City of Greater Sudbury v. Municipal Property Assessment Corporation, 2021 CanLII 56409

Tribunals Ontario

Assessment Review Board

ISSUE DATE: June 25, 2021 FILE NO.: DM 171092

Assessed Person(s): MacRanald Enterprises Inc. Appellant(s): City of Greater Sudbury, Ed Stankiewicz Respondent(s): Municipal Property Assessment Corporation Region 30, City of Sudbury

Property Location(s): Regional Road 15 Municipality(ies): City of Sudbury Roll Number(s): 5307-160-023-04900-0000 Appeal Number(s): 3223855, 3314489, 3367802, 3411039 and 3449130 Taxation Year(s): 2017, 2018, 2019, 2020 and 2021 Hearing Event No.: 743379

Legislative Authority: Rule 45 of the Assessment Review Board’s Rules of Practice and Procedure and section 53 of the Assessment Act R.S.O. 1990, c. A.31

Parties	Counsel
MacRanald Enterprises Inc.	Jamie G. Walker, Stephen L. Longo
The City of Greater Sudbury	Stefan Zhelev
Municipal Property Assessment Corporation	Karey Lunau, Jennifer A. Barlow

REQUEST FOR: An Order for Disclosure

HEARD: May 6, 2021 in writing

ADJUDICATOR(S): Carly Stringer, Member

MOTION DECISION

OVERVIEW

1The City of Greater Sudbury (the “City”) filed appeals with the Assessment Review Board (the “Board”) with respect to the January 1, 2016 current value assessment (“CVA”) of the property located on Regional Rd 15 Rayside Con 4 Lot 7 PCL 8578 in Greater Sudbury (the “Subject Property”) relating to the 2017 to 2021 taxation years. The owner of the Subject Property is MacRanald Enterprises Inc. (the “Owner”).

2The City filed a Notice of Motion seeking an Order for disclosure pursuant to Rule 45 of the Board’s Rules of Practice and Procedure (“Rules”) and s. 53(5) of the Assessment Act, R.S.O. 1990, c A.31 (the “Act”), directing the Owner and the Municipal Property Assessment Corporation (“MPAC”) disclose the information listed in Attachment 1 (“Disclosure Requests”).

3MPAC submits it has responded to all of the City’s requests to date and has produced all documentation which exists and is not otherwise available to the City, with the exception of material subject to s. 53 of the Act.

4The Owner opposes the motion. The Owner seeks an order dismissing the motion on the basis it has been brought too late and there are no exceptional circumstances warranting an extension to the deadline in the Schedule of Events (“SOE”). The Owner also seeks an order dismissing the subject appeals pursuant to Rule 24 for failure to comply with Rule 43 and, in the event the subject appeals are not dismissed, an order granting Gateway Casinos and Enterprises Limited (“Gateway”) party status.

Result

5The Board has carefully reviewed the evidence, submissions, and case law provided by the parties. For the reasons that follow, the Board grants the motion for disclosure in part. The Board’s specific disposition for each Disclosure Request is set out in the Board’s findings below. The Board will grant an extension to the SOE to accommodate this motion.

BACKGROUND

6The Subject Property is used as a casino operated by Gateway. The Subject Property is leased in part to Gateway until 2025 pursuant to a Lease Agreement dated April 1, 2013 and a Notice of Exercise of Option to Extend dated September 25, 2019. Gateway is not a party to this proceeding.

7For the January 1, 2016 base year, MPAC returned an assessment of $2,309,000 for the Subject Property, being $2,045,900 Commercial (CT) property class and $263,100 Residential (RT) property class.

8The City appealed the assessment on the basis the assessment returned by MPAC was too low. The City delivered Notices of Higher Assessment seeking to increase the 2016 CVA to $8,214,000, being $4,031,000 Commercial (CT) property class and $4,183,000 Residential (RT) property class.

