Tribunals Ontario

Assessment Review Board

ISSUE DATE: May 20, 2021 FILE NO.: DM 170645

Assessed Person(s): Armel Corporation Appellant(s): Armel Corporation Respondent(s): Municipal Property Assessment Corporation Region 22 Respondent(s): City of Guelph

Property Location(s): 219 Silvercreek Parkway North Municipality(ies): City of Guelph Roll Number(s): 2308-040-016-28100-0000 Appeal Number(s): 3246175, 3311902, 3365681, 3409563 and 3447867 Taxation Year(s): 2017, 2018, 2019, 2020 and 2021 Hearing Event No.: 742975

Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31

APPEARANCES:

Parties	Representative
Armel Corporation	James Brock
Municipal Property Assessment Corporation	Doug Keyes
City of Guelph	James Krauter

REQUEST FOR: Order to restrict new issues and evidence HEARD: April 1, 2021 in writing ADJUDICATOR(S): Carly Stringer, Member

MOTION DECISION

OVERVIEW

1The Municipal Property Assessment Corporation (“MPAC”) has brought this motion before the Assessment Review Board (the “Board”) seeking an order for the exclusion of Armel Corporation’s (the “Appellant”) Amended Statement of Issues (“SOI”) and expert report delivered on February 19, 2021.

2The City of Guelph (the “City”) supports MPAC’s motion.

3The Appellant opposes MPAC’s request and asks the Board to amend the Amended Schedule of Events (“SOE”) to permit it to deliver the Amended SOI and expert report, and to allow MPAC and the City to respond.

Result

4The Board has carefully considered the evidence, submissions, and case law provided by the parties. For the reasons that follow, the Board finds:

a. The Appellant did not serve its Amended SOI or expert report by the required due date set out in the Amended SOE, has not established exceptional circumstances, and, consequently:

i. The Appellant is not granted an extension of time in which to provide the Amended SOI and expert report;

ii. The Appellant cannot raise at a hearing of the Subject Appeals any issues that are not raised in its original SOI; and

iii. The Appellant’s expert report cannot be admitted into evidence at the hearing of the Subject Appeals.

BACKGROUND

5The facts behind this motion are not significantly in dispute.

6The underlying appeals relate to 219 Silvercreek Parkway North in Guelph, Ontario (the “Subject Property”) for the 2017 to 2021 taxation years (the “Subject Appeals”). The Appellant is the owner of the Subject Property.

7The Board assigned a Commencement Date of January 15, 2019 to the Subject Appeals. Pursuant to the original SOE for the Subject Appeals, the Appellant was required to provide its SOI on June 11, 2019. The Appellant did not provide its SOI until July 8, 2019.

8Pursuant to the original SOE, the parties were required to complete a Mandatory Settlement Meeting and provide the corresponding Notice of Mandatory Meeting Form to the Board by March 20, 2020. The Mandatory Meeting was scheduled for March 19, 2020. The Appellant was unable to attend due to technical difficulties.

9On March 19, 2020, MPAC and the Appellant exchanged emails and agreed they would proceed with the Subject Appeals in the “extended stream”, with an extension to the SOE for additional expert reports. On March 20, 2020, MPAC filed the Notice of Mandatory Meeting Form with the Board, confirming the Subject Appeals would require an extension to the SOE for additional expert reports. The Appellant was copied on this filing.

10On November 19, 2020, the Board issued the Amended SOE for the Subject Appeals, reflecting the extension for additional expert reports. The Amended SOE required the Appellant to provide MPAC and the City with any Amended SOI, expert report, and any other documents upon which it intended to rely at a hearing, by December 15, 2020.

11No communications were received from, nor were materials provided by, the Appellant by December 15, 2020.

12On February 10, 2021, the Appellant sent an email to MPAC requesting a copy of the Notice of Mandatory Meeting Form.

13On February 11, 2021, MPAC provided the Notice of Mandatory Meeting Form and a copy of the Amended SOE. MPAC told the Appellant it was in default and MPAC would not accept materials unless the Appellant showed exceptional circumstances.

14On February 12, 2021, the Appellant requested an extension from MPAC and the City, referencing what it believed to be exceptional circumstances warranting an extension.

15MPAC and the City did not consent to the Appellant’s request for an extension of time.

16On February 19, 2021, the Appellant served MPAC and the City with an Amended SOI and expert report.

