Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: May 08, 2019

FILE NO.: DM 157793

Moving Party(ies): Gioacchino (Jack) Nunno and Deborah Jane Douglas-Nunno

Respondent(s): Municipal Property Assessment Corporation, (“MPAC”) Region 07

Respondent(s): Township of Havelock-Belmont-Methuen

Property Location(s): 313 FR 87

Municipality(ies): Township of Havelock-Belmont-Methuen

Roll Number(s): 1531-010-007-53400-0000

Appeal Number(s): 3262089, 3293054 and 3348830 (deemed 2019 appeal)

Taxation Year(s): 2017, 2018 and 2019 (deemed appeal)

Hearing Event No. 702699

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

Heard: August 20, 2018 by written submission

Parties

Representative

Submissions

Gioacchino (Jack) Nunno, Deborah Jane Douglas-Nunno

Robert Baranowski

Moving Party

MPAC

William Jon White

Received

Township of Havelock-Belmont-Methuen

Not Received

DISPOSITION OF THE BOARD DELIVERED BY DIRK VANDERBENT

REASONS

Background

1Gioacchino (Jack) Nunno, and Deborah Jane Douglas-Nunno are the owners of a property with municipal address 313 FR 87, in the Township of Havelock-Belmont-Methuen (the “Subject Property”), which is classified as a seasonal/recreational dwelling—first tier on water.

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”).

3Mr. Nunno (the “Appellant”) has filed appeals for the 2017and 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 the concurrent 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. The issue to which the document relates, if provided by the Appellant, is also included:

1. Property Assessment Detail for the Subject Property and all comparable properties.

More specifically:

A Property Assessment Detail report for MPAC's six comparable properties, which are as follows:

• 15-31-010-007-39300

• 15-31-010-007-43500

• 15-31-010-007-53700

• 15-31-010-007-63402

• 15-36-020-002-27304

• 15-36-020-002-27514

Confirmation whether there is an adjustment applied to the Subject Property related to the following data elements, and if so, the amount of the adjustment for each data element:

• Exposure-South (M)

• Waterfront-Lake (A)

• Exceptionally Treed/Wooded (E)

• Topography-Level (F)

If yes, how much are the adjustments attributed to each of the data elements of the properties listed above as well as what is the actual CVA value of MPAC's comparable as adjusted to the Subject Property?

Issue: Correctness of assessment data and determination of proper variables.

2. MPAC's mathematical calculations of the effective site area.

Issue: Correctness of the area used for the purpose of property assessment.

3. The inspection notes and all photographs taken by MPAC's assessor regarding the Subject Property and MPAC's comparable.

Issue: To establish correctness and detail factors involved in establishing current value of the Subject Property.

4. MPAC's notes, analysis and mathematical calculations (Comparative Sales Analysis) which includes a detailed breakdown of each individual site characteristic valuation adjustment that was apply to the time-adjusted sale price of the comparable properties which supports MPAC's current value.

Issue: To determine comparability as well as correctness of the current value of the Subject Property.

5. Formula and methodology used by MPAC to establish distance from the Subject Property to calculate the Assessment to Sale Ratio (“ASR”) in MPAC's Equity Analysis.

Issue: To establish validity of MPAC's equity study.

6. List of properties in MPAC's Equity study showing: homogeneous neighbourhood, CVA, Effective Site Area, Year Built, Full Stories, Partial Stories, Building Total Area, Basement Area, Basement Finished Area and Quality of Construction as well as data and Type of Renovation or Addition.

7. List and number of all "outliers" as well as its ASR values from MPAC's Equity Study.

Issue: To assess validity of the equity study.

8. Sales of all properties from the homogenous neighbourhoods of the properties listed above between minus 500 square feet (“sq. ft.”) and plus 1000 sq. ft. range of the subject property with the same number of stories that took place between January 1, 2015 and December 31, 2016.

Issue: To prevent MPAC from “framing” the appeals as well as to determine quality and number of available sample of comparable properties and to improve transparency of the process.

5The Board directed that the Motion be heard in writing. Only MPAC provided a Response to the Motion. The Appellant did not provide a Reply to MPAC's Response. The Municipality did not provide submissions.

DECISION

6The Motion is denied. The Board’s specific disposition for each requested item is provided below.

Relevant Legislation and Rules

7The Act states that:

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.