9The SOE for the subject appeals required MPAC to provide its initial disclosure by August 12, 2020. The City and MPAC exchanged communications regarding disclosure between August 13, 2020 and August 28, 2020. In those communications, the City requested disclosure and MPAC confirmed that it could not provide lease information without an order from the Board, and that it had provided the City with the Market Valuation Report, Methodology Guide and Property Profile through Municipal Connect. The City was not satisfied with MPAC’s disclosure and sent additional communications to MPAC into September 2020.

10The City provided its Statement of Issues (“SOI”) to the parties on December 9, 2020. The City’s SOI included a request for Additional Disclosure from MPAC and the Owner.

11On February 12, 2021, the City provided both MPAC and the Owner a detailed request for additional disclosure, listing 13 disclosure requests including the 11 Disclosure Requests included in Attachment 1 hereto.

12The City filed an Expedited Board Direction Form (“EBDF”) along with a motion to request disclosure with the Board on March 10, 2021.

13On March 29, 2021, MPAC provided the City with a document entitled “MPAC’s Responses to Sudbury’s Additional Disclosure Requests Sudbury Downs – 5307-160-023-04900.” This document summarized MPAC’s responses to the City’s requests up to that date.

14The within motion is being heard in response to the City’s request for disclosure filed with the Board on March 10, 2021.

PRELIMINARY MATTERS

The Schedule of Events

Submissions

15The Owner has requested the Board dismiss the City’s disclosure motion on the basis it has been brought too late and there are no “exceptional circumstances” which warrant altering the deadline in the SOE. The Owner submits the City was required to complete its disclosure motion by no later than September 16, 2020.

Findings on the Schedule of Events

16The SOE allocates time from Weeks 5 through 9 for disputes relating to initial disclosure. Initial disclosure is the preliminary disclosure provided by MPAC to enable an appellant to submit a clear and concise SOI. MPAC provides this initial disclosure in its “About My Property” online database system. Initial disclosure has three main components: i) the methodology guides, which explain assessment methodologies; ii) analytics, which are market valuation reports that explain how an assessment methodology is applied to value property; and iii) property specific valuation information.

17The SOE in this case required that any motions for initial disclosure from MPAC be completed by September 16, 2020.

18Accordingly, the Board does not accept the Owner’s submission that the City was required to bring its motion for disclosure from the Owner by September 16, 2020.

Other Relief Requested by the Owner

Submissions

19The Owner has requested additional relief in its Response to this motion, including an order dismissing the appeals for non-compliance with Rule 43 or, alternatively, an order granting Gateway status as a party to this proceeding.

20The City opposes the Owner’s request for dismissal and submits that this is the Owner’s third attempt to have the subject appeals dismissed. The City submits that the Owner’s previous Requests to Dismiss were denied by the Board on March 4, 2021 and March 16, 2021. The City asks the Board to make an order for costs against the Owner, on the basis that the Owner is relitigating its dismissal requests which constitutes frivolous, vexatious and unreasonable conduct.

21The City also opposes the Owner’s request to add Gateway as a party on the basis that the Board’s Order dated March 16, 2021 stipulates that if the parties cannot agree on the addition of Gateway as a party to these appeals, a separate EBDF on that issue should be submitted to the Board. The City submits it has not consented to Gateway being added as a party, and no such EBDF has been filed by the Owner.

Findings on Other Relief Requested by the Owner

22The motion before the Board relates to disclosure. Accordingly, the Board will not be considering the Owner’s other requests for relief in the context of this motion, particularly relief relating to allegations of non-compliance with Rule 43, the Rule governing the contents of SOI and Response. If the Owner wishes to pursue the relief it is requesting, the Owner is invited to follow the appropriate Board process to do so in accordance with the timelines prescribed in the SOE.

23With respect to a cost award against the Owner, the Board has not been provided with case authorities on this issue to assist in its analysis. While the Board finds it troubling that the Owner is seeking to re-litigate the issue of dismissal for a third time, using the same arguments that were before the Board in rendering its March 4, 2021 and March 16, 2021 decisions, the Board is not satisfied, in the totality of the circumstances disclosed in evidence, that this course of conduct amounts to being unreasonable, frivolous or vexatious. Accordingly, the Board declines to grant the City’s request for a cost award.

