Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: May 29, 2019

FILE NO.: DM 160351

Moving Party(ies): David Richard Wyrstiuk; Maria Tzimas

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 09

Respondent(s): City of Toronto

Property Location(s): 22 Evelyn Avenue

Municipality(ies): City of Toronto

Roll Number(s): 1904-012-330-03900-0000

Appeal Number(s): 3265530, 3298463 and 3350068

Taxation Year(s): 2017, 2018 and 2019

Hearing Event No.: 713764

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

Heard: May 9, 2019 by written submission

Parties	Counsel+/Representative	Submissions
David Wyrstiuk	Self-represented	Moving Party
MPAC	Drew Samuels	Received
City of Toronto	No one appeared	Not Received

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON

DISPOSITION OF MOTION

1This is a motion for documentary disclosure brought pursuant to Rule 45 of the Assessment Review Board’s Rules of Practice and Procedure (the “Rules”). David Richard Wyrstiuk and Maria Tzimas are the Appellants in the appeals that were heard by the Assessment Review Board (the “Board”) on March 25, 2019, and Mr. Wyrstiuk is the moving party in this motion. The disclosure issue in this motion arose during the course of that hearing which was adjourned so that this written motion could be pursued.

2The property in these appeals, located at 22 Evelyn Avenue (the “Property”), is in the residential tax class in Toronto. The appeals are being heard in a summary proceeding pursuant to the Rules with a simplified Schedule of Events.

3In the motion, Mr. Wyrstiuk requests that MPAC be required to disclose a document described in the affidavit affirmed by Mr. Wyrstiuk on April 8, 2019 as the “Residential Detail Level 2 Report.” MPAC’s representative, Drew Samuels, describes the document in his responding material as simply “The Residential Detail Report.” However named, this document contains details relating to each of the 99 single-family residential dwellings that sold in the neighbourhood of the Property between January 1, 2012 and December 31, 2015. The valuation date for all of the appeals before the Board is January 1, 2016.

4Mr. Wyrstiuk argues in his motion that the fulsome detail contained in this report is necessary and relevant for the hearing of the appeals. MPAC opposes the motion on grounds that the document requested is not relevant, and that its disclosure is not proportionate to the issue in dispute.

5For the reasons that follow, the motion is denied. Relevance and proportionality are central issues in disclosure motions, and it is possible that the document in question will contain some information relevant to the appeals. However, this document does not meet the requirement of being relevant where it will contain substantially more information than could be required. Its disclosure would also not be proportionate to the issue in dispute.

6In any event, disclosure motions are intended for situations where a party to an appeal refuses to disclose relevant documentation to the other parties. That is not the case here, where MPAC has offered to make all or part of the information contained in that document available to Mr. Wyrstiuk for a fee.

REASONS FOR DISPOSITION OF MOTION

Background

7The existence of the document in question arose in Mr. Wyrstiuk’s email correspondence with a representative of MPAC, Terri Robertson, which was attached to his affidavit. In March and April, 2017, Ms. Robertson indicated to Mr. Wyrstiuk that she was in possession of this document which contained detailed information on each of the single-family dwellings in the neighbourhood of the Property that had sold between January 1, 2012 and December 31, 2015, 99 in total. Of these, 31 sales took place in 2012, 19 in 2013, 32 in 2014 and 17 in 2015.

8Ms. Robertson said in her email to Mr. Wyrstiuk that MPAC would provide this report at discounted rates and that fees were required because MPAC would have to pay royalties to a third party data firm. The cost quoted by Ms. Robertson was based on the number of properties involved. The report in question could be provided $12 per property (normally $14). Ms. Robertson also indicated that Mr. Wyrstiuk could obtain less extensive information in other ways: free from MPAC’s website www.aboutmyproperty.ca, through another report called a Valid Sales Report for $6 per property (normally $8) or through a Residential Detail Report for $8 for property (also normally $14).

9Mr. Wyrstiuk says in his affidavit that the data available from MPAC’s website is “quite limited by the details I can see.” He wrote in an email to Ms. Robertson that the Residential Detail Report would not contain “assessed value, frontage and depth, year renovated, quality, basement area, basement finished area, secondary structures and locational influences.” MPAC’s response material, on the other hand, says that its free website provides a “property snapshot containing the property’s address, description, lot size, current value assessment, and sales information for up to 100 properties in the vicinity and a tool to generate a report comparing sales and other information for up to 24 properties.”

10Mr. Wyrstiuk also says in his affidavit that MPAC’s website is less useful than stated by MPAC because “the number of property details that are useful that can be obtained for comparison purposes is typically much less than 24, and certainly less than the 99 property in the report sought to be disclosed in the motion.” He takes the position that “those sales (in the Level 2 Report) and the details of those properties are directly relevant for the purposes of comparison for the determination of the Appellant’s property.”

