Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: March 18, 2019

FILE NO.: ID 159193

Assessed Person(s): Loblaw Properties Limited

Appellant(s): Loblaw Properties Limited

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 21

Respondent(s): City of Kitchener

Property Location(s): 750 Ottawa Street South

Municipality(ies): City of Kitchener

Roll Number(s): 3012-040-027-19000-0000

Appeal Number(s): 2033502, 2342929, 2689924, 2919859, 2958670, 3025664, 3089835 and 3157254

Taxation Year(s): 2009, 2010, 2011, 2012, 2013, 2014, 2015 and 2016

Legislative Authority: Rules 37 and 82 of the Assessment Review Board Rules of Practice and Procedure

Heard: March 4, 2019 by written submission

APPEARANCES:

Parties	Counsel+ / Representative
Loblaw Properties Limited	Stephen Longo+
MPAC	Carl Davis+
City of Kitchener	Amboka Wameyo

INTERIM DECISION OF THE BOARD DELIVERED BY SCOTT McANSH

1Loblaw Properties Limited (“Loblaw”) and MPAC submitted two requests to this Assessment Review Board (this “Board”) on March 4, 2019. The first request was seeking to dispense with the requirement that expert reports be filed before a settlement conference, under the Board’s Special Property Program. Secondly, they were seeking an extension of time to meet their disclosure obligations. I denied both requests on March 4, 2019, with reasons to follow. These are my reasons.

Background

2The appeals in this application are of the assessments of the Loblaw store at 750 Ottawa Street South in the City of Kitchener. The parties refer to it as a “hybrid store,” which they say are a unique type of retail property. The appeals were assigned a commencement date of December 15, 2017 pursuant to Rule 33 of the Board’s Rules of Practice and Procedure (the “Rules”). That required that the parties take certain steps at certain times, including providing relevant documents to the other parties. Most recently, the parties were required to hold a settlement meeting amongst themselves by February 22, 2019 and file all of the documents that they intend to rely on at a hearing event before this Board by March 22, 2019. Neither of those steps have been completed.

3As noted above, the parties made two requests on March 4, 2019. First, the parties seek to waive the requirement to file expert reports at the filing deadline, a deadline which has already passed. Secondly, the parties seek to alter the Schedule of Events because they have not taken the required steps in the 15 months they have had to complete those steps. I will address each application in turn.

Special Property Program

4The parties’ first application is for admission to a new program introduced by the Board for especially complex appeals: the Special Property Program. That program removes the requirement, in Rule 37(a), that parties file expert reports on the document filing deadline assigned to the appeals. The program sets out an alternative filing requirement for the first appearance before the Board, with an ability to later file a full expert report, if required. The application process for the program requires that I consider three things:

(a) the consent of the parties to the property’s eligibility;

(b) the complexity of the issues in dispute; and

(c) the type of property, which must be a: i. special purpose business property, ii. large office complex, in the AA or AAA Class, or similar property, iii. regional shopping centre, iv. hospitality property, such as a hotel, golf course, nursing home, or retirement home, v. complex property, such as an airport, data centre, oil and gas well, grain elevator, casino, or sports and entertainment facility, or vi. property with special valuation considerations.

5The first factor to consider is the consent of the parties that the property is eligible. MPAC, Loblaw, and the City of Kitchener all indicate that they agree that the property is eligible. Consent is important, and the first factor points toward granting admission to the program.

6The second factor to consider is the complexity of the issues in dispute. The parties submit that they disagree on the appropriate way to value the property. One party is proposing to value the property using the income approach, while another is proposing using the cost approach. The application does not say who is taking which position, or why those approaches lead to significantly different values. The application outlines some specific areas of disagreement within the cost framework. However, much of the submission concerns the request to alter the Schedule of Events.

7The parties have not provided an adequate explanation of what makes the issues complex. Simply listing areas of disagreement does not provide the Board with sufficient information on complexity. I do not know here if there are competing expert opinions, what drives the remaining disputes, or why the normal requirements of the Rules should not apply. The Special Property Program is clear that it “is only open to the most complex appeals that come before the Board.” I am not satisfied, on what has been provided, that this is such a case.

8The final area for consideration is “the type of property.” The program is clear that properties must be one of the property types listed. The parties submit that this property is a “property with special value considerations” pursuant to paragraph (c)(vi). That is a safety valve provision, to capture those properties that are not among the more traditional property types that regularly have complex issues. It is my view that any application under the “special value considerations” clause must provide a clear articulation of what those considerations are and how they make this property among the most complex appeals that come before the Board. The parties did not make any meaningful submissions on what the special value considerations were and I am not convinced that this is such a property.

9Only the consent of the parties favours admission to the Special Property Program. I am required to consider two other factors and, in looking at all of the factors, I am not satisfied that this property should be admitted to the program. Rule 37 will continue to apply to these appeals.

Extension of Time

10As noted above, the parties’ second request is to alter the Schedule of Events assigned to these appeals. The parties failed to hold a mandatory settlement meeting by the due date assigned to these appeals. The parties are asking that the Board alter the Schedule of Events to set the following procedural dates:

a. Production requests by April 8, 2019;

b. Production delivery by April 15, 2019;

c. A new mandatory settlement meeting deadline of April 26, 2019; and

d. A new document filing deadline of May 6, 2019.

The parties would then like the Board to set a settlement conference during the week of May 13, 2019.

11The parties state that they are not “comfortable with the fact that they are not in compliance with the requirements of the Schedule of Events.” But they do not explain why they are in breach, or how their request meets the requirements of the Rules.

12Rule 82 states that, once a Schedule of Events has begun, “the Board will not alter any timeline set out in the schedule of events, other than in exceptional circumstances.” In Mississauga (City) v Michalakos, 2018 CanLII 126632 (ON ARB) (“Michalakos”) the Board considered that Rule and set out a twostep process for considering extension of time requests. First, the Board must determine if exceptional circumstances exist. Only if such a circumstance exists must the Board then consider prejudice before altering the time in the Schedule of Events. At paragraph 10 of Michalakos the Board held that “exceptional means, among other things, something that does not occur regularly, something unusual, or something atypical.”

13The parties have not put forward any exceptional circumstances. They argue that this property is part of a larger inventory, but that is not exceptional for a large property holder like Loblaw. There is nothing before me indicating that anything atypical or unusual took place to require the alteration of the Schedule of Events. The parties have had ample time to provide documents and meet, and still have time to file material. Without exceptional circumstances, the Schedule of Events cannot be altered.

CONCLUSION

14The parties’ applications are denied. I am not satisfied that this is an appropriate case for the Special Property Program, so Rule 37 will continue to apply to these appeals. There is also nothing before me indicating that an exceptional circumstance exists here. I can only alter the timelines in the Schedule of Events if exceptional circumstances exist. The existing Schedule of Events will continue to apply to these appeals.