MPAC’s Disclosure

24The Board is advised by MPAC that it has responded to all of the City’s disclosure requests to date, and has produced all documentation which exists and is not otherwise available to the City, with the exception of material subject to s. 53 of the Act. MPAC has referred the Board to “MPAC’s Responses to Sudbury’s Additional Disclosure Requests Sudbury Downs – 5307-160-023-04900” dated March 29, 2021 which outlines the disclosure that has been provided.

25MPAC has identified Disclosure Request Nos. 1 and 6 as being protected by s. 53 of the Act. Section 53 of the Act limits MPAC’s ability to disclose certain information it collects. MPAC states that Disclosure Request No. 1 relates to lease documents produced by the Ontario Lottery and Gaming Corporation (“OLG”) and subject to a confidentiality agreement. Disclosure Request No. 6 relates to other properties not at issue in the subject appeals. Accordingly, MPAC submits it requires an order from the Board pursuant to s. 53(5) of the Act before it can respond to Disclosure Request Nos. 1 and 6.

26The Board process requires the City to provide notice to OLG prior to issuing a s. 53(5) order in respect of Disclosure Request No. 1 and notice to affected owners of other properties in respect of Disclosure Request No. 6. The City has not provided evidence to confirm that it has provided the requisite notice. Therefore, the Board makes no order at this time vis a vis MPAC in respect of Disclosure Request Nos. 1 and 6. The City may apply separately for a s. 53 order with proper notice, following the expedited process the Board has in place.

27MPAC has identified that it has produced all documentation which exists in response to Disclosure Request Nos. 2, 3, 4, 5, 7, 8 and 9. Accordingly, the Board will make no order vis a vis MPAC in respect of Disclosure Request Nos. 2, 3, 4, 5, 7, 8 and 9.

28Finally, MPAC has agreed to provide responses to Disclosure Request Nos. 10 and 11 in accordance with the Rules, and in MPAC’s Response to SOI. The SOE affords the City the opportunity to seek additional disclosure on receipt on MPAC’s Response, if such additional disclosure is required to prepare the City’s Reply. Accordingly, the Board makes no order vis a vis MPAC in relation to Disclosure Request Nos. 10 and 11.

Disclosure Request No. 4

29The Owner has advised the Board that it is not aware of any appraisals that have been completed for the Subject Property. This is not disputed by the City. Accordingly, the Board will make no order vis a vis the Owner with respect to Disclosure Request No. 4.

30The Board will now proceed to consider the balance of the motion for disclosure.

ANALYSIS

Applicable Law

31Rule 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.”

32In 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 to 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.

33Relevance is determined in relation to whether a document is relevant to an issue in dispute: Walmart Canada Corporation and Target Canada Corporation v Municipal Property Assessment Corporation, Region 01, 2018 CanLII 67789 (ON ARB) (“Wal-Mart”) at paragraph 18; Metro at paragraph 11. As noted by the Board in Toyota Motor Manufacturing Canada Inc. v Municipal Property Assessment Corporation, 2020 CanLII 77938 (ON ARB) (“Toyota”) at paragraph 13, “the test for relevance really comes down to whether or not the production of documents requested relates to the issues in dispute. If so, they are relevant.”

34Relevance is not the only criteria that the Board will consider when determining whether a document should be disclosed. Rule 5 of the Board’s Rules provides “[t]hese 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 four-year cycle.”

35Therefore, the requirement to disclose relevant documents must also 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.

36Although 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.

37Further, in consultation with stakeholder representatives, the Board has developed and issued a Guideline entitled Disclosure Requirements for General and Summary Proceedings (“Disclosure Guideline”). This Disclosure Guideline includes a Disclosure Schedule Appendix A and B (“Disclosure Schedule”) which sets out a non-exhaustive list of the types of disclosure that are generally accepted as relevant to the various issues that get raised in appeals before the Board.

38For each Disclosure Request, the Board will apply the above-noted test for relevance and proportionality.

