Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE:
June 21, 2019
FILE NO.:
DM 160692
Moving Party(ies):
Minto (Strandherd Central) Inc.
Respondent(s):
Municipal Property Assessment Corporation, (“MPAC”), Region 3
Respondent(s):
City of Ottawa
Property Location(s):
3091 to 3101 Strandherd Drive
Municipality(ies):
City of Ottawa
Roll Number(s):
0614-120-635-07605-0000
Appeal Number(s):
3218079, 3291422 and 3346773
Taxation Year(s):
2017, 2018 and 2019
Hearing Event No.:
713897
Legislative Authority:
Rule 123 of the Assessment Review Board Rules of Practice and Procedure
Heard:
May 13, 2019 by written submission
Parties
Representative
Submissions
Minto (Strandherd Central) Inc.
George Cameron-Caluori
Moving Party
MPAC
Ashtyn Rank
Received
City of Ottawa
No one appeared
Not Received
DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH
1Minto (Strandherd Central) Inc. (“Minto”) requests a review of a procedural decision of this Assessment Review Board (this “Board”). MPAC argues that Minto’s request should be denied because only final decisions of the Board are reviewable, and that the procedural decision here is not a final decision.
2The procedural decision Minto seeks to review was issued on February 21, 2019 (the “Order”). Minto had requested a motion for a Board order compelling MPAC to disclose certain information. Vice-Chair VanderBent denied that request with reasons sent by email to the parties. He held that the time for filing documents had passed, noting that Rule 48 of the Board’s Rules of Practice and Procedure (the “Rules”) only permits the late filing of documents if exceptional circumstances exist. He stated that Minto had “not provided any explanation on which the Board can conclude exceptional circumstances exist in this case.”
3Minto says that the Order ignored relevant evidence and erred in law by acting outside of its jurisdiction. MPAC argues that there is no provision permitting the review of interim decisions, like the Order.
4For the reasons that follow, I find that there is no ability to review the Order because it is not a final decision. Minto’s request for review is denied.
Background
5These appeals were assigned a commencement day of November 15, 2017 pursuant to Rule 33. That day set all of the following procedural due dates pursuant to the Schedule of Events attached to the Rules. The important dates in this proceeding were:
a) MPAC provides initial disclosure by December 13, 2017;
b) Minto serves its Statement of Issues and disclose its documents by April 11, 2018;
c) MPAC serves its Statement of Response and disclose its documents by October 3, 2018;
d) Minto serves its Statement of Reply and disclose any additional documents by October 31, 2018;
e) The parties meet to try and settle the appeals and advise the Board of the outcome by January 23, 2019; and
f) The parties file all of the documents they intend to rely on at a hearing, as well as their pleadings by February 20, 2019.
6Minto says that it held its settlement meeting with MPAC on January 16, 2019, a week before the deadline to hold that meeting and advise the Board of the outcome. It says that there was an agreement with MPAC to flaunt the Rules by exchanging further documents and holding a second meeting after the meeting deadline, on February 8, 2019, after the deadline.
7There were emails between the parties over the following days and MPAC cancelled the planned February 8, 2019 meeting on January 30, 2019. On February 7, 2019 MPAC provided some redacted documents indicating that it could not release the redacted information pursuant to section 53 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”). That provision prohibits MPAC from releasing sensitive third party information without an order of this Board.
8A week later, on February 15, 2019, Minto requested a motion for the Board to grant MPAC permission to release the third party information. The Board denied Minto’s request for such a motion in the Order, issued on February 21, 2019. The reasons for the Order were sent by email. Those reasons are:
Under the Schedule of Events a motion requesting disclosure should have been instituted no later than June 6, 2018. The due date for completing the mandatory settlement meeting and filing the Mandatory Meeting Report Form (Jan. 23, 2019) and filing all documents on which each party will rely (Feb. 20, 2019) have passed. Rule 48 provides that no new documents may be admitted into evidence at a hearing event if it has not been disclosed and filed with the Board in accordance with these Rules, unless the Board determines that there are exceptional circumstances. The Board’s Rules implement the due dates under the Schedule of Events.
The requesting party has not provided any explanation on which the Board can conclude that exceptional circumstances exist in this case. The Appellant has had over 6 months from June 6, 2018 to address this motion request. The Board requires strict compliance with the Board’s Rules. Parties are required to complete their pre-hearing exchange of disclosure on a timely basis in order to properly complete the Statements of Issues, Response, and Reply.
