Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: April 08, 2019

FILE NO.: DM 158094

Moving Parties: Accu Servo Technology Inc.

Respondent(s): Municipal Property Assessment Corporation Region 15

Respondent(s): Town of Oakville

Property Location(s): Ninth Line

Municipality(ies): Town of Oakville

Roll Number(s): 2401-010-020-10101-0000

Appeal Number(s): 3206472

Taxation Year(s): 2016

Hearing Event No. 701310

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

Heard: June 11, 2018 by written submission

Parties	Representative	Submissions
Accu Servo Technology Inc.	Roman Andrzejewski	Moving Party
MPAC	Kyle Duncan	Received
Town of Oakville	No one appeared	Not Received

DISPOSITION OF THE BOARD DELIVERED BY DIRK VANDERBENT

REASONS

Background

1Accu Servo Technology is the owner of a property identified by a municipal address of Ninth Line, Town of Oakville (the “Subject Property”), which is classified as Vacant Commercial Land (Property Code 106).

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, the Municipal Property Assessment Corporation (“MPAC”) is required to assess this value as of the valuation date, January 1, 2012 (“current value”).

3Accu Servo Technology (the “Appellant”) has filed an appeal for the 2016 taxation year 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 five 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. (For some of these requests, the Appellant has referenced Property Code Numbers, but has not specified the Property Code Description. In this Motion Decision the Board has provided the description for each Property Code as it is shown in the Property Code List published on MPAC’s website.)

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 requests the following documents:

1. A list of all properties with Property Codes 105 (Vacant Commercial Land) and 106 (Vacant Industrial Land) (the “Listed Properties” within the Town of Oakville, together with their assessed value as of January 1, 2012 valuation date, site area, and zoning;
2. Sales information (date of sale, amount of sale) for any of the Listed Properties that were sold between January 1, 2011 and December 31, 2016;
3. A list of 24 properties with Property Code 421 (Specialty automotive shop/auto repair/collision service/car or truck wash) located within the Town of Oakville (the “Specialty Properties”), together with the property description data and sale information data as detailed in Requests 1 and 2;
4. For both the Subject Property and the Specialty Properties, inspection records, appraisal cards, and property sketches;
5. The policies and procedures MPAC used in valuing the Subject Property;
6. For the Specialty Properties, all information describing building use;
7. For the Specialty Properties, any market data relating to these properties.
8. A complete Assessment to Sale Ratio (“ASR”) Study relied on by MPAC to support its assessment of the Subject Property, including properties included in its analysis and properties discarded, together with a detailed explanation why they were discarded from the analysis.

DECISION

7The Motion is denied. The Board’s specific disposition for each requested item is provided below.

8The Board Registrar is directed to assign a new Commencement Date and associated Schedule of Events for the hearing of these appeals.

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:

(2)

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.

Introduction

15In this case, the Appellant argues that it requires additional disclosure of information and documents in order to prepare its Statement of Issues. Therefore, the issue the Board must decide in this Motion is whether disclosure of the additional requested information and documents are necessary in this case.

16In this Motion, the Appellant has provided the same submission in support of each of the eight disclosure requests made in this Motion. For this reason, the Board does not address each disclosure request individually.

Appellant’s Submissions

17The Appellant submits:

• This information is in possession of MPAC and it is essential for the appellant to verify the data and make proper determination of level of assessment imposed by MPAC for the subject property, and for preparation of Statement of Issues.

• The Appellant relies in this motion on the previous Decisions of Assessment Review Board, namely Decision DM 146342 dated April 10, 2017, Decision DM 147242 dated July 5, 2017, and on the Decision DM 145345 from February 10, 2017, all relating to the disclosure of assessment information.

18The Appellant further submits that its representative did access MPAC’s ”AboutMyProperty” website, asserting that it does not provide the assessment information that the Appellant has requested from MPAC. The Appellant maintains that there is only very basic and generic information which is of “no use for the taxpayer who wants to make meaningful analysis of assessment of his property.”

19The Appellant also relies on three decisions issued by the Board, which are discussed below.

MPAC’s Submissions

20MPAC submits that it is well-established that, in order to determine whether a document is relevant, the Board must consider to the Statement of Issues and Statement of Response to identify the issues in dispute. In support of this submission, MPAC refers to MPAC v. Greater Toronto Airports Authority, [2011] O.A.R.B.D. No. 397 and cases cited therein.

21MPAC maintains that the Appellant’s requests are premature at this stage of the appeal because there is no Statement of Issues that would assist the Board in understanding the issues to which the requested documents are relevant. MPAC submits that, in the absence of a Statement of Issues, the Appellant’s requests for additional disclosure are premature and speculative.

22MPAC emphasizes that, without the benefit of a Statement of Issues, it is challenging for both MPAC and the Board to determine whether the documents requested are relevant to an issue in this appeal. MPAC submits that the appropriate question for the Board to ask when considering the Appellant’s disclosure requests is whether the documents are reasonably necessary for the appellant to deliver a compliant Statement of Issues.