39The Board notes that the Owner has not provided submissions in direct response to the Disclosure Requests before the Board on this motion. Instead, at paragraph 32 of its Response to the Motion, the Owner has provided a table outlining its response to the City’s February 12, 2021 disclosure request. The Board notes that while the Disclosure Requests on this motion are almost, if not entirely, identical to the City’s February 12, 2021 disclosure request, in some cases the numbering is different, and some of the items requested by the City on February 12, 2021 are not before the Board on this motion. Accordingly, when outlining the Owner’s submissions below, the Board will be referencing the Owner’s response to the February 12, 2021 requests, as applicable.

Disclosure Request No. 1 - All lease information from 2014 to present date, plus the bump-ups and or sub-leases, as well as the rent roll and operating expenses including all lease details between the tenant(s) of the Subject Property

Submissions

40The City submits the lease information is relevant as it will provide evidence of the value of the buildings and how they contribute to the overall assessed value. The City submits this information is relevant to its analysis of the income approach versus the cost approach. The City submits the request is proportionate because it only captures the tax years under appeal. The City submits the Owner ought to have copies of leases and supporting documentation for annual income and financial reporting.

41The Owner submits the test for relevance is not met. The Owner submits it is unclear how the information requested is relevant to how the City arrived at its value in paragraph 28 of its SOI, since the City has not specified which approach to value it has used. The Owner further submits to the extent the City is requesting lease information for the years under appeal, it must specify the specific timeframe and information sought.

Findings

42The Board has reviewed the City’s SOI. The City has not explicitly identified the income approach as the valuation methodology to be used in determining the current value of the Subject Property. In fact, the City’s SOI does not specify which valuation methodology was used in determining its proposed current value. Given that relevance is generally determined by examining the issues in the pleadings, it is not clear based on the SOI alone that the information requested as part of Disclosure Request No. 1 is relevant to the issues in dispute.

43That said, the Board’s Disclosure Schedule sets out a list of documents that are presumptively relevant. The Disclosure Schedule identifies certain rental information as relevant to the income approach to valuation, including leases or lease summaries for the five years ending and concluding with the valuation date; copies of tenant inducements; rent rolls for four years preceding the base year; and particulars relating to expense ratios. Accordingly, although the SOI is not explicit, the Board is satisfied based on the Disclosure Schedule and the evidence on this motion that the information sought as part of Disclosure Request No. 1 is relevant to the City’s valuation of the Subject Property.

44The Board is also satisfied that Disclosure Request No. 1 is proportionate to the issues in dispute. The Disclosure Guideline confirms a reasonable timeframe includes lease information for five years ending and concluding with the valuation date. The City is requesting from 2014 to present, which is only two years prior to the valuation date to current, including the taxation years under appeal. The Owner does not seriously dispute proportionality.

45Accordingly, the Board grants Disclosure Request No. 1.

Disclosure Request No. 2 - All valuations and analyses prepared to arrive at the 2008, 2012 and 2016 CVA of the Subject Property and all similar properties identified by any party in the appeals

Submissions

46The City submits that Disclosure Request No. 2 is relevant to the current value assessment. It identifies the issue being how MPAC arrived at its assessed value, including an economic obsolescence of 100% plus depreciation for the Subject Property. The City submits this is a proportionate request as it is limited to any potential analyses and valuations that are already available and relevant to the tax years under appeal.

47The Owner submits this is not relevant and the request pertains to MPAC only. The Owner also submits that information pertaining to the 2008 and 2012 base years is irrelevant.

Findings

48The City has requested materials relating to the 2008, 2012 and 2016 CVA of the Subject Property and all similar properties identified by any party in the appeals. Contrary to the City’s assertion that its request is limited to tax years under appeal, only the January 1, 2016 CVA relates to the 2017 to 2021 taxation years under appeal. The City has not satisfied the Board that materials relating to the 2008 and 2012 CVA are relevant. Further, the City’s submissions are limited to how the valuations or analyses of the Subject Property are relevant. The City has not provided information respecting the generally-stated “similar properties” that form its request, and accordingly the Board is not satisfied that issuing an order at this time regarding “similar properties” would satisfy the relevance and proportionality tests.

