Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: April 25, 2019

FILE NO.: DM 158097

Assessed Person(s): Sharon Kreidstein

Appellant(s): Sharon Kreidstein

Respondent(s): Municipal Property Assessment Corporation Region 16

Respondent(s): Town of Innisfil

Property Location(s): 1335 Maple Road

Municipality(ies): Town of Innisfil

Roll Number(s): 4316-010-014-04200-0000

Appeal Number(s): 3262357 and 3308552

Taxation Year(s): 2017 and 2018

Hearing Event No. 701075

Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Heard: June 4, 2018 by written submission

APPEARANCES:

Parties	Representative/Counsel
Sharon Kreidstein	Self-represented
MPAC	Donald G. Mitchell^+^
Town of Innisfil	No one appeared

DISPOSITION OF THE BOARD DELIVERED BY DIRK VANDERBENT

REASONS

Background

1Sharon Kreidstein (the “Appellant”) is the owner of a property located at 1335 Maple Road, Town of Innisfil (the “Subject Property”), which is seasonal recreational property.

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 2017 to 2020 taxation years, MPAC is required to assess this value as of the valuation date, January 1, 2016. (“current value”).

3The 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 summary proceeding. The Board Rules of Practice and Procedure (the ‘Rules’) provides for a Schedule of Events which sets out due dates for completion of pleadings and exchange of disclosure.

4In this proceeding the Appellant has filed a Motion with the Board, pursuant to Rule 45 of the Board’s Rules, requesting that MPAC provide the following documents:

1. All documents relating to MPAC previous reduction in the assessed value by 10% because of the proximity to the road allowance
2. All documents relating to MPAC previously reducing the assessed value by $79,000 due to previous board decisions.
3. All of the documents, information and data used by MPAC to assess the Subject Property at $469,000 as of the January 1, 2016 valuation date
4. All documents respecting MPAC Post Valuation Review of the Subject Property
5. Full and complete documents respecting the valuation work file of MPAC staff, Susan Lutes and Andrew Parker, including all draft reports
6. All correspondence, including but not limited to email, and notes between Adam Parker and MPAC employees including but not limited to Susan Lutes and Mark Doble relating to the Subject Property.

5The Appellant also requests that her spouse Harold Maltz be added as a party to this appeal proceeding, pursuant to Rule 11 of the Board’s Rules. Mr. Maltz did not request to participate in this Motion.

6The Board directed that the Motion be heard in writing. Only MPAC has provided a response to this Motion.

7In its response, MPAC consents to the request that Mr. Maltz be added as a party to this appeal proceeding. As the evidence provided by the Appellant indicates that she transferred ownership of the Subject Property to Mr. Maltz in February 2016, the Board grants this request.

8The Motion materials indicate that Disclosure Requests No. 1 and No. 2 deal with the adjustments to the value of the Subject Property for 2005, 2008 and 2012 assessment cycles. MPAC agrees to produce notes and correspondence explaining how adjustments in prior years were determined. However, in consenting to this disclosure, MPAC relies on Rule 46, asserting that provision of this disclosure is not an admission of relevance or admissibility. As this satisfies Requests No. 1 and No. 2, it is unnecessary for the Board to adjudicate these requests.

9Regarding Request No. 4, MPAC's response is that it did not conduct a post-valuation review, apart from documents already provided to the Appellant in its response to her request for review. The Appellant has filed a Reply to MPAC's response and does not dispute MPAC response to Request No. 4. Accordingly, as MPAC has satisfied Request No. 4, it is unnecessary for the Board to adjudicate this request.

DECISION

10Harold Maltz is added as party to this appeal proceeding. As Mr. Maltz has like interests as the Appellant, he will participate in this proceeding as if he is a second Appellant.

11The Appellant's Motion for disclosure is denied, other than the productions which MPAC has agreed to provide.

12The 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

13The 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.

14The 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

1. 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.

No Admission

46. The disclosure or production of a document is not an admission of its relevance or admissibility.

Discussion, Analysis and Findings

The Test to be Applied

15The 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.

Disclosure Request No. 3

16The request is for all of the documents, information and data used by MPAC to assess the subject property at $469,000 in the Property Assessment Notice.

Appellant’s Submissions

17The Appellant submits that it is important, relevant, and proportionate that MPAC produce the documents which were used to determine the value of the Subject Property as of the valuation date, January 1, 2016.

MPAC’s Submissions

18MPAC states that Appellant has been provided with two reports: the MPAC Market Value Report Residential Properties Simcoe County Waterfront and Connected Bodies in York Region 2016 Base Year and MPAC Local Market Adjustments 2016 Base Year. MPAC also emphasizes that the Appellant has access to the Property Profile for the Subject Property through its public on-line database AboutMyProperty. MPAC asserts that the request for further documents is not relevant or proportional to the issues in the appeal.

Findings on Request No. 3

19The 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.”

20The 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.

21The Appellant's submission essentially is just a statement of their position. In her Reply to MPAC's response, the Appellant did not respond to MPAC's submission that, apart from Requests No. 5 and No. 6, MPAC has provided sufficient disclosure. Therefore, the Board finds that sufficient disclosure has been provided, and consequently, the Board finds that it is not necessary to grant Request No. 3.

Disclosure Requests No. 5 and 6

22The requests are for:

• full and complete valuation of MPAC work file of Susan Lutes and Andrew Parker including all draft reports.

