Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: May 31, 2019

FILE NO.: DM 158392

Moving Party(ies): JVDM Inc.

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 19

Respondent(s): City of Hamilton

Property Location(s): 394 Winona Road

Municipality(ies): City of Hamilton

Roll Number(s): 2518-003-110-08200-0000

Appeal Number(s): 3206461

Taxation Year(s): 2016

Hearing Event No.: 701374

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

Heard: June 25, 2018 by written submission

Parties	Representative	Submissions
JVDM Inc.	Roman Andrzejewski	Moving Party
MPAC	Kyle Duncan	Received
City of Hamilton		Not Received

DISPOSITION OF THE BOARD DELIVERED BY DIRK VANDERBENT

REASONS

Background

1JVDM Inc. is the owner of a property identified by a municipal address of 394 Winona Road, City of Hamilton (the “Subject Property”), which is classified as Retail - one storey, generally under 10,000 square feet (Property Code 410).

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 2013 to 2016 taxation years, MPAC is required to assess this value as of the valuation date, January 1, 2012. (“current value”).

3JVDM Inc. (the “Appellant”) has filed an appeal for the 2016 taxation year with the Assessment Review Board (the “Board”), pursuant to s. 40 of the Act. This appeal is being heard by way of general proceeding. The Board’s Rules of Practice and Procedure (“Rules”) provides for a Schedule of Events which sets out due dates for completion of pleadings and exchange of disclosure. Regarding disclosure, the Schedule of Events provides that within the first five weeks after an appeal commences, MPAC is to provide initial disclosure and other parties may request additional disclosure. Any dispute respecting a request for additional disclosure is to be resolved by way of a Motion for Disclosure.

4In this proceeding, the Appellant has filed a Motion for Disclosure with the Board, pursuant to Rule 45 of the Board’s Rules, requesting that MPAC provide additional initial disclosure of several documents.

5The Board directed that the Motion be heard in writing. MPAC has provided a Response to the Motion, but the Municipality has not.

6The Appellant requests the following documents:

1. A list of all properties with Property Code 410 showing January 1, 2012 assessment, site area, detailed description, building area, and Automated Cost System (“ACS”) printouts for each property;

2. A list of all properties with Property Code 410 within the City of Hamilton that sold between January 1, 2010 and December 31, 2013, showing date of sale, amount of sale, lot size, building size, and ACS printouts for each property.

3. A list of all properties with Property Code 410 located within the City of Hamilton that were used by MPAC to value the Subject Property, showing all assessment information in Requests 1 and 2;

4. Inspection records and appraisal cards showing sketches of buildings for the Subject Property and comparable properties described in Request 3;

5. The policies and procedures MPAC used in valuing the Subject Property;

6. All information describing building use, for properties described in Request 3;

7. Any market data relating to the properties described in Request 3;

8. A complete Assessment to Sale Ratio (“ASR”) Study relied on by MPAC to support its assessment of the Subject Property, including properties included in its analysis and properties discarded, together with a detailed explanation why they were discarded from the analysis; and

9. The current valuation records for any similar property in the vicinity relied upon by MPAC to establish equitable assessment of the Subject Property.

DECISION

7The Motion is denied.

Relevant Legislation and Rules

8The 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.

9The 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

38. 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.

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.

11In order to better understand the issue before the Board, it is also necessary to provide a description of the purpose of initial disclosure. The 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.”

12The 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.

13It is also important to note that the specific issues in dispute will not be clearly identified until the Statement of Issues and Statement of Response have been prepared and further requests for disclosure may be made at that time.

Introduction

14In this case, the Appellant argues that it requires additional disclosure of information and documents in order to prepare its Statement of Issues. Therefore, the issue the Board must decide in this Motion is whether disclosure of the additional requested information and documents are necessary in this case.

Findings

15In this Motion, the Appellant has requested similar disclosure and has provided the same submission in support of each of the disclosure requests. For this reason, the Board does not address each disclosure request individually.

16The Appellant submits that the requested disclosure is in possession of MPAC and it is essential for the Appellant to verify the data and make proper determination of level of assessment imposed by MPAC for the subject property, and for preparation of Statement of Issues.

17In support of its submission the Appellant also relies on three previous Board Decisions:

• Explorer Drive Equities Inc. v Municipal Property Assessment Corporation, Region 15, 2017 CanLII 43957;

• GlaxoSmithKline Inc. v Municipal Property Assessment Corporation, Region 15, 2017 CanLII 6540; and

• Grossman Holdings Limited v Municipal Property Assessment Corporation, Region 9, 2017 CanLII 21099.

18The Board finds that, apart from a different property type and associated applicable valuation methodology, the disclosure requests and submissions made by the Appellant are the same as the disclosure requests (Nos. 1 to 8) and submissions advanced by the Appellant in Accu Servo Technology Inc. v. Municipal Property Assessment Corporation, Region 20, DM 158094, issued on April 8, 2019 (“Accu Servo”). The Board further notes that Request No. 9 in this Motion is a further particularization of the request made in Request No. 8. The Board also finds that MPAC's response to the Appellant's Motion in this proceeding is very similar to MPAC’s response in Accu Servo.

19In overview, the Board, in Accu Servo, found that there was nothing in the Appellant’s motion materials to a support a conclusion that the disclosure provided by MPAC in its “AboutMyProperty” database was insufficient to explain how MPAC arrived at its assessed value of the subject property. Therefore, the Board found that the Appellant has failed to establish that the additional requested disclosure was necessary to enable the Appellant to prepare its Statement of Issues.

20Because the motion in this proceeding is essentially the same as the motion in Accu Servo, the Board finds that its analysis and conclusions in Accu Servo equally apply, mutatis mutandis (i.e. with due alterations to be made), to the Appellant's disclosure Motion in this proceeding.

21For these reasons, the Appellant’s requests for initial disclosure are denied.

22As the parties could not proceed to complete the exchange of disclosure 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 this appeal.