Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: October 13, 2021

FILE NO.: DM 174142

Assessed Person(s): See Schedule A

Appellant(s): City of Greater Sudbury

Respondent(s): Municipal Property Assessment Corporation Region 30

Respondent(s): Vale Canada Limited, Xstrata Canada Corporation, and Glencore Canada Corporation

Property Location(s): See Schedule A

Municipality(ies): City of Greater Sudbury

Roll Number(s): See Schedule A

Appeal Number(s): See Schedule A

Taxation Year(s): 2017, 2018, 2019 and 2020

Hearing Event No.: 754067

Legislative Authority: Sections 33, 34 and 40 of the Assessment Act, R.S.O. 1990, c. A.31

Parties	Counsel
Glencore Canada Corporation	Kathleen D. Poole and Karina Wong
Vale Canada Limited	Phillip L. Sanford and Belinda Schubert
Municipal Property Assessment Corporation	Sarah W. Corman and Hilary A. Brown
City of Greater Sudbury	Dan Rosman
Participant
Dale Panday	John Ruderman

REQUEST: To summon a person to a hearing event

HEARD: October 1, 2021 in writing

ADJUDICATOR(S): Carly Stringer, Member

MOTION DECISION

OVERVIEW

1The City of Greater Sudbury (the “City”) requested that the Assessment Review Board (the “Board”) summon Dale Panday (“Mr. Panday”) to a hearing event to act as a witness at the hearing related to the appeals described in Schedule “A” (the “Subject Appeals”). The Subject Appeals are scheduled for a 10-day hearing commencing November 15, 2021.

2The Municipal Property Assessment Corporation (“MPAC”), Vale Canada Limited (“Vale”) and Glencore Canada Corporation (“Glencore”), all respondents in the Subject Appeals, opposed the request.

3Mr. Panday also opposed the request.

4In light of this opposition, the Board scheduled this written motion hearing to adjudicate the City’s request. Pursuant to Rule 16, the Board permitted Mr. Panday – who is not a party to the Subject Appeals – to make submissions on this motion.

Result

5For the reasons that follow, the Board refuses to issue the summons.

BACKGROUND

6The Subject Appeals pertain to various mining properties in Sudbury, Ontario (the “Subject Properties”).

7The parties agreed that the Cost Approach to valuation is appropriate to value the Subject Properties. Part of the Cost Approach analysis requires calculating the cost of replacing buildings, structures, and other taxable components of the land.

8MPAC relied on its Automated Costing System (“ACS”) to value the component inputs it uses in its Cost Approach analysis. The ACS component values were developed from construction costing data provided to MPAC by Hanscomb Limited (“Hanscomb”).

9On appeal, the City submits that the Hanscomb component values are general values used throughout Ontario, and do not consider the higher construction costs that are unique to Sudbury due to climate and topographical conditions. The City submits that ACS accordingly undervalues structure costs.

10Mr. Panday is a director of Hanscomb. The City submits that he will provide the Board with information on the accuracy of ACS component values compared with actual construction costs in the City of Greater Sudbury.

ANALYSIS

Issue 1 – Should the Board summon Mr. Panday to the hearing of the Subject Appeals?

Applicable Law

11The City has made its request pursuant to Rule 51 of the Board’s Rules of Practice and Procedure (the “Rules”), which provides as follows:

51. A party may request that the Board summon a person to a hearing event in the form attached as Schedule D to these Rules within, setting out:

a. the name of the witness and his or her address for service;

b. why the summons is required;

c. a brief summary of the evidence to be given by the witness;

d. an explanation of why the evidence of the witness would be relevant and necessary; and

e. details of any documents or things which the witness should be required to bring to the hearing event

12Rule 52 provides that when a party has requested a summons pursuant to Rule 51, the Board may issue the summons; refuse to issue the summons; or refer the matter to the hearing event in the proceeding.

Findings on Issue 1

13The Board refuses to issue the summons, for the following reasons:

a. The City has not provided a sufficient summary of the evidence to be given by Mr. Panday in accordance with Rule 51(c). The City states broadly that Mr. Panday will provide the Board with evidence on the accuracy of the ACS component values compared with actual construction costs in Greater Sudbury. However, the City fails to articulate what that evidence likely will be. The City admits it really does not know what his evidence will be. In the Board’s view, this amounts to a fishing expedition.

b. The City has outlined the questions the City will ask Mr. Panday, including questions regarding the process used by Hanscomb in determining the component values applied by ACS, and the consideration of locational factors in determining component values. However, the City has not satisfied the Board that Mr. Panday in fact has the requisite knowledge to provide answers to the City’s questions. As confirmed in the City’s Reply, “the City itself has no exact knowledge of what Mr. Panday will say or provide – only that MPAC has relied on Hanscomb, that Mr. Panday appears to be the relevant principle [sic] at Hanscomb, and that Hanscomb has the requisite information.” The fact that Mr. Panday is a director of Hanscomb does not, in the totality of the circumstances, sufficiently satisfy the Board that he has the requisite knowledge of relevant evidence. In this regard, the City has not satisfied the Board that any evidence Mr. Panday can provide is relevant and necessary, in accordance with Rule 51(d).

c. The Board held a case conference relating to the hearing of the Subject Appeals on June 25, 2021. The Board issued a Case Management Report and Order following that case conference, and the report does not reflect that the City identified Mr. Panday as a witness, or otherwise suggested it would be seeking to summon him as a witness at the hearing. The Board’s order states at paragraph 13 that “[t]he hearing shall be limited to the testimony of the witnesses(es) listed in Attachment 1 to this Report and Order.” Mr. Panday’s name is not listed as a witness.

d. Overall, the City has made this request far too late in the proceeding, without explanation. The parties have already filed their documents, have provided a detailed hearing plan with a list of witnesses, and attended the settlement conference. Even if Mr. Panday were able to provide the information the City seeks, the Board finds that allowing him to provide evidence and disclose documents at the hearing would cause unacceptable delay in the proceeding as procedural fairness would require granting all parties a sufficient opportunity to respond, which may include adjourning the hearing to permit further evidence.

14In the totality of the circumstances, the Board is not prepared to grant the City’s request.

CONCLUSION

15The City has not satisfied the Board that it should issue a summons to Mr. Panday.

ORDER

16The Board refuses to issue the summons pursuant to Rule 52(b).

"Carly Stringer"

CARLY STRINGER

MEMBER

Assessment Review Board

Website: www.tribunalsontario.ca/arb

Telephone: 416-212-6349 Toll Free: 1-866-448-2248

SCHEDULE A

SCHEDULE A - Continued

SCHEDULE A - Continued

SCHEDULE A - Continued