Wal-Mart Canada Corp. v. Municipal Property Assessment Corporation Region 32, 2020 CanLII 83829

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: October 29, 2020

FILE NO.: DM 165892

Assessed Person(s): IG Investment Management Ltd.

Appellant(s): Wal-Mart Canada Corp.

Respondent(s): Municipal Property Assessment Corporation Region 32

Respondent(s): City of Thunder Bay

Property Location(s): 767 Memorial Avenue

Municipality(ies): City of Thunder Bay

Roll Number(s): 5804-010-037-91400-0000

Appeal Number(s): 3238674, 3314981 and 3368224

Taxation Year(s): 2017, 2018 and 2019

Hearing Event No.: 734876

Legislative Authority: Rules 48 and 82 of the Assessment Review Board’s Rules of Practice and Procedure

Parties	Counsel*/Representative
Wal-Mart Canada Corp.	Jeff G. Cowan*
IG Investment Management Ltd.	Andrew Valyi
Municipal Property Assessment Corporation	Francis. X. Shea*
City of Thunder Bay	Guy Tudino

REQUEST FOR: Extension of Time

HEARD: August 24, 2020 in writing

ADJUDICATOR(S): Jean-Paul Pilon, Member

MOTION DECISION

OVERVIEW

1The issue in this motion is whether the Assessment Review Board (the “Board”) should allow an appellant in these appeals, Wal-Mart Canada Corp. (“Wal-Mart”), to file an additional expert report when the time for filing that report in the Schedule of Events that was assigned to these appeals has passed. The Municipal Property Assessment Corporation (“MPAC”) supports the motion, while the City of Thunder Bay (the “Municipality”) and the owner of the shopping centre, IG Investment Management Ltd. (the “Owner”), oppose it.

Result

2For the reasons that follow, this motion is denied.

Background

3The property that is the subject of these appeals is a commercial shopping centre in Thunder Bay. It is anchored by a Walmart Supercentre and it includes other businesses that are not participants in this motion. There is a substantial difference of opinion as to the correct current value of the property.

4Wal-Mart, MPAC and the Municipality all served and filed expert reports as the appeals progressed through the Schedule of Events that was assigned to them. Wal-Mart then served and filed a reply expert commentary report dated December 11, 2019 pursuant to the Schedule of Events disagreeing with the conclusions in MPAC’s expert report on fair market rent. It also contained statements on fair market rent that were based on the findings in another report prepared by MPAC for a different Walmart store in a different municipality that was dated October 4, 2019 (the “May Report”).

5The Board then held a settlement conference on February 18, 2020 that was continued on March 9, 2020 where MPAC and Wal-Mart agreed to the fair market rent that should apply based on the conclusions set out in the May Report. The Owner and the Municipality did not agree on fair market rent and other issues, and a hearing was scheduled and then rescheduled because of the pandemic.

6Wal-Mart relied on the affidavit of its expert witness Charles Johnstone affirmed on July 6, 2020 who indicated that on June 12, 2020 “the owner’s representative objected to Mr. May’s involvement.” More precisely, however, the issue at the time and in this motion is that Wal-Mart wanted to file the May Report in this proceeding.

7Wal-Mart sent a redacted copy of the May Report to the other parties, even though it was not requested.

ARGUMENT

8Wal-Mart cited several of the Board’s Rules of Practice and Procedure (the “Rules”) in support of its position in this motion. Rule 48 essentially provides that expert reports will only be admitted into evidence outside the timelines set out in a Schedule of Events if there are “exceptional circumstances.” Rule 4 provides that the Rules are to be interpreted liberally “to ensure the just, most expeditious and least expensive determination of every proceeding.” Rule 5 provides that the Rules “shall be applied in a manner proportionate to the importance and complexity of the issues,” and Rule 7 provides that substantial compliance is sufficient.

9The exceptional circumstances cited in Wal-Mart’s factum were that the Owner and Municipality were aware of the conclusions in the May Report because it was cited in the reply report of Wal-Mart’s expert. The factum repeated what was said in Mr. Johnston’s affidavit, that neither of the other parties requested the report and, in fact, they refused it when it was offered until this motion was determined. A redacted copy of the report was nevertheless sent to them.

10Wal-Mart relied on the Board’s jurisprudence in support of its motion. It cited Riotrin Properties (Weston) Inc. v Municipal Property Assessment Corporation, Region 09, 2019 CanLII 9705 (ON ARB) (“Riotrin”) at para. 5 which provides that “exceptional means, among other things, something that does not occur regularly, something unusual, or something atypical,” where the emphasis above was taken from Wal-Mart’s factum.

