Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board Commission de révision de l’évaluation foncière

ISSUE DATE: August 19, 2021 FILE NO.: DM 171844

Assessed Person(s): KS Brookdale Centre East Inc. Appellant(s): Home Depot of Canada; KS Brookdale Centre East Inc. Respondent(s): Municipal Property Assessment Corporation Region 13 Respondent(s): City of Pickering Property Location(s): 1105 Kingston Road Municipality(ies): City of Pickering Roll Number(s): 1801-010-018-21200-0000 Appeal Number(s): 3247715, 3229891, 3389562, 3301065, 3300861, 3355524, 3355523, 3403043, 3402413, 3443426, 3443146 and 3438463 Taxation Year(s): 2017-2021 Hearing Event No.: 745370 Legislative Authority: Rule 45 of the Assessment Review Board’s Rules of Practice and Procedure

Parties	Counsel
KS Brookdale Centre East Inc.	Submissions not received
Home Depot of Canada	Ian Andres and Mark Blidner
Municipal Property