8In addition to the 2017 and 2018 taxation year appeals before the Board, there is also an appeal of the 2019 taxation year assessment of property. This is because subsection 40(26) of the Act deems that an appellant has brought the same appeal for the 2019 taxation year if the 2018 taxation year appeal has not been finally disposed of by March 31, 2019.

9The Board’s Rules states that:

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

10The 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.

Appellant's Submissions

11The Appellant submits that the legal test is whether the disclosure requested is relevant to the appeals and that not obtaining the disclosure may result in a denial of natural justice and procedural fairness and would cause the Appellant significant prejudice.

12The Appellant maintains that the disclosure requested is sufficiently related to the issues being determined in the appeals and is proportionate to the complexity and importance of the issues.

13The Appellant refers to MPAC's position that the Property Assessment Details report is not a relevant document, arguing that this should not be an issue for the Board to consider at this time. The Appellant submits that the Board Member hearing the appeals on the merits will make the determination regarding the relevance of the evidence before it. In support of this submission, the Appellant notes that Rule 46 states, "The disclosure or production of a document is not an admission of its relevance or admissibility."

14The Appellant maintains that the disclosure requested is not privileged documentation/information, and that MPAC suffers no prejudice if the disclosure is provided to the Appellant.

15The Appellant maintains that, should the appeals proceed to a hearing, the disclosure will assist the Board in determining the correct assessment of the Subject Property, noting that the Board may reach a different assessment calculation.

16The Appellant asserts that the disclosure requested is required for the Appellant to put its case forward, and that there is a need for public-openness and procedural transparency.

MPAC's Submissions

17MPAC states that it provides all property owners with detailed information about property assessments. As part of its 2016 Assessment Update, MPAC provided stakeholders with three levels of disclosure:

a) Level I: Methodology Guides explaining how MP AC approached the valuation of particular types of property;

b) Level 2: Market Valuation Reports explaining how the methodology described has been applied at the sector level for the purpose of each assessment; and

c) Level 3: Property specific valuation information is available through secure access to property tax payers, their representatives, and municipalities.

18MPAC submits that the initial disclosure it has provided is more than sufficient for the Appellant to understand:

a) The valuation methodology applied to the property;

b) How market valuation parameters were determined;

c) How the market valuation parameters were applied to the property;

d) MPAC's record of the state and condition of the property when it assessed the property; and

e) How comparable properties in the vicinity have been assessed.

19MPAC further asserts that other information is within the Appellant's own power, possession or control, and that the Appellant is at liberty to obtain documents from third parties (e.g., municipalities).

20Regarding Request No. 1, MPAC states that it no longer produces the documents requested. Instead, a Property Profile is available to the Appellant on AboutMyProperty website portal, an online source that the Appellant can utilize.

21Regarding Request No. 2, MPAC's submits that the documents requested are not relevant to any of the issues brought forth by the Appellant during the period for disclosure. MPAC also relies on Rule 49 of the Assessment Review Board's Rule of Practice and Procedure, arguing that no new issues shall be raised after disclosure has been served and filed.

22Regarding Request No. 3, MPAC asserts that the Appellant can enter notes from their own inspection of the Subject Property. MPAC states that it has disclosed any photographs taken during its inspection of 313 Fire Route 87 within MPAC's Valuation Report.

23Regarding Request No. 4, MPAC submits that the requested documents and calculations are not determinative of the correct current value of the Subject Property.

24Regarding Request 5, MPAC submits that the documents and calculations requested are not determinative of the equitable current value of the Subject Property. MPAC asserts that it has already disclosed its rationale within the Equity Analysis Report it has provided, asserting that the onus lies with the Appellant to establish if there is an inequity in the assessment of the Subject Property.

25Regarding Requests 6, 7, and 8, MPAC submits that the documents requested are available through its on-line AboutMyProperty database that the Appellant can access.

Findings

26The Board first addresses the Appellant's submissions regarding the scope of the test to be applied under Rule 45. The Appellant incorrectly asserts that relevancy is the sole factor to be considered in determining whether the Board will order disclosure of a document. Relevancy is the primary, but not the sole consideration. The onus is on the requesting party to establish relevancy, probity, and proportionality.

