SmartCentres v. City of Vaughan, 2021 CanLII 112394

Tribunals Ontario

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

ISSUE DATE: November 2, 2021

FILE NO.: DM 173742

Assessed Person(s): M & M Home Office Inc.

Appellant(s): SmartCentres; Elroy Bacchus

Respondent(s): City of Vaughan

Property Location(s): 640 and 700 Applewood Crescent

Municipality(ies): City of Vaughan

Roll Number(s): 1928-000-230-35142-0000 and 1928-000-230-35150-0000

Appeal Number(s): 3415356 and 3415357

Taxation Year(s): 2019

Hearing Event No.: 748174

Legislative Authority: Section 357(1)(d.1) of the Municipal Act, 2001, S.O. 2001, c. 25

Parties	Representative
SmartCentres Management Services Inc.	Elroy Bacchus
City of Vaughan	Jaroslaw Wowk

REQUEST FOR: An order that the affidavit of Marina Letyagina sworn August 3, 2021 be inadmissible at written hearing number 748174

HEARD: September 13, 2021 in writing

ADJUDICATOR(S): Carly Stringer, Member

MOTION DECISION

OVERVIEW

1The appeals 3415356 and 3415357 (the “Subject Appeals”) relate to 640 and 700 Applewood Crescent (the “Subject Properties”) in the City of Vaughan (“Vaughan”). The Appellant, SmartCentres Management Services Inc. (the “Appellant”), brought the Subject Appeals before the Assessment Review Board (the “Board”) pursuant to s. 357(7) of the Municipal Act, S.O. 2001, c. 25 (the “Act”), seeking cancellation, reduction or refund of taxes levied on the Subject Properties in the 2019 taxation year pursuant to s. 357(1)(d.1) of the Act.

2Vaughan is a respondent in the Subject Appeals.

3Pursuant to the Board’s Notice of Written Hearing dated June 1, 2021, the Board provided the following due dates for submissions relating to the Subject Appeals:

a. The Appellant’s materials were due 30 days from the Notice of Hearing, being July 2, 2021;

b. Vaughan’s materials (“Response”) were due 20 days from the deadline for the Appellant’s materials, being July 22, 2021; and

c. The Appellant’s reply materials (“Reply”) were due 10 days from the deadline for Vaughan’s Response, being August 3, 2021.

4The Appellant filed materials on July 2, 2021. The Appellant’s materials consisted of a letter from the Appellant’s representative containing the Appellant’s submissions. Attached to the letter were numerous unsworn documents labelled as numbered exhibits. No affidavit was provided.

5Vaughan provided its written submissions on July 22, 2021. Vaughan’s submissions did not address the substantive issues underlying the Subject Appeals. Rather, Vaughan requested that the Subject Appeals be dismissed on the basis that the Appellant did not submit sworn affidavit evidence into the adjudicative record for the Board to consider the Subject Appeals.

6The Appellant provided its Reply on August 3, 2021. In reply, the Appellant submitted the Affidavit of Marina Letyagina sworn August 3, 2021 (the “Letyagina Affidavit”). The Letyagina Affidavit repeated the information contained in the Appellant’s submission letter dated July 2, 2021 and attached as sworn exhibits the same documents that the Appellant had filed as unsworn documents on July 2, 2021.

7Vaughan then brought the within motion requesting the Letyagina Affidavit be inadmissible at the written hearing number 748174.

Result

8For the reasons that follow, the Board denies Vaughan’s motion that the Letyagina Affidavit be inadmissible at written hearing number 748174.

ANALYSIS

Issue 1 – Should the Board order that the Letyagina Affidavit is inadmissible?

Submissions

9Vaughan submits that introducing new affidavit evidence in reply is improper and procedurally unfair because Vaughan has no opportunity to contest the new evidence. Vaughan submits that the purpose of Reply is to reply to any new issue raised in the Response, it is not an opportunity for the Appellant to introduce new affidavit evidence which ought to have been included in its initial submission. Vaughan submits that the Appellant failed to include affidavit evidence with its initial submission on July 2, 2021 and is now engaging in improper “case-splitting” by relying on the Letyagina Affidavit.

