Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: May 30, 2019

FILE NO.: DM 160544

Moving Party(ies): 183119 Canada Inc.

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 20

Respondent(s): County of Brant

Property Location(s): 388 King George Road

Municipality(ies): County of Brant

Roll Number(s): 2920-004-040-32250-0000

Appeal Number(s): 3136047 and 3156650

Taxation Year(s): 2015 and 2016

Hearing Event No.: 714684

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

Heard: May 13, 2019 by written submission

Parties	Counsel+/Representative	Submissions
183119 Canada Inc.	Roman Andrzejewski	Moving Party
MPAC	Kyle Duncan	Received
County of Brant		Not Received

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON

DISPOSITION OF MOTION

1This motion seeks an order requiring the disclosure of documents by MPAC pursuant to Rule 45 of the Assessment Review Board’s (the “Board”) Rules of Practice and Procedure (the “Rules”). The moving party, 183119 Canada Inc. (the “Corporation”), requests that MPAC be required to provide eight sets of documents relating to the appeals before the Board for the 2015 and 2016 taxation years.

2MPAC had been given until May 6, 2019 to provide its response to the motion in a Board direction dated April 9, 2019, which also temporarily suspended the Schedule of Events (the “SOE”) applying to the appeals. The day its submissions on the motion were due, MPAC emailed Board staff saying that it had not been served with the Corporation’s notice of motion. MPAC therefore took the position that the motion should be dismissed. Alternatively, MPAC requested that it be given additional time to respond to the motion, and this request was granted with a short extension of time allowed for the Corporation to reply. MPAC then submitted its response on the extended due date, May 17, 2019, and no reply was received from the Corporation by its extended due date, May 20, 2019 (or the next day as May 20, 2019 was a statutory holiday).

3For the reasons that follow, the Corporation’s motion is dismissed. The Corporation has not established the relevance of the documentation requested, nor would it be proportionate for the Board to order the disclosure requested.

REASONS FOR DISPOSITION OF MOTION

Disclosure Requested

4The first two of the Corporation’s eight requests make reference to “properties coded 422,” which the Board understands to be car dealerships.

5The first request is for a list of those code 422 properties in the County of Brant “and wider area (if needed), showing January 1, 2012 current value (sic), site area, detailed building description, building area and Automated Cost System (“ACS”) printouts for each property.”

6The second request is for a more precise list of the same properties that sold between 2009 and 2016 with date of sale, sale price, lot and building sizes and ACS printouts.

7The third request is for a list of 24 similarly coded properties in the same area that were used by MPAC to determine the value of each property with the same information as in the first two requests above.

8The fourth request is for “inspection records and appraisal cards showing sketches of buildings for the subject property and comparable properties from point 3 above.”

9The fifth request is for “the policies and procedures used in valuing the subject property.”

10The sixth request is for “all information describing building use for properties from point 3 above.”

11The seventh request (mistakenly numbered 10 in the submission) is for (reproduced exactly as in the request): “complete assessment to sale ratio 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.”

12Finally, the eighth request, mistakenly numbered 11, is for “the current valuation records for any similar property in the vicinity relied upon by MPAC to establish equitable assessment of only 388 King George Rd. which is the subject property.”

13The next column in the Corporation’s submission explains why each set of documents is requested, and for every request the explanation is the same. That is that the information in MPAC’s possession “is essential for the appellant to verify the data and make proper determination of level (sic) of assessment imposed by MPAC for the subject property, and for preparation of (a) Statement of Issues.” It goes on to cite three past Board decisions not included with the request and with no explanation of their relevance other than they relate to disclosure of information.

14MPAC responded to each of these requests as follows:

a. That the Corporation’s first request is frivolous and vexations and would require the compilation of “vast amounts of data without having regard for its relevance or the amount of time involved to undertake such a task”;

b. That the second request is a duplication of the first;

c. That the third request is vexatious and unreasonable in scope, potentially involving thousands of documents and hundreds of working hours;

d. That the fourth request was outlined in MPAC’s initial disclosure and available on MPAC’s website;

e. That the information in the fifth and sixth request is available on MPAC’s website;

f. That MPAC does not have the information in the seventh request and that it would amount to MPAC assisting the Corporation in developing its position on the appeals; and

g. That the information in the Corporation’s eighth request does not exist as MPAC has not conducted an equity study.

Law

15Rule 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.”

16In 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.”

17Rule 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

18The first question to be determined is the relevance of each disclosure request. MPAC’s primary point in its submission is that the Board cannot determine relevance in this case before the Corporation has served its Statement of Issues (an “SOI”).

19In fact, there is no reason the Corporation could not have brought the motion when it did. This is because the SOE for general proceedings set out in Schedule “A” of the Rules specifically allows for disclosure motions in weeks 7 to 9, and appellants are not required to provide an SOI until weeks 10 to 21. It does, however, make determining relevance a more difficult task, especially when a disclosure motion lacks specific information justifying it, as does this one.

20The remaining parts of MPAC’s argument attack the Corporation’s request, both generally and specifically. The general part of its argument notes that procedural fairness should not require exhaustive disclosure as was requested here, that extensive disclosure has been made available on its website, that the test of relevance is more restrictive than it was (as noted above) and that the burden rests on the party requesting disclosure to prove relevance. MPAC also characterizes the request as a fishing expedition.

21The Board concurs with MPAC on all of these points. This is because the Corporation’s submission does not explain the relevance of the requests. In addition, the Corporation does not say how the material available to it on MPAC’s website would be insufficient. It is simply not enough to say, as the Corporation does here, that the requested disclosure is relevant to current value, and that because the Board ordered disclosure in other decisions that it should do it again in this case. The Board agrees with MPAC that the relevance of the documents requested has not been made out in the Corporation’s submission.

22MPAC also argues that the requests are not proportionate. In the first three requests, MPAC says that it would have to compile “vast amounts of data” and spend many hours fulfilling the request. The request provides no explanation as to why requiring MPAC to do that much work would be justified.

23Similarly, in the seventh and eighth requests, MPAC says that it does not have the documentation requested. Here as well, the Board finds it would not be proportionate to require MPAC to compile it without any specific reasons given to require it.

24MPAC’s response to the Corporation’s fourth, fifth, and sixth requests is that the information requested has either been provided or is available on MPAC’s website, and the Corporation did not reply to say otherwise. There is, therefore, no reason for the Board to order MPAC to provide that documentation which is either in the Corporation’s possession or readily accessible to it.

CONCLUSION

25183119 Canada Inc.’s motion for disclosure is denied because the documents requested are not relevant, not proportionate, have already been provided, or are otherwise available to it.