CP REIT Ontario Properties Ltd. v. Municipal Property Assessment Corporation, Region 9, 2019 CanLII 32438

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: April 09, 2019

FILE NO.: DM 159694

Moving Party(ies): CP REIT Ontario Properties Ltd.

Moving Party(ies): Municipal Property Assessment Corporation, Region 9 (“MPAC”)

Moving Party(ies): City of Toronto

Property Location(s): 51 Gerry Fitzgerald Drive

Municipality(ies): City of Toronto

Roll Number(s): 1908-033-530-00230-0000

Appeal Number(s): 2031836, 2360446, 2705512, 2905123, 2958926, 3009101, 3076548, 3149214, 3243677, 3244097, 3300388, 3329127 and 3344522, 3349353, 3353661

Taxation Year(s): 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018 and 2019

Hearing Event No.: 714567

Legislative Authority: Rule 84 of the Assessment Review Board Rules of Practice and Procedure

Heard: April 2, 2019 by written submission

Parties

Counsel

Submissions

CP REIT Ontario Properties Ltd.

Stephen Longo

Moving Party

MPAC

Carl Davis

Moving Party

City of Toronto

Angus MacKay

Moving Party

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1CP REIT Ontario Properties Ltd., MPAC, and the City of Toronto jointly request an adjournment of hearing number 712476, set for April 10, 2019. That hearing was set due to the parties failure to comply with the filing deadline set in the Schedule of Events assigned to these appeals, pursuant to Rule 33 of the Assessment Review Board’s (the “Board’s”) Rules of Practice and Procedure (the “Rules”). The parties acknowledge their non-compliance and say that they will not commit such an error in the future.

2The parties are seeking an adjournment of the hearing and an assignment of new dates for the completion of a settlement meeting and the exchange of expert reports. I granted their request on April 2, 2019, with reasons to follow. These are those reasons.

Background

3These are appeals of the Real Canadian Superstore at 51 Gerry Fitzgerald Drive in the City of Toronto. The appeals are for each taxation year since 2009, twelve tax years in all. The appeals were assigned a commencement date of November 15, 2017, pursuant to Rule 33. That set a number of dates for the parties to complete their pleadings, disclose documents, and have a settlement meeting amongst themselves. The settlement meeting was to have taken place by January 20, 2019 and the parties were required to file any material that they wished to rely on at hearing by February 22, 2019. Neither of those steps was complied with.

4Rule 48 prohibits any documents from being filed after the document fling deadline, other than in “exceptional circumstances.” Given that restriction, the Board has adopted a policy of setting a hearing for appeals where nothing has been filed. It is expected that those will be short hearings, given that documents cannot be filed. The Board set these appeals for such an event when no documents were received.

5There were missteps in these appeals by the Board, in that the notice that was initially sent out stated that the event on April 10, 2019 would be a settlement conference. No further notice was given and the parties only became aware that the April 10 event was a hearing by consulting the Board’s website.

6The parties are seeking to have the hearing converted to a three day in-person event during the week of September 9, 2019. They are also seeking to file documents after the date set in the Schedule of Events for doing so. An adjournment of the April 10, 2019 hearing would serve no purpose if the parties cannot file any material for the next hearing. I must, therefore, first consider if the parties should be permitted to file new documents. Only if they can do so will I consider their adjournment request.

New Documents

7The parties are seeking to serve and file documents after the filing deadline assigned to these appeals. As noted above, Rule 48 prohibits the filing of additional documents, “unless the Board determines that there are exceptional circumstances.” The Board considered the term “exceptional circumstances” in Mississauga (City) v Michalakos, 2018 CanLII 126632 (ON ARB) and held, at paragraph 10, that “exceptional means, among other things, something that does not occur regularly, something unusual, or something atypical.”

8The exceptional circumstance here is that these were the first appeals to proceed through the Board’s new process. Only one batch of appeals can be first, so that is something that will not occur regularly. These appeals also have two appellants, which is unusual. It is also one of a very few cases where the City of Toronto is retaining outside experts for the appeal. I find that those facts constitute exceptional circumstances.

9Having found that exceptional circumstances exist, I can permit the filing of documents after the filing deadline. This is an appropriate case in which to do so. The parties are seeking a mandatory meeting date of April 16, 2019 and an expert report exchange deadline of May 10, 2019. I find those to be reasonable dates. The parties can file their documents for the hearing within a week of when they exchange expert reports. I set a document filing deadline for these appeals of May 17, 2019.

Adjournment

10Adjournments are governed by Rules 83 through 85. Rule 84 sets out the seven factors that I am required to consider before granting any adjournment.

11First, I am required to consider “the interests of the parties in a full and fair proceeding.” This property is a high value property with appeals by both the owner and the City of Toronto. There are many issues in dispute. The hearing that was set when no documents were received is for a half-day, by telephone conference call. A full hearing of the issues in appeals such as these would be difficult in that time and format. An adjournment helps to ensure a more full airing of the issues.

12The second factor is “the impact of the adjournment on the parties and other persons.” The parties are all seeking this adjournment, which shows that the impact on them is likely positive. There is no indication that other persons are impacted by this hearing.

13Third, I must consider “the integrity of the Board’s process,” which includes efficiently resolving appeals. The parties argue that the Board’s process is not undermined by this adjournment because it is not a lengthy adjournment and will still see these appeals resolved in the near future. I agree that the impact on the Board’s integrity is not significant here, but there is always an impact when hearings are not completed as scheduled.

14The fourth thing to consider is “the circumstances giving rise to the need for an adjournment.” The need for this adjournment arose from the parties’ failure to comply with the Rules. That is not generally a good reason for an adjournment.

15The fifth factor is “the timeliness of the request for the adjournment.” This request was made just over a week before the hearing. The parties argue that they have acted quickly because they received notice of the hearing on or about March 5, 2019. Three days later they sought a telephone appearance with a Vice-Chair of the Board, which was denied. That request was made again on March 14, 2019. This request for an adjournment was made shortly after that second request was denied. The parties should have proceeded with the processes set out in the Rules and not attempted a less formal interaction with the Board. This is not a timely application.

16Sixth, I must consider “the position of the other parties.” This is a joint request by all parties, so there are no other parties to consider.

17Finally, I must consider “the public interest in the delivery of the Board’s services in a just, timely and cost effective manner.” The adjournment here does not seriously undermine the public interest. The appeals will be set to a hearing in under six months and a full hearing provides a more just outcome.

18The majority of the factors set out in Rule 84 favour an adjournment. I am concerned with the parties’ non-compliance and the lack of timely request, but those factors do not outweigh the others. I am also mindful that these were among the first appeals to proceed through the Board’s new process, set out in the April 2017 Rule amendments. The parties appear to have been unaware that the Rules must be complied with. They state that they will do better in the future. I find that, overall, this is an appropriate case for an adjournment. I therefore adjourn the April 10, 2019 half-day hearing to a three-day in-person hearing to be scheduled during the week of September 9, 2019.

CONCLUSION

19I grant the parties’ request. The April 10, 2019 hearing is adjourned. The hearing of these appeals will be set for three days during the week of September 9, 2019. The parties are ordered to meet to discuss settlement on or before April 16, 2019. The parties must also exchange all expert reports on or before May 10, 2019. Finally, the parties must file with the Board all of the documents they intend to rely upon at the hearing on or before May 17, 2019.