For these reasons the request to proceed with the motion is denied.
9That is the Order Minto seeks to review.
No Review of Interim Decisions
10This Board has set out a limited power to review its own decisions in Rules 120 through 123. Rule 120 sets out the review power, stating that a “party may request a review of any final decision of the Board” and setting a number of procedural requirements for review requests.
11In Canadian Tire Corporation Limited v Municipal Property Assessment Corporation, 2018 CanLII 26986 (ON ARB) (“Canadian Tire”), Executive Chair DeMarco held that Rule 120 does not permit the review of interim or interlocutory decisions. He held, at paragraph 18, that “procedural rulings, dispositions, and orders that do not finally dispose of the merits are not caught by Rule 120.” MPAC argues that I should follow Canadian Tire and hold that the Order cannot be reviewed.
12Minto correctly notes that I am not bound by other decisions of this Board. It cites Chiocchio v Municipal Property Assessment Corporation, Region 06, 2019 CanLII 29131 (ON ARB), where Associate Chair Muldoon stated, at paragraph 25, that “decisions of the Board are not stare decisis, meaning they are not binding.” Associate Chair Muldoon went on to state that “the Board strives for consistency in its decision-making process.” That is, although I am not strictly bound, I should only deviate from previous decisions of this Board if there are compelling reasons to do.
13Minto notes that the Board did review an interim decision in Crate v Municipal Property Assessment Corporation, Region 16, 2017 CanLII 31051 (ON ARB) (“Crate”). That decision was issued under the Rules in place before April 1, 2017. The Board was clear, at paragraph 10, that it was relying on then Rule 3, which gave “the Board broad authority to grant exemptions from the rules where appropriate to ensure that the real questions in issue are determined in a just manner.” There is no similar broadly worded exemption clause in the modern version of the Rules, only an ability to waive timelines, set out in Rule 17. That is, the Rules have changed and can no longer be waived at will. Crate does not assist Minto.
14I find the reasoning in Canadian Tire compelling. Executive Chair DeMarco notes that the word “final” has a clear meaning and that there is a policy rationale underlying the Rule. Permitting the review of interim decisions only drags out the real dispute between the parties, undermining the Board’s stated goal, in Rule 5, of “resolving the appeals within the four year cycle.” I agree with how Executive Chair DeMarco characterised a final decision, at paragraph 18: one that “finally determine[s] the merits of a case, such as the assessed value of land or the classification of land.”
15The Order is not a final decision. It does not determine the assessment of the land, which is the core ground of appeal. It is not, therefore, a decision that can be reviewed pursuant to Rule 120.
Important Question
16Minto argues that I should still review the Order because it raises an important issue. It argues that the Board has made some changes in policy and that I should take that as a sign that previous jurisprudence directly on point need not be followed. I do not agree.
17Minto says that it will be prejudiced if it does not receive access to the redacted information. I do not doubt that it will be more difficult for Minto to argue its case without that evidence. But that does not transform the Order into a final decision. Many interim decisions will have significant impacts on parties’ interests, but that alone does not make them reviewable. Only final decisions can be reviewed under Rule 120.
18Minto also did not address its breach of the timeline for a settlement meeting, or put forward any argument that there were exceptional circumstances that would have permitted the late filing of any documents it obtained under Rule 48. A disclosure motion cannot serve its full purpose if the parties cannot file the material that flows from the order. That is reasoning behind the Order and Minto has not shown that the Board erred in its consideration of the circumstances.
19Minto also argues that the Board erred in not adequately considering the February 7, 2019 email from MPAC to Minto and that it did not know disclosure was in issue until that date. It seems to me that it was open to Minto to make that argument when it requested the motion for disclosure. I do not accept that a valid ground of review can be that the party did not make the right, or best, argument at its first opportunity. Parties must make their best case when seeking relief form the Board. It appears Minto may not have done so, but that cannot be the basis for a review.
CONCLUSION
20Minto’s request to review the Board’s order denying a motion for disclosure is denied. That order was not a final decision and only final decisions can be reviewed pursuant to the Rule 120. Minto’s request is denied.
“Scott McAnsh”
SCOTT McANSH
VICE-CHAIR
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```