10Vaughan further submits that pursuant to Rule 48 of the Board’s Rules of Practice and Procedure (“Rules”), the Board will only admit a document at a hearing event if it has been properly submitted, unless there are exceptional circumstances. Vaughan submits that the Appellant failed to comply with Rule 83, which requires that evidence at a written hearing be by affidavit. Vaughan submits that the Appellant’s misunderstanding of Rule 83 does not constitute an exceptional circumstance. Vaughan submits that the Letyagina Affidavit ought to have been filed with the Appellant’s initial submissions on July 2, 2021 and should not be accepted into the adjudicative record because it was filed late. Vaughan submits it would be contrary to the rules of natural justice and procedural fairness if the Appellant was permitted to introduce the Letyagina Affidavit at this stage.

11The Appellant submits that Vaughan’s motion should be dismissed. The Appellant submits that Vaughan’s objection to the Letyagina Affidavit is merely technical rather than substantive. The Appellant says that the relief sought by Vaughan would deny the Appellant a fair hearing on the merits of the Subject Appeals even though admitting the Letyagina Affidavit would not prejudice Vaughan. The Appellant submits that the materials submitted as part of the Letyagina Affidavit are the same materials that the Appellant filed on July 2, 2021. It says the only difference is that the materials submitted with the Letyagina Affidavit on August 3, 2021 were in the form of an affidavit rather than unsworn evidence.

12The Appellant submits that although there may have been technical non-compliance with Rule 83 that requires evidence in a written hearing to be given by affidavit, the Appellant cured the defect and thus achieved substantial compliance with the Rule. The Appellant consents to the Board granting Vaughan an opportunity to amend its Response to address the Appellant’s case on the merits.

Findings on Issue 1

13The Board denies Vaughan’s motion, for the following reasons:

a. In substance, the Letyagina Affidavit repeats the information contained in the Appellant’s letter dated July 2, 2021, and the exhibits attached to the Letyagina Affidavit are the same documents that the Appellant filed on July 2, 2021. This is not a situation where the Appellant was attempting to ambush Vaughan with previously unknown or truly new evidence. Nothing in the Letyagina Affidavit could have been a surprise to Vaughan.

b. Vaughan’s objections to the Letyagina Affidavit are technical in nature. Procedurally, and in accordance with Rule 83, the Appellant should have provided its evidence in an affidavit. However, once alerted to this defect by Vaughan’s Response, the Appellant quickly cured it in accordance with the timelines prescribed to file reply materials.

c. The Board does not accept that Vaughan is prejudiced by the Letyagina Affidavit. The Board does not accept that Vaughan did not have an opportunity to contest this evidence. There is no evidence that Vaughan sought to cross-examine Ms. Latyagina on her affidavit, which it could have done pursuant to Rule 47. Moreover, Vaughan has not provided the Board with evidence on this motion regarding what information, if any, it contests from the Letyagina Affidavit.

d. The exhibits attached to the Letyagina Affidavit are letters, emails, invoices, building permits and correspondence from Vaughan. There is no evidence from Vaughan that it disputes the authenticity of the documents filed, and no evidence from Vaughan that suggests there is reason to doubt the reliability of the evidence contained in the Letyagina Affidavit.

e. Although Vaughan disputes whether the content of the Letyagina Affidavit is proper reply, the content of reply is not covered by the Rules. Accordingly, the Board does not accept that the documents were not served and filed in accordance with the Rules so as to preclude the documents from being admitted into evidence at a hearing per Rule 48. The Letyagina Affidavit was served and filed within the timelines prescribed for reply materials, therefore there is no need for the Appellant to establish exceptional circumstances.

f. The Appellant has consented to permitting Vaughan an opportunity to provide a substantive response to the issues raised in the Subject Appeals. This alleviates prejudice, if any, from Vaughan focusing its responding submissions on the lack of sworn evidence filed by the Appellant on July 2, 2021 rather than the substantive issues raised in the Subject Appeals.

14It is true that parties to a written hearing are expected to comply with the Rules by submitting properly sworn affidavit evidence. However, Rule 7 provides that the Board will determine the appropriate consequences of non-compliance with the Rules. In all of the circumstances, the Board finds that the appropriate consequence in this case is to permit the Letyagina Affidavit and provide Vaughan with an opportunity to revise its submissions, should it choose to do so, before proceeding with the written hearing.

ORDER

15The Board denies Vaughan’s motion.

16The Board orders as follows:

a. Vaughan is granted 20 days from the date this decision is issued to file amended responding submissions, should it choose to do so;

b. The Appellant is granted 10 days from the due date for Vaughan’s amended responding submissions, if any, to provide amended reply submissions;

c. The Board will re-schedule the written hearing to proceed within 10 days of the due date for the Appellant’s amended reply submissions.

17I am seized.