Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: April 10, 2019

FILE NO.: DM 158142

Moving Party(ies): 2339442 Ontario Inc.

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 20

Respondent(s): City of Brantford

Property Location(s): 164 Colborne Street West

Municipality(ies): City of Brantford

Roll Number(s): 2906-010-008-03100-0000

Appeal Number(s): 3242284 and 3310750

Taxation Year(s): 2017 and 2018

Hearing Event No.: 701298

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

Heard: June 29, 2018 by written submission

Parties

Counsel⁺/Representative

Submissions

2339442 Ontario Inc.

Roman Andrzejewski

Moving Party

MPAC

Robert Zamozniak

Received

City of Brantford

Not Received

DISPOSITION OF THE BOARD DELIVERED BY DIRK VANDERBENT

REASONS

Background

12339442 Ontario Inc. is the owner of a property 164 Colbome Street West, Brantford (the “Subject Property”), which is classified as Neighbourhood Shopping Centre - with more than 2 stores attached, under one ownership, without anchor - generally less than 150,000 square feet (“sq. ft.”). The Subject Property has only 20,853 sq. ft. leasable area.

2Pursuant to the provisions of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act“), the assessment of land shall be based on its current value. The Act also provides that, for the 2013 to 2016 taxation years, MPAC is required to assess this value as of the valuation date, January 1, 2012. (“current value”).

32339442 Ontario Inc. (the “Appellant”) has filed appeals for the 2017 and 2018 taxation years with the Assessment Review Board (the “Board”), pursuant to s. 40 of the Act. These appeals are being heard by way of general proceeding. The Board’s Rules of Practice and Procedure (“Rules”) provides for a Schedule of Events which sets out due dates for completion of pleadings and exchange of disclosure. Regarding disclosure, the Schedule of Events provides that within the first 5 weeks after an appeal commences, MPAC is to provide initial disclosure and other parties may request additional disclosure. Any dispute respecting a request for additional disclosure is to be resolved by way of a Motion for Disclosure.

4In this proceeding, the Appellant has filed a Motion for Disclosure with the Board, pursuant to Rule 45 of the Board’s Rules, requesting that MPAC provide additional initial disclosure of several documents.

5The Board directed that the Motion be heard in writing. MPAC has provided a Response to the Motion, but the Municipality has not.

6The Appellant’s Motion provides an unclear description of the documents and information being requested. The Appellant’s Motion materials indicates that the Appellant sent a letter dated March 22, 2018 in which the Appellant requested production of documents and information respecting properties coded as 510 within the City of Brantford. However, Code 510 refers to properties classified as Heavy Manufacturing. In its submissions, MPAC points out that it contacted Roman Andrzejewski, the Appellant’s representative to advise of the error. Mr. Andrzejewski has filed an amended Notice of Motion for Disclosure. However, his reference to requested productions still refers to the productions listed in the March 22, 2018 letter.

7The valuation method used by MPAC to value the Subject Property is the capitalization of net income method. The parties agree that MPAC did provide the Appellant with a document related to MPAC calculation of the capitalization rate which lists 38 properties which MPAC considered in its capitalization rate analysis. The only other indication in the Appellant’s motion regarding the disclosure being requested is a statement made by the Appellant’s Representative, Mr. Andrzejewski that he “requested additional information” on these 38 properties. No further clarification has been provided.

DECISION

8The Motion is denied.

Relevant Legislation and Rules

9The Act:

1. “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:

3. 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.

10The Board’s Rules:

Proportionality

5. 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

38. 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

45. 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.

Discussion, Analysis and Findings

The Test to be Applied

11The 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).

18Relevance 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.

19In 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.

20In 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.

12In order to better understand the issue before the Board, it is also necessary to provide a description of the purpose of initial disclosure. The Board has issued a Guideline entitled “How to Interpret the Schedule of Events for General Proceedings” (the “Guideline”) which confirms that the purpose of initial disclosure is to provide “sufficient disclosure for an appellant to submit a clear and concise Statement of Issues.”

13The Guideline also describes what information is to be produced by MPAC when providing initial disclosure:

The Board has consulted with representatives from the Board’s stakeholder community respecting the development of the Schedule of Events and the provision of disclosure. There is consensus that MPAC’s has provided comprehensive initial disclosure in its “About My Property” online database system. This initial disclosure has three main components:

• Methodology Guides which explain assessment methodologies;

• Analytics, which are Market Valuation Reports that explain how an assessment methodology is applied to value property; and

• Property Specific Valuation Information.

Consequently, the Board does not anticipate receiving many, if any, disputes respecting initial disclosure.

14It is also important to note that the specific issues in dispute will not be clearly identified until the Statement of Issues and Statement of Response have been prepared and further requests for disclosure may be made at that time.

Findings

15The Board finds that the submissions provided by the Appellant are inadequate. In a motion for disclosure the requesting party is to provide a list of each document being requested, the issue in dispute to which the document relates, and, most importantly, the moving party’s submissions to explain how the requested document is relevant to the issue in dispute. The Appellant has failed to provide a clear statement of the documents requested as they relate to the Subject Property as a Shopping Centre, not a Manufacturing Facility. The only submission the Appellant has provided to explain the relevance of the requested documents is a statement that:

This information is in possession of MPAC and it is essential for the Appellant to verify the data and make a proper determination of [the] level of assessment imposed by MPAC. The requested information is essential for preparation of Statement of Issues.

The Board notes that this submission is merely a statement of the Appellant’s position, not an explanation of how the requested information is relevant to an issue in dispute.

16The Board has issued a Guideline entitled Disclosure Requirements for General and Summary Proceedings (the “Disclosure Guideline”), which includes a Disclosure Schedule. As the Guideline indicates, this Schedule outlines the most common issues that arise in appeal proceedings under s. 40 of the Act, and, for each issue, provides a non-exhaustive list of disclosure items which are considered to be relevant, and, therefore, should be routinely be disclosed. In its response materials, MPAC has confirmed that the information listed in the Disclosure Schedule, as it relates to the capitalization of net income valuation method, is available on its on-line database system known as AboutMyProperty. The Appellant has not disputed MPAC’s response, although the Appellant has been afforded the right to provide a reply in this Motion proceeding. Consequently, the Board is satisfied that the Appellant has been provided with sufficient disclosure for the Appellant to submit a clear and concise Statement of Issues.

CONCLUSION

17For these reasons, the Appellant’s Motion for Disclosure is dismissed.

18As the parties could not proceed to complete the exchange of pleadings under the Schedule of Events until the disposition of this Motion, the Board Registrar is directed to assign a new Commencement Date and associated Schedule of Events for the hearing of these appeals.