Tribunals Ontario Tribunaux décisionnels Ontario Assessment Review Board Commission de révision de l’évaluation foncière
ISSUE DATE: May 19, 2021
Assessed Person(s): First Gulf Don Valley Limited, EHL (21 Don Roadway) Holdings, Don Valley Eastern V Limited, EHL (385 Eastern Ave) Holdings, Don Valley Eastern IV Limited and EHL (375 Eastern Ave) Holdings
Appellant(s): First Gulf Don Valley Limited, City of Toronto Revenue Services
Respondent(s): Municipal Property Assessment Corporation Region 09
Respondent(s): City of Toronto
Property Location(s): 21 Don Valley Parkway, Eastern Avenue, 385 Eastern Avenue, 375 Eastern Avenue
Municipality(ies): City of Toronto
Roll Number(s): See Schedule A
Appeal Number(s): See Schedule A
Taxation Year(s): 2017, 2018, 2019, 2020 and 2021
Hearing Event No.: 740888
Legislative Authority: Sections 32 and 40 of the Assessment Act, R.S.O. 1990, c. A.31
| Parties | Counsel |
|---|---|
| EHL (21 Don Roadway) Holdings, EHL (375 Eastern Ave) Holdings and EHL (385 Eastern Ave) Holdings | Richard R. Minster |
| First Gulf Don Valley Limited, Don Valley Eastern IV Limited and Don Valley Eastern V Limited | Phillip L. Sanford |
| Municipal Property Assessment Corporation | Melissa VanBerkum |
| City of Toronto | Angus MacKay |
REQUEST FOR: Disclosure
HEARD: March 8, 2021 in writing
ADJUDICATOR(S): Carly Stringer, Member
MOTION DECISION
OVERVIEW
1The Municipal Property Assessment Corporation (“MPAC”) brings this motion pursuant to the Assessment Review Board’s (the “Board”) Rules of Practice and Procedure (the “Rules”) Rule 45 seeking disclosure from First Gulf Don Valley Limited, Don Valley Eastern IV Limited and Don Valley Eastern V Limited (collectively “First Gulf”) and EHL (21 Don Roadway) Holdings Inc., EHL (375 Eastern Ave) Holdings Inc., and EHL (385 Eastern Ave) Holdings Inc. (collectively, “Cadillac Fairview”).
2MPAC requests the following disclosure:
| Disclosure Request No. | Disclosure Requested | Requested From |
|---|---|---|
| 1 | All information related to the 2019 Sale, including the Agreement of Purchase and Sale (“APS”), the reporting memoranda, information related to any lease review, assignments etc., (particularly in relation to 30 Booth), the land transfer tax affidavits and acquisition pro formas, whether internal or external. | First Gulf and Cadillac Fairview |
| 2 | Any information related to the development potential of the EHL prior to or after the 2019 purchase, including: - Any formal or informal planning or zoning reviews; - Analyses or opinions, financial feasibility studies; - Development pro formas. |
First Gulf and Cadillac Fairview |
| 3 | Any information related to the value of the EHL, including appraisals or opinions of value for any purpose, prepared since 2014. | First Gulf and Cadillac Fairview |
| 4 | Any reports, memos, emails, briefing notes, etc. that were prepared for the purpose of meetings, discussions, inquiries, etc. with Provincial Government members, representatives or staff related to the provincial approvals of OPA 411 and Site and Area Specific Policy (“SASP”) 426 and changes to the Building Code in connection with the Lower Don Lands and the Unilever Precinct Secondary Plan and site-specific zoning for the East Harbour lands. | First Gulf |
| 5 | Reports of any kind that were prepared by Cadillac Fairview for the consideration or approval of its Board of Directors and/or senior managerial and executive staff and/or the Board of Directors of Ontario Teachers’ Pension Plan (“OTPP”)in connection with the 2019 Sale. | Cadillac Fairview |
3MPAC also requests an amendment to the Schedule of Events (“SOE”) to accommodate this motion and its outcome.
4First Gulf and Cadillac Fairview oppose the motion.
5The City of Toronto takes no position on MPAC’s motion.