17On March 3, 2021, MPAC filed an Expedited Board Direction Form seeking that the Appellant be barred from bringing new evidence and addressing new issues on the basis that the Amended SOI and expert report were provided outside of the timeline prescribed in the Amended SOE.

18The Board subsequently scheduled the within motion to be heard in response to MPAC’s request.

19On this motion, the Appellant provided the following explanation for its failure to comply with the Amended SOE:

a. On or about February 10, 2021, the Appellant became aware that the dates following the Mandatory Settlement Meeting in the Subject Appeals were not populated in its internal system for keeping track of procedural SOE dates.

b. The Appellant’s internal tracking system relies on support staff manually inputting future dates based on SOEs and Amended SOEs received from the Board’s case coordinators, as well as the “General Appeals List” and the “General Appeals List with Expert Reports” which are posted monthly on the Board’s website.

c. In February 2021, the Appellant checked the “General Appeals List” and the “General Appeals List with Expert Reports” and determined the Subject Property was not listed on the “General Appeals List with Expert Reports.” The Appellant states this is one of the reasons the date for service of the Appellant’s expert report was not populated in its system.

d. The Appellant states that it did not receive an Amended SOE from the Board and did not become aware of the December 15, 2020 deadline until receiving the Amended SOE from MPAC on February 11, 2021.

PRELIMINARY MATTERS

20Before the Board can address the primary issues on this motion, the Appellant has raised, as a preliminary issue, an allegation that MPAC is in breach of the Board’s Rules of Practice and Procedure (the “Rules”). The Board will address this preliminary issue first.

Submissions

21The Appellant submits that MPAC’s representative is acting as both advocate and witness without leave of the Board, contrary to Rule 14. The Appellant raises several other objections that are related to this issue, including, without limitation, objecting to MPAC requesting leave from the Board as part of its Reply on this motion and objecting that MPAC’s representative and witness has provided improper opinion evidence in his affidavit. The Appellant submits it is prejudiced.

22In response, MPAC agrees that it ought to have sought leave of the Board to act as both advocate and witness, but submits that the purpose and balance of the Rules, along with the resulting prejudice to MPAC and the City, allow for the motion to proceed and the materials originally provided by MPAC to be considered. MPAC seeks leave from Board to act as both witness and advocate on this motion.

23The City submits that the evidence provided by MPAC’s witness is fact, not opinion. The City submits that the motion materials should be accepted and denies any prejudice to the Appellant.

Applicable Law

24Rule 14 provides:

A representative that is licensed by the Law Society of Ontario as a paralegal or lawyer may appear at a hearing event as both an advocate and a witness:

a. in a summary proceeding before the Board: or

b. in a general proceeding with leave of the Board.

Findings on Preliminary Matters

25Although it would have been preferable for MPAC to have requested leave of the Board in advance, the Board grants leave to MPAC for its representative to act as both advocate and witness on this motion, for the following reasons:

a. This is a procedural motion relating to non-compliance with the SOE and the facts are not significantly in dispute.

b. MPAC’s representative is one of few individuals with knowledge of the facts and history of the issue in dispute.

c. Permitting MPAC’s representative to act as witness in this instance will ensure the just, most expeditious and least expensive determination of this motion.

d. The Board does not accept the Appellant’s argument that MPAC’s witness has provided improper opinion evidence regarding prejudice to MPAC. The Board finds that MPAC’s witness has provided evidence regarding the fact of prejudice to MPAC.

e. The Board does not accept the Appellant’s submission that it should be permitted to make additional submissions on the issue of leave. The Appellant raised the issue of MPAC’s representative acting as both advocate and witness in its responding materials and has provided a comprehensive position objecting to leave. MPAC has not provided new evidence on this issue. The Board therefore finds that neither fairness nor natural justice requires giving the Appellant an opportunity for reply on the singular issue of leave to act as advocate and witness. The further delay that would result from additional submissions is simply not warranted, nor does it serve the objective of the just, most expeditious and least expensive determination of this issue.

f. Although the Appellant states that it is prejudiced by MPAC’s representative acting as both advocate and witness, it has not provided evidence or submissions regarding the nature of that alleged prejudice.

26In the circumstances, the Board grants leave for MPAC’s representative to act as both advocate and witness on this motion only. MPAC must assign a different representative for any future hearing events, if MPAC intends to call Mr. Keyes as a witness again.

