Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: November 1, 2019

FILE NO.: DM 161193

Moving Party(ies): 743031 Ontario Ltd.

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 03

Respondent(s): City of Ottawa

Property Location(s): 216 Metcalfe Street

Municipality(ies): City of Ottawa

Roll Number(s): 0614-041-901-23300-0000

Appeal Number(s): 3217717, 3290263 and 3347347

Taxation Year(s): 2017, 2018 and 2019

Hearing Event No.: 716664

Legislative Authority: Section 53 of the Assessment Act, R.S.O. 1990, c. A. 31, as amended

Heard: June 21, 2019 by written submission

Parties	Counsel+/Representative	Submissions
743031 Ontario Ltd.	George Cameron-Caluori	Moving Party
MPAC	Ashtyn Rank	Received
City of Ottawa		Not Received

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON

DISPOSITION OF MOTION

Background

1This is a written motion for disclosure, where 743031 Ontario Ltd. (the “Moving Party”) seeks an order of the Assessment Review Board (the “Board”) requiring MPAC to provide it with documentation in its possession, control or power pursuant to Rule 45 of the Board’s Rules of Practice and Procedure (the “Rules”).

2The Moving Party filed an appeal for the 2017 taxation year with the Assessment Review Board (the “Board”) pursuant to section 40 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”). The Moving Party was deemed to have brought the same appeal in respect of the property for the 2018 and 2019 taxation years pursuant to section 40(26) of the Act.

3These appeals are all general proceedings pursuant to Rule 32. The Moving Party filed these motions with the Board requesting disclosure of documents pursuant to Rule 45 and section 53(2) of the Act.

4Rule 45 provides that “all parties must provide a copy, in paper or electric form, all relevant documents in their possession, control or power to all other parties in the proceeding, except for privileged documents.”

5The test to be applied has been set out in Walmart Canada Corporation and Target Canada Corporation v Municipal Property Assessment Corporation, Region 01, 2018 CanLII 67789 (ON ARB) at paras. 18 to 20.

[18] Relevance is determined in relation to whether a document is relevant to an issue in dispute. However, this is not the only criteria that the Board will consider when determining whether a document, which may be relevant, should be disclosed. Rule 45, itself, provides an exception for privileged documents. In addition, Rule 5 provides that “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’. Therefore, the requirement to disclose relevant documents must also be applied in a proportionate manner. Rule 45 does not include specific criteria to assess proportionality. However, the Board finds that the criteria in Rule 29.2.03(1) and (2) of the Rules of Civil Procedure (Ontario) are applicable, namely:

1. the time required for the party or other person to answer the question or produce the document would be unreasonable;

2. the expense associated with answering the question or producing the document would be unjustified;

3. requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;

4. requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and

5. the information or the document is readily available to the party requesting it from another source;

6. whether an order for disclosure would result in an excessive volume of documents required to be produced by the party or other person.

The Board observes that this is a non-exhaustive list. There may be other criteria identified on a case by case basis.

[19] In applying the above criteria, the Board must balance these considerations against relevancy, i.e. the degree to which it appears that the document is relevant to an issue in dispute, and, if so, how probative this evidence may be. The onus to establish that a document should be disclosed pursuant to Rule 45 rests with the party who requests the disclosure.

[20] In addition to the above, it should also be noted that Rule 45 only requires disclosure of documents in a party’s possession, control, or power. A party is not required to produce new information, or obtain documents that are not within its possession, control, or power.

The Requests on Consent

6There are four requests in this motion and the parts of those requests to which MPAC consents are addressed first.

7In the first part of the first request, the Moving Party seeks a “Statement of Net Operating Income for each property (in Appendix A of MPAC’s Revised Statement of Issues (“RSOI”)) including Statement documenting sales investigation results.”

8In the first part of the second request, the Moving Party seeks a “Statement of Capitalization Rate, including market income and sales information for each property (in Appendix A of MPAC’s RSOI) and sales information.”

9The third and fourth requests are for non-redacted versions of Appendices B and C of MPAC’s RSOI.

10All of these requests are relevant, probative and proportionate to the issues in dispute and, subject to the execution of confidentiality and non-disclosure agreements by the Moving Party’s legal representatives and experts (examples of which were not included in either party’s motion material), the Moving Party’s disclosure requests are ordered. None of the notified third parties whose information is being requested have objected to the release of the information requested.

The Requests Not on Consent

11MPAC does not consent to the Moving Party’s remaining disclosure requests. These include the second part of the Moving Party’s first request for a “list of properties with sales representing reliable indicators of current value.” They also include the rest of the second request, for a “list of all sales that were considered in preparation of the capitalization rate study” and “capitalization rate analyses prepared subsequent to the January 1, 2017 roll return.”

