Tribunals Ontario / Tribunaux décisionnels Ontario

Assessment Review Board / Commission de révision de l’évaluation foncière

ISSUE DATE: December 10, 2020 FILE NO.: DM 167093

Moving Party: Baozhong Li Respondent(s): Municipal Property Assessment Corporation Region 09 Respondent(s): City of Toronto

Property Location(s): 100 Whitehorn Crescent Municipality(ies): City of Toronto Roll Number(s): 1908-112-340-10400-0000 Appeal Number(s): 3393367 and 3401009 Taxation Year(s): 2019 and 2020 Hearing Event No.: 734882

Legislative Authority: Rule 45 of the Assessment Review Board’s Rules of Practice and Procedure

Parties	Representative
Baozhong Li	Self-represented
Municipal Property Assessment Corporation	Carolyn Butler
City of Toronto	No one appeared

REQUEST FOR: Motion for Disclosure HEARD: August 26, 2020 in writing ADJUDICATOR(S): Dirk VanderBent, Vice-Chair

MOTION DECISION

OVERVIEW

1Baozhong Li is the owner of a property located at 100 Whitehorn Crescent, in the City of Toronto (the “Subject Property”), which is described as a residential property. Mr. Li has filed an appeal for the 2019 and 2020 taxation years with the Assessment Review Board (the “Board”), pursuant to s. 40 of the Assessment Act, R.S.O. 1990, c. A.31 (“Act”).

2In this proceeding, Mr. Li has filed a Motion for Disclosure with the Board, pursuant to Rule 45 of the Board’s Rules of Practice and Procedure (“Rules”), requesting that MPAC provide additional disclosure. Mr. Li’s Motion make four disclosure requests, all of which are opposed by MPAC. The City of Toronto has not participated in this motion.

3The Board directed that the Motion be heard in writing

Background

4These appeals are being heard by way of summary proceeding. The Board’s Rules provides for a Schedule of Events which sets out due dates for completion of pleadings and exchange of disclosure.

Issue

5The issue in the Motion is whether the Board should grant Mr. Li’s disclosure requests.

Result

6The Motion is denied.

ANALYSIS

The Test to be Applied

7The Board’s Rules:

Proportionality

5. These Rules shall be applied in a manner proportionate to the importance and complexity of the issues in a proceeding and with a view to resolving appeals within the four-year cycle.

Disclosure

45. All parties must provide a copy, in paper or electronic form, of all relevant documents in their possession, control or power to all other parties in the proceeding, except for privileged documents, or documents that cannot be disclosed by law.

8The test to be applied regarding disclosure has been set out in Walmart Canada Corporation and Target Canada Corporation v Municipal Property Assessment Corporation, Region 01, 2018 CanLII 67789 (ON ARB):

[18] Relevance is determined in relation to whether a document is relevant to an issue in dispute. However, this is not the only criteria that the Board will consider when determining whether a document, which may be relevant, should be disclosed. Rule 45, itself, provides an exception for privileged documents. In addition, Rule 5 provides that “These Rules shall be applied in a manner proportionate to the importance and complexity of the issues in a proceeding and with a view to resolving appeals within the four-year cycle’. Therefore, the requirement to disclose relevant documents must also be applied in a proportionate manner. Rule 45 does not include specific criteria to assess proportionality. However, the Board finds that the criteria in Rule 29.2.03(1) and (2) of the Rules of Civil Procedure (Ontario) are applicable, namely:

1. the time required for the party or other person to answer the question or produce the document would be unreasonable;

2. the expense associated with answering the question or producing the document would be unjustified;

3. requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;

4. requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and

5. the information or the document is readily available to the party requesting it from another source.

6. whether an order for disclosure would result in an excessive volume of documents required to be produced by the party or other person.

The Board observes that this is a non-exhaustive list. There may be other criteria identified on a case by case basis.

[19] In applying the above criteria, the Board must balance these considerations against relevancy, i.e. the degree to which it appears that the document is relevant to an issue in dispute, and, if so, how probative this evidence may be. The onus to establish that a document should be disclosed pursuant to Rule 45 rests with the party who requests the disclosure.

[20] In addition to the above, it should also be noted that Rule 45 only requires disclosure of documents in a party’s possession, control, or power. A party is not required to produce new information, or obtain documents that are not within its possession, control, or power.

Disclosure Request No. 1

9Mr. Li’s request is for MPAC's reasons for determining that the effective year built for the Subject Property is 1992, as indicated in MPAC's AboutMyProperty on-line database.

Submissions

10MPAC does not dispute that information related to the effective year built for the Subject Property is relevant.

