Tribunals Ontario

Assessment Review Board

Issue Date: August 05, 2021 File No.: DM 170893 Assessed Person(s): Manufacturers Life Insurance Appellant(s): Manufacturers Life Insurance Respondent(s): Municipal Property Assessment Corporation Region 03, City of Ottawa Property Location(s): 55 Metcalfe Street Municipality(ies): City of Ottawa Roll Number(s): 0614-041-701-16200-0000 Appeal Number(s): 3217232, 3290896, 3346973, 3396784 and 3439514 Taxation Year(s): 2017, 2018, 2019, 2020 and 2021 Hearing Event No.: 744072 Legislative Authority: Rule 44 of the Assessment Review Board Rules of Practice and Procedure

Parties and Representatives:

• Manufacturers Life Insurance: Chantelle MacMillan
• City of Ottawa: Submissions not received
• Municipal Property Assessment Corporation: Makael Nur

Request For: To prohibit submission of Amended Statement of Issues Heard: May 20, 2021 in writing Adjudicator(s): Carly Stringer, Member

Motion Decision

Overview

1The Municipal Property Assessment Corporation ("MPAC") has brought this motion asking the Assessment Review Board (the "Board") to prohibit Manufacturers Life Insurance (the "Owner") from submitting an Amended Statement of Issues ("SOI").

2The Owner opposes the motion.

3The Board has not received submissions from the City of Ottawa ("City") on this motion.

Result

4For the reasons that follow, MPAC's motion is granted.

Background

5The underlying appeals relate to a property known municipally as 55 Metcalfe Street in the City of Ottawa (the "Subject Property"). The Owner filed appeals pursuant to section 40 of the Assessment Act, R.S.O. 1990, c. A.31 relating to the Subject Property for the 2017 to 2021 taxation years (the "Subject Appeals").

6Pursuant to the Schedule of Events ("SOE") applicable to the Subject Appeals, the Owner provided its SOI to MPAC and the City by October 27, 2020.

7On November 12, 2020, MPAC sent a disclosure request to the Owner, requesting rent rolls of the Subject Property. The Owner responded to this request on November 16, 2020.

8Following MPAC's review of the Owner's disclosure, on December 21, 2020, MPAC sent a without prejudice settlement offer to the Owner and the City. MPAC agreed to the rental rates and overall revised current value assessment proposed by the Owner in its SOI. Neither the Owner nor the City responded to this offer.

9On January 19, 2021, MPAC sent another without prejudice settlement offer to the Owner and the City. MPAC repeated its agreement with the rental rates and overall revised current value proposed by the Owner in its SOI. Neither the Owner nor the City responded to this offer.

10On March 4, 2021, MPAC sent a third without prejudice settlement offer to the Owner and the City. MPAC repeated its agreement with the rental rates and overall revised current value proposed by the Owner in its SOI.

11On March 4, 2021, the City agreed to MPAC's proposed resolution. The Owner did not respond.

12On March 5, 2021, MPAC circulated Minutes of Settlement to the City and the Owner, using the terms of MPAC's March 4, 2021 without prejudice offer.

13On March 18, 2021, the Owner and MPAC had a phone call. The Owner's evidence is that on this call, the Owner sought to negotiate a lower settlement than the current value proposed in its SOI because it had received new information since delivery of its SOI.

14MPAC was not in agreement with negotiating a lower current value and advised the Owner it would object if an Amended SOI was provided at this stage to reflect a lower current value.

15On March 24, 2021, the Owner served an Amended SOI on MPAC and the City.

16MPAC then brought this motion requesting the Board prohibit the Owner from submitting the Amended SOI.

Analysis

Applicable Law

17Rule 44 of the Board's Rules of Practice and Procedure (the "Rules") applies to this motion. Rule 44 provides as follows:

Amendment of Statements of Issues and Responses

44. Statements of Issues or Responses cannot be amended after the due dates for amending these documents set out in the Schedule of Events unless all parties consent, or the Board directs otherwise.

18The SOE does not speak to amendments to pleadings until after the mandatory settlement meeting. If the appeal has not resolved at the mandatory meeting stage, the parties must advise the Board in writing that the appeal has not resolved, and advise the Board whether any party intends to obtain additional expert reports before the Board schedules a settlement conference or mediation. If a party intends to obtain additional expert reports, the Board issues an Amended Schedule of Events providing deadlines by which the parties are to serve their additional expert reports and any amendments to their Statements of Issues or Response to address additional evidence or new issues raised in the expert's reports.