11Wal-Mart argued that the May Report was important to explain the settlement that was arrived at between it and MPAC for that other property, and that the factual circumstances fit the description in Riotrin above. Wal-Mart also cited Metro Ontario Inc. v. Municipal Property Assessment Corporation, Region 13, 2019 CanLII 47974 (ON ARB) at para. 24 where the exceptional circumstance was a disclosure motion pursuant to section 53 of the Assessment Act, R.S.O. 1990, c. A. 31. Wal-Mart’s submission was that the facts in this motion “are equally or more unusual or atypical than a s. 53 motion for disclosure, which has been determined to be an exceptional circumstances (sic).”

12The Riotrin decision at para. 4 says that after determining whether there are exceptional circumstances, the Board must consider prejudice to the parties if an extension of time were to be granted. On this point, Wal-Mart also opined in its factum that there would be no prejudice to the Municipality or the Owner because they were aware of the report.

13Both the Owner and the Municipality opposed the motion. The Owner cited Rule 37 which requires that evidence and expert reports be filed by the filing deadline in the Schedule of Events. The Owner repeated Rule 48, noting that the fact a redacted copy of the report was sent does not acknowledge that there were any exceptional circumstances. Both parties also argued that they would be prejudiced if an extension of time was granted.

ANALYSIS

14Proceedings before the Board follow Schedules of Events. Rule 34(a) refers to Schedule A to the Rules which sets out a template Schedule of Events that applies to general proceedings before the Board. Following that template, the Board provided the parties with the Schedule of Events to apply to these proceedings.

15The parties followed the Schedule of Events in serving their expert reports. Within weeks 95 to 100 in the Schedule of Events, “each Appellant must then serve any supplementary reports by its experts in reply to any expert reports served by a Responding Party.” It was in Wal-Mart’s reply report that a statement was made that referred to May Report that led this motion. The May Report was sent to the other parties, less confidential information which would be the subject of confidentiality agreements if this motion was successful, although it was not done at their request.

16The basis of the request is that this is something that does not occur regularly, but it is unclear what exactly it is that is being suggested that does not occur regularly. It may be the fact that Wal-Mart and MPAC agreed on the fair market rent, which is the salient issue addressed by the May Report, but the Owner and the Municipality were not parties to that agreement, and it is not unusual that some parties in appeals agree and others do not.

17Even if the Owner and the Municipality were aware of the conclusions arising from MPAC’s analysis, it did not place any obligation on them to request the May Report referring to it, especially where its service was irregular and outside of the Schedule of Events. It also does not follow that sending unsolicited copies to them should result in any acknowledgment or that it would somehow abridge the Schedule of Events. In addition, there is nothing in Wal-Mart’s material explaining why the May Report could not have been included in reply.

18It may well have been the case, as suggested by Wal-Mart, that the filing of the May Report might have assisted the Board in its determination of the fair market rent and ultimately the correct current value of the property. However, the Board has been clear in cases including Kitchener (City) v. Municipal Property Assessment Corporation, Region 21, 2019 CanLII 91491 (ON ARB) that exceptional circumstances are required for the extension of timelines in Schedules of Events. There are no exceptional circumstances here, therefore the motion is denied.

19Even if there had been exceptional circumstances, the Board would have been required to examine prejudice to the parties before granting the request following the Riotrin decision. Both the Municipality and the Owner alleged they would be prejudiced by the order requested.

20The Board does not agree with Wal-Mart’s position that there would be no prejudice to the Municipality or to the Owner if the motion was granted. In fact, the prejudice to the other parties would be significant because it would open the door to further expert testimony and reports at the hearing which the Board would need to admit on fairness grounds. In addition, the hearing would more than likely have to be extended, where the proposed hearing plan for the hearing has no additional time available (and may already be unrealistic as to what can be accomplished in the time available). Furthermore, it is likely at that point that the hearing set for November, 2020 would need to be postponed to accommodate the additional work that would be required if the request was granted.

21Finally, the suggestion that there should be no delays because the May Report has already been served is not correct when it was served outside of the Schedule of Events. The other parties had no obligation to prepare any response to it pending the determination of this motion as to whether it would be accepted for filing or not.

22For these reasons, the motion to file the May Report is denied.

23The Board is aware that prior to the issuance of the decision, Lee May was summoned to attend the hearing of these appeals in November, 2020. There is nothing in this decision would conflict with that summons or that would interfere with Mr. May’s obligation to attend that hearing.

ORDER

24The motion for leave to file the May Report is denied.