11However, MPAC submits that it has provided Mr. Li with detailed information about its property assessment through the AboutMyProperty on-line database, specifically in the Market Valuation Report (“MVR”) titled "Valuing Residential Properties”. MPAC also asserts that, in an email sent to Mr. Li, dated March 23, 2020, MPAC provided Mr. Li with a definition of the effective year built and details of how MPAC calculates the effective year built.

12In addition, MPAC states that it has requested information from Mr. Li in an attempt to resolve the issue of effective year built, which Mr. Li has declined to provide.

13In reply, Mr. Li submits that there is no text that describes how the effective year built was determined, but the valuation of depreciation for age is shown in the text specified. He asserts that MPAC's response regarding the effective year built stated nothing about how MPAC determined that the exact year is 1992 but emphasized that renovation 2005B is the issue and possible solution to this issue. He states: “No definition and ways of determination was being stated.” He also asserts that:

In MVR disclosure, p28, For a complete list of data and definitions, please visit mpac.ca. However, no info about effective year built was found.

Findings on Request No. 1

14The Board first notes that the relevancy of the requested information is not in dispute.

15MPAC's submission clearly describes the information that has been provided to Mr. Li in response to his request. In reviewing MPAC's submissions, the Board finds that MPAC has provided the relevant information. There is nothing to indicate that MPAC has not provided all the relevant documents in its possession, control, or power. MPAC is not required to create new documents for the purpose of disclosure. Therefore, the Board finds that the request has been satisfied. For this reason, the Board does not grant this disclosure request.

Disclosure Request No. 2

16Mr. Li’s request is for documentary reports of new market evidence to determine the current value assessment of $1,122,000 as written in MPAC's property assessment notice dated June 6, 2016.

Submissions

17Mr. Li submits that he requests this information for the purpose of testing the consistency of MPAC's determination of current value. He argues that MPAC, in requesting that he conduct his own search on AboutMyProperty, is just trying to transfer to him the burden of proof as to the correctness of current value. He submits that he has no obligation to do his own search of AboutMyProperty as it relates to MPAC’s determination of current value or its equity assessment. He points out that MPAC has “implied” a number of different values for the 2016 base year, so there is an “intrinsic reason to disclose new market evidence stated in notice of assessment in 2016.” He maintains that MPAC has not provided a “… mathematical illustration to show analytical passway to get the number. comparable sales not given for the new market evidence.” He also states:

MPAC's logic has problems: for the property profile at different time, anything other than cva [current value assessment] is same. From the property profile -- the market evidence, to get different cva is ridiculous. cva is also one of market evidence? If yes, cva should be same, but MPAC get different cva for the same base year.

New market evidence to determine cva of 112200 has nothing to do with carry forward notification. MPAC is quibbling.

18In response, in referring to the notice of assessment, MPAC first explains that, when there is a change in value to a property as a result of a Request for Reconsideration or a Board Decision, certain changes will be carried forward to the new assessment cycle – specifically, changes pertaining to factual or structural data for example (i.e. square footage of the building). However, changes that were made as a result of market or sales evidence would not be carried forward – the reason being that market information used in a previous assessment cycle would no longer be relevant to the new cycle valuation.

19MPAC further states that, in these circumstances, the “carry forward notification” is specifying that the changes made in the previous assessment cycle are not being carried forward to the current cycle, due to the fact that the previous changes were based on market information, and the previous market evidence is not relevant in the new cycle.

20MPAC submits that the market evidence used in the 2016 current value assessment (“CVA”) determination has already been provided to Mr. Li, noting that MPAC has provided him with detailed information about his property assessment through AboutMyProperty, specifically the Property Profile. MPAC explains that the Property Profile provides property-specific information and demonstrates how the assessment methodology and market analytics were applied to determine the 2016 value. Accordingly, it is MPAC’s position that this information has already been provided to Mr. Li.

Findings on Request No. 2

21The Board notes that the question of relevancy is not in dispute. Mr. Li has not challenged MPAC's submissions regarding the disclosure that is provided on the AboutMyProperty on-line database. Instead, he challenges the requirement that he must access the information in MPAC's possession through AboutMyProperty. As noted earlier in this Decision, it is not proportionate to order disclosure if the information is readily available to the party requesting it from another source, in this case AboutMyProperty.

22Mr Li has raised arguments respecting the correctness of the disclosure provided by MPAC. He asserts that there are several gaps in MPAC’s analysis and submits that these concerns support the disclosure of “new market evidence”. However, arguments regarding correctness are to be made at the hearing, where the Hearing Member will rule on issues of admissibility and evidentiary weight. At this stage of the proceeding, for purposes of disclosure, the test is whether MPAC has disclosed all relevant evidence in its possession, power, or control. There is nothing in the Appellant’s submission to indicate that MPAC has not done so.

