Stanislava Gostovic v. Municipal Property Assessment Corporation, 2019 CanLII 29148

Assessment Review Board / Commission de révision de l'évaluation foncière

Issue Date: April 5, 2019 File No.: DM 158795

Moving Party(ies): Stanislava Gostovic Respondent(s): Municipal Property Assessment Corporation ("MPAC") Region 15, Town of Oakville

Property Location(s): 2871 Brighton Road Municipality(ies): Town of Oakville Roll Number(s): 2401-010-010-02668-0000 Appeal Number(s): 3285359, 3285360, 3285361, 3285358, 3233574 and 3307161 Taxation Year(s): 2013, 2014, 2015, 2016, 2017 and 2018 Hearing Event No.: 710279

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

Heard: February 19, 2019 by written submission

Parties / Counsel/Representative / Submissions

• Stanislava Gostovic / Roman Andrzejewski / Moving Party
• MPAC / Joseph Fantetti / Received
• Town of Oakville / Not Received

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1Stanislava Gostovic seeks an order compelling MPAC to provide certain documents. MPAC opposes her request. The Town of Oakville did not file any material in relation to this motion.

2Ms. Gostovic is seeking eight categories of documents, all of which are broadly framed. She has not provided evidence to show that those documents are relevant or that their production would be proportional at this stage in this appeal. I therefore deny Ms. Gostovic's disclosure request.

3I will, however, alter the Schedule of Events applicable to this appeal. The Assessment Review Board's ("Board") handling of this motion was exceptional and the balance of prejudice favours extending the time to allow the parties to exchange pleadings and prepare for a hearing. I therefore alter the Schedule of Events for these appeals by assigning a new commencement date of January 15, 2019.

Disclosure

4Rule 45 requires that all parties "provide a copy, in paper or electronic form, of all relevant documents in the possession, control or power to all other parties in the proceeding." The Schedule of Events assigned to an appeal sets out the timing for each party to provide its documents to the other parties. By week 4 of the schedule "MPAC provides initial disclosure to all other parties." By week 21 "each Appellant provides its disclosure and Statement of Issues to all other parties." Next, by week 46, "each party who responds to the Appellant(s) is to provide its Statement of Response and any additional supporting disclosure." Finally, by week 50, "each Appellant [is to] provide its statement of reply and any additional disclosure to support of its reply to all other parties."

5In addition to the Board's Rules of Practice and Procedure (the "Rules"), the Board has provided guidance documents to help the parties understand their disclosure obligations. The Guideline on Disclosure Requirements for General and Summary Proceedings (the "Disclosure Guideline") discusses the timing of disclosure and sets out a list of documents that are presumptively relevant to common issues raised in appeals. The Board has also issued a Guideline on How to Interpret the Schedule of Events for General Proceedings (the "Interpretation Guideline"). That document explains that the term "relevance" in an "appeal proceeding... means that it must relate to an issue that is in dispute..." which are "defined through the parties' Statements of Issue, Response and Reply."

6The standard this Board applies to disclosure is that the party seeking a document must show how that document is relevant to a specific issue in dispute, Municipal Property Assessment Corporation, Region No. 16 v Champlain Properties Limited, 2017 CanLII 38345 (ON ARB), at paragraph 9.

7It is not enough, however, that a document be proven to be relevant to a specific issue in dispute. The Board will only order disclosure if it would be proportionate to do, in light of the issues in dispute, 1141557 Ontario Ltd. v Municipal Property Assessment Corporation, Region 30, 2019 CanLII 3426 (ON ARB).

Relevant and Proportional

8I must determine if the requested documents are relevant and if requiring their production would be proportionate. At this stage in these appeals no pleadings have been filed, so there is no specific guide to what issues are in dispute. This motion was brought before Ms. Gostovic had served a Statement of Issues. That is, the only disclosure obligation was MPAC's initial disclosure.

9The Interpretation Guideline states that "initial disclosure is not based on a determination that the documents provided necessarily relate to issues in dispute, because the issues in dispute have not yet been identified." That document goes on to note that there is broad agreement that MPAC can meet its initial disclosure requirements through access to its AboutMyProperty website. Given that agreement in the community, the Interpretation Guideline says that "the Board does not anticipate receiving many, if any, disputes respecting initial disclosure."

10This appeal was assigned a commencement date of January 15, 2018. MPAC sent its standard initial disclosure package to Ms. Gostovic on January 31, 2018. She sent a request for more documents to MPAC on February 5, 2018. MPAC responded to that request on February 21, 2018, taking the position that the requested documents either do not exist, have already been disclosed, are available elsewhere, are not relevant, and their disclosure at this stage would be disproportionate. Ms. Gostovic filed this motion with the Board on March 16, 2018. MPAC filed a motion to dismiss the appeals on December 13, 2018. The Board denied MPAC's motion and directed that this disclosure motion be heard.

11Ms. Gostovic's first request is for a "list of all properties coded 520 within Town of Oakville showing January 1, 2016 assessment, site area, detailed building description, building area, and Automated Cost System ("ACS") printouts for each property." MPAC says that the property was not values using ACS, it was valued using the income approach to value. MPAC also notes that Ms. Gostovic can obtain assessment information about up to 100 properties through its AboutMyProperty website portal, and more detailed information on up to 24 properties. I find that this request is too broad and is not clearly relevant to any particular issue in dispute.

12The second request is for a "list of all properties coded 520 within Town of Oakville that sold between January 1, 2013 and December 31, 2017, showing date of the sale, amount of sale, lot size, building(s) size, and ACS printouts for each property." MPAC again notes that sales information is available through the AboutMyProperty web portal. Ms. Gostovic has not explained how MPAC's initial disclosure is inadequate.

