Tribunals Ontario
Tribunaux décisionnels Ontario
Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE:
June 15, 2021
FILE NO.:
DM 171093
Assessed Person(s):
Wolfond Construction Limited, Armel Corporation
Appellant(s):
Wolfond Construction Limited, Armel Corporation
Respondent(s):
Municipal Property Assessment Corporation Region 22
Respondent(s):
City of Guelph
Property Location(s):
See Schedule A
Municipality(ies):
City of Guelph
Roll Number(s):
See Schedule A
Appeal Number(s):
See Schedule A
Taxation Year(s):
2017, 2018, 2019, 2020 and 2021
Hearing Event No.:
744365
Legislative Authority:
Section 40 of the Assessment Act, R.S.O. 1990, c. A.31
Parties
Representatives
Wolfond Construction Limited, Armel Corporation
James Brook
Municipal Property Assessment Corporation
Rachel Lethbridge
City of Guelph
James Krauter
REQUEST FOR:
Order to exclude evidence and issues
HEARD:
May 6, 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:
a. an order barring the admission of any documents (or portions thereof) dealing with issues not raised in Wolfond Construction Limited and Armel Corporation’s (the “Appellants”) Statement of Issues (“SOI”);
b. an order that the Appellants be restricted from raising the new issues raised in their Amended SOI delivered on March 10, 2021; and
c. an order that the Appellants be prevented from relying upon their expert report delivered on March 10, 2021.
2The City of Guelph (the “City”) supports MPAC’s motion.
3The Appellants oppose MPAC’s request and asks the Board to amend the Amended Schedule of Events (“SOE”) to permit them to deliver the Amended SOI and expert report.
Result
4The Board has carefully considered the evidence, submissions, and case law provided by the parties. For the reasons that follow, the Board finds the Appellants did not serve their Amended SOI or expert report by the required due date set out in the Amended SOE, have not established exceptional circumstances, and consequently:
a. the Appellants are not granted an extension of time in which to provide the Amended SOI and expert report;
b. the Appellants cannot raise at a hearing of the Subject Appeals any issues that are not set out in the original SOI; and
c. the Appellants’ 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 various properties located on Speedvale Avenue West and Imperial Road North in the City of Guelph, Ontario (see Schedule A, the “Subject Properties”) for the 2017 to 2021 taxation years (the “Subject Appeals”). The Subject Properties are vacant land parcels in close proximity, and most are adjacent to one another. The Subject Properties are, for all intents and purposes, treated as one piece of land. They have the same analysis and have been treated as similar properties in these proceedings.
7The Board assigned a commencement date of February 15, 2019 to the Subject Appeals.
8The Appellants provided their SOI on July 26, 2019. MPAC provided its Statement of Response on January 15, 2020.
9On August 21, 2020, MPAC filed the Notice of Mandatory Meeting Form with the Board indicating the Appellants and MPAC consented to the extended stream.
10Accordingly, the Board issued an Amended SOE on August 24, 2020. Pursuant to this Amended SOE, the Appellants were required to provide MPAC and the City with an Amended SOI, expert report, and any other documents upon which they intended to rely at a hearing, by December 15, 2020.
11On December 17, 2020, the Appellants sent MPAC and the City a “without prejudice” email, attaching a “Valuators revised analysis.” This analysis was comprised of a one-page document containing two tables. The first table, entitled “Subject Properties,” contained information respecting three properties on Speedvale Avenue West, including a revised current value assessment for each property. The second table, entitled “Guelph Land Comparable Sales”, contains information respecting the Appellants’ proposed comparable sales for the purposes of their valuation.
12On January 13, 2021, MPAC reached out to the Appellants apologizing for the delay, advising it is reviewing and will be in touch.
13On February 9, 2021, the Appellants followed up with MPAC. No response was received.
14The Appellants served their expert reports and Amended SOI on March 10, 2021.
ISSUES
15The following issues must be decided on this motion:
a. Issue 1 - Did the Appellants fail to comply with the timelines prescribed in the SOE?
b. Issue 2 - If the answer to Issue 1 is yes, have the Appellants established exceptional circumstances?
c. Issue 3 - If the answer to (b) is yes, do those exceptional circumstances warrant granting an amendment to the SOE to permit the Appellants to serve and rely on their Amended SOI and expert reports?
ANALYSIS
Applicable Law
16Several of the Board’s Rules of Practice and Procedures (“Rules”) are relevant to this motion.
17Rule 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.
18Rule 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.
19Rule 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.
20Accordingly, the Appellants must convince the Board that there are exceptional circumstances before the Board can alter the timeline set out in the SOE. If the Appellants have missed the deadline in the SOE for raising an issue or serving a document, they must convince the Board that there are exceptional circumstances before they will be permitted to raise a new issue, or rely on a new document, at a hearing.
21The 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.
22If 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 Appellants additional time to serve the Amended SOI and expert report, and accordingly rely on those items at hearing of the Subject Appeals.
Issue 1 – Did the Appellants fail to comply with the timelines prescribed in the Amended SOE?
Submissions
23MPAC and the City submit that the Appellants failed to comply with the December 15, 2020 deadline for service of the expert report and Amended SOI. The expert report and Amended SOI were not served until March 10, 2020.
