Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE: June 07, 2019
Moving Party(ies): Canadian Niagara Hotels Inc. and 1006092 Ontario Limited
Respondent(s): Municipal Property Assessment Corporation, (“MPAC”) Region 18
Respondent(s): City of Niagara Falls
Property Location(s): 4800 Bender Street, 5875 Falls Avenue, 4915 Clifton Hill and 5685 Falls Avenue
Municipality(ies): City of Niagara Falls
Roll Number(s): 2725-030-002-01300-0000, 2725-030-002-01500-0000 and 2725-030-002-03900-0000
Appeal Number(s): 3228561, 3309273, 3363015, 3343697, 3362859, 3343696, 3228566, 3309574 and 3363386
Taxation Year(s): 2017, 2018 and 2019
Hearing Event No.: 715068
Legislative Authority: Rule 45 of the Assessment Review Board Rules of Practice and Procedure
Heard: May 1, 2019 by written submission
| Parties | Counsel⁺/Representative | Submissions |
|---|---|---|
| Canadian Niagara Hotels Inc. and 1006092 Ontario Limited | Mark Blidner⁺ | Moving Party |
| MPAC | Francis X. Shea⁺ | Not Received |
| City of Niagara Falls | Anne Felicetti | Not Received |
DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON
DISPOSITION OF MOTION
1Canadian Niagara Hotels Inc. is the owner of 4800 Bender Street and 5685 Falls Avenue. 1006092 Ontario Limited is the owner of 5875 Falls Avenue (4915 Clifton Hill). All are hotel properties in Niagara Falls.
2Canadian Niagara Hotels Inc. and 1006092 Ontario Limited (collectively the “Appellants”) filed appeals for the 2017 taxation year with the Assessment Review Board (the “Board”) pursuant to s. 40 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”). They were deemed to have brought the same appeal in respect of the property for the 2018 and 2019 taxation years pursuant to s. 40(26) of the Act.
3These appeals are general proceedings pursuant to Rule 32 of the Board’s Rules of Practice and Procedure (the “Rules”).
4The Appellants filed this motion with the Board requesting disclosure of documents pursuant to Rule 45 and s. 53(2) of the Act.
5Rule 45 provides that “all parties must provide a copy, in paper or electric form, all relevant documents in their possession, control or power to all other parties in the proceeding, except for privileged documents.”
6Subsections 53(1) and (2) of the Act provide that:
53 (1) A person employed by the assessment corporation, a municipality or a school board is guilty of an offence and on conviction is liable to a fine of not more than $2,000, or to imprisonment for a term of not more than six months, or to both if,
(a) in the course of the person’s duties, he or she acquires or has access to information collected under this Act or to information collected pursuant to an assessment appeal or a proceeding in court involving an assessment matter;
(b) the information is,
(i) proprietary information of a commercial nature prescribed by the Minister relating to an individual property, or
(ii) actual income and expense information on an individual property; and
(c) the person wilfully discloses the information or permits it to be disclosed to any person who is not entitled in the course of their duties to acquire or have access to the information.
(2) This section does not prevent disclosure of that information,
(a) to the assessment corporation or any authorized employee of the corporation; or
(b) by any person being examined as a witness in an assessment appeal or in a proceeding in court involving an assessment matter.
7There are three separate and identical requests. The first has to do with to the property at 4800 Bender Street in appeal numbers 3309273 and 3363015. The second has to with the property at 5685 Falls Avenue in appeal numbers 3228566, 3309574 and 3363386. The third has to do with the property at 5875 Falls Avenue (4915 Clifton Hill) in appeal numbers 3343696, 3343697 (no longer 3328562 and 3309322 in the Expedited Board Directions Form) and 3362859.
8The requests relate to a capitalization (or cap rate) study MPAC conducted using information from third-party sales. This motion, which is on consent, seeks an order of the Board compelling MPAC to produce a list of documents relating to that cap rate study.
9In paragraph 11 of a recent decision, Metro Ontario Inc. v. Municipal Property Assessment Corporation, Region 13, 2019 CanLII 47974, the Board concisely summarized the Board’s jurisprudence on the two central issues to be considered in the analysis of disclosure requests. The first is relevance, where “the party seeking a document must show how that document is relevant to an issue in dispute.” The second is proportionality, where “documents are only to be disclosed if the disclosure is proportionate to the issues in dispute.” Paragraph 9 of the Board’s decision in Municipal Property Assessment Corporation, Region No. 16 v. Champlain Properties Limited, 2017 CanLII 38345 is cited on the issue of relevance, and the Board’s decision in 1141557 Ontario Limited v. Municipal Property Assessment Corporation, Region 30, 2019 CanLII 3426 is cited on the issue of proportionality.
10MPAC does not object to disclosing the documents requested providing that three conditions are met. Its first requirement is that the affected third-parties are given notice, which they were. Second is its condition that the third parties do not object to the information being given, and no objection was received. MPAC’s third and final condition to be met is where MPAC asks that undertakings be signed by the Appellant’s legal counsel and consultants to protect the confidentiality of the information provided. The motion records further indicate that a Board order compelling production pursuant to s. 53 of the Act is necessary because the documents contain third-party information.
11Disclosure of six separate categories of documents is requested with respect to the cap rate study as set out below.
12Based on the motion material filed, the Board finds the documentary disclosure requested to be both relevant and proportionate to
13the issue in the dispute, which is determination of the current value of the properties that are the subject of the appeals.
DECISION
14MPAC shall produce to the Appellants’ legal counsel and consultants, within 30 days of the date of this decision, and with respect to the properties set out in Schedule “A”, the following documentation:
a. All financial statements and PIERs of the vendors in each sale relied upon in MPAC’s cap rate study for the 3 years immediately preceding the date of sale;
b. MPAC’s internal sales study, including the questionnaire, in respect of each sale relied upon in its cap rate study;
c. Documents showing any adjustments MPAC made to the income or sale price of each property in its cap rate study;
d. All building permits or development applications for the properties relied upon in MPAC’s cap rate study for the 3 year period before the sale and any such applications filed after the sale;
e. Documents showing whether the purchaser in each sale relied upon in MPAC’s cap rate study purchased the vendor’s assets or the shares of the hotel company; and
f. Confirmation of whether any appeals or RFRs have been filed in respect of each property in MPAC’s cap rate study and the decisions disposing of such appeals, if any.
15The disclosure in paragraph “a.” above is conditional on legal counsel and consultants for the Appellants first executing and delivering undertakings of non-disclosure to MPAC in the forms attached hereto as Schedule “B”.
“Jean-Paul Pilon”
JEAN-PAUL PILON MEMBER Assessment Review Board A constituent tribunal of Tribunals Ontario - Environment and Land Division Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
Schedule “A”