11In the motion material, Mr. Wyrstiuk also objects to the fees that would be charged by MPAC for producing these reports, arguing they are unfair, especially when charged by a publicly funded body like MPAC. Ms. Robertson offered to provide the material requested at the rates quoted but Mr. Samuels’ motion material shows less enthusiasm for the same rates. He says that if MPAC were even to produce the less detailed Residential Detail Report, that “the information is superfluous, costly to MPAC, and ultimately costly to all taxpayers in Ontario.” There is no indication, despite the comments in MPAC’s motion material, that the offer of discounted rates had been withdrawn.

12Mr. Wyrstiuk argues that “the more samples of sales and the more similar the properties used for the comparison, the more accurate the assessed value of the subject property can be determined.” He cites a previous decision by the Board relating to the Property where a Member granted an adjournment for MPAC to produce a similar report, although he does not say its disclosure was ordered. In any event, that decision cannot be followed as there are no written reasons to support it.

13MPAC argues that procedural fairness does not require exhaustive disclosure. MPAC also argues that it has already made exhaustive disclosure at the hearing and on its website and that the information requested by Mr. Wyrstiuk is disproportionate to the issues in dispute at the hearing.

Law

14Rule 45 provides that “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.”

15In Municipal Property Assessment Corp., Region No. 16 v. Champlain Properties Ltd., [2017] O.A.R.B.D. No. 84, the Board held that the previous standard for the disclosure of documents had changed from those having a “semblance of relevance” to the more restrictive requirement of “relevance.”

16Rule 5 also provides that the Rules “shall be applied in a manner proportionate to the importance and complexity of the issues in a proceeding with a view to resolving appeals within the four year cycle.” In Explorer Drive Equities Inc. v. Municipal Property Assessment Corp., Region 15, [2017] O.A.R.B.D. No. 100, the Board determined that “the request must also be proportional to these issues, in accordance to Rule 5 of the Board’s Rules and the lack of specificity is akin to requesting MPAC to go on a fishing expedition.”

Analysis

17The first question to be answered is whether the material requested by Mr. Wyrstiuk is relevant to the issue central issue at the hearing. This is determining the correct current value of the property as of the valuation date of January 1, 2016 using the direct comparison approach. The second related question to be determined is whether the request is proportionate to the same issue.

18The evidence before the Board is that the Level 2 Report would provide more detail than would MPAC’s other reports. The parties also agree that MPAC’s website provides information about 99 or 100 properties, although Mr. Wyrstiuk says in his reply that that information is too limited to be useful. Mr. Wyrstiuk also says in his reply that MPAC only relied on seven properties for comparison in its evidence at the hearing, “failing to look at all relevant comparable properties,” which is an argument best reserved for the resumed hearing.

19It is possible that the Level 2 Report requested will contain information that could assist the Appellants at the hearing that is not available on MPAC’s website or in other forms of report. In this respect, however, the request could be properly characterized as a fishing expedition because it seeks a significant and unusual quantity of data for a relatively low value residential appeal without knowing how or why it might be relevant.

20It is also possible that the quantity of data that Mr. Wyrstiuk is requesting from MPAC might have met the previous “semblance of relevance” test applied to disclosure, but it does not meet the narrower “relevance” test.

21Similarly, in terms of proportionality, it is very unlikely that all, or even most, of the 99 sales will have points of comparison that would be useful at a hearing. Mr. Wyrstiuk could have used the www.aboutmyproperty.ca website to narrow his request of MPAC, to determine which, if any, of these 99 sales might have useful points of comparison. It was not disputed that the website can provide at least some data on at least that many transactions.

22It would also be unusual for the Board to consider sales beyond a one year period from the valuation date of January 1, 2016. This is particularly the case in Toronto with the likelihood of a large number of sales to choose from and where 82 of the 99 sales in the period January 1, 2012 to December 31, 2015 took place outside that shoulder year. As MPAC’s fee is based on a per property basis, reducing the size of the request would correspondingly reduce the fee levied by MPAC, possibly significantly. In any event, MPAC’s fee was not an issue in the motion, and it is possible that the Board lacks jurisdiction to alter or waive the fees MPAC charges for providing information to appellants.

23In addition, ordering the disclosure of this quantity of data would be disproportionate to the issue in dispute, being the correct current value of a single-family dwelling in Toronto, where other sources exist to obtain sufficient necessary information, particularly MPAC’s website. Moreover, the disproportionate nature of the order requested would not be consistent with Rule 4 which provides that the “Rules shall be liberally interpreted to ensure the just, most expeditious and least expensive determination of every proceeding.”

24The most significant determination in this decision, however, is that this is not a situation where MPAC has refused to provide the information requested. Rather, MPAC has agreed to provide the requested documentation for a fee. Disclosure motions are intended for situations where a party refuses to disclose relevant documentation to other parties. They are not intended for situations where documents are available but for a fee. Mr. Wyrstiuk is of the view that MPAC’s fees are inflated but this motion is not about the fee, it is a request for an order requiring MPAC to disclose documentation that is already available. Despite the determinations above, the motion is at its essence moot because MPAC is willing to provide the documents requested. It is therefore dismissed.

CONCLUSION

25The Appellants can pay MPAC’s fees and obtain the information requested. The disclosure request is denied.