Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: February 06, 2019

FILE NO.: DM 158043

Moving Party(ies): Riotrin Properties (Weston) Inc., 2176905 Ontario Limited, and Riocan Management Inc.

Respondent(s): Municipal Property Assessment Corporation (“MPAC”), Region 09

Respondent(s): City of Toronto

Property Location(s): 1980 St. Clair Avenue West

Municipality: City of Toronto

Roll Number(s): 1904-014-370-02053-0000

Appeal Number(s): 3321401, 3321397, 3321393, 3321389, 3299675, 3294038, 3227462, and 3215057

Taxation Year(s): 2017 and 2018

Hearing Event No.: 709167

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

Heard: January 11, 2019 by written submission

APPEARANCES:

Parties

Counsel

Riotrin Properties (Weston) Inc., 2176905 Ontario Limited, and Riocan Management Inc.

Jeff Cowan

MPAC

Carl Davis

City of Toronto

No one appeared

DISPOSITION OF THE BOARD DELIVERED BY SCOTT McANSH

1Riotrin Properties (Weston) Inc., 2176905 Ontario Limited, and Riocan Management Inc. (the “Companies”) seek an order from this Assessment Review Board (this “Board”) altering the timelines in the Schedule of Events assigned to their appeals. The Companies appealed the assessment of the shopping development at 1980 St. Clair Avenue West in the City of Toronto. Those appeals were assigned a commencement date of November 15, 2017, which meant that the Companies were to serve a Statement of Issues on or before April 11, 2018. The Companies did not do so.

2MPAC sought to dismiss these appeals due to the Companies failure to serve a Statement of Issues. However, MPAC withdrew its motion to dismiss after the Companies explained the delay and served a Statement of Issues on November 9, 2018. The Companies seek to amend the Schedule of Events to permit them to have served their Statement of Issues on that date. MPAC consents to that request, and asks that the schedule be further altered in order to allow it time to prepare a response. The City of Toronto did not make any submissions on this motion.

3For the reasons that follow, I extend the time in the Schedule of Events for these appeals.

LAW

4Rule 82 of the Board’s Rules of Practice and Procedure (the “Rules”) states that, once a Schedule of Events has begun, “the Board will not alter any timeline set out in the schedule of events, other than in exceptional circumstances.” This Board recently set out a two part test for Rule 82 applications in Mississauga (City) v Michalakos, 2018 CanLII 126632 (ON ARB) (“Michalakos”). A party seeking to alter the Schedule of Events, after it has begun, must first prove that exceptional circumstances exist. Once that threshold determination is made, I must weigh the prejudice to the parties to determine if an extension of time should be granted in this case.

Exceptional Circumstances

5Michalakos held, at paragraph 10, that “exceptional means, among other things, something that does not occur regularly, something unusual, or something atypical.” The circumstances that led to this request are atypical.

6The property is a large shopping centre, valued by MPAC at nearly $230,000,000 for the 2017 taxation year. A major tenant of the shopping centre left in 2015, which impacted the operations of many other tenants. That led to a redevelopment of the vacated space and newly leased space. All of that activity changed the value of the property for these taxation years.

7The Companies were working with a local MPAC valuation specialist, who had been to the property a number of times and had been provided with information on the new uses of the property. The discussions with MPAC were taking place in late April, 2018, a few weeks after the Companies’ Statement of Issues was due to be served. On May 4, 2018 the MPAC valuation specialist indicated that he intended to issue supplementary assessments to reflect he changes to the property. The Companies decided that it made sense to state their issues with those assessments as well, so did not file a Statement of Issues while they awaited the supplementary assessment notices. Due to the notices being sent to the wrong office, the Companies did not receive those notices until July 16, 2018.

8MPAC’s legal office filed and served a notice to dismiss these appeals three days after the Companies received the supplementary assessment notices, on July 19, 2018. They argued that the Company had not filed a Statement of Issues so the appeals should be dismissed. That very day, the Company sent a letter to MPAC explaining the rationale for the delay and offering to file a “partial Statement of Issues to reflect the old values.” MPAC did not respond to that offer.

9The next step on these appeals took place a few months later. On October 3, 2018 the Companies were copied on MPAC’s Statement of Response to two tenant appeals of the property. The Companies then realized that they need to take some steps to move forward their appeals. They requested an extension of time from the Board on October 16, 2018 and served their Statement of Issues on November 9, 2018. MPAC withdrew its motion to dismiss in early November. This motion to extend time was set on November 26, 2018.

10It is a rare occurrence that there are substantial changes to a property, and a taxpayer is informed by MPAC that further assessments are to be issued, right around the time for the taxpayer to serve their Statement of Issues. Given that the appeals would be altered by the supplementary assessments, it was logical for the Companies to wait until they knew the details of the new assessments before pleading. The issues likely would change with the new assessment, and different disclosure would be provided. That unusual timing was paired with an erroneous address for service, and a lack of communication within MPAC, to cause the delay in the proceeding here. I find that confluence of events to be an exceptional circumstance.

Prejudice

11All of the parties to these appeals have consented to the extension of time. It hard to say that parties are prejudiced when they essentially make submissions that they are not. Prejudice cannot be inferred, parties must provide evidence of prejudice for the Board to weigh, Municipal Property Assessment Corporation, Region 14 v Upper Keele Inc., 2018 CanLII 126632 (ON ARB), 2018 CanLII 248 (ON ARB) at paragraph 11. There is no evidence of prejudice here, so there is no reason to deny an extension in these exceptional circumstances.

New Schedule

12The Companies argue that the only change to the schedule required is to extend their time to serve their Statement of Issues to November 9, 2018. They say that the parties can work together to meet the extended schedule, which includes additional expert reports.

13MPAC argues that the commencement date be changed to January 15, 2018, with MPAC’s Statement of Response due on February 15, 2019, the Companies Reply on February 27, 2019, and the mandatory meeting by March 25, 2019.

14I find that setting a new commencement date is appropriate here. The design of the Schedule of Events is that the parties decide, at the mandatory meeting, if they require additional expert reports. The Companies suggestion that the parties work toward the extended date presumes that additional expert reports are required. I accept MPAC’s submission that the parties can comply with the dates flowing from a January 15, 2018 Commencement Date. That causes a minimal amount of delay and moves this proceeding along.

CONCLUSION

15The Companies have established that exceptional circumstances exist here. There is no prejudice flowing from granting an extension of time. I therefore alter the Schedule of Events by changing the commencement date from November 15, 2017 to January 15, 2018.