13Third, Ms. Gostovic seeks a "list of 24 properties coded 520 within Town of Oakville that were used by MPAC to value the subject property, showing all assessment information requested at point 1 and 2." MPAC says that it did not use the direct comparison approach to value this property, so no sales were used. I accept MPAC's evidence on that point and find that there is no such list of properties.

14The fourth category of documents sought by Ms. Gostovic is "inspection records and appraisal cards showing sketches of buildings for the subject property and comparable properties from point 3 above." MPAC says both that the documents do not exist and that they are irrelevant. Rule 45 only requires a party to disclose "relevant documents in their possession, control or power." If the documents are not in MPAC's possession, control or power, they do not need to be disclosed. MPAC's evidence is that these documents do not exist and I accept that evidence, and deny Ms. Gostovic's request for those documents.

15Ms. Gostovic's fifth request is for the "policies and procedures used in valuing the subject property." MPAC has already provided that information in its initial disclosure, which includes both Methodology Guides, which explain the assessment methods, and Market Valuation Reports, which showing how those methods are applied to property. Ms. Gostovic has not explained how the information provided is not sufficient.

16The sixth request is seeking "all information describing building use for properties from point 3." That is too broadly framed to guide a disclosure order. Ms. Gostovic has not meaningfully set out the information it is seeking, or shown how that information relates to a particular issue in dispute.

17The seventh category of documents is "complete assessment to sale ratio (ASR) study relied by MPAC to support assessment of the subject property, including properties included in analysis and properties discarded and detailed explanation why they were discarded from the analysis." MPAC says that no such study exists. I accept MPAC's evidence and, as noted above, parties are not required to disclose documents that are not in their possession.

18Finally, Ms. Gostovic seeks "the current valuation records for any similar property in the vicinity relied upon by MPAC to establish equitable assess of only 2871 Brighton Road, which is the subject property." MPAC again says that no such records exist. I accept MPAC's evidence on that point and cannot order disclosure of documents that do not exist.

19None of the documents requested by Ms. Gostovic need to be disclosed. This is largely because there are no specific issues in dispute at this stage in the proceeding. As a result, the requests are too broadly framed to lead to meaningful analysis. It is not appropriate for this Board to require broad and far reaching disclosure before the issues have been set out. The Board has set out what is appropriate initial disclosure for the vast majority of cases and MPAC has provided that information here. Ms. Gostovic has the burden to show why that general initial disclosure is insufficient. She provided virtually no evidence to explain why she needed the information she was requesting. A disclosure order should not be made with without clear evidence on the specific relevance of a document to the appeal. Ms. Gostovic did not meet that standard. Her request for disclosure at this point in the proceeding is denied.

Extension of Time

20Ms. Gostovic first filed this motion on March 16, 2018, but the motion was not set down by the Board until January 10, 2019. There is nothing in the record explaining that delay.

21Ms. Gostovic's Statement of Issues was to be served on the other parties on or before June 11, 2018. This motion was not set down until six months later. Parties should be able to rely on timely decisions from the Board on disclosure motions. It was, therefore, reasonable for Ms. Gostovic to await the results of this motion before serving her Statement of Issues.

22Rule 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." The Board recently considered that Rule in Mississauga (City) v Michalakos, 2018 CanLII 126632 (ON ARB). The Board held, at paragraph 8, that "the party seeking an extension must show exceptional circumstances before the relief can be considered... any prejudice to the parties must be considered before granting an extension of time." But prejudice is only considered if exceptional circumstances exist.

Exceptional Circumstances

23The Board went on to consider what constitutes an exceptional circumstance, stating at paragraph 10 that "exceptional means, among other things, something that does not occur regularly, something unusual, or something atypical."

24I find that an exceptional circumstance exists here. It is unusual for the Board to take nearly a year to issue a disclosure motion. That delay left Ms. Gostovic in a state of uncertainty. Generally parties should continue with other procedural steps when a motion is filed, but parties should also be able to rely on timely disclosure decisions from this Board. The Board fell short of that standard here. That is exceptional.

Prejudice

25Once an exceptional circumstance is made out, I must consider if the balance of prejudice favours extending the time. Ms. Gostovic would be significantly prejudiced if the time were not extended. She made this request in a timely way, and it is the Board that has caused the delay here. Rule 49 prohibits a party from raising issues that are not in their pleadings. She would therefore not be permitted to raise any issues at the hearing, unless time is extended.

26MPAC would also be prejudiced if time is not extended. Its Statement of Response was due on December 3, 2018. It did not file a response, likely because there is nothing to respond to. But Rule 49 would still prohibit MPAC from raising any issues at a hearing. It would be hard for MPAC to meet its statutory burden to prove the correct current value of the land, set in subsection 40(17) of the Assessment Act, R.S.O. 1990, c. A.31, without being able to touch on any issues at the hearing.

27The Town of Oakville has not participated in the appeal to date. It is therefore difficult to assess the prejudice it faces. But it also would have had to serve a response by December 3, 2018 and there is no evidence that it did so.

28The balance of prejudice clearly favours extending time. Both MPAC and Ms. Gostovic are significantly prejudiced if time is not extended. I therefore find that this is an appropriate case in which to extend the time set in the Schedule of Events. I find that the most efficient way to give the parties time to prepare for a hearing is to assign a new commencement date. An appropriate new commence date is January 15, 2019 because that would make the date that these reasons approximately the date when a motion for disclosure was to be completed.

Conclusion

29Ms. Gostovic's motion for disclosure is denied. Her request was overly broad and not proportional for initial disclosure. It may be that more specific disclosure becomes necessary at a later stage in these appeals. But no disclosure is ordered at this point in the proceeding. I will, however, assign a new commencement date of January 15, 2019 to these appeals due to the Board exceptional delay in issuing this decision.