Result
6I have carefully reviewed the evidence, submissions, and case law provided by the parties. For the reasons that follow, the Board grants the motion for disclosure and the Board’s disposition for each Disclosure Request is provided below. The Board grants an amendment to the SOE.
BACKGROUND
The Properties and the Subject Appeals
7The properties listed in Schedule A hereto, collectively referred to as the East Harbour Lands (the “EHL”) are part of the same land assembly located east of the Don Valley Parkway in the City of Toronto.
8First Gulf was the owner of the EHL at the return of the roll for the 2017-2019 taxation years. Cadillac Fairview purchased the EHL on September 15, 2019 for a total purchase price of $690 million (the “2019 Sale”).
9First Gulf has appealed MPAC’s current value assessment of 21 Don Valley Parkway, the largest parcel of the EHL assembly, for the 2017-2020 taxation years (the “21 Don Valley Appeals”).
10The City of Toronto has appealed MPAC’s current value assessments for the Eastern Avenue properties in the EHL assembly for the 2019-2020 taxation years (together with the 21 Don Valley Appeals, the “Subject Appeals”).
11Cadillac Fairview is a party to the 2019 and 2020 taxation year appeals by virtue of paragraph 40(28) of the Assessment Act R.S.O. 1990, c. A.31 (the “Act”).
Planning History
12The EHL has been the focus of development and the Subject Appeals will no doubt include a detailed review of the planning history of this land assembly. For the purposes of this motion, it is relevant that First Gulf applied for a rezoning and subdivision approval for the EHL as of December 22, 2016. The City of Toronto described the application as “the largest commercial and retail application in the Greater Toronto Area, proposing 926,000 square meters (approximately 10 million square feet) of employment space and 50,000 workers at this location in the future.”
13An Official Plan Amendment (“OPA 411”), known as the Unilever Precinct Secondary Plan, relating to the EHL was approved on June 28, 2018. EHL site-specific zoning by-laws were enacted on July 27, 2018.
The Pleadings and Expert Reports Regarding 21 Don Valley
14The parties have exchanged pleadings.
15First Gulf has served an expert report by John Glen with respect to 21 Don Valley Parkway (the “Glen Report”). Cadillac Fairview has served an expert report by Matthias Hintikka with respect to 21 Don Valley Parkway (the “Hintikka Report”). MPAC has not finalized its expert report. Neither the Glen Report nor the Hintikka Report were filed with the Board for reference on this motion. To the extent the Board references either the Glen Report or the Hintikka Report in this Decision, the Board relies on the parties’ undisputed references to the content of the reports.
The Glen Report
16The Glen Report provides two different opinions of value for 21 Don Valley Parkway: $27,400,000.00 for the 2017 and 2018 taxation years and $58,700,000.00 for the 2019 and 2020 taxation years.
17For the 2017 and 2018 taxation years, the Glen Report values the property based on its current use.
18For the 2019 and 2020 taxation years, the Glen Report provides that there has been a change in the state and condition of 21 Don Valley as a result of OPA 411 and rezoning approval in 2018, and values the property with a highest and best use based on its development potential. In addition, the Glen Report valuation for the 2019 and 2020 taxation years includes a deduction to the land value for development costs relating to remediation and floodplain infrastructure, and 25% developer’s profit. The Glen Report indicates that MPAC’s estimate of current value is incorrect in that it does not account for, among other things, the cost of flood protection infrastructure and remediation. Finally, the Glen Report’s land sales analysis for 2019 and 2020 relies on 2016 and 2017 sales of five parcels within the EHL land assembly, being 30 Booth and the Eastern Avenue properties. There is an adjustment to the rate per square foot buildable of the 30 Booth sale to account for an existing lease at the time of sale. This lease remained in effect at the time of the 2019 Sale.
The Hintikka Report
19The Hintikka Report similarly determines that 21 Don Valley has undergone a change to its state and condition in 2018. The Hintikka Report notes that some of the uses permitted in 2017 and 2018 are prohibited after the site-specific rezoning in 2018.
