Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: September 27, 2019

FILE NO.: DM 162042

Moving Party(ies): City of Kitchener

Respondent(s): Canadian Tire Corporation

Respondent(s): Municipal Property Assessment Corporation ("MPAC"), Region 21

Property Location(s): 1400 Ottawa Street South, Unit D1

Municipality(ies): City of Kitchener

Roll Number(s): 3012-040-007-36360-0000

Appeal Number(s): 3238980, 3310986 and 3365213

Taxation Year(s): 2017, 2018 and 2019

Hearing Event No.: 724268

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

Heard: August 30, 2019 by written submission

Parties	Counsel⁺/Representative	Submissions
City of Kitchener	John L. O’Kane*	Moving Party
Canadian Tire Corporation	Lauren Lackie*	Received
MPAC		Not Received

DISPOSITION OF THE BOARD DELIVERED BY JEAN-PAUL PILON

DISPOSITION OF MOTION

1The City of Kitchener (the "City"), a respondent in these appeals before the Assessment Review Board (the "Board"), brings this motion to validate the City’s late service of its Responding Statement of Issues ("RSOI") and a subsequent amendment to its RSOI.

2The motion is opposed by the appellant in the appeals, Canadian Tire Corporation ("Canadian Tire"). The other respondent in the appeals, the Municipal Property Assessment Corporation, made no submissions in the motion.

3For the reasons that follow, the City’s motion is denied.

REASONS FOR DISPOSITION OF MOTION

Background

The City

4The City’s evidence on the motion is contained in the affidavit of its Property Assessment Analyst Amboka Wameyo sworn on August 2, 2019. In that affidavit, Ms. Wameyo states that she began working in that position on October 1, 2018. Ms. Wameyo says that she previously worked as a property assessor elsewhere, but that she had no experience with the Board or its Rules of Practice and Procedure (the "Rules") prior to being hired by the City.

5At paragraph 4 of her affidavit, Ms. Wayemo states that:

4. Prior to me becoming employed with Kitchener:

a. the City had no staff working on assessment appeals or responding to appeals for several months;

b. the City had for approximately 20 years, used a former MPAC assessor who worked as a private assessment consultant to assist with representing the City in select assessment appeals;

c. that external private consultant advised the City he planned to retire;

d. the City conducted a review and determined that creating a full time Property Assessment Analyst position to be appropriate;

e. the City published the Job Posting for the Property Assessment Analyst position on May 25, 2018.

6As noted above, Ms. Wayemo started in her position on October 1, 2018 at which time she began familiarizing herself with the City’s processes, the applicable legislation and the Rules. She says at paragraph 6 of her affidavit that:

There was no hierarchy of assessment appeal files, no internal history or response templates and no internal analyses and I began working my way through the files on a random basis. I was unaware that by the date I was hired, the City had already missed the date to provide its RSOI to the other parties to the appeal.

7Ms. Wameyo says she first reviewed the file in these appeals in mid-November, 2018, when she determined that the primary outstanding issue related to land value. Ms. Wameyo also noted that Canadian Tire had raised Rule 39 of the Rules because the City had not filed an RSOI, which Rule provides that "a party that does not serve a statement of response in a general proceeding on or before the day set out in the schedule of events is deemed not to oppose any future settlement in that proceeding."

8The City then served its RSOI on the other parties on November 29, 2018, 56 days after it should have been served pursuant to the Schedule of Events. In that RSOI, the City supported MPAC’s returned current value assessment. It also confirmed that, while the City did not intend to oppose any settlement, the City’s position was that Rule 39 did not preclude its further involvement in the appeals.

9By that point in the process, Canadian Tire had taken the position that the land value was $479,200 per acre and MPAC had pleaded a value of $600,000 per acre in its RSOI.

10The City then participated in the mandatory meeting required by the Schedule of Events, and submitted its land value analysis to MPAC on January 25, 2019. The affidavit indicates that, inadvertently, the City did not send a copy of that land value analysis to Canadian Tire, but sent it later on March 25, 2019 when its omission was discovered. The affidavit says that the City’s analysis also included an amended RSOI to reflect its new land value analysis.

Canadian Tire

11Canadian Tire opposes the motion and relies on the affidavit of its solicitor Kathleen D. Poole sworn on August 26, 2019.

12Ms. Poole says in her affidavit that Canadian Tire had heard nothing from the City until it received its RSOI on November 29, 2018, 56 days late. Pursuant to that RSOI, Ms. Poole said Canadian Tire expected "that the City intended to observe, but not take an active role in the appeals."

13The affidavit confirms that Canadian Tire received the January 25, 2019 RSOI on March 25, 2019, and that the City’s new position was that the land value was $750,000 per acre. Ms. Poole says, however, that the report supporting that position was not attached, contrary to what was said in Ms. Wayemo’s affidavit. Ms. Poole says that on April 23, 2019, Canadian Tire received a further land analysis from the City which opined that the value of land per acre was $850,000. The affidavit disputes that the land value analysis could have been sent to MPAC in January, 2019 or to Canadian Tire in March, 2019 as it was dated in April, 2019.

14The affidavit continues saying that significant work had gone into resolving the appeals before these issues arose. It says that Canadian Tire did not have an opportunity to respond to the new land value analysis because it had filed all of its documentation pursuant to the Schedule of Events by the time the land value analysis was received.

15Ms. Poole’s affidavit further disputes the assertion in Ms. Wameyo’s affidavit that there would be no delay if the motion to extend time was granted. She says at para. 30 of the affidavit that the appeals would have been resolved "but for the City’s multiple late pleadings and expert reports, and generally erratic involvement in the appeal process." It also says that Canadian Tire would then expect a further amendment to the City’s pleadings to seek a land value of $850,000, and that Canadian Tire would consequently want an opportunity to amend its reply, amend its expert report and re-file its material at substantial additional cost and time.