27The Board notes that, even though the Appellant first submits that the test is relevancy, the Appellant then argues that the Board need not determine relevancy, because the Board Member hearing the appeals on their merits will make the determination regarding the relevance. In support of this submission, the Appellant submits that the Board should order that MPAC provide the requested disclosure, because Rule 46 provides that such disclosure is not an admission of its relevance or admissibility. The Board does not accept this submission. The Board first notes that Rule 46 applies only to a party who voluntarily agrees to provide disclosure. Secondly, Rule 45 clearly provides that the Board, when determining whether a document should be disclosed, must determine whether the document is relevant to an issue in dispute. While the Board Member hearing the appeals on their merits will make his/her own findings on the relevance and weight of the evidence adduced, this function is distinct from the test the Board must apply under Rule 45, where the Board must determine relevancy based on the submissions and evidence filed on the motion for disclosure.

28The Appellant also submits that the Board should consider whether the requested disclosure will assist the Board in determining the correct assessment of the Subject Property. However, that is not the test to be applied under Rule 45. The Board’s jurisdiction in a s. 40 appeal under the Act is to make a legal determination regarding correct current value based on the evidence and submissions at the hearing. It is the parties who decide which evidence they will provide to the Board. Under Rule 45, the Board is required to determine only whether a document is relevant to a specific issue in dispute. The Board is not required to determine what evidence should be provided to the Board at the hearing of the appeals on their merits.

29The Appellant submits that the need for public-openness and procedural transparency requires that the requested disclosure be provided. However, that is not the test to be applied under Rule 45. The Board must consider whether a requested document is relevant to a specific issue in dispute, not whether the requested document will, more generally, enable the requesting party to obtain data for the purpose of conducting its own assessment analysis.

30The Board now turns to the question of the information that is necessary to establish that a document be disclosed.

31A Board order requiring a party to produce a document imposes a legal obligation on that party to comply with the order. For this reason, the Board’s order must provide a precise description of the document to be produced, as the party who is ordered to produce the document should not be placed in a position where that party must interpret what the order requires. In this Motion, for example, the Appellant refers to “Property Assessment Detail” or a “Property Assessment Details report”. This is a class descriptor, where there may be differing interpretations of the specific documents that fall within this class. As such, this generic descriptor is insufficient to adequately particularize the information being requested, for the purpose of ordering a party to provide disclosure pursuant to Rule 45.

32The description of the issue in dispute must also be precise, in order that the Board can determine relevancy. It not sufficient to simply cite the ground of the appeal, i.e. to state that the issue is “what is the correct current value of the subject property” or “whether an equitable reduction of current value is required”. The requester must explain why the information being requested is necessary to determine either of these two grounds of appeal. Where the requested information relates to a specific valuation methodology, the requester must also include a description of that methodology.

33The requesting party should also describe any reasons provided by the responding party for refusing the request. In some cases, the responding party will indicate that the requested information has already been provided. If so, the requesting party, in its motion for disclosure, must explain in detail why the information provided does not satisfy its disclosure request. It is not sufficient to simply assert that the disclosure that has been provided is inadequate. In this regard, where a party requests disclosure from MPAC, this means that the requesting party must describe the relevant information provided in MPAC's public on-line database AboutMyProperty, and explain in detail why this available information does not satisfy its disclosure request.

34The requesting party must also provide its submission on why the requested disclosure is proportionate to the importance and complexity of the issues in a proceeding.

35Finally, where a requesting party’s motion for disclosure includes multiple requests for documents, the above information must be provided for each request. It is not sufficient to provide a list of requested documents together with a separate list of disputed issues and reasons, leaving the responding parties and the Board to guess which issues/reasons may apply to each individual request.

36The Board now turns to its findings respecting the Appellant's request for disclosure in this Motion. The Board first notes that the Appellant has not filed a Reply to MPAC's Response to the Motion, so much of MPAC's Response does not appear to be disputed by the Appellant. The Board also re-iterates that the onus to establish relevancy, probity, and proportionality rests with requesting party.

37Regarding Request No. 1, MPAC states that it no longer produces these documents. The Board notes, however, that this response does not confirm that the information requested is not in MPAC's possession. Therefore, this submission is of little assistance to the Board.

38The Board finds, however, that the Appellant has failed to describe the specific issue in dispute, if there is one. The request refers to a generic class of documents, “Property Assessment Details”, which the Board has already noted is insufficient to adequately particularize the information being requested. In its request, the Appellant has made reference to some specific data elements, but has failed to adequately describe the specific issue to which these data elements relate. The issue cited by the Appellant is “Correctness of assessment data and determination of proper values”, yet the Appellant has not described the specific data that the Appellant asserts is incorrect, and, therefore, is in dispute. Instead, the Appellant's request appears to be for the more general purpose of obtaining data so it can conduct its own assessment analysis.