ANALYSIS
20There is one issue to be decided on this motion in relation to each Disclosure Request: namely, should the Board order disclosure?
21The Board has reviewed and considered all of the submissions made by the parties but will reference only the most salient submissions in this Decision.
Issue: Should the Board order disclosure?
Applicable Legal Test
22Rule 45 requires that all parties provide a copy of “… all relevant documents in their possession, control or power to all other parties in the proceeding, except for privileged documents.”
23In determining whether to order disclosure in accordance with Rule 45, the Board applies a two-part test. First, the Board considers whether the information sought is relevant to the issues in dispute. Second, the Board considers whether ordering disclosure is proportionate in light of the issues in dispute: see Metro Ontario Inc. v Municipal Property Assessment Corporation, Region 13, 2019 CanLII 47974 (ON ARB) (“Metro”), supra at paragraph 11. The party seeking disclosure bears the onus to establish that a document should be disclosed: Walmart Canada Corporation and Target Canada Corporation v Municipal Property Assessment Corporation, Region 01, 2018 CanLII 67789 (ON ARB) (“Walmart”) at paragraph 19.
Relevance
24Relevance is determined in relation to the degree to which it appears the document is relevant to an issue in dispute: Walmart, supra at paragraph 19; Toyota Motor Manufacturing Canada Inc. v Municipal Property Assessment Corporation, 2020 CanLII 77938 (ON ARB) (“Toyota”) at paragraph 13.
Proportionality
25Relevance is not the only criteria that the Board will consider when determining whether a document should be disclosed. Rule 4 of the Board’s Rules provides the “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 assessment cycle.”
26Ultimately, the requirement to disclose relevant documents must be applied in a proportionate manner. As noted by the Board in Toyota, supra at paragraph 15,
In making this determination it is necessary for the Board to consider the competing interests of non-disclosure and, excessive disclosure which may unreasonably increase the cost in a particular case and delay the final resolution of the matter on its merits.
27Although the Rules do not include specific criteria to assess proportionality, the Board has previously applied the criteria enumerated in Rule 29.2.03(1) and (2) of Ontario’s Rules of Civil Procedure: Walmart, supra at paragraph 18. This is considered a non-exhaustive list and other criteria may be considered on a case by case basis.
Submissions of the Parties
28MPAC submits, generally, that the information it seeks is relevant to the issues in dispute. MPAC submits that its Response to the Statement of Issues of First Gulf regarding 21 Don Valley Parkway dated October 30, 2019 and its Amended Response dated September 4, 2020 put the 2019 Sale squarely in issue, therefore documents relating to the 2019 Sale and development of the EHL are relevant as evidence of current value. MPAC has provided further submissions respecting relevance in relation to each Disclosure Request:
a. Disclosure Request No. 1: MPAC submits this information is relevant as evidence of current value; state and condition of the EHL in 2019 and 2020; and deductions to the land rate, including whether the deductions made in the Glen Report were used by the parties to arrive at the 2019 Sale amount.
b. Disclosure Request No. 2: MPAC submits this information is relevant to the highest and best use analysis, particularly the probability of a zoning change for all years under appeal, and whether the redevelopment of the EHL for all years under appeal is financially feasible.
c. Disclosure Request No. 3: MPAC submits that in arriving at its final conclusion of the correct 2016 Correct Value Assessment, MPAC’s expert must check its opinion of value against other market evidence and opinions, including any appraisals that were prepared to assist in the final determination of the negotiated 2019 Sale amount. This information is relevant to compare as against MPAC’s opinion, the Glen Report, and the Hintikka report.
d. Disclosure Request No. 4: MPAC submits that this information is relevant to the probability of planning approvals and rezoning as of the January 1, 2016 valuation day.
e. Disclosure Request No. 5: MPAC submits that this information is relevant to the determination of the 2019 Sale amount and its approval.