23MPAC notes that Rule 38 of the Board’s Rules sets out the requirements for Statements of Issues and Statements of Response. MPAC submits that its initial disclosure is more than sufficient for the Appellant to evaluate the accuracy of the appealed assessment, to determine whether the assessed value is equitable relative to the assessment of similar properties in the vicinity, to investigate any other issues the appellant might raise (e.g., classification issues) and to otherwise deliver a Statement of Issues that complies with Rule 38.

24MPAC maintains that this approach is fully compatible with the Schedule of Events, which contemplates that MPAC will make initial disclosure once the appeal commences, before pleadings have been exchanged, and then make further disclosure when it delivers its Statement of Response, after it has had time to review the Appellant’s Statement of Issues. MPAC argues that, although the Schedule of Events contemplates matters relating to “additional disclosure” during Weeks 5 to 9, it cannot be the intention of the Rules of Practice that MPAC disclose all potentially relevant documents prior to receipt of a Statement of Issues, as that would make it unnecessary for MPAC to provide “additional supporting disclosure” during Weeks 35 to 46.

25MPAC further asserts that it would be inefficient for MPAC to disclose documents relevant to matters when it is not even known if the Appellant will put those matters at issue in its Statement of Issues. MPAC argues that to require excessive disclosure on matters of unclear relevance, would threaten to delay and over-complicate appeals and undermine the express objective under the Rules to resolve all appeals within the four-year cycle.

26MPAC argues that the only logical way to interpret the Schedule of Events is to require MPAC to make sufficient disclosure for the Appellant to deliver a Statement of Issues, including limited additional disclosure in certain atypical cases where the initial disclosure is not sufficient, with any further disclosure matters to be addressed during later weeks of the Schedule of Events.

27MPAC submits that the Appellant has failed to establish that there exists additional relevant documents that would be proportionate to disclose and that are reasonably necessary for the Appellant to prepare and deliver a compliant Statement of Issues. Accordingly, MPAC requests that the motion be dismissed.

Findings

28The Board first notes that the Appellant has not provided a description of the Subject Property, other than it is vacant commercial land, nor has the Appellant provided any explanation of how its requested disclosure respecting the other properties relate to the Subject Property. Therefore, the Board cannot make a determination, one way or the other, as to how the requested disclosure is relates to the Subject Property.

29The Appellant argues that it requires the requested documents and information as initial disclosure to enable the Appellant to verify the data and make a proper determination of the level of assessment imposed by MPAC. The Appellant further maintains that its requested disclosure is not included in MPAC’s public on‑line data base “AboutMyProperty”. However, the Appellant has not provided any explanation of what this data verification process would be, or why it is required at this early stage in the proceeding.

30In an appeal under s.40 of the Act, when preparing its Statement of Issues, an appellant is not required to “verify” the disclosure on MPAC’s database, because an appellant will not know what MPAC’s evidence and analysis will be until MPAC serves its Statement of Response.

31Instead, the Appellant is only required to provide its evidence and analysis to support its position respecting the correct current value of the Subject Property and whether there should be an equitable reduction of this value. MPAC will then, in its Statement of Response, detail where MPAC disputes the Appellant’s evidence and analysis, and provide its evidence and analysis in support of its position. As explained in the Guideline, under the Schedule of Events, an appellant has the right to serve a Reply to MPAC’s Statement of Response. If, upon service of a Statement of Response, an appellant concludes that additional disclosure is required, such disclosure may be requested at that time. At that stage in the proceeding, the issues in dispute will be clear, and any dispute regarding relevancy can be properly determined at that time.

32The purpose of requiring MPAC to provide initial disclosure is, as stated in the Guideline, to provide sufficient disclosure for an appellant to submit a clear and concise Statement of Issues. There is nothing in the Appellant’s Motion materials to a support a conclusion that the disclosure provided by MPAC in its “AboutMyProperty website is insufficient to explain how MPAC arrived at its assessed value of the Subject Property. Consequently, the Board finds that the Appellant has failed to establish that the additional requested disclosure is necessary to enable the Appellant to prepare its Statement of Issues.

33In arriving at this conclusion, Board has also considered three prior decisions of the Board which have been cited by the Appellant:

• Explorer Drive Equities Inc. v Municipal Property Assessment Corporation, Region 15, 2017 CanLII 43957;

• GlaxoSmithKline Inc. v Municipal Property Assessment Corporation, Region 15, 2017 CanLII 6540; and

• Grossman Holdings Limited v Municipal Property Assessment Corporation, Region 9, 2017 CanLII 21099

The Appellant provided no submissions respecting the relevance of these Board Decisions to the issue in this Motion, other than to state that they each relate to the disclosure of assessment information. Each of these Decisions address motions made pursuant to s.53 of the Act, requesting that the Board order MPAC to disclose information in its possession respecting third persons (i.e. persons who were not parties to the appeal). The Board finds that these Decisions are of little assistance in this Motion, as none of these Decisions address the issue of the requirement to provide additional initial disclosure prior to an appellant serving a Statement of Issues.

34For these reasons, the Appellant’s requests for initial disclosure are denied.

35As the parties could not proceed to complete the exchange of disclosure 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.