Manufacturers Life Insurance Company v. Municipal Property Assessment Corporation Region 9, 2019 CanLII 7189

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: January 28, 2019

FILE NO.: DM 158044

Assessed Person(s): Manufacturers Life Insurance Company

Appellant(s):

Manufacturers Life Insurance Company Liquor Control Board of Ontario Loblaw Properties Limited Goodlife Fitness Clubs

Respondent(s): Municipal Property Assessment Corporation Region 9

Property Location(s): 44 Charles Street West and 55 Bloor Street West

Municipality(ies): City of Toronto

Roll Number(s):

1904-068-570-00100-0000 and 1904-068-570-01000-0000

Appeal Number(s):

3220482, 3295902,3220483, 3296891; 3286571, 3300112; 3243640, 3329097; 3242930, 3297828

Taxation Year(s): 2017 and 2018

Hearing Event No. 707364

Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Heard: November 13, 2018 in Toronto, Ontario

APPEARANCES:

Parties

Counsel/Representative+

Manufacturers Life Insurance Company

Belinda Schubert Phillip L. Sanford

Liquor Control Board of Ontario

Paula Kalogritsas

Loblaw Properties Limited

Lorrie Frankland+

Goodlife Fitness Clubs

Burke Borowets

MPAC

Frank Shea

City of Toronto

Angus MacKay

DISPOSITION OF THE BOARD DELIVERED BY DIRK VANDERBENT

REASONS

Background

1Manufacturers Life Insurance Company is the owner of Manulife Centre located at 55 Bloor Street West and 44 Charles Street West (the “Subject Property”).

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 2017 to 2020 taxation years, the Municipal Property Assessment Corporation (“MPAC”) is required to assess this value as of the valuation date, January 1, 2016. (“current value”).

3Manufacturers Life Insurance Company, the Liquor Control Board of Ontario, Loblaw Properties Limited and Goodlife Fitness Clubs (the “Appellants”) have filed Appeals for the 2017 taxation year with the Assessment Review Board (the “Board”), pursuant to s. 40 of the Act. The 2018 taxation year are deemed appeals from the unresolved 2017 appeals. These Appeals are being heard by way of general proceeding.

4In this proceeding, Manufacturers Life Insurance Company (“Moving Party”), has filed a Motion with the Board, requesting disclosure of documents pursuant to Rule 45 of the Board’s Rules of Practice and Procedure (“Rules”), and in further accordance with s. 53(2) of the Act.

5The Motion includes a request that MPAC produce documents related to persons who are not parties to these appeals (“Third Persons”). Before proceeding to adjudicate this Motion, the Board directed that the Moving Party provide Notice of the Motion to all Third Persons, advising that a Third Person who objects to the production of documents should file an objection in writing within three weeks of the service of the Notice of the Motion on the Third Person, failing which, the Board would proceed to adjudicate the Motion. MPAC and the Appellants have advised the Board that Notice has been provided and that none of the Third Persons has contacted them to advise that they oppose the requested production of documents. Furthermore, the Board has not received an objection from any of the Third Persons. Consequently, the Board has proceeded to adjudicate this Motion.

6On consent of all parties, the Board grants the Motion on the terms set out in the Decision below.

Relevant Legislation and Rules

7The Act states:

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.

Disclosure of information

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; …

Exception

(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.

8The Board’s Rules:

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.

DECISION

9MPAC shall produce to legal counsel for the Moving Party/Appellants, within 90 days of the date of the issuance of this Order, with respect to the properties listed in Appendices A and B hereto (the “Properties”):

a) all relevant information in MPAC’s possession considered in arriving at the value of each of the Properties for the 2016 base year valuation. The request includes, but is not limited to, rent rolls, lease summaries, leases, financial statements, information relating to expenses and vacancy and valuations supplied to MPAC by taxpayers, but does not include any document subject to a claim of privilege;

b) the full MPAC study of rents for retail and residential uses which forms a part of the valuation of 44 Charles Street West (Assessment Roll No. 1904-068-570-00100-0000) and 55 Bloor Street West (Assessment Roll No. 1904-068-570-01000-0000) (collectively, the “Subject Property”) in the 2016 base year, including all documents or other information in MPAC’s possession considered or reviewed as part of that process along with any document or documents containing an analysis of the information in reaching valuation conclusions;

c) the capitalization rate studies utilized by MPAC in valuing every element of the Subject Property and the capitalization rate study or studies utilized in the valuation of each of the identified Comparable Properties, including all relevant information of any kind or nature whatsoever in the hands of MPAC which was relied on in deriving the capitalization rates;

d) any document which addresses the basis for the differing capitalization rates applied among the Subject Property and the Comparable Properties;

e) all studies undertaken by MPAC in connection with the allowances for vacancies and unrecoverable expenses used in the valuation of the Subject Property and the Comparable Properties including all material and documents in MPAC's possession relating to those studies including all vacancy applications filed in connection with the Comparable Properties for the years 2014, 2015 and 2016.

10Legal counsel, paralegals, consultants and expert witnesses retained by the Moving Party/Appellants shall execute and deliver Undertakings of Confidentiality and Non-Disclosure in the forms set out in Appendices C and D hereto, to legal counsel for MPAC, prior to production of the above described documents.

11For greater certainty, MPAC shall produce to counsel for the Moving Party the information set out in the above describe documents, together with an accompanying electronic document index, all in searchable electronic format, on two USB sticks (the "USB Sticks"). Counsel for MPAC shall notify counsel for the Moving Party/Appellants when the USB Sticks are ready for retrieval from the offices of counsel for MPAC. Counsel for the Moving Party/ Appellants shall provide one of the USB Sticks to the consultant from whom an undertaking of confidentiality has been delivered to MPAC.