29Cadillac Fairview has not made submissions in relation to each Disclosure Request. Cadillac Fairview submits, generally, that the requested information has little or no relevance to the issues in dispute. Cadillac Fairview submits that information regarding the 2019 Sale is not relevant and has little to no probative value, as it did not occur until almost four years after the statutory valuation date of January 1, 2016. Cadillac Fairview further submits that MPAC’s requests are not proportionate to the issues in dispute for the following reasons:
a. Time: properly responding to MPAC’s requests would take approximately 10,000 person hours to review over 40 gigabytes of data producing approximately 3,000,000 pages.
b. Expense: Cadillac Fairview has provided evidence that the cost to review all documents, search for confidential portions and obtain consents is estimated to be roughly $500,000, and it would take about three months.
c. Undue Prejudice: Cadillac Fairview submits many of the documents requested are confidential or commercially sensitive, and disclosure would reveal what Cadillac Fairview has recently agreed to or is willing to agree to if further acquisitions are required.
d. Slowing Progress of Proceeding: Cadillac Fairview submits it could take three months or longer to comply with an Order in the form requested by MPAC, and MPAC’s proposal for three months after productions are received for its expert report is optimistic.
e. Information Available from Another Source: Significant information is in the public domain or available to MPAC from the City of Toronto.
f. Excessive Volume of Documents Requested: Cadillac Fairview submits that MPAC’s request for documents between 2014 and 2021 includes over three million pages from Cadillac Fairview and close to a million estimated from First Gulf.
30First Gulf submits generally that MPAC’s requests exceed the bounds of reasonableness; that much of the requested documentation is of limited or no relevance; that many of the requests are unclear; and MPAC could obtain more complete information from the City of Toronto. In relation to each Disclosure Request, First Gulf makes the following submissions:
a. Disclosure Request No. 1: First Gulf relies on Cadillac Fairview’s submissions. First Gulf also notes it has a non-disclosure agreement and asks that it not be placed in a position of being ordered to breach its agreement.
b. Disclosure Request No. 2: First Gulf submits this request is excessively broad and unclear. First Gulf submits that there are more than 900,000 pages of materials in its files, and simply locating requested documents will be a very great challenge to which is added the significant difficulty of determining whether or not a particular document is responsive to one of the MPAC requests.
c. Disclosure Request No. 3: First Gulf submits that MPAC is simply “fishing” with this request. First Gulf further submits the request is burdensome, excessive, and inconsistent with the Board’s Rules 3 and 4 (formerly Rules 4 and 5).
d. Disclosure Request No. 4: First Gulf submits that here potentially sensitive and very private documents are sought which are not likely to assist the Board in its determination of any issue. First Gulf further submits that this Disclosure Request is not proportional, as compliance with an order in this form would require document review of a very extensive nature that is disproportionate to the benefit. First Gulf also submits that MPAC has not made the same disclosure request of the City of Toronto, which indicates the information sought is not essential.
31The Board will now consider each Disclosure Request in turn.
Disclosure Request No. 1
32MPAC requests “All information related to the 2019 Sale, including the APS, the reporting memoranda, information related to any lease review, assignments etc., (particularly in relation to 30 Booth), the land transfer tax affidavits and acquisition pro formas, whether internal or external.”
Findings
33The Board first considers whether the documents requested as part of Disclosure Request No. 1 are relevant.
34The Board does not accept First Gulf and Cadillac Fairview’s submission that these documents are irrelevant as the sale occurred in 2019, well after the January 1, 2016 valuation date. The reasoning of the Board in Municipal Property Assessment Corporation v Kraft Heinz Canada ULC, 2020 CanLII 38934 (ON ARB) (“Kraft”) at paragraphs 29-30 applies here. The fact that the property sale occurred after the valuation date does not determine relevance. It is Cadillac Fairview’s own evidence that the EHL was a “major acquisition” that involved multiple divisions and multiple persons in each division. A business transaction as complex as this would have been negotiated over a period of time prior to the date of the actual sale transaction. In any event, at this stage of the proceeding, the Board is not being asked to determine the merits of the appeal. As the Board confirmed in Kraft, supra, it is up to the Board’s Hearing Member deciding the appeal to determine if the property sale date is too far removed from the valuation date to affect the correct current value.