23For these reasons, the Board does not grant Request No. 2.

Disclosure Request No. 3

24Mr. Li’s request is that MPAC provide him with a list of properties with Renovation 2003 B, 2004 B, 2005 B, 2006 B, 2007 B tag or similar renovation around 2005 (2003-2007) in MPAC’s database.

Submissions

25Mr. Li states that AboutMyProperty provides the address, property description, year built, number of stories, current value assessment, and sale indicator. He submits:

I stated this fact in issue in dispute and email communication with MPAC. It is the appellant’s [his] position that [he] has no obligation to response to MPAC's request for input for search criteria for MPAC's determination of cv or equity analysis.

26In response, MPAC submits that this request is overly broad, not relevant and disproportionate. MPAC further submits that Mr. Li’s request is not specific, and his requested parameters would pertain to a vast number of properties. MPAC further submits that Mr. Li has failed to meet his onus of proving that his request is relevant and proportionate.

27In support of its submissions, MPAC states that Mr. Li has already received extensive information specific to the Subject Property itself and that he has the ability to access the information for up to 100 properties in the vicinity of the Subject Property through AboutMyProperty. Therefore, he has the ability to retrieve properties with the requested parameters. MPAC further states that he has the tool accessible to generate a report comparing information for up to 24 properties. In this regard, MPAC states it reminded Mr. Li of this in an email correspondence dated March 23, 2020.

Findings on Request No. 3

28The Board again notes that MPAC is not required to produce new information that is not already in its possession, power or control. Similarly, the Board has also indicated that it is not proportionate to order disclosure if the information is readily available to the party requesting it from another source, in this case AboutMyProperty. Mr. Li’s submissions do not indicate that he would be unable to obtain the information he requires from the AboutMyProperty database, or that MPAC would not provide him with assistance with any technical difficulties in accessing the AboutMyProperty website.

29Furthermore, the Board notes that Mr. Li has not disputed that his requested parameters would pertain to a vast number of properties. Therefore, the Board accepts MPAC's submission that that Mr. Li’s request is not specific and is disproportionate.

30For these reasons, the Board does not grant this request.

Request No. 4

31Mr. Li’s request is for a documentary report to find similar properties with effective built years 1990, 1991, 1992, 1993, and 1994.

Submissions

32It is MPAC's position that this request is overly broad, not relevant and disproportionate. MPAC submits that Mr. Li’s request is not specific, and that the requested parameters would pertain to a vast number of properties. MPAC submits that Mr. Li has failed to establish that this disclosure request is proportionate.

33MPAC repeats its submission made under Disclosure Request No. 3, that Mr. Li may obtain the requested disclosure from MPAC's AboutMyProperty on-line database. MPAC has made attempts to address this with Mr. Li by advising him that his request is too broad. MPAC further states that it requested that Mr. Li provide more specific search parameters, but it did not receive a response.

34In reply, Mr. Li states: “MPAC's search criteria of not having an effective year built greater than 1999 is more overly broader and not relevant and disproportionate.” Mr. Li again states that he “has no obligation to response to MPAC's request for input for search criteria for MPAC's determination of cv or equity analysis.”

Findings on Request No. 4

35Mr. Li does not dispute MPAC's assertion that his disclosure request, as worded, would pertain to a vast number of properties. Consequently, the Board finds that his request lacks the necessary specificity to exclude properties that would not be relevant when compared to the Subject Property. Apart from this deficiency, the Board again finds that MPAC is not required to produce a new document that is not already in its possession, power or control. Similarly, the Board has also indicated that it is not proportionate to order disclosure if the requested information is readily available from another source, in this case the AboutMyProperty on-line database. Again, Mr. Li’s submissions do not indicate that he would be unable to obtain the information he requires from this database.

36As the requested information is available to Mr. Li, the Board finds that his disclosure request has been satisfied. For this reason, the Board does not grant this request.

Conclusion

37As the Board has not granted any of Mr. Li’s disclosure requests, his motion is dismissed.

38As the adjudication of Mr. Li’s disclosure motion has created some delay in completing the parties’ pre-hearing preparation for this appeal proceeding, the Board will amend the due date for completing a mandatory settlement meeting and to advise the Board if the appeal is not resolved, as set out in the Order below.

ORDER

39Mr. Li’s Motion for Disclosure is dismissed.

40The due date under the Schedule of Events, to advise the Board whether this appeal proceeding is resolved, is amended from September 29, 2020 to January 15, 2021.