Municipal Property Assessment Corporation v. Cappola Food Inc., 2019 CanLII 75483

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: August 8, 2019

FILE NO.: DM 161592

Moving Party(ies): Municipal Property Assessment Corporation ("MPAC") Region 9

Respondent(s): Cappola Food Inc.

Respondent(s): City of Toronto

Property Location(s): 25 Lepage Court

Municipality(ies): City of Toronto

Roll Number(s): 1908-033-403-00300-0000

Appeal Number(s): 3249367, 3294373 and 3354392

Taxation Year(s): 2017, 2018 and 2019

Hearing Event No.: 716267

Legislative Authority: Rule 82 of the Assessment Review Board Rules of Practice and Procedure

Heard: June 14, 2019 by written submission

Parties

Counsel⁺/Representative

Submissions

MPAC

Jonathan Langille

Moving Party

Cappola Food Inc.

Not Received

City of Toronto

Not Received

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON AND DAN WEAGANT

DISPOSITION OF MOTION

1MPAC filed this motion to alter the timelines set out in the schedule of events ("SOE") in these appeals because of exceptional circumstances. This motion was preceded by two requests seeking the same relief made by way of the Assessment Review Board's (the "Board") Expedited Board Directions Form ("EBDF") process. Both of these requests were denied.

2The Board finds that there are no exceptional circumstances that would justify an alteration of the timelines in the SOE. This motion is also denied.

REASONS FOR DISPOSITION OF MOTION

Background

3MPAC relies on the affidavit of Jaime Shewchuk sworn on June 4, 2019. No submissions were received from either the appellant Cappola Food Inc. ("Cappola") or the City of Toronto, although the two EBDF requests filed prior to this motion noted that they were filed with Cappola's consent.

4The proceeding in these appeals is a general proceeding pursuant to Rule 34 of the Board's Rules of Practice and Procedure (the "Rules"). Pursuant to Rule 33, the proceeding was assigned a commencement day of December 15, 2017, and the Board generated an SOE which set out the timelines in the appeals from that date onward.

5Rule 82 provides that timelines in an SOE will not be altered "other than in exceptional circumstances." MPAC's position in this motion is that there are exceptional circumstances justifying an alteration of the SOE timelines.

6The relevant event in the SOE has a deadline of March 22, 2019 and provides that:

If the appeal is not resolved, and none of the parties intend to obtain any additional expert reports, each party shall file with the Board:

-its Statement of Issues, Statement of Response and Reply (as the case may be);

-all documentary evidence, witness statements and expert reports on which the party intends to rely if the matter proceeds to mediation or a hearing; and

-is Settlement Conference Brief.

The First Expedited Board Directions Request

7The first EBDF request was filed on March 14, 2019 and requested that the latter March 22, 2019 deadline be extended to April 22, 2019. The single reason given for the request was that "an inspection has recently taken place and the parties will meet again at the end of March to informally negotiate, narrow and potentially resolve the issues."

8That request was denied. The Board's endorsement noted that the mandatory meeting form, which had been due on February 22, 2019, was not filed until March 12, 2019. It determined that the circumstances presented no exceptional circumstances that would justify an extending the date as requested. The parties were also directed to file their documents by March 22, 2019 in accordance with the SOE. Finally, it reminded the parties of Rule 48 which provides that only documents filed and disclosed in accordance with the Rules would be admitted at a hearing, absent exceptional circumstances.

The Second Expedited Board Directions Request

9On March 19, 2019, MPAC's representative in the appeals emailed Board staff to say that he had only recently been retained and that "Mr. Michael Bowman previously acted for Maple Foods (which is related to Cappola) in respect of these appeals." It went on to say that "Mr. Bowman is now General Counsel to MPAC. All of which means I require additional time to respond."

10This was considered as a second EBDF request, and it too was denied on March 21, 2019. The same endorsement was extended to add a notation that "the Board refers the parties to Rules 61 to 68 of the Board's Rules of Practice respecting motions." These Rules essentially outline the process for bringing a motion at the Board.

The Motion

11MPAC then filed this motion on May 27, 2019. In it, MPAC indicated that an inspection was conducted on February 5, 2019 when it was determined that there were refrigeration and cooling units on the property that MPAC's assigned witness was unqualified to assess. As a result, MPAC said it requires an additional expert report.