12In its reply submission, specifically addressing MPAC’s objections, the Moving Party says that the two lists of properties requested are relevant because it wants to know why the data relating to some properties was considered in MPAC’s analyses and not others. The Moving Party writes that:

without that information, the Moving Party cannot determine if the analysis is complete, or whether (MPAC) used all appropriate sales information of just chose (sic) those properties (intentional or not) that confirm its position on value while ignoring other relevant sales that contradict its position….If (MPAC’s) list of properties is a self-confirming selection then the value selected would tend to be biased.

13Regarding the 2017 and onward capitalization rate analyses, the Moving Party argues that when MPAC conducted its general reassessment of the current value of the Subject Property, MPAC would have used information available that time. It says that:

subsequently, during the appeal, with the benefit of hindsight, other sales would be used in the analysis following the roll return to determine the capitalization rate. At that point, what properties were considered valid or not. What sales, if any, were not relied on and why not. Such data would also tend to make the conclusion of a correct value more probable or not.

14For its part, MPAC depicts the contested parts of the Moving Party’s request as a “fishing expedition.” It quotes the Board’s decision in Metro Ontario v. Municipal Property Assessment Corporation, Region 13, 2019 CanLII 47974 (“Metro Ontario”) at para. 16, where an appellant requested information about any unidentified properties that MPAC might rely upon in the future. MPAC quotes that decision where it says:

Without knowing the property about which information is sought, it is difficult to say that the request is relevant or proportionate. While there may be cases where information about unidentified properties would be appropriate, those applications should be avoided. Disclosure applications should be as specific as possible.

15MPAC also argues in its response that the request is an attempt to raise new issues and new properties, where the issues and properties in dispute should already have been set out in documentation created pursuant to the Schedule of Events.

DECISION

16The contested disclosure requests are denied.

17The second part of the Moving Party’s first request is for a “list of properties with sales representing reliable indicators of current value.” The second part of the Moving Party’s second request is for a “list of all sales that were considered in preparation of the capitalization rate study.”

18The information that would be disclosed is about sales that MPAC considered in its analyses but decided to reject. It may well be that some of the information that would be disclosed if the requests were granted would be relevant. However, through their pleadings, each party had an opportunity to advance those properties that each thought was relevant and probative to the issues in dispute, and that would support their respective positions in the proceedings. Granting a blanket request for those sales considered by MPAC but not relied upon in its analyses does not establish that the requested information would be relevant. Rule 45 only requires the disclosure of documents that are relevant, not documents that may be relevant. Therefore, the request is overly broad. For this reason, which is consistent with the Board’s decision in Metro Ontario, the Board finds that it is far from clear that the requested information would be ultimately be probative at a hearing. For these reasons, the Board finds that Moving Party has failed to establish that the requested information is relevant, or that disclosure of the requested information would be proportionate. As a result, these two requests are denied.

19The Moving Party’s final request. which is not on consent, is for “capitalization rate analyses prepared subsequent to the January 1, 2017 roll return.” The reason given is that “during the appeal, with the benefit of hindsight, other sales would be used in the analysis following the roll return to determine the capitalization rate” and that such information would be probative.

20The Board first notes that the Moving Party’s request, as worded, is imprecise. The issue in dispute is the correct current value of the Subject Property as of the January 1, 2016 valuation date. A capitalization rate analysis prepared subsequent to this valuation date would not necessarily be an analysis of rates as of this valuation date. Furthermore, there is no evidence before the Board that MPAC has prepared any such analysis. For these reasons, the Board finds that the Moving Party has failed to establish that MPAC is in possession of relevant information which it has failed to disclose. Therefore, the Moving Party’s request is denied.

CONCLUSION

21Subject to the execution of confidentiality and non-disclosure agreements by the Moving Party’s legal representatives and experts, 743031 Ontario Ltd.’s request for the disclosure of the following documentation is granted:

a. Statement of Net Operating Income for each property [in Appendix A of MPAC’s RSOI] including Statement document sales investigation results;

b. Statement of Capitalization Rate, including market income and sales information for each property [in Appendix A of MPAC’s RSOI] and sales information; and

c. Non-redacted versions of Appendices B and C of MPAC’s RSOI.

22743031 Ontario Ltd.’s remaining disclosure requests in the motion are denied.

23The Schedule of Events was extended by way of an Expedited Board Directions Form determined on June 20, 2019 prior to the issuance of this Decision.