2144944 Ontario Limited v. Municipal Property Assessment Corporation, Region 19, 2019 CanLII 47973

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

May 21, 2019

FILE NO.:

DM 158495

Moving Party(ies):

2144944 Ontario Limited

Respondent(s):

Municipal Property Assessment Corporation (“MPAC”)

Region 19

Respondent(s):

City of Hamilton

Property Location(s):

2189 King Street East

Municipality(ies):

City of Hamilton

Roll Number(s):

2518-050-373-09130-0000

Appeal Number(s):

3206469

Taxation Year(s):

2016

Hearing Event No.:

701375

Legislative Authority:

Rule 45 of the Assessment Review Board Rules of Practice and Procedure

Heard:

June 28, 2018 by written submission

Parties

Counsel+/Representative

Submissions

2144944 Ontario Limited

Roman Andrzejewski

Moving Party

MPAC

Roger Leroux

Received

City of Hamilton

Not Received

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

12144944 Ontario Limited (the “Company”) seeks an order compelling MPAC to provide it with certain documents. MPAC opposes the Company’s request. The City of Hamilton did not file any material in relation to this motion.

2The Company is seeking 10 categories of documents, all of which are broadly framed. It has not provided evidence to show that those documents are relevant or that their production would be proportional at this stage in this appeal. I therefore deny the Company’s disclosure request.

3I will, however, alter the Schedule of Events applicable to this appeal. The Assessment Review Board’s (the “Board’s”) handling of this motion was exceptional and the balance of prejudice favours extending the time to allow the parties to exchange pleadings and prepare for a hearing. I therefore alter the Schedule of Events for these appeals, as set out below.

Disclosure

4Rule 45 requires that all parties “provide a copy, in paper or electronic form, of all relevant documents in the possession, control or power to all other parties in the proceeding.” The Schedule of Events assigned to an appeal sets out the timing for each party to provide its documents to the other parties. By week 4 of the schedule “MPAC provides initial disclosure to all other parties.” By week 21 “each Appellant provides its disclosure and Statement of Issues to all other parties.” Next, by week 46, “each party who responds to the Appellant(s) is to provide its Statement of Response and any additional supporting disclosure.” Finally, by week 50, “each Appellant [is to] provide its statement of reply and any additional disclosure to support of its reply to all other parties.”

5In addition to the Board’s Rules of Practice and Procedure (the “Rules”), the Board has provided guidance documents to help the parties understand their disclosure obligations. The Guideline on Disclosure Requirements for General and Summary Proceedings (the “Disclosure Guideline”) discusses the timing of disclosure and sets out a list of documents that are presumptively relevant to common issues raised in appeals. The Board has also issued a Guideline on How to Interpret the Schedule of Events for General Proceedings (the “Interpretation Guideline”). That document explains that the term “relevance” in an “appeal proceeding… means that it must relate to an issue that is in dispute…” which are “defined through the parties’ Statements of Issue, Response and Reply.”

6The standard this Board applies to disclosure is that the party seeking a document must show how that document is relevant to an issue in dispute, Municipal Property Assessment Corporation, Region No. 16 v Champlain Properties Limited, 2017 CanLII 38345 (ON ARB), at paragraph 9.

7It is not enough, however, that a document be proven to be relevant to a specific issue in dispute. The Board will only order disclosure if it would be proportionate to do, in light of the issues in dispute, 1141557 Ontario Ltd. v Municipal Property Assessment Corporation, Region 30, 2019 CanLII 3426 (ON ARB).

Relevant and Proportional

8I must determine if the requested documents are relevant and if requiring their production would be proportionate. At this stage in these appeals no pleadings have been filed, so there is no specific guide to what issues are in dispute. This motion was also brought at week 5 in the Schedule of Events for these appeals. That is, the only disclosure obligation was MPAC’s initial disclosure.

9The Interpretation Guideline states that “initial disclosure is not based on a determination that the documents provided necessarily relate to issues in dispute, because the issues in dispute have not yet been identified.” That document goes on to note that there is broad agreement that MPAC can meet its initial disclosure requirements through access to its AboutMyProperty website. Given that agreement in the community, the Interpretation Guideline says that “the Board does not anticipate receiving many, if any, disputes respecting initial disclosure.”

10This appeal was assigned a commencement date of February 15, 2018. MPAC sent its standard initial disclosure package to the Company on March 12, 2108. The Company is seeking documents in 10 additional categories.

11First, the Company is seeking a “list of all properties coded 340 within City of Hamilton containing total number of units between 12 and 16 showing January 1, 2012 assessment, site area, detailed building description, building area, and Automated Cost System (ACS) printouts for each property.” MPAC argues that this is not proportionate and is not a document that currently exists. MPAC says that there are at least 150 properties in this category, and points out that the Company did not argue which specific issue these documents are relevant to. I agree with MPAC that it is far from clear which specific issue this request relates to. The Company has not proven that this broad list of properties is relevant to any particular issue in dispute.

12The second category of documents is a “list of all properties coded 340 within City of Hamilton containing total number of units between 12 and 16 that sold between January 1, 2009 and December 31, 2016, showing date of the sale, amount of the sale, lot size, building(s) size, and Valuation Summary printouts for each property.” MPAC says it provided the Company with a list of properties with sales and that the additional information requested is not proportionate. I find that the list MPAC provided is sufficient at this stage in the process. There is no need to further sales information at this time.