35The Board finds the items requested as part of Disclosure Request No. 1 are relevant. MPAC’s Amended Statement of Response has put the 2019 Sale in issue. MPAC takes the position that the 2019 Sale demonstrates the value of the lands as part of a redevelopment site and provides the best indication of value for the 2019 and 2020 taxation years. MPAC intends to seek a higher assessment based, in part, on the 2019 Sale. Information respecting the 2019 Sale is therefore relevant.
36The Board will now consider whether ordering disclosure is proportionate.
37A disclosure request “should be as targeted as possible in order to permit the other party to know what needs to be provided”: Adams v Municipal Property Assessment Corporation, Region 7, 2019 CanLII 18798 (ON ARB) at paragraph 10. MPAC has requested “all information” related to the 2019 Sale. The Board finds this is not a targeted, particularized request, and an order in this vein would not permit First Gulf and Cadillac Fairview to know what needs to be disclosed. MPAC has also broadly requested “information related to any lease review, assignments, etc.”. It is unclear what “information related to” and “etc.” would require Cadillac Fairview and First Gulf to produce. Ultimately, parts of Disclosure Request No. 1 are too broadly framed to be used in an order. Such a broad order would not be proportional to the issues in dispute.
38To the extent that MPAC has particularized certain parts of Disclosure Request No. 1, including its request for the APS, the reporting memoranda, the land transfer tax affidavits and acquisition pro formas relating to the 2019 Sale, I find this request proportionate to the issues in dispute, for the following reasons:
a. Production of these very specific documents mitigates the concerns raised by Cadillac Fairview and First Gulf about time, expense, excessive volume and delay. Even if the information contained in the requested documents is of limited probative value, a more targeted electronic search should be able to identify these specific items. The evidence does not suggest that the parties would be required to expend significant time and resources to locate and deliver these specified items.
b. Although it is possible that some of this information could be available from other sources, there is no evidence that the information requested is publicly available. The Board does not accept that this factor weighs against production given that both Cadillac Fairview and First Gulf have a duty to disclose all relevant documents in their possession, power or control.
c. The Board does not accept First Gulf and Cadillac Fairview’s submission that they would be unduly prejudiced by having to disclose confidential or commercially sensitive information. It is relevant that First Gulf and Cadillac Fairview’s confidentiality obligations are towards each other. They are both parties to this proceeding. This is not a case where the parties are being asked to disclose the documents of a non-party. Further, neither First Gulf nor Cadillac Fairview have provided sufficient evidence to explain why the usual protections, including implied undertakings, would be insufficient. If the information is particularly sensitive, Rule 89 permits the parties to request an order that any document filed with the Board be treated as confidential, be sealed, and not form part of the public record. In this context, the Board finds that neither Cadillac Fairview nor First Gulf has established that the alleged prejudice outweighs the importance of disclosing relevant documents.
39Therefore, the Board finds the items requested as part of Disclosure Request No. 1 are relevant; that disclosure of the APS, the reporting memoranda, acquisition pro formas and the land transfer tax affidavits related to the 2019 Sale is proportional to the issues in dispute; and therefore the APS, the reporting memoranda, acquisition pro formas and the land transfer tax affidavits related to the 2019 Sale should be disclosed.
Disclosure Request No. 2
40MPAC has requested “any information related to the development potential of the EHL prior to or after the 2019 purchase,” including any formal or informal planning or zoning reviews; analyses or opinions, financial feasibility studies; development pro formas.
Findings
41The Board first considers whether the documents requested as part of Disclosure Request No. 2 are relevant.
42The Board finds the items requested as part of Disclosure Request No. 2 are relevant. The items requested pertain to the development potential of the EHL, before or after the 2019 Sale. Both the Glen Report and the Hintikka Report appear to agree that the highest and best use of 21 Don Valley changed after the EHL site-specific rezoning in 2018. MPAC has provided evidence from its expert, Erika Greer, confirming that she must determine the highest and best use of the EHL land assembly in her valuation report. Two of the four prongs of the highest and best use analysis are legal permissibility (including the probability of a zoning change) and financial feasibility (of a redevelopment of the EHL). The documents requested as part of Disclosure Request No. 2 are relevant to these issues, particularly as potential evidence informing the financial feasibility and legal permissibility prongs of the highest and best use analysis.