49With respect to the Owner’s assertion that Disclosure Request No. 2 pertains to MPAC only, the City has not limited its request to MPAC nor do the City’s submissions make clear that it is limiting its request to MPAC. Accordingly, the Board is not prepared to accept the Owner’s submission that the request pertains to MPAC only. That said, the Owner is not required to produce information it does not have, nor is it required to create documents in response to a Disclosure Request. If the Owner does not have documents that are responsive to this request, it can so advise the City.

50Accordingly, the Board finds that Disclosure Request No. 2 is relevant and proportionate only insofar as it relates to the 2016 CVA of the Subject Property. The Board grants Disclosure Request No. 2 in part, as follows: All valuations and analyses prepared to arrive at the 2016 CVA of the Subject Property.

Disclosure Request No. 3 - All estimates of CVA prepared subsequent to the value being returned for 2017, 2018, 2019, 2020 and 2021 taxation year assessments

Submissions

51The City submits that this request is relevant to understanding MPAC’s changes in the opinion of value. The City submits its request is proportionate, as records should be easily available as the analysis and estimates should have already been completed in order to determine the CVA of the Subject Property.

52The Owner submits this is not relevant and the request pertains to MPAC only.

Findings

53With respect to the Owner’s assertion that Disclosure Request No. 3 pertains to MPAC only, although the City has not limited its request to MPAC, the nature of the City’s submissions makes clear that this Disclosure Request is directed to MPAC and not the Owner. Accordingly, in relation to this Disclosure Request, the Board is prepared to accept the Owner’s submission that this request is directed to MPAC.

54MPAC has informed the Board that it has already provided its response and there are no further responsive documents to provide. The City has not provided evidence or submissions to cast doubt on this information. Therefore, the Board makes no order in respect of Disclosure Request No. 3.

Disclosure Request No. 5 - All files, documents, reports, studies, memoranda or any other information relating to the determination of the CVA for the 2017, 2018, 2019, 2020 and 2021 taxation year assessments

Submissions

55The City submits this request is relevant to understanding the position of the parties. The City submits the request is limited to relevant information for the tax years in question.

56The Owner submits this is not relevant and the request pertains to MPAC only.

Findings

57The Board accepts the City’s submission that the information requested is relevant to the assessments of the Subject Property for the taxation years under appeal. The Board is satisfied that the scope is proportional as it is limited to the taxation years under appeal. With respect to the Owner’s assertion that Disclosure Request No. 5 pertains to MPAC only, the City has not limited its request to MPAC nor do the City’s submissions make clear that it is directing this request to MPAC. Accordingly, the Board is not prepared to accept the Owner’s submission that the request pertains to MPAC only. That said, the Owner is not required to produce information it does not have, nor is it required to create documents in response to a Disclosure Request. If the Owner does not have documents that are responsive to this request, it can so advise the City.

58Accordingly, the Board grants Disclosure Request No. 5 as follows: All files, documents, reports, studies, memoranda or any other information relating to the determination of the CVA of the Subject Property for the 2017, 2018, 2019, 2020 and 2021 taxation year assessments.

Disclosure Request No. 6 - The current valuation records for any comparable properties relied upon by any party to the appeal

Submissions

59The City submits this request is relevant to help inform and guide the parties in arriving at an accurate current value assessment. The City submits the request is reasonable as it is standard practice to consider comparable properties when completing a valuation analysis.

60The Owner submits this is not relevant and the request pertains to MPAC only.

Findings

61The Board is not satisfied by the City’s submissions in relation to relevance. While the sales of comparable properties may be relevant to the valuation analysis of the Subject Property depending on the valuation method used, it does not follow that the valuation records for those comparable properties are necessarily relevant. The Board does not have enough information from the City to satisfy itself that the current valuation records for any comparable properties are relevant to the issues in this proceeding, and accordingly declines to make an order in relation to Disclosure Request No. 6 at this time. If, on receipt of the Statements of Response, it is clear that valuation records for certain properties are relevant and neither MPAC nor the Owner have provided the necessary disclosure, the City may seek disclosure at that time in accordance with the SOE.

