Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: November 18, 2020

FILE NO.: ID 166794

Assessed Person(s): Canadian Tire Properties Inc.

Appellant(s): Canadian Tire Properties Inc.

Respondent(s): Municipal Property Assessment Corporation Region 15

Respondent(s): Town of Caledon

Property Location(s): 13074 Coleraine Drive

Municipality(ies): Town of Caledon

Roll Number(s): 2124-010-003-22980-0000

Appeal Number(s): 3277894, 3277895 and 3277896

Taxation Year(s): 2017

Hearing Event No.: 733873

Legislative Authority: Rules 37 of the Assessment Review Board Rules of Practice and Procedure

Parties	Counsel/Representative*
Canadian Tire Properties Inc.	Lauren Lackie and Anastasija Sumakova
Municipal Property Assessment Corporation	Karey Lunau and Calvin Ho
Town of Caledon	Guy Tudino*

HEARD: September 29, 2020 by video conference

ADJUDICATOR(S): Subuola Awoleri, Member

INTERIM DECISION

OVERVIEW

1Canadian Tire Properties Inc. ("Canadian Tire"), the Appellant, appealed the supplementary assessment of 13074 Coleraine Drive (the "Subject Property") to the Assessment Review Board (the "Board") for the 2017 taxation year, pursuant to s. 34 of the *Assessment Act* R.S.O. 1990, c. A.31, (the "Act").

2The subject property is a newly constructed Canadian Tire distribution center. The building was completed in 2017, with a gross leasable area of 1,413,727 square feet. Pursuant to s. 34 of the *Act*, the Municipal Property Assessment Corporation ("MPAC") issued a supplementary assessment for the Subject Property at $160,313,000, effective February 1, 2017. The returned assessment for the Subject Property was $53,029,000 for the 2016 current value assessment. The parties do not dispute the correctness of the return assessment or the supplementary assessment. The issue between the parties is the correct effective date for the supplementary assessment. Canadian Tire argues that the correct effective date is July 2, 2017 and not February 1, 2017 as MPAC asserts.

3At the commencement of the hearing, MPAC raised a preliminary issue requesting the Board to dispense with Canadian Tire's witness statement and exclude the witness from testifying at the hearing, due to Canadian Tire's breach of Rule 37 of the Board's Rules of Practice and Procedure (the "Rules"), for failing to file its witness statement on or before the filing deadline set out in the Schedule of Events.

4The Town of Caledon (the "Town"), the other Responding Party to these appeals, agrees with MPAC's request.

5The Board adjourned the hearing of the appeals to provide its Decision on the preliminary issue raised by MPAC.

Issues

6In order to determine whether Canadian Tire's witness statement should be admitted and if the witness may testify despite its non-compliance with Rule 37, the Board must decide:

a. If there are exceptional circumstances;

b. If the Board finds that there are exceptional circumstances, the Board must determine if the balance of prejudice favours an extension of time.

Result

7For reasons that follow, the Board finds that there are no exceptional circumstances presented by Canadian Tire. Therefore, MPAC's request to dispense with Canadian Tire's witness statement and exclude its witness from testifying is granted. The Board directs that the Main Hearing in this proceeding be re-scheduled.

ANALYSIS

8Rule 37 provides that:

On or before the filing deadline set out in the schedule of events for a proceeding, each party must file all materials that they intend to rely on at a hearing event, including:

(a) all evidence, including expert reports;

(b) statements of issues and responses; and

(c) witness statements.

9The Schedule of Events ("SOE") provides a detailed timely process for an appeal from its commencement date to the date of the hearing. It sets out what the parties need to do to perfect the appeals prior to the hearing date. Rule 34, along with Schedules A and B to the Rules, provide the SOE for the summary and general streams. These appeals are in the general stream, and accordingly the SOE is set out in Schedule A. The commencement date assigned by the Board for these appeals was March 15, 2018.

10In accordance with the SOE, the deadline for Canadian Tire to file its witness statement with the Board was March 12, 2020. Canadian Tire served the witness statement on MPAC on September 23, 2020 and filed it with the Board on September 24, 2020.