ISSUES

27The following issues must be decided on this motion:

a. Did the Appellant fail to comply with the timelines prescribed in the Amended SOE?

b. If the answer to (a) is yes, has the Appellant established exceptional circumstances?

c. If the answer to (b) is yes, do those exceptional circumstances warrant granting an amendment to the Amended SOE to permit the Appellant to serve and rely on its Amended SOI and expert report?

ANALYSIS

Applicable Law

28Several of the Board’s Rules are relevant to this motion.

29Rule 48 provides:

A document, including an expert report, may only be admitted into evidence at a hearing event if it has been served on all other parties and filed with the Board, in accordance with these Rules, unless the Board determines that there are exceptional circumstances.

30Rule 49 provides:

An issue can only be raised at a hearing event if it has been set out in the Statements of Issues and Response which have been served on all parties and filed with the Board in accordance with these Rules, unless the Board determines that there are exceptional circumstances.

31Rule 40 provides that once the SOE has begun, “the Board will not alter any due date set out in the Schedule of Events other than in exceptional circumstances.” The underlying purpose of Rule 40 is to ensure the timely resolution of appeals, within the amount of time specified in the SOE: see General Motors of Canada Company v St. Catharines (City), 2021 CanLII 794 (ON ARB) at paragraph 29.

32Accordingly, the Appellant must convince the Board that there are exceptional circumstances before the Board can alter the timeline set out in the SOE. If the Appellant has missed the deadline in the SOE for raising an issue or serving a document, it must convince the Board that there are exceptional circumstances before the Appellant will be permitted to raise a new issue, or rely on a new document at a hearing.

33The Board has previously opined on what constitutes “exceptional circumstances.” Namely, “exceptional means, among other things, something that does not occur regularly, something unusual, or something atypical:” Mississauga (City) v Michalakos, 2018 CanLII 126632 (ON ARB) (“Michalakos”) at paragraph 10.

34If there are no exceptional circumstances, the analysis ends. If the Board determines there are exceptional circumstances, it must then consider whether the circumstances, including the balance of prejudice between the parties, favour granting an amendment to the SOE that would allow the Appellant additional time to serve its Amended SOI and expert report, and accordingly rely on those items at hearing of the Subject Appeals.

Issue 1 – Did the Appellant fail to comply with the timelines prescribed in the Amended SOE?

Submissions

35The parties agree that the Appellant failed to comply with the timeline prescribed in the Amended SOE. The Amended SOE required that the Appellant serve its expert report and any amendments to its SOI by December 15, 2020. The Appellant served its expert report and Amended SOI on February 19, 2021.

Findings on Issue 1

36The Board finds the Appellant failed to comply with the timelines prescribed in the Amended SOE for service of its Amended SOI and expert report.

Issue 2 - Has the Appellant established exceptional circumstances?

Submissions

37The parties have made various submissions on this issue. The Board has considered all of the parties’ submissions but will reference only those most germane to the analysis.

38The Appellant submits the events and omissions that occurred in this case, specifically those outlined at paragraph 19 herein, constitute exceptional circumstances that warrant altering the timeline in the SOE to permit it to serve its Amended SOI and expert report and rely on these items at the hearing of the Subject Appeals. It submits there is no evidence of willful non-compliance with the Rules, but rather administrative oversight of the filing deadlines.

39MPAC submits that the events described by the Appellant do not constitute exceptional circumstances, for the following reasons:

a. Regarding not receiving the Amended SOE, the Appellant’s representative was copied on the Board’s communication of the Amended SOE on November 19, 2020.

b. Regarding the Subject Appeals not being listed on the “General Appeals List with Expert Reports” on the Board’s website, the Board is not responsible for the Appellant’s records or holding it to the SOE.

c. The “General Appeals List” showed the Mandatory Meeting deadline of August 24, 2020.

d. When the Board resumed on June 1, 2020 and published its revised lists following the pandemic suspension, the Subject Property was updated with new deadlines. Accordingly, the Appellant was made reasonably aware of future deadlines on June 1, 2020.

e. In fact, the Appellant was aware the Subject Appeals were following the “extended stream” on March 19, 2020 and it is a reasonable expectation for the Appellant to have been able to determine the respective due dates.

f. With the resumption of the SOE on June 1, 2020, the Appellant had everything necessary to determine when its materials would have been due and could have reached out well in advance.