Disclosure Request No. 7 - The detailed actual costs and cost information of construction along with cost records for any and all construction projects that occurred or is occurring on the Subject Property

Submissions

62The City submits this request is relevant to the issue of the correct application of the cost approach and its review of MPAC’s Reproduction/Replacement Cost New (“RCN”). The City submits that MPAC applied a 100% Economic Obsolescence on all structures and yardwork, plus depreciation and adjustments. The City submits that the relevance of construction costs is reflected in the Disclosure Schedule. Finally, the City submits its request is reasonable as it is standard practice to consider comparable properties when completing a valuation analysis. The City appears to have mistakenly simply repeated its position on proportionality in relation to Disclosure Request No. 6, rather than providing submissions on proportionality in relation to Disclosure Request No. 7.

63The Owner submits the request for “any and all” is excessive, disproportionate and irrelevant based on the position taken by the City in its SOI. The City’s SOI mentions construction at the Subject Property but not in terms of how it arrived at the value set out at paragraph 28 of the SOI.

Findings

64The Board has reviewed the City’s SOI. The City has not explicitly identified the valuation methodology it will use to determine the current value of the Subject Property. The SOI does, however, reference MPAC’s application of economic obsolescence as well as MPAC’s use of the cost approach as its valuation methodology.

65The Board’s Disclosure Schedule identifies that certain particulars relating to construction, additions or demolitions are relevant. Accordingly, the Board is satisfied based on the SOI, the Disclosure Schedule, and the evidence on this motion that the information sought as part of Disclosure Request No. 7 is relevant to the City’s valuation of the Subject Property.

66The Board does not accept the Owner’s submission that the request as it relates to “any and all” construction projects is excessive. There is no evidence from the Owner regarding how many construction projects were undertaken at the site to support this assertion.

67The Board is not, however, satisfied that Disclosure Request No. 7 is proportionate to the issues in dispute. The Disclosure Guideline references “recent” construction, meaning five years preceding the valuation date. The City has not limited the temporal scope of its request, and accordingly it is not proportionate.

68The Board grants Disclosure Request No. 7 in part, limiting its scope to projects constructed within the five years preceding January 1, 2016.

Disclosure Request No. 8 - The detailed actual costs and cost information of building construction along with cost records for any and all building construction projects that occurred or is occurring on the Subject Property

Submissions

69The City makes the same submissions as Disclosure Request No. 7, including its mistaken reference to the same proportionality submissions on Disclosure Request No. 6.

70The Owner makes the same submissions as Disclosure Request No. 7.

Findings

71The Board applies its analysis from Disclosure Request No. 7 to Disclosure Request No. 8. The Board adopts it findings from Disclosure Request No. 7 for Disclosure Request No. 8. The Board notes that its order with respect to Disclosure Request No. 7 is broad enough to capture the items requested in Disclosure Request No. 8.

Disclosure Request No. 9 - The actual costs of site preparation including grubbing, clearing, blasting, leveling, crushing, installing services and similar incurred on the Subject Property

Submissions

72The City submits this request is relevant to “determining methodology as costs is one of the possible approaches to value for the Subject Property.” The City also submits the request is reasonable as it is standard practice to consider comparable properties when completing a valuation analysis (again, it appears the City is mistakenly relying on its submissions in relation to Disclosure Request No. 6).

73The Owner makes the same submissions as Disclosure Request No. 7.

Findings

74The Board understands the City’s submission to mean site preparation costs may factor into the cost approach to value analysis for the Subject Property, as part of construction costs.

75The Board finds that site preparation costs may be relevant insofar as they relate to the costs associated with construction projects on the Subject Property. In that regard, the Board adopts its analysis and findings in relation to Disclosure Request No. 7 and will include “site preparation costs” in its order related thereto.

Disclosure Request No. 10 - Copies of any other documentation that either MPAC or the Assessed Owner and the tenant Gateway Casinos Entertainment Limited intends to rely upon during the hearing of these appeals

Submissions

76The City submits this request is relevant to the issue of CVA, to better understand the position of the parties. The City submits the request is limited to relevant information for the tax years in question, and therefore satisfies the proportionality test.