11Canadian Tire admits that it is in breach of Rule 37, however submits that the Board can still admit the witness statement and the testimony of the witness due to various reasons which the Board shall address. MPAC argues that Canadian Tire has provided reasons other than exceptional circumstances justifying the admission of the witness statement.

12Rule 82 provides that "...the Board will not alter any timeline set out in the schedule of events, other than in exceptional circumstances". For the Board to depart from the timelines set by Rule 37, parties must prove that there are exceptional circumstances to do so. In Mississauga (City) v. Michalakos, 2018 CanLII 126632 (ON ARB) ("Michalakos") at paragraphs 10 and 11, the Board defined exceptional to mean "... among other things, something that does not occur regularly, something unusual, or something atypical". If exceptional circumstances exist, then the Board as stated in Michaloakos "...must consider prejudice to the parties and whether the balance of prejudice favours an extension of time".

Issue 1 – Exceptional Circumstances

13The Board finds that Canadian Tire has not put forward any exceptional circumstance to justify extending the SOE to admit the witness statement and allow its witness to testify. Canadian Tire argues that there were exceptional circumstances.

Timing of MPAC's Objection

14Canadian Tire argues that MPAC delayed in providing an objection to its request to file its witness statement after the deadline of March 12, 2020. Canadian Tire submits that at the settlement conference held June 2, 2020, it confirmed that a witness will be called to testify on its behalf. On September 15, 2020, Canadian Tire, by its counsel, Lauren Lackie sent an email to MPAC's co-counsel, Calvin Ho, advising that a witness statement will be served on MPAC and further requesting that Mr. Ho confirms his instructions on it. Mr. Ho confirmed that MPAC objected to Canadian Tire's witness testifying where a witness statement had not been filed with the Board. Mr. Ho also requested that Ms. Lackie provide him with the witness statement to review, to assist with instructions from MPAC.

15Canadian Tire submits that it was its understanding that it could remedy this breach by serving and filing the witness statement. Canadian Tire did not indicate the source of this understanding. Canadian Tire served the witness statement on MPAC on September 23, 2020 and filed it with the Board on September 24, 2020. On September 28, 2020, MPAC indicated its objection by e-mail.

16MPAC submits that the issue of the delay in objecting is incorrect factually; that from September 15, 2020, it took Canadian Tire over a week to serve the witness statement and MPAC provided its objection within two working days. MPAC further argues that the issue of the delay in objecting is also incorrect legally, since Canadian Tire is a sophisticated corporate actor, who has retained professional legal counsel, who are presumed to know their obligations under the Board's Rules, consequently, putting the burden on the other party to object is inappropriate.

17Parties appearing before the Board must comply with the Board's Rules, especially when they are duly represented, and a breach of the Rules is not cured by the other party's delayed objection to the breach.

18The Board finds that the timing of MPAC's objection is inconsequential to extending the SOE. This does not amount to an exceptional circumstance and MPAC did not confirm or consent to the late filing of the witness statement.

Nature of the Evidence

19Canadian Tire argues that the evidence to be furnished by its witness is not a surprise to MPAC. It further argues that it does not alter the chronology of events set out in the agreed statement of facts filed by the parties and it does not impact the occupancy date of February 1, 2017, which MPAC relies on as the effective date of the supplementary assessment. Canadian Tire submits that the evidence is relevant and would assist the Board in resolving the appeals. Canadian Tire did not advise the Board on why the witness statement is relevant.

20MPAC submits that if the evidence was important to Canadian Tire, it should have filed it on time and since it supplements the evidence already filed, it would not affect the outcome of the appeals.

21The Board finds that the nature of the evidence does not constitute an exceptional circumstance. The issue before the Board in the appeals relates to supplementary assessments for the 2017 taxation year. Canadian Tire has not provided an explanation for the delay in filing the witness statement. Canadian Tire confirmed at the settlement conference held June 2, 2020, that it will be calling a witness of fact. It only filed the witness statement on September 24, 2020. The fact that Canadian Tire argues that the evidence is not a surprise to MPAC and that it is relevant to the issues in dispute, are not exceptional circumstances to justify an extension of time to file it.