43The Board will now consider whether ordering disclosure is proportionate.
44As noted in the Board’s analysis respecting Disclosure Request No. 1, requests for disclosure must be sufficiently targeted so the disclosing party knows what needs to be disclosed. The Board finds that MPAC’s request for “any information related to the development potential of the EHL prior to or after the 2019 purchase…” is not a targeted, particularized request. “Any information” is very broad; “development potential” is unclear; and “prior to” the 2019 Sale is an undefined timeframe. The request for “planning or zoning reviews” and “analyses or opinions” is similarly ill-defined. An order in this vein would not permit First Gulf and Cadillac Fairview to know what needs to be disclosed. Ultimately, parts of Disclosure Request No. 2 are too broadly framed to be used in an order. Such a broad order would not be proportional to the issues in dispute.
45To the extent that MPAC has particularized certain parts of Disclosure Request No. 2, including its request for financial feasibility studies and development pro formas relating to the EHL and the 2019 Sale, the Board finds this targeted request proportionate to the issues in dispute, provided Cadillac Fairview and First Gulf are given a defined timeframe in which to search for relevant documents. The Board relies on its analysis on Disclosure Request No. 1, contained in paragraph 38 (a) to (c) above.
46Therefore, the Board finds that the items requested as part of Disclosure Request No. 2 are relevant. The Board further finds that limiting disclosure to financial feasibility studies and development pro formas related to the EHL and the 2019 Sale prepared since 2014 is proportional to the issues in dispute; and therefore, these specific items should be disclosed.
Disclosure Request No. 3
47MPAC has requested “any information related to the value of the EHL, including appraisals or opinions of value for any purpose, prepared since 2014.”
Findings
48The Board will first consider relevance of Disclosure Request No. 3.
49The Board finds the items requested as part of Disclosure Request No. 3 are relevant. The Board relies on its reasoning in Loblaw Properties Limited v Municipal Property Assessment, Region 09, 2021 CanLII 10167 (ON ARB) at paragraphs 54 and 55, regarding the relevance of appraisals. In that decision, the Board considered a disclosure request for appraisal valuations and found:
a. The requested appraisals pertained to the properties under appeal, and therefore might include information relevant to the issue in dispute irrespective of whether the experts will ultimately rely on the appraisals when determining current value;
b. The requesting party is entitled to review relevant information and determine whether they will seek to adduce all or part of it into evidence; and
c. Disclosure of the appraisal valuations does not constitute an admission of relevance for the purposes of a hearing, or admissibility.
50For these reasons, the Board finds the items requested as part of Disclosure Request No. 3 are relevant.
51The Board will next consider proportionality.
52The Board does not find that Disclosure Request No. 3, as worded, is proportionate. “Any information related to the value of the EHL… prepared since 2014” is a very broadly worded request. The Board finds its analysis respecting the broad nature of Disclosure Request Nos. 1 and 2 applies equally here. Such a broad order would not be proportional to the issues in dispute.
53MPAC did provide some specificity by requesting any opinions or appraisals relating to the value of the EHL prepared since 2014. First Gulf does not object to disclosing any opinions or appraisals supplied by experts that were not prepared in connection with the Subject Appeals. Cadillac Fairview’s evidence is there were no appraisals conducted prior to the acquisition of the property nor any formal appraisals of value since the date of the sale and, consequently, there is nothing to disclose.
54Recognizing that Cadillac Fairview is not obliged to disclose documents that do not exist, the Board finds that, to the degree MPAC is requesting appraisals or opinions of value of the EHL, prepared for any purpose since 2014, save and except those prepared in connection with the Subject Appeals, this specific request is proportionate to the issues in dispute.
55Therefore, the Board finds that the items requested as part of Disclosure Request No. 3 are relevant. The Board finds that limiting disclosure to appraisals or opinions of value of the EHL, prepared for any purpose since 2014, save and except those prepared in connection with the Subject Appeals, is proportional to the issues in dispute; and therefore these specific items should be disclosed.