40The City submits that the Appellant has not shown exceptional circumstances. The City submits, among other things, that the Appellant has an experienced representative and would have known the estimated timeline of the due date for submissions at the time of the Mandatory Settlement Meeting in March 2020.

Findings on Issue 2

41The Board finds the Appellant has not established exceptional circumstances, for the following reasons:

a. The Appellant is expected to be aware of dates in its Schedules of Events. The “General Appeals List” and “General Appeals List with Expert Reports” on the Board’s website is available for information only.

b. Even if the Appellant could rely on the “General Appeals List with Expert Reports” alone, the Board is not satisfied with the Appellant’s explanation that its administrative oversight was caused by the Subject Property not being listed on the “General Appeals List with Expert Reports.” The Appellant provided the Board with both the “General Appeals List with Expert Reports” dated December 2020, and the “General Appeals List” dated December 2020, in its motion materials. While the “General Appeals List with Expert Reports” does not identify the Subject Property, the “General Appeals List” identifies the Subject Property with an ultimate document filing date of September 21, 2020 and a hearing month of March 2021. The Appellant has not explained why this earlier deadline did not trigger it for an earlier filing relating to the Subject Property, rather than missing a filing deadline altogether until February 2021.

c. Even factoring in the suspension of time due to the pandemic, there is no evidence regarding any steps taken by the Appellant between March 19, 2020 and February 10, 2021. The Appellant’s lack of action until February 2021 is not reasonable.

d. It is undisputed that the Appellant was one month late in providing its original SOI. This demonstrates some measure of previous non-compliance with the SOE.

e. The Appellant is represented by an experienced paralegal who ought to be familiar with the Rules, including timelines following agreement to the “extended stream” in March 2020.

42Overall, the Appellant has indicated that, due to an administrative oversight, its manual system for tracking procedural deadlines was insufficient. This caused the Appellant to miss a procedural deadline in this appeal proceeding. While an administrative oversight is an unfortunate circumstance, it is not an exceptional one in the sense of being “unusual” or “atypical.” Accordingly, the Board does not find the circumstances in this instance to be exceptional.

43Since the Board has not found exceptional circumstances in this case, it is not required to make a determination regarding Issue 3.

CONCLUSION

44The Board has been clear that “the Board will strictly enforce the new Rules, and expects compliance”: Municipal Property Assessment Corporation, Region No. 9 v 234900 Ontario Ltd., 2018 CanLII 248 (ON ARB), 2017 CanLII 74719 (ON ARB) at paragraph 9. Parties that appear before the Board have been made well aware that the Board will strictly enforce its Rules, and it expects compliance with the timelines prescribed in the Schedule of Events: see Orlando Corporation v Municipal Property Assessment Corporation, Region 15, 2021 CanLII 8253 (ON ARB) at paragraph 38. The consequences for failing to comply with the SOE in this context are clearly set out in Rules 48 and 49, which apply unless a party can satisfy the Board that exceptional circumstances exist.

45The Board finds that the Appellant failed to provide its expert report and Amended SOI in accordance with the timelines prescribed by the Schedule of Events. The Appellant has not satisfied the Board that exceptional circumstances exist to warrant an extension to the SOE, or to permit the Appellant to admit the expert report at a hearing, or to permit the Appellant to raise new issues identified in the Amended SOI.

ORDER

46The Board grants MPAC’s motion, and orders that:

a. The Appellant is not granted an extension of time in which to provide its Amended SOI and expert report;

b. The Appellant cannot raise at a hearing of the Subject Appeals any issues that are not raised in its original SOI;

c. The Appellant’s expert report cannot be admitted into evidence at the hearing of the Subject Appeals;

d. In view of the exceptional circumstances caused by the delay in resolving this motion and pursuant to Rule 40, the Board orders the Schedule of Events for the Subject Appeals will resume, with the following amendments:

i. The due date for MPAC and the City to serve their expert reports, as set out in the Schedule of Events, is extended for four (4) weeks from the date this decision is issued.

ii. All other subsequent due dates, which includes the due date for the Appellant to file any supplementary reports by its experts in reply to any expert reports served by a Responding party are to be adjusted accordingly.

47The Board’s Case Coordinator will advise the parties of the specific due dates, which may be adjusted slightly due to constraints imposed by the Board’s electronic Case Management System.