Discrepancy between Rules 37 and 58

22The Board finds that there is no discrepancy between Rules 37 and 58 as argued by Canadian Tire. These Rules do not create uncertainty to parties appearing before the Board, on what evidence should be filed with the Board before a settlement conference.

23Rule 58 provides in part that the following shall be considered at a settlement conference:

(e) the number of witnesses, including proposed expert witnesses, that may be called by each party;

24Canadian Tire argues that Rule 58 does not provide clarity that a party cannot call a corporate witness to testify at a hearing if a witness statement is not filed by the deadline in the SOE. It submits that Rule 58(e) contemplates the following as matters to be considered at a settlement conference: the number of witnesses and witness statement to be called by each party.

25MPAC argues that Rule 58(e) was created to accommodate the special property program and it does not conflict with Rule 37. The special property program was created for appeals of properties with specifically complex issues.

26Rule 58 does not create an exemption to the requirement in Rule 37 for parties to file their witness statements by the deadline set out in the SOE. Rule 58 clearly provides for matters that are considered at a settlement conference.

Issue 2 – Adjournment/Balance of Prejudice

27Canadian Tire argues that the prejudice it will suffer by dispensing with its witness statement and excluding its witness far outweighs any prejudice to MPAC due to its right to make its case and ensure that the relevant evidence is before the Board. Furthermore, Canadian Tire argues that any prejudice to MPAC can be mitigated by a brief adjournment, to allow MPAC prepare to cross-examine the witness.

28To support its position, Canadian Tire cites the case of WMJO Limited v Municipal Property Assessment Corporation, Region 23, 2018 CanLII 84482 (ON ARB) ("WMJO"), where the Board determined at paragraph 7 that:

... it is the right of the Appellant, or any other party to a proceeding, to attend the proceeding, to cross-examine the other parties, and to give oral testimony if relevant and probative in the Board member's opinion. A party is entitled to make its case based on its oral evidence, and submissions based on all of the evidence adduced at the hearing.

29In WMJO, the appellant's representative attended the hearing without filing documentary evidence prior to the hearing and MPAC raised a preliminary issue on their participation in the hearing. The question in WMJO was not whether a witness can testify despite the late filing of the witness statement but the participation of the appellant at the hearing.

30In this appeal, the inability to call a witness is less prejudicial than the inability of an appellant to participate in a hearing. MPAC has not raised an objection to Canadian Tire participating in the hearing. Canadian Tire argues that by not admitting the witness statement and excluding the witness from testifying is akin to prohibiting it from giving evidence. Canadian Tire's action of not filing its witness statement by the deadline, without showing any exceptional circumstance why it was not filed in a timely manner has prevented the admissibility of the witness statement and testimony. Moreover, Canadian Tire submits that the witness statement reflect/supplements the agreed statement of facts, consequently its evidence is still before the Board.

31Furthermore, Canadian Tire's argument undermines the purpose of the SOE. Parties are to perfect their appeals based on a timely outline provided by the Board to ensure certainty and finality to the appeals. The SOE further underlines the principle of procedural fairness, such that parties are aware of their case and provide adequate responses to the issues in the appeals. Pursuant to Rule 82, no exceptional circumstance has been furnished by Canadian Tire to justify extending the deadline for filing the witness statement.

32As determined in Michalakos, the Board must first determine if there are exceptional circumstances before it considers prejudice to the parties. Canadian Tire has not presented any exceptional circumstance and therefore, the Board cannot consider any prejudice to it. In any event, the Board finds that the balance of prejudice would favour excluding the witness from testifying.

CONCLUSION

33There is minimal prejudice to Canadian Tire of excluding the witness given that the evidence to be given by this witness appears duplicative of the agreed statement of facts. Canadian Tire has provided no explanation for the delay and no exceptional circumstances are established. Allowing the witness to testify would require giving MPAC and the Town additional time to prepare, which would further delay the proceeding. Accordingly, it is appropriate for the witness to be excluded.

ORDER

34The Board dispenses with Canadian Tire's witness statement and excludes its witness from testifying at the hearing of these appeals.

35The continuation of the hearing of these appeals shall be re-scheduled by the Registrar to a date within six weeks of the issuance of this Decision.