39For these reasons, the Board finds that the Appellant has failed to sufficiently describe the documents/information being requested, or the specific issue in dispute, to enable the Board to determine relevancy, probity, and proportionality. Consequently, Request No. 1 is denied.

40Regarding Request No. 2, the Appellant states only that the request relates to the correctness of the area used for the purpose of property assessment, but does not state the specific issue in dispute. Again, the information provided is insufficient to enable the Board to determine relevancy. For this reason, Request No. 2 is denied. In light of this finding, it is unnecessary to address MPAC's submission that the Appellant's request for disclosure is out of time.

41Regarding Request No. 3, MPAC’s undisputed statement is that photographs obtained during its inspection of the property have been provided to the Appellant. Regarding the inspection notes, the Appellant asserts that they are required to establish “correctness and detail factors involved in establishing Current Vale of the Subject Property”. There is no indication of the specific issue in dispute, and no explanation as to what probative information the inspection notes would provide. For these reasons, Request No. 3 is denied.

42Regarding Request No. 4, MPAC submits only that the requested documents and calculations are not determinative of the correct current value of Subject Property. MPAC provides no explanation or other analysis to explain or support this submission. Therefore, this submission is of little assistance to the Board.

43As for the Appellant's submission, the Appellant states only states that the requested documents relate to the issue of comparability as well as correctness of current value. The description of the requested document is generic (notes, analysis and mathematical calculations), so the Board finds that the request is non-specific. The request refers to “each individual site characteristic valuation adjustment” applied to the time-adjusted sale price of comparable properties, but does not specify what these site characteristic adjustments are or what the specific comparable properties are. Therefore, it appears that the Appellant's request appears to be for the more general purpose of obtaining data so it can conduct its own assessment analysis. As the Appellant has failed to sufficiently identify both the specific documents/information to be produced and the specific issue in dispute, the Board is unable to determine the relevancy of the request. For these reasons, Request No. 4 is denied.

44Regarding Request No. 5, MPAC submits that the requested information is not determinative of the equitable current value of the Subject Property. Presumably, MPAC's submission is that the requested documents are not relevant. However, MPAC's submission does not provide any explanation as to why the requested information is not determinative. MPAC further submits that it has disclosed its rationale within its Equity Analysis Report. However, that does not respond to the question the Board must address, which is whether the requested information is relevant to an issue in dispute. Therefore, these submissions are of little assistance to the Board.

45The Board finds that the wording of the Appellant's request is unclear. The Appellant requests information used to “establish distance from Subject Property “ but the request does not state the point or points from which this distance is to be measured or, if specific properties are contemplated, what these properties are. The Appellant states that the issue to which the requested information relates is “to establish validity of MPAC's equity study”. As such, the Appellant has not indicated a specific issue in dispute, nor has the Appellant explained how the requested information would or would not establish the validity of the study. Consequently, the Board finds that it is unable to determine the relevancy of the request, as the Appellant has failed to: (i) sufficiently identify both the specific documents/information to be produced and the specific issue in dispute; and (ii) explain why the information being requested is necessary to establish the validity of MPAC's equity study. For these reasons, Request No. 5 is denied.

46Regarding Request Nos. 6, 7 and 8, MPAC, in its Response, asserts that the information requested is available through AboutMyProperty website portal. The Board has already noted that the Appellant has not filed a Reply disputing this assertion. In Request No. 7, the Appellant requests a list of “outliers”, but does not explain what this class descriptor means, or the specific documents that fall within this class. Therefore, the request is non-specific. Regarding Request No. 8, the Appellant states that one of the issues, to which this request relates, is “to prevent MPAC from ‘framing’ the appeal”. This statement of the issue in dispute is non-specific. More importantly, it is not an issue that the Board would address in a hearing of the appeals on their merits. The other issue stated by the Appellant is “to determine quality and number of [the] available sample of comparable properties and improve transparency of the process.” This issue is also non-specific. It appears that the Appellant's request is for the more general purpose of obtaining data so it can conduct its own assessment analysis. For these reasons, the Board denies Request Nos. 6, 7 and 8.

47In light of the above reasons, the Board denies all eight requests for disclosure information.

48As the parties could not proceed to complete the exchange of disclosure under the Schedule of Events until the disposition of this Motion, the Board’s Registrar is directed to assign a new Commencement Date and associated Schedule of Events for the hearing of these appeals.