• all correspondence, including but not limited to email, notes between Adam Parker and MPAC employees including but not limited to Ms. Lutes and Mr. Doble relating to the Subject Property.

Appellant’s Submissions

23The Appellant confirms that Ms. Lutes was the MPAC property specialist who testified in earlier appeals respecting the Subject Property. The Appellant asserts that the work file of Ms. Lutes is relevant to compare the opinions, analysis and conclusions of her previous cycle valuation of the Subject Property (including the reductions in value by 10% and by an additional $79,000) with the opinion, analysis and conclusions of Adam Parker, MPAC's valuation specialist who has prepared a valuation report for the current assessment cycle.

24The Appellant submits that the integrity of MPAC's mass appraisal is in issue in this appeal. In this regard, the Appellant has filed MPAC's response to her request for reconsideration pursuant to s. 39.1 of the Act, which includes a list of property sales and information. The Appellant provides a copy the Valuation Report prepared by Mr. Parker, observing that Mr. Parker relies on different properties.

25The Appellant asserts that Mr. Parker’s credibility is in issue. In support of this submission the Appellant refers to a previous Board decision respecting an earlier assessment cycle appeal regarding the Subject Property, Maltz v. Municipal Property Assessment Corp. Region No. 16, [2010] O.A.R.B.D. No. 3 (“Maltz”), at para. 16:

Mr. Parker, in his description of the subject property, noted that while the property was constructed in 1920, it had been renovated in 2005. When challenged on cross-examination as to the basis of his evidence that the cottage had been renovated in 2005, Mr. Parker accepted that he has no firsthand knowledge as to the timing of renovations nor was he aware of the origin or truth of the 2005 renovation entry on the property profile and that accordingly, his statement that the property had been renovated in 2005 was not true.

26In commenting on Mr. Parker’s affidavit filed by MPAC in support of its response to this motion, the Appellant asserts that although Mr. Parker stated that there was no correspondence between himself and Ms. Lutes and Mark Doble (another MPAC employee), he did not state whether there was any communication (including email and notes) between himself and other MPAC employees related to the Subject Property.

27The Appellant argues that the requested documents are relevant as they relate to the issue of whether Mr. Parker's report is an independent assessment of the valuation of the Subject Property or whether MPAC employees dictated or influenced Mr. Parker in the preparation of the analyses, opinions, and conclusions in the valuation and equity analysis reports that he prepared.

MPAC’s Submissions

28MPAC states that Ms. Lutes retired from MPAC in 2015 and will not be witness at the hearing, and that her work files, if any, relate to the appeals for the 2013 taxation year which has a different valuation day (January 1, 2012) and are not relevant to the issues in the current appeal.

29MPAC emphasizes that it has produced Mr. Parker's valuation report and supporting documentation for the current appeal proceeding, and confirms that Mr. Parker will be MPAC's witness at the hearing. MPAC submits that the Appellant will have full opportunity to cross-examine him to test his evidence and credibility. MPAC also asserts that there are no written communications between Mr. Parker and Ms. Lutes or Mr. Doble concerning the Subject Property.

Findings on Requests No. 5 and 6

30The Board begins its analysis by noting that the Appellant has raised an issue regarding adjustments to the current value of the Subject Property, but MPAC has agreed to provide notes and correspondence explaining how adjustments in prior years were determined. This addresses the probative part of the request for production of Ms. Lute’s work files. Apart from this, the Appellant has not provided any explanation of how these work files would have any probative bearing on Mr. Parker’s valuation. As MPAC's representative has pointed out, Ms. Lute’s valuation is in respect of a different valuation date. Even if the requested documents were considered to be of relevant, it is unclear that they would provide probative evidence. For this reason, the Board finds that the requirement to produce the requested documents would not be proportional to the complexity and importance of the issues in this proceeding.

31The reason advanced by the Appellant for the remaining requested disclosure is to test Mr. Parker’s credibility and the independence of his opinion.

32Regarding the issue of credibility, the passage from the Maltz decision on which the Appellant relies, indicates that Mr. Parker relied on an MPAC record which stated that there had been a renovation of the Subject Property in 2005. He accepted that this record was true. When confronted with evidence to the contrary, he admitted the record was not true. The Board finds nothing in this Decision to indicate that Mr. Parker was being deceitful or evasive. Apart from this allegation, the Appellant has not established any basis on which to suggest that Mr. Parker is biased. The Appellant has noted that Mr. Parker’s valuation relies on different proposed comparable properties than those that were referenced in MPAC's response to the Appellant's request for reconsideration. However, Mr. Parker, in providing his opinion as a valuation specialist, may choose the properties on which he will rely.

33There is no suggestion that Mr. Parker’s Valuation Report does not clearly indicate how he arrived at his conclusion regarding the current value of the Subject Property. The evidence on which a valuation specialist relies at the hearing is the evidence set out in his/her report. Therefore, the Board finds that the Appellant has not established how the work file, including communication with other MPAC staff, would be relevant. Alternatively, assuming the “work file” is relevant, there is nothing to indicate that this evidence would be probative. The Board, therefore, finds that the requirement to produce the requested documents would not be proportional to the complexity and importance of the issues in dispute.

Procedural Direction

34As 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.

35The Board also orders that Harold Maltz be added as a party to this proceeding.