13The third request made by the Company is for “list of 24 properties coded 340 within City of Hamilton containing in total number of units between 12 and 16 that were used by MPAC to value the subject property, showing all assessment information requested at point 1 and 2 above.” MPAC says that it does not have such a document. Rule 45 only requires a party to disclose “relevant documents in their possession, control or power,” they are not required to create documents. MPAC is not required to create this document.

14The Company’s fourth request is for “inspection records and appraisal cards showing sketches of buildings for the subject property and comparable properties from point 3.” MPAC again says that these documents don’t exist. MPAC is not required to create documents to disclose.

15The fifth item requested by the Company are the “policies and procedures used in valuing the subject property.” MPAC has already provided that information in its initial disclosure, which includes both Methodology Guides, which explain the assessment methods, and Market Valuation Reports, which showing how those methods are applied to property. The Company has not explained how the information provided is not sufficient.

16The sixth request is for “all information describing building use for properties from point 3.” MPAC again says that this information does not exist. Rule 45 does not require a party to create documents.

17Seventh, the Company seeks “any market data relating to these properties.” MPAC yet again says that it does not have such a report. I find this request to be extremely broad and not limited to particular issue in dispute in this appeal.

18The Company’s eighth request is for the “complete assessment to sale ratio (ASR) study relied by MPAC to support assessment of the subject property, including properties included in analysis and properties discarded and detailed explanation why they were discarded from the analysis.” MPAC says it does not have such a study at this time. I accept MPAC’s position. A party is not required to produce documents to disclose.

19The ninth request made by the Company is for the “current valuation records for any similar property in the vicinity relied upon by MPAC to establish equitable assessment of only 2189 King Street East, which is subject property.” MPAC again says that these documents do not exist. I accept MPAC’s evidence on that point. It cannot disclose documents that do not exist.

20The final document request is for “Gross Income Multiplier (GIM) study for the subject property with all data used and discarded in development of the GIM.” MPAC says that this information is not readily available. The Company has not shown that this study is relevant to an issue in dispute.

21None of the documents requested by the Company are relevant. This is largely because there are no specific issues in dispute at this stage in the proceeding. As a result, the requests are too broadly framed to lead to meaningful analysis. It is not appropriate for this Board to require broad and far reaching disclosure before the issues have been set out. The Board has set out what is appropriate initial disclosure for the vast majority of cases and MPAC has provided that information here. The Company has the burden to show why that general initial disclosure is insufficient. It provided virtually no evidence to explain why it needed the information it was requesting. A disclosure order should not be made with without clear evidence on the specific relevance of a document to the appeal. The Company did not meet that standard. Its request for disclosure is denied.

Extension of Time

22The Company first filed this motion on April 18, 2018. Dates for the filing of the motion material were set by the Board on May 29, 2018.

23The Company’s Statement of Issues was to be served on the other parties on or before July 13, 2018. This motion was set for June 28, 2018, over a week later. It was reasonable for the Company to await the results of this motion before serving its Statement of Issues.

24Rule 82 states that, once a Schedule of Events has begun, “the Board will not alter any timeline set out in the schedule of events, other than in exceptional circumstances.” The Board recently considered that Rule in Mississauga (City) v Michalakos, 2018 CanLII 126632 (ON ARB). The Board held, at paragraph 8, that “the party seeking an extension must show exceptional circumstances before the relief can be considered… any prejudice to the parties must be considered before granting an extension of time.” But prejudice is only considered if exceptional circumstances exist.

Exceptional Circumstances

25The Board went on to consider what constitutes an exceptional circumstance, stating at paragraph 10 that “exceptional means, among other things, something that does not occur regularly, something unusual, or something atypical.”

26I find that an exceptional circumstance exists here. It is unusual for the Board to take nearly a year to issue a disclosure motion. That delay left the Company in a state of uncertainty. Generally parties should continue with other procedural steps when a motion is filed, but parties should also be able to rely on timely disclosure decisions from this Board. The Board fell short of that standard here. That is exceptional.

Prejudice

27Once an exceptional circumstance is made out, I must consider if the balance of prejudice favours extending the time. The Company would be significantly prejudiced if the time were not extended. It made this request in a timely way, and it is the Board that has caused the delay here. Rule 49 prohibits a party from raising issues that are not in their pleadings. The Company would therefore not be permitted to raise any issues at the hearing, unless time is extended.

28MPAC would also be prejudiced if time is not extended. Its Statement of Response was due on January 4, 2019. It did not file a response, likely because there is nothing to respond to. But Rule 49 would still prohibit MPAC from raising any issues at a hearing. It would be hard for MPAC to meet its statutory burden to prove the correct current value of the land, set in subsection 40(17) of the Assessment Act, R.S.O. 1990, c. A.31, without being able to touch on any issues at the hearing.

29The City of Hamilton has not participated in the appeal to date. It is therefore difficult to assess the prejudice it faces. But it also would have had to serve a response by January 4, 2019 and there is no evidence that it did so.

30The balance of prejudice clearly favours extending time. Both MPAC and the Company are significantly prejudiced if time is not extended. I therefore find that this is an appropriate case in which to extend the time set in the Schedule of Events. I find that an appropriate extension of time would be to set a new commencement date that makes the date that these reasons are released the approximate date when a motion for disclosure was to be completed. That would be a commencement date of March 15, 2019.

Conclusion

31The Company’s motion for disclosure is denied. Its request was overly broad and not proportional for initial disclosure. It may be that more specific disclosure becomes necessary at a later stage in these appeals. But no disclosure is ordered at this point in the proceeding.

32The exceptional circumstance of this motion resulted in prejudice to all parties. I therefore extend the time in the Schedule of Events by assigning a new commencement date of March 15, 2019 to these appeals.