Disclosure Request No. 4
56MPAC requests “any reports, memos, emails, briefing notes, etc. that were prepared for the purpose of meetings, discussions, inquiries, etc. with Provincial Government members, representatives or staff related to the provincial approvals of OPA 411 and SASP 426 and changes to the Building Code in connection with the Lower Don Lands and the Unilever Precinct Secondary Plan and site-specific zoning for the East Harbour lands.”
Findings
57The Board will first consider relevance.
58The Board finds that the items requested as part of Disclosure Request No. 4 are relevant. As noted in the Board’s analysis in relation to Disclosure Request No. 2, the highest and best use of the EHL for all years, and the probability of planning approvals as of January 1, 2016, are in issue. The items requested as part of Disclosure Request No. 4 are relevant to the probability of zoning changes and the applicable OPAs, which factors into the “legally permissible” prong of the highest and best use analysis.
59The Board does not accept First Gulf’s submission that MPAC ought to have included the City of Toronto in this motion, and that the failure to do so suggests the information is not essential. First, the Board notes that information must not be “essential” to trigger a Rule 45 disclosure obligation. The test is relevance. Second, there is no evidence supporting what information is available from the City of Toronto. First Gulf suggests that the City records would have been more helpful, but this is speculative. Third, First Gulf is required, pursuant to the Board’s Rules, to disclose relevant documents where such disclosure is proportionate to the issues in dispute. MPAC’s choice not to pursue the information from the City of Toronto does not obviate its relevance.
60For these reasons, the Board finds the documents requested as part of Disclosure Request No. 4 are relevant.
61The Board will next consider proportionality.
62To the extent MPAC’s request includes the unclear and broad “etc.” as part of Disclosure Request No. 4, the request is not proportionate, and it would not be appropriate to issue an order in this form. That said, Disclosure Request No. 4 does provide a more targeted request being reports, memos, emails and briefing notes prepared for the purpose of meetings, discussions and inquiries with Provincial Government members, representatives or staff related to the provincial approvals of OPA 411 and SASP 426 and changes to the Building Code in connection with the Lower Don Lands and the Unilever Precinct Secondary Plan and site-specific zoning for the East Harbour lands.
63A targeted order—for reports, memos, emails and briefing notes prepared for the purpose of meetings, discussions and inquiries with Provincial Government members, representatives or staff related to the provincial approvals of OPA 411 and SASP 426 and changes to the Building Code in connection with the Lower Don Lands and the Unilever Precinct Secondary Plan and site-specific zoning for the East Harbour lands—would be proportionate to the issues in dispute, for the reasons enumerated at paragraph 38 (a) to (c) herein.
64Therefore, the Board finds that the items requested as part of Disclosure Request No. 4 are relevant. The Board finds that limiting disclosure to reports, memos, emails and briefing notes prepared for the purpose of meetings, discussions and inquiries with Provincial Government members, representatives or staff related to the provincial approvals of OPA 411 and SASP 426 and changes to the Building Code in connection with the Lower Don Lands and the Unilever Precinct Secondary Plan and site-specific zoning for the East Harbour lands, is proportional to the issues in dispute; and therefore these specific items should be disclosed.
Disclosure Request No. 5
65MPAC requests “reports of any kind that were prepared by Cadillac Fairview for the consideration or approval of its Board of Directors and/or senior managerial and executive staff and/or the Board of Directors of OTPP in connection with the 2019 Sale.”
Findings
66The Board will first consider relevance.
67The Board finds the documents requested as part of Disclosure Request No. 5 are relevant. For the reasons outlined in the Board’s analysis in relation to Disclosure Request No. 1, the terms of the 2019 Sale are relevant. Reports to its Board of Directors, senior managerial staff and/or the Board of the OTTP regarding the 2019 Sale and its terms are therefore relevant.
68Cadillac Fairview has not provided specific submissions in relation to Disclosure Request No. 5; therefore, the Board has considered its general submissions relating to proportionality. The Board adopts its analysis from paragraph 38 (a) to (c) herein, finding that Disclosure Request No. 5 is proportionate to the issues in dispute.