77The Owner submits this request is premature. Any documents and information relied on by the Owner will be provided to the City in accordance with the SOE.

Findings

78The Board accepts the Owner’s submission on this point. If there is additional disclosure that the City believes is required, that is not otherwise provided with the Owner’s Statement of Response in accordance with the SOE, the SOE affords the City the opportunity to seek that disclosure at the appropriate time. The Board will not issue an order in relation to Disclosure Request No. 10.

Disclosure Request No. 11 - Copies of any other documentation relevant to the issues to be canvassed in these appeals

Submissions

79The City submits this request is relevant to the CVA, to better understand the position of the parties. The City submits the proportionality test is satisfied as the request is limited to relevant information for the tax years in question.

80The Owner submits this request is too broad, open-ended and disproportionate.

Findings

81The Board accepts the Owner’s submission. The City has not specified the issue to which this request is relevant. It is a broad, open-ended question, and it would be difficult, if not impossible, for a party to comply with an order in this regard. Accordingly, the Board declines to make an order in accordance with Disclosure Request No. 11. If there is specific disclosure that the City seeks in accordance with the Rules, the City is invited to make that request in accordance with the timelines prescribed in the SOE.

ORDER

82The Board orders that the Owner is required to provide, to the extent the information is in its possession, control, or power and in accordance with Rule 45, a copy of the following:

a) In relation to Disclosure Request No. 1: All lease information from 2014 to present date, plus the bump-ups and or sub-leases, as well as the rent roll and operating expenses including all lease details, for the tenant(s) of the Subject Property;

b) In relation to Disclosure Request No. 2: All valuations and analyses prepared to arrive at the 2016 CVA of the Subject Property;

c) In relation to Disclosure Request No. 5: All files, documents, reports, studies, memoranda or any other information relating to the determination of the CVA of the Subject Property for the 2017, 2018, 2019, 2020 and 2021 taxation year assessments; and

d) In relation to Disclosure Request Nos. 7, 8 and 9: The detailed actual costs and cost information of construction, including site preparation, along with cost records for any and all projects constructed on the Subject Property within the five years preceding January 1, 2016.

83The Owner is directed to provide this disclosure no later than three weeks from the date this decision is issued.

84In 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:

a. The due date for MPAC and the Owner to serve their Statements of Response, as set out in the SOE, is extended to three weeks after the Owner has complied with its disclosure obligations in accordance with this motion decision.

b. All other subsequent due dates are to be adjusted accordingly.

85The 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

Attachment 1

Disclosure Request No. 1 All lease information from 2014 to present date, plus the bump-ups and or sub-leases, as well as the rent roll and operating expenses including all lease details between the tenant(s) of the Subject Property

Disclosure Request No. 2 All valuations and analyses prepared to arrive at the 2008, 2012 and 2016 CVA of the Subject Property and all similar properties identified by any party in the appeals.

Disclosure Request No. 3 All estimates of CVA prepared subsequent to the value being returned for 2017, 2018, 2019, 2020 and 2021 taxation year assessments

Disclosure Request No. 4 All appraisals completed for the Subject Property from the year 2013 to present date

Disclosure Request No. 5 All files, documents, reports, studies, memoranda or any other information relating to the determination of the CVA for the 2017, 2018, 2019, 2020 and 2021 taxation year assessments

Disclosure Request No. 6 The current valuation records for any comparable properties relied upon by any party to the appeal

Disclosure Request No. 7 The detailed actual costs and cost information of construction along with cost records for any and all construction projects that occurred or is occurring on the Subject Property

Disclosure Request No. 8 The detailed actual costs and cost information of building construction along with cost records for any and all building construction projects that occurred or is occurring on the Subject Property

Disclosure Request No. 9 The actual costs of site preparation including grubbing, clearing, blasting, leveling, crushing, installing services and similar incurred on the Subject Property

Disclosure Request No. 10 Copies of any other documentation that either MPAC or the Assessed Owner and the tenant Gateway Casinos Entertainment Limited intends to rely upon during the hearing of these appeals

Disclosure Request No. 11 Copies of any other documentation relevant to the issues to be canvassed in these appeals