24The Appellants do not dispute that the Amended SOI and expert report were not served by December 15, 2020. Instead, the Appellants submit that they served the analysis ancillary of their expert report on MPAC and the City on December 17, 2020, and that they received a response from MPAC stating that MPAC will get back to them once they have an opportunity to review. The Appellants further submit that except time-adjusting the same sales pled in the SOI, the Appellants have not raised any new issues in the expert report or the Amended SOI.
Findings on Issue 1
25The Amended SOE required service of the Appellants’ expert report and any amendments to the SOI by December 15, 2020. The Appellants did not serve these items until March 10, 2020. The “without prejudice” email and attachment provided by the Appellants on December 17, 2020 do not constitute an Amended SOI and expert report. Accordingly, the Appellants did not comply with the timelines prescribed by the SOE and will require an amendment to the SOE if they wish to be permitted to rely on the Amended SOI and the expert report.
Issue 2 - Have the Appellants established exceptional circumstances?
Submissions
26The Appellants have requested that the Board find exceptional circumstances to amend the SOE and allow them to rely on their expert report and Amended SOI. That said, the Appellants have not made submissions regarding what they believe the exceptional circumstances to be. The Board is left to infer the exceptional circumstances from the Appellants’ affidavit evidence.
27It is the Appellants’ evidence that they provided MPAC with a valuation summary on December 17, 2020, only two days after the due date of their expert reports. It is the Appellants’ evidence that when parties are in settlement discussions, the parties focus on valuation summaries and data that quantifies the values and may resolve an appeal without the need to draft an expert report. It is the Appellants’ evidence that they hoped the appeals could be resolved via the analysis sent on December 17, 2020 without the need to produce expert reports. The Appellants state that they did not hear back until January 13, 2021 when MPAC committed to getting in touch with the Appellants once it had a chance to review. It is the Appellants’ evidence that they followed up with MPAC in February and, when no response was received, served MPAC with the expert reports and Amended SOI on March 10, 2021. The Appellants also state that they offered MPAC an extension to provide their reports, and MPAC’s request that the Board restrict the Appellants’ materials and issues was “unexpected.”
28In reply, MPAC submits that the December 17, 2020 information was sent “without prejudice” and there was no correspondence indicating the Appellants intended to rely on this analysis for their hearing materials. MPAC further submits this material was sent after the due date set out in the Amended SOE without explanation of exceptional circumstances justifying why it was late. Finally, MPAC submits the Appellants do not provide exceptional circumstances, except that MPAC did not give a response to the Appellants’ December 17, 2020 email.
29The City submits that the Appellants have not provided any reason to believe exceptional circumstances were the cause of the SOE not being followed.
Findings on Issue 2
30The Board does not find the Appellants have established circumstances that are exceptional, in the sense of being “unusual” or “atypical.”
31The Appellants’ position appears to be that it believed it was in settlement discussions and was relieved of the obligation to file its expert report and amended pleadings by December 15, 2020. That said, the Board finds there is no evidence of any communications between the parties from the time MPAC served its Statement of Response in January 2020 and the Appellants’ valuation summary provided on December 17, 2020. The Appellants took no steps to request an extension beyond December 15, 2020, from either MPAC or the Board. At no time did the Appellants advise it was sending its December 17, 2020 material in lieu of an expert report, or that it was not providing an expert report or amended pleadings by December 15, 2020 because of settlement discussions.
32The Board accepts the Appellants’ evidence that they hoped to avoid having to prepare an expert report by settling the matter on the basis of the December 17, 2020 valuation summary. That said, there is no evidence of the Appellants communicating this intention to MPAC or securing MPAC’s agreement to extend the deadline. MPAC’s January 13, 2021 email does not consent to an extension of the deadline in the SOE.
33Moreover, there is no evidence from the Appellants regarding any exceptional circumstances prior to December 15, 2020 that prevented it from serving its materials on that date.
34Accordingly, the Board finds the Appellants have not established exceptional circumstances warranting an extension to the SOE to permit it to serve and rely on its Amended SOI and expert report.
35Since the Board has not found exceptional circumstances in this case, it is not required to make a determination regarding Issue 3.
CONCLUSION
36The 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 SOE: 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.
37The Board finds that the Appellants failed to provide its expert report and Amended SOI in accordance with the timelines prescribed by the SOE. The Appellants have not satisfied the Board that exceptional circumstances exist to warrant an extension to the SOE, or to permit the Appellants to admit the expert report at a hearing, or to permit the Appellant to raise new issues identified in the Amended SOI.
ORDER
38The Board orders that:
a. the Appellants are not granted an extension of time in which to provide their Amended SOI and expert report;
b. the Appellants cannot raise at a hearing of the Subject Appeals any issues that are not set out in its original SOI;
c. the Appellant’s expert report of March 10, 2021 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 SOE for the Subject Appeals will resume, with the following amendments:
i. The due date for the Appellants to file any supplementary reports by its experts in reply to any expert reports served by a Responding party are to be extended for three weeks from the date this decision is issued.
ii. All other subsequent due dates are to be adjusted accordingly.
39The 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.
"Carly Stringer"
CARLY STRINGER
MEMBER
Assessment Review Board
Website: www.tribunalsontario.ca/arb
Telephone: 416-212-6349 Toll Free: 1-866-448-2248