69Therefore, the Board finds that the items requested as part of Disclosure Request No. 5 are relevant. The Board finds that disclosure of these items is proportional to the issues in dispute; and therefore, the items requested as part of Disclosure Request No. 5 must be disclosed.
Documents and Information Provided to Mr. Hintikka and Mr. Glen
70MPAC submits in its Reply that a disclosure order is necessary to “level the playing field.” MPAC submits that in the absence of an order for disclosure, it does not have access to Cadillac Fairview or First Gulf’s documents and information. In particular, MPAC points to Mr. Hintikka stating that he has “reviewed extensive documents” provided “by the property owners and sourced independently”; that he “gathered data from First Gulf executives and consultants retained by Cadillac Fairview”; and “[o]f particular importance was the information gleaned from planners involved in the work leading to the zoning by-law and official plan amendment for the property, passed in the summer of 2018.” MPAC submits that, at a minimum, the Board should order disclosure of all documents and information provided, or made available to, Mr. Hintikka and Mr. Glen.
71Neither First Gulf nor Cadillac Fairview have made submissions on this precise point, but their submissions regarding the other Disclosure Requests can be considered in relation to this request from MPAC.
Findings
72The Board accepts MPAC’s submission on this point. The information provided by First Gulf and Cadillac Fairview and reviewed by Mr. Hintikka and Mr. Glen in preparation of their expert reports is relevant. Since First Gulf and Cadillac Fairview were able to provide this information to their experts, it should not be too difficult to provide to MPAC. The Board adopts its analysis from paragraph 38 (a) to (c) herein regarding proportionality.
ORDER
73The motion for disclosure is granted as follows:
a. In response to Disclosure Request No. 1, First Gulf and Cadillac Fairview are required to disclose the Agreement of Purchase and Sale, the reporting memoranda, acquisition pro formas and the land transfer tax affidavits related to the 2019 Sale;
b. In response to Disclosure Request No. 2, First Gulf and Cadillac Fairview shall disclose any financial feasibility studies and development pro formas related to the EHL and the 2019 Sale prepared since 2014, to the extent these documents are within their possession, power or control;
c. In response to Disclosure Request No. 3, First Gulf and Cadillac Fairview shall disclose all appraisals or opinions of value of the EHL, prepared for any purpose since 2014, save and except those prepared in connection with the Subject Appeals, to the extent these documents are within their possession, power or control;
d. In response to Disclosure Request No. 4, First Gulf shall disclose all reports, memos, emails and briefing notes prepared for the purpose of meetings, discussions and inquiries with Provincial Government members, representatives or staff related to the provincial approvals of OPA 411 and SASP 426 and changes to the Building Code in connection with the Lower Don Lands and the Unilever Precinct Secondary Plan and site-specific zoning for the East Harbour lands, to the extent these documents are within its possession, power or control;
e. In response to Disclosure Request No. 5, Cadillac Fairview shall disclose reports of any kind that were prepared by Cadillac Fairview for the consideration or approval of its Board of Directors and/or senior managerial and executive staff and/or the Board of Directors of OTPP in connection with the 2019 Sale, to the extent these documents are within its possession, power or control; and
f. First Gulf and Cadillac Fairview shall disclose all information, documents and data provided to and reviewed by Mr. Hintikka and Mr. Glen relating to the Subject Appeals.
74First Gulf and Cadillac Fairview are directed to provide this disclosure no later than 60 days of the issuance of this motion decision.
75In 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:
a. The due date for MPAC to serve its expert report, as set out in the Schedule of Events, is extended to 60 days after First Gulf and Cadillac Fairview have complied with their disclosure obligations in accordance with this motion decision.
b. All other subsequent due dates are to be adjusted accordingly.
76The Board’s Case Coordinator will advise the parties of the specific due dates, which may be adjusted slightly due to constraints imposed on the Board’s electronic case management system.
"Carly Stringer"
CARLY STRINGER MEMBER Assessment Review Board Website: www.tribunalsontario.ca/arb Telephone: 416-212-6349 Toll Free: 1-866-448-2248