestyn requests that the Board not allow for the release of information. Such release in her submission “could be detrimental to an unrelated third party in order to provide fairness to the Appellant and that fairness to the Appellant cannot result in unfairness to a third party.”
15Counsel for MPAC has taken no position on this issue.
16The Board is satisfied that the execution of a confidentiality and non-disclosure agreement, where the financial information requested would only be provided to the lawyers and consultants and not to the Appellant, would protect CJM’s interests while ensuring that the Appellant receives a fair hearing at the Board, if one is required. Ms. Blommestyn’s major concern that the Appellant not have access to the financial information is not an issue if the Appellant does not have access to the information.
17With regards to s. 10 of the MFIPPA, the Board agrees with the Appellant that s. 53.1 of the Act overrides s.10 of MFIPPA.
C Property Income and Expense Report Questionnaires for 2011 to 2016 for the properties considered comparable by MPAC to garner an upward adjustment of the FMR.
18MPAC declines to produce the materials listed in C as they are no longer relevant. Initially, the Appellant had not provided actual financial information and rental reports for the subject property and, therefore, MPAC used the FMRs of comparable properties. MPAC made a further upward adjustment to the FMRs of the comparable properties as the subject property is considered by MPAC to be superior to the comparable buildings in the Kingston market. By using the income approach and applying the adjusted FMRs, MPAC determined the current value assessment of the subject property.
19Since then, the Appellant has supplied actual financial information for the subject property including the rental reports, and MPAC has revised the current value assessment based on the actual rental rates. Emily Corsi from MPAC states in her affidavit: “the information drawn from the MVR [MPAC’s Market Valuation Report] and the upward adjustment do not have any bearing on my final valuation of the subject property. My determination of value is based on the actual rent rolls provided by the Appellant”.
20The Board is satisfied that MPAC has clearly stated in its response that its case will only rely on actual rental rates of the subject property and not the adjusted FMR of the comparable properties. Therefore, the Property Income and Expense Report Questionnaires for 2011 to 2016 for the properties considered comparable by MPAC to garner an upward adjustment to the FMRs are no longer relevant to the determination of current value and no longer required. The Board therefore denies this part of the request.
21However, Ms. Corsi also states in her affidavit, which is further reinforced in MPAC’s response to the motion, that MPAC has used the rental information of four properties listed in Appendix 3 of this decision to corroborate the actual rental rates and the current value of the subject property. The Board therefore finds that the information respecting these properties is relevant information and should be produced. MPAC has not asserted that the requirement to disclose would be disproportionate.
22Given that the parties have been properly notified and their objections have been properly dealt with, the Board orders pursuant to s. 53 of the Act that MPAC produce the Property Income and Expense Questionnaires for 2011 to 2016 for the four properties listed in Appendix 3 pending the execution of a confidentiality and non-disclosure agreement between the parties’ lawyers and consultants ensuring the appellant does not have access to the information.
B The rent roll at the time of sale for the properties included in the CAP Rate applied by MPAC. List of properties in Appendix 4 of this decision.
E Income and expense information for the five properties requested by the Appellant in its SOI and included in MPAC’s equity analysis. List of properties in Appendix 5 of this decision.
23MPAC has not disputed the relevance of documents requested in B and E.
24Based on the parties’ agreement that the information requested in B and E is relevant and proportionate, and after the third-parties were properly notified and given the opportunity to be heard, the Board orders the release of the information referred to in B and E pertaining to the properties listed in Appendices 4 and 5 pursuant to s. 53 of the Act and subject to the execution of a confidentiality and non-disclosure agreement between the parties.
25Additionally, the motion materials of both parties contain five properties in point E. At point 16 of the Appellant’s SOI there are six properties and the Appellant has served the motion materials on all six properties. Therefore, the Board includes the sixth property in its order as demonstrated in Appendix 5.
Conclusion
26Documents and/or information pertaining to this motion are to be produced by MPAC within 30 days of the issue date of this decision.
27The Board will extend the Schedule of Events by 90 days to compensate for the delay resulting from the motion and a revised Schedule of Events will be issued.
“Anthony LaRegina”
ANTHONY LaREGINA
MEMBER
“Jean-Paul Pilon”
JEAN-PAUL PILON
MEMBER
Assessment Review Board
A constituent tribunal of Tribunals Ontario - Environment and Land Division
Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
APPENDIX 1
Property
Roll Number
Address
Sale Date
1
1011-010-010-07800
80-84 William Street
06/12/2017
2
1011-020-060-09100
1 Mack Street
12/15/2016
3
1011-050-040-09000
655 Princess Street
09/29/2017
4
1011-050-130-20300
780 Division Street
03/29/2018
5
1011-050-140-08800
440-460 Elliott Avenue
08/21/2014
APPENDIX 2
Property
Roll Number
Address
1
1011-070-120-07700
318 Yonge Street
2
1011-060-120-04800
275 Helen Street
3
1011-050-010-07700
59 Stanley Street
4
1011-030-020-00900
148 Pine Street
5
1011-060-130-07900
264 Park Street
6
1011-030-050-05800
14 Vine Street
7
1011-040-060-10400
100 Pine Street
8
1011-070-130-02200
289 Mowat Avenue
9
1011-050-010-08300
56 Lansdowne Street
10
1011-020-060-09100
1 Mack Street
11
1011-060-060-07100
1379 Princess Street
12
1011-050-010-07600
61 Stanley Street
13
1011-020-030-01700
442 McDonnell Street
14
1011-050-010-07800
51 Stanley Street
15
1011-040-070-08100
110 James Street
16
1011-010-010-07800
80-84 William Street
17
1011-050-140-08800
440-460 Elliott Avenue
18
1011-030-040-04600
335-339 Barrie Street
19
1011-040-060-00800
15 Adelaide Street
20
1011-040-070-08100
110 James Street
21
1011-030-020-01700
360 Division Street
22
1011-050-130-20300
780 Division Street
23
1011-050-040-09000
655 Princess Street
24
1011-060-110-01000
475 Palace Road
25
1011-020-140-07700
18 Garrett Street
26
1011-040-010-08700
69 Fraser Street
27
1011-040-090-08000
102 Joseph Street
28
1011-040-090-07900
94 Joseph Street
28
1011-040-090-07100
99 Thomas Street
30
1011-040-070-00100
63 Cowdy Street
APPENDIX 3
Property
Roll Number
Address
1
1011-080-178-08400
860 Norwest Road
2
1011-080-178-08500
2727 Princess Street
3
1011-080-177-16900
2753 Princess Street
4
1011-080-180-02450
1610-1620 Bath Road
APPENDIX 4
Property
Roll Number
Address
1
1011-010-010-07800
80-84 William Street
2
1011-020-060-09100
1 Mack Street
3
1011-050-040-09000
655 Princess Street
4
1011-050-130-20300
780 Division Street
5
1011-050-140-08800
440-460 Elliott Avenue
APPENDIX 5
Property
Roll Number
Address
1
1011-030-050-05800
14 Vine Street
2
1011-040-060-00800
15 Adelaide Street
3
1011-040-070-08100
110 James Street
4
1011-050-010-07800
51 Stanley Street
5
1011-050-010-08300
56 Lansdowne Street
6
1011-040-090-07100
99 Thomas Street