Riverbank Homes Ltd. v. Municipal Property Assessment Corporation Region 16, 2019 CanLII 81686

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: August 30, 2019

FILE NO.: DM 2019M39

Moving Party(ies): Riverbank Homes Ltd.

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 16

Respondent(s): City of Barrie

Property Location(s): 98 Penetanguishene Road

Municipality(ies): City of Barrie

Roll Number(s): 4342-011-001-01800-0000

Appeal Number(s): 3241815, 3252556, 3252557, 3308324 and 3362475

Taxation Year(s): 2015, 2016, 2017, 2018 and 2019

Hearing Event No.: 721964

Legislative Authority: Rule 14 of the Assessment Review Board Rules of Practice and Procedure

Heard: August 6, 2019 by written submission

Parties

Counsel+/Representative

Submissions

Riverbank Homes Ltd.

Michael L. Brookes

Moving Party

Municipal Property Assessment Corporation

Sarah W. Corman* Hilary A. Brown*

Received

City of Barrie

Not Received

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON

DISPOSITION OF MOTION

1Riverbank Homes Ltd. (the “Moving Party”) is the owner of a property located at 98 Penetanguishene Road in Barrie (the “Subject Property”). It brings this motion in which it seeks leave for its representative, Michael Brookes, to appear as both an advocate and as an expert witness at the hearing of the Moving Party’s appeals before the Board.

2These appeals were assigned a commencement date of January 15, 2018. This motion was filed on July 18, 2019 following a settlement conference that took place on June 12, 2019.

3The Moving Party’s notice of motion indicates that Mr. Brookes is a licensed paralegal in Ontario who has appeared both as a representative and as an expert witness at Assessment Review Board (the “Board”) hearings. The Moving Party takes the position in its notice of motion that leave should be granted because the current value of the Subject Property is “small by general industry and appeal standards” and that the issues in dispute are “elementary in nature.”

4The Moving Party’s primary concern is that having to retain a different representative so Mr. Brookes can act as an expert witness at the hearing “would be cost prohibitive and would prejudice the property owner’s ability to proceed to a hearing on the merits of the case contrary to Rule 4 of the Board Rules of Practice and Procedure (the “Rules”).” This provides that the Rules “shall be liberally interpreted to ensure the just, most expeditious and leave expensive determination of every proceeding.” The Moving Party also says that requiring it to hire a different representative if leave was not granted “would unnecessarily delay the expeditious hearing of the matter” which was scheduled to be heard on September 4, 2019. As it was not possible for this decision to be issued prior to that date, the Board has rescheduled the hearing on its own motion to a date to be determined.

5In response, MPAC says the issues in dispute are complex in nature and will require expert evidence from objective and impartial witnesses, not from an expert witness who also owes a duty to his client as its paralegal. MPAC argues that it would not be prejudicial if the motion was denied and argues instead that it would be prejudicial if the motion for leave was granted, because the Moving Party would be represented by a person unable to adequately discharge his obligation to his client. Further, MPAC rejects the allegation of delay because the motion was not brought earlier.

6For the reasons that follow, the Moving Party’s motion is denied. As an advocate, Mr. Brookes would have a fiduciary duty to faithfully represent his client, while in his capacity as an expert witness, Mr. Brookes would have a duty to provide objective evidence to the Board. Permitting him to act in both capacities at the hearing would be incompatible and fundamentally conflicted, particularly where the Board finds that there are significant and complex unresolved issues in these appeals.

REASONS FOR DISPOSITION OF MOTION

Background

7The Subject Property is a multi-unit apartment building. The Moving Party has an agreement with the County of Simcoe to provide affordable housing in return for funding.

8MPAC indicates in its factum that MPAC returned a Current Value Assessment (“CVA”) of $6,024,000 for the 2016 base year and a CVA of $4,024,000 for the 2012 base year effective November 1, 2015, because the property was built in 2015.

9The Moving Party relies on the affidavit of Donna Brookes, administrative assistant for Mr. Brookes’ paralegal firm, Brookes Walton LLP, sworn July 18, 2019. One of the attachments to the affidavit is the Moving Party’s settlement conference brief where the Moving Party takes the position that the 2016 CVA for the Subject Property is $3,945,000.

10MPAC opposes the motion and relies on the affidavit of its senior case management analyst William Jon White sworn on July 29, 2019. Mr. White attached the Moving Party’s statement of issues for the 2012 CVA to his affidavit and says that he was told by Mr. Brookes that the same position “should be taken to the 2016 CVA as well.” The document says that the Moving Party has taken the position that the 2012 CVA is $2,560,970.

11The City of Barrie, also a party to the appeals, has made no submissions in this motion.

12The parties appear to agree that the income approach should be used to determine the correct current value of the Subject Property. MPAC says, however, that there is substantial disagreement on several points, including fair market rents for government-funded affordable housing units and capitalization rates. As a result, Mr. White indicates in his affidavit that expert opinion evidence will be required in these appeals which MPAC describes as complex.

RELEVANT LEGISLATION, BY-LAWS AND RULES

13Rules 4 and 14 of the Rules provide:

Interpretation

4. These Rules shall be liberally interpreted to ensure the just, most expeditious and least expensive determination of every proceeding.

Advocate and Witness

14. A representative that is licensed with the Law Society of Upper Canada as a paralegal may appear at a hearing event as both an advocate and a witness:

a. in a proceeding that is a summary proceeding; or

b. in a proceeding that is a general proceeding with leave of the Board.

14Rule 4.01(1) and 4.04 of the Law Society of Ontario’s (the “Law Society”) Paralegal Rules of Conduct provide:

4.01(1) When acting as an advocate, the paralegal shall represent the client resolutely and honourably within the limits of the law while, at the same time, treating the tribunal and other licensees with candour, fairness, courtesy and respect.

4.04 (1) A paralegal who appears as advocate shall not testify or submit his or her own affidavit evidence before the tribunal unless

(a) permitted to do so by law, the tribunal, the rules of court or the rules of procedure of the tribunal, or

(b) the matter is purely formal or uncontroverted.

15The Law Society’s Guideline 12 on advocacy which interprets the Paralegal Rules of Professional Conduct provides that:

19. As an advocate, the paralegal’s role is to further the client’s case within the limits of the law. The role of a witness is to give evidence of facts that may or may not assist in furthering the case of any of the parties to a proceeding. Because these roles are different, a person may not be able to carry out the functions of both advocate and witness at the same time.

16Section 25.0.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 provides that:

25.0.1 A tribunal has the power to determine its own procedures and practices and may for that purpose,

(a) make orders with respect to the procedures and practices that apply in any particular proceeding; and

(b) establish rules under section 25.1.

Analysis

17Rule 4.04 of the Paralegal Rules of Conduct prohibits a paralegal from acting as both an advocate and a witness except in a number of circumstances, including where a tribunal has implemented rules that allow for it to occur. In the Board’s case, Rule 14 provides that a paralegal may act in as both an advocate and a witness in summary proceedings, but only with leave of the Board in general proceedings like this one. In this motion, the Moving Party seeks that leave for Mr. Brookes to act in both capacities, as indicated above.

18The roles played by a paralegal and a witness at a hearing are fundamentally different. According to Rule 4.01(1) of the Paralegal Rules of Conduct, a paralegal is required to, among other things, “represent the client resolutely and honorably within the limits of the law…” Expert witnesses, on the other hand, have other obligations. Among these set out in the Board’s Acknowledgment of Expert’s Duty Form is the requirement to “provide opinion evidence that is fair, objective and non-partisan,” which “prevails over any obligation” owed to any other party or to the party that retained the expert.

19It is inconceivable in these circumstances that the Moving Party’s representative could, on one hand, properly represent his client, while on the other, meet the requirement of being “fair, objective and non-partisan” in the same proceeding. The two roles are simply incompatible with each other.

20The issues that would be before the Board at a hearing in these appeals are not simple, nor are they “elementary” as the Moving Party describes them in its motion material. There are, in reality, substantial disagreements in several areas, and the parties’ opinions of value differ by millions of dollars.

21The Moving Party says in its reply submission that:

…there is no evidence or proof of a conflict in the activities of Mr. Brookes presented by the Respondent, only the broad suggestion that there must be one. The disagreement with the findings of an Expert (sic) is not alone sufficient to raise a reasonably apprehension of bias; rather to question an Expert’s impartiality one must establish a real likelihood that bias exists. This is not the purpose of the Assessment Review Board as a ‘quasi-judicial’ body for assessment review.

22The Board does not agree for two reasons. First, on the latter point, the Board has the authority to control its procedures pursuant to section 25.0.1 of the Statutory Powers Procedure Act and has enacted Rules to address situations like this one. There is no question that the Board is entirely within its rights to make the determination requested of it in this motion. Second, on the former point, the Board does not agree that there is no evidence of a conflict in the roles that Mr. Brookes intends to play at the hearing. The Board instead finds the basic conflict in the roles to be self-evident, where on the one hand Mr. Brookes would be required to represent his client, and on the other, provide the Board with expert opinion that is objective. Objective expert evidence is described by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton, 2015 SCC 23, [2015] 2 SCR 182, at para. 32:

It must be independent in the sense that it is the product of the expert’s independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party’s position over another. The acid test is whether the expert’s opinion would not change regardless of which party retained him or her.

23It is not a question of the Moving Party’s representative understanding the difference between the roles, which the notice of motion in the Moving Party’s material, not an affidavit, indicates that he does. Rather, it is the improbability in these circumstances that he or any other paralegal would be able to competently fill both roles.

24The Moving Party says it would be prejudiced if it was required to retain a different expert or representative. It says that a decision denying leave would not be compatible with Rule 4 that requires that the Rules “be liberally interpreted to ensure the just, most expeditious and the least expensive disposition of the matters on its merits.” While it may be the case that the Moving Party would incur additional costs in retaining a different representative or expert, the Board would not have to concern itself with the additional question of the impartiality of the evidence before it at a hearing. It could also be reasonably anticipated that any additional cost to the Moving Party would be minimized by a simplification of the issues and the potential of a shorter hearing as a result of this decision.

25The Moving Party also argues that it would be prejudiced by delay as the hearing was scheduled for September 4, 2019. It might have been the case that the Moving Party should have acted sooner in bringing this motion, however any prejudice in this regard has been obviated by the fact that the Board has rescheduled the hearing on its own motion. This decision was made simpler by MPAC’s indication in its factum that it would not oppose an adjournment in these circumstances.

26For these reasons, the Moving Party’s motion is denied.

CONCLUSION

27Riverbank Homes Ltd.’s motion for leave for its representative to appear as both an advocate and an expert witness at the hearing of the Moving Party’s appeals before the Board is denied.