Submissions of the Parties

19MPAC submits that the Amended SOI should be prohibited as the filing deadline has passed. MPAC submits that the deadline for the Owner to provide its SOI was October 26, 2020, and after that date the SOI may only be amended with consent of all parties to the appeal, or if the Board directs otherwise. MPAC submits it does not consent to the amendment, the Appellant has not sought direction from the Board, and accordingly the Amended SOI should be prohibited.

20The Owner submits that its Amended SOI was provided within the prescribed timelines set by the Board in its Rules and the SOE. The Owner submits that MPAC's motion is premature.

21In reply, MPAC submits that the amendment language used in the SOE is to "address any additional evidence or issues raised in an expert's report" and that the Subject Appeals have neither reached this stage, nor are the issues in the amended SOI raised to address additional evidence or issues raised in an expert's report because no expert report has been filed.

Issue 1 – Can the Owner submit its Amended SOI?

Findings on Issue 1

22The SOE required the Owner to submit its SOI by October 26, 2020. The Board finds the Owner complied with this deadline.

23The SOE provides for amendments to pleadings in limited circumstances: see Wellings of Corunna Inc. v Municipal Property Assessment Corporation, Region 26, 2021 CanLII 49278 (ON ARB) at paragraph 27; General Motors of Canada Company v St. Catharines (City), 2021 CanLII 794 (ON ARB) at paragraph 25. If the parties do not resolve their matter at the mandatory meeting stage, and either party intends to obtain an additional expert report, they can advise the Board and be provided an extension to the SOE permitting i) time to serve these additional expert reports; and ii) time to serve "any amendment to the party's Statement of Issues or Statement of Response, to address any additional evidence or new issues raised in the expert's report."

24The Owner raises Municipal Property Assessment Corporation v Kraft Heinz Canada ULC, 2020 CanLII 38934 (ON ARB) ("Kraft Heinz"), citing paragraph 125 for the principle that there is nothing in the SOE which prohibits a party from serving an amended pleading prior to the due date for providing its expert report.

25It is worth reviewing the circumstances in Kraft Heinz. In that case, MPAC served an Amended Statement of Response before serving its expert report. The Appellant argued MPAC cannot unilaterally amend its pleading before it serves its responding expert report. The Board confirmed that the SOE sets a final due date for filing the Amended Statement of Response, but there is nothing in the Schedule of Events prohibiting MPAC from serving its amended pleading prior to the due date for filing its response expert report. For this reason, the Board did not accept the Appellant's submission.

26It does not appear that the appellant in Kraft Heinz argued that MPAC was precluded from serving its amended pleading on the basis that the content of the proposed amendments did not address additional evidence or issues raised in an expert's report. The submission before the Board in Kraft Heinz addressed the timing of amendments, so the Board decided on that narrow issue alone. Kraft Heinz does not speak to the content of amendments, and accordingly is of limited application to this motion.

27In this case, the Subject Appeals have not reached the mandatory meeting stage of the process. The Owner has not filed an expert report. There is nothing to indicate that the Owner intends to provide an expert report, or that the content of the proposed amendments address additional evidence or new issues raised in an additional expert report.

28On a plain reading of the SOE, amendments to a pleading are only appropriate to address additional evidence or new issues raised in any additional expert's reports that parties seek to provide following the mandatory meeting. Accordingly, the Board is not prepared to accept the Owner's Amended SOI at this time on the basis that it is not clear the content of the amendments address any additional evidence or new issues raised in the expert's report, in accordance with the SOE.

29Therefore, for the purposes of MPAC preparing its Statement of Response, MPAC shall respond to the content of the Owner's SOI served in October 2020.

30The Owner is not prohibited from providing an Amended SOI at a later date in the proceeding if, in accordance with the Rules and the SOE, it obtains an additional expert report following the mandatory settlement meeting, and there are amendments to the SOI required to address additional evidence or new issues raised in the expert's reports.

31This will ensure MPAC has ample opportunity to address any future amendments made to address additional evidence or new issues raised in additional expert's reports. This will mitigate any concerns respecting procedural fairness or prejudice to MPAC.

Order

32The Board grants MPAC's motion and does not accept the Owner's Amended SOI at this time.

33For the purpose of MPAC preparing its Statement of Response, MPAC shall respond to the content of the Owner's SOI served in October 2020.

34In view of the delay in resolving this motion and pursuant to Rule 40, the Board orders that the SOE for the Subject Appeals will resume, with the following amendments:

a. The due date for MPAC to serve its Statement of Response and any additional supporting disclosure is extended to August 27, 2021.

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

35The 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.