12In addition, MPAC indicated in the motion material that from early December, 2018 until mid-February, 2019 "MPAC was not in direct contact with the Appellant's Counsel as there was a transition due to Michael Bowman (its previous counsel) accepting a position as MPAC's General Counsel."

13MPAC argues these two events amount to exceptional circumstances and that the Board should extend time in the SOE accordingly.

Exceptional Circumstances

14As noted above, Rule 82 provides that "exceptional circumstances" must exist for time in an SOE to be altered. In Mississauga (City) v Michalakos, 2018 CanLII 126632 (ON ARB) ("Michalakos") at paragraph 8, the Board determined that "the party seeking an extension must show exceptional circumstances before the relief can be considered… any prejudice to the parties must be considered before granting an extension of time. But prejudice is only considered if exceptional circumstances exist."

15In the same decision at paragraph 10, the Board determined that "exceptional means, among other things, something that does not occur regularly, something unusual, or something atypical."

16The first of the two sets of facts cited in support of the motion relates to the Cappola's change of counsel, where its previous lawyer then became MPAC's General Counsel. This led to a gap in communication where MPAC was not in direct contact with any representative for Cappola from early-December, 2018 to mid-February, 2019, a period of nearly two-and-a-half months.

17The unusual aspect of these facts is that Cappola's lawyer went from representing one side of the litigation to becoming employed by the other side. The more salient and less unusual scenario is that the parties were put in a position of having to find alternate counsel mid-litigation. The motion material is entirely silent as to what occurred during that extended period of silence. There is no explanation, for example, of what efforts were made to retain new counsel; what, if any, delays or problems were encountered in that process; and, what occurred so that there could be no communication at all for that extended period of time. This information would have been particularly important where the parties would have known that the SOE in place since December 15, 2017, almost a year earlier, imposed the strict timelines that the parties now seek to change. Even with intervening holidays, there is no reason it should have taken the length of time it did for parties to retain and instruct alternate counsel. These are not exceptional circumstances.

18The second of the two sets of facts refers to the discovery upon inspection of refrigeration and cooling equipment that MPAC's expert was unqualified to address.

19It is not unusual for something unexpected to be discovered during an inspection, nor would it have been unreasonable for MPAC to have wanted a different expert involved in these circumstances.

20The problem with the request, however, is that the inspection was conducted on February 5, 2019 when the SOE provided that inspections were to have been completed by August 10, 2018. It is effectively a problem that would have been identified almost six months earlier had the parties complied with the SOE. The motion material does not explain the delay. MPAC did not event request the inspection until December 4, 2018.

21These too are not exceptional circumstances. They are circumstances that arose entirely because the parties did not comply with the SOE.

22The specific relief requested in the motion is for "an order confirming the appeals for the subject property are placed in extended 'additional reports' Schedule of Events (sic)" which refers to the quoted part of the SOE above. This is the situation where the parties have completed the mandatory settlement meeting and advised the Board that they want to obtain additional expert reports, where the deadline in the SOE was March 22, 2019. It remains, however, a request to extend time that requires the existence of exceptional circumstances that are not present here. In Michalakos, the Board determined that prejudice to the parties only needs to be considered after a determination that there are exceptional circumstances. With there being no exceptional circumstances, any prejudice to the parties is not relevant.

23Finally, it is noted that this is the third request in which the parties have sought the same relief. The first request, made on March 14, 2019, referred only to the inspection but not to what was discovered at the inspection, saying only that the parties wanted to "informally negotiate, narrow and potentially resolve the issue." The second request, by way of an email dated March 19, 2019, added the change of representation issue. It was only on the third attempt that MPAC provided a fuller explanation of the inspection issue and provided more information on the change of counsel issue.

24There is no reason that a full explanation of the facts could not have been set out in the first EBDF, rather than through the trickle of information that culminated in the two circumstances described in this motion. Furthermore, it is, in this panel's view, questionable whether the parties should have had the opportunity to request the same relief a second time, let alone a third, when all of the facts cited in support of the request occurred some time prior to the first request.

25That said, none of the facts presented amount to the exceptional circumstances required by Rule 82 for the Board to extend the timelines in the SOE, and the motion is dismissed.

CONCLUSION

26There are no exceptional circumstances justifying any alteration of time in the SOE. The Board will schedule a Settlement Conference to occur at the earliest available date.