Analysis

Context of the Requests

16This is a general stream appeal that was assigned a commencement date of November 15, 2017, and the Board generated a Schedule of Events in accordance with Schedule "B" to the Rules. Pursuant to that Schedule of Events, each party who responds had until October 3, 2018 to provide its Statement of Response and any additional disclosure.

17There is no specific provision in the Rules which would allow the Board to provide the relief that was requested in the motion of "validating late service." What is, in fact, being requested in this motion is an extension of time to file an RSOI. The making of such an order is within the Board’s authority pursuant to Rule 82, which provides that: "after the day set in Rule 33 as the start of a proceeding the Board will not alter any timeline set out in the schedule of events, other than in exceptional circumstances."

18The further relief requested is for leave to amend the RSOI pursuant to Rule 41. This provides that there can be no amendment to statements of issues or responses after the filing dates set out in a Schedule of Events unless all parties consent, unless the Rules allow such an amendment or, as is requested in this case, the Board directs otherwise.

Michalakos

19The leading Board decision on exceptional circumstances is Mississauga (City) v Michalakos, 2018 CanLII 126632 (ON ARB) ("Michalakos"). In Michalakos, the Board determined that "exceptional means, among other things, something that does not occur regularly, something unusual, or something atypical." The Board further determined in that decision that if there are exceptional circumstances as set out in the Rule, then the Board is required to consider the prejudice to the parties before granting relief.

No Exceptional Circumstances

20As noted earlier in this decision, Ms. Wayemo says in her affidavit that she "was unaware that by the date I was hired, the City had already missed the date to provides its RSOI to the other parties in the appeal." This is not, in fact, the case because Ms. Wayemo was hired on October 1, 2018 when the RSOI was due on October 3, 2018. It would not have been reasonable to expect Ms. Wayemo to produce an RSOI by her third day on the job. It is the case, however, that her hiring was preceded by a period of many months during which no one working for the City or on its behalf had carriage of the file or reviewed it for deadlines.

21With one exception, there are no dates attached to any of the items in para. 4 of Ms. Wayemo’s affidavit quoted above. These items do, however, appear to be listed chronologically. Restated, these are that no one had been working on appeals for several months, that the City had used a consultant for 20 years who advised he intended to retire, that the City decided to create a position for someone to do what he had been doing, and that that position was advertised on May 25, 2018.

22The fact that the City’s consultant said he would retire is not unusual and is not an exceptional circumstance. What is extraordinary, in the Board’s view, is that from the time that the consultant indicated he would retire at some point prior to May 25, 2018, to mid-November, 2018 when Ms. Wayemo first reviewed the file, the file sat entirely untouched when the City should have foreseen that there would be deadlines to be met. What is also extraordinary is that starting October, 2018, the files were reviewed at random, where each appeal filed with the Board has a commencement date with Schedules of Events that set out very clearly what steps are to be taken and when. No expertise would have been required to determine that an RSOI was due on October 3, 2018.

23There are similarities between these facts and those in Michalakos. In Michalakos, a municipality argued that there were exceptional circumstances because an employee retired while their manager was away and external counsel had to be hired due to the nature of issues disclosed. The Board determined at para. 10 that exceptional circumstances existed in the "combination of a first attempt (at a summary proceeding Schedule of Events under the then new Rules) with a poorly timed staff loss and manager vacation."

24The differences between this case and that one are more significant. The decision in Michalakos suggests that the employee’s departure was sudden, where here Ms. Wayemo’s affidavit indicates the consultant’s departure was on notice. In addition, the Rules have been in place since April 1, 2017, and in this case the City does not argue that it has not received appeals that were subject to the Rules and Schedules of Events, unlike the municipality in Michalakos which had not had to deal with the new Rules.

25What made the circumstances in Michalakos exceptional was the combination of unfamiliarity with the new Rules and the untimely departure of its staff person, which is not what occurred in this case. The circumstances that are exceptional in this case were entirely caused by the City’s failure to monitor the timelines that were assigned to the appeals. A party should not be successful in arguing that there are exceptional circumstances pursuant to Rule 33 when those circumstances were caused by their own carelessness.

26In any event, even if the City had been successful in proving that there were exceptional circumstances justifying an extension of time, Michalakos says that prejudice to the parties must be considered first. The prejudice to Canadian Tire caused by an extension of time would be significant. This is because Canadian Tire indicates that the process would inevitably be prolonged, where its documentation already filed would have to be amended, further expert reporting would be required and, most significantly, the likely settlement of these appeals would be derailed. The City would also be prejudiced if the relief requested was not granted because it would be "deemed not to oppose a future settlement" pursuant to Rule 39. However, for the same reasons as above, the City could easily have mitigated these circumstances had it taken more of an interest in the conduct of these appeals.

RSOI Amendment

27The City’s further request is for leave to amend its RSOI, where Rule 41 provides that such documents cannot be amended after the filing date in the Schedule of Events unless all other parties consent or the Board directs otherwise.

28As the City’s motion to extend time to file its RSOI is denied, its further request to for leave to amend its RSOI pursuant to Rule 41 is moot. In essence, there is no RSOI from the City before the Board in these appeals to be amended.

CONCLUSION

29The City of Kitchener’s request to validate late service, or, more precisely, alter the timelines set out in the Schedule of Events pursuant to Rule 82, is denied because there are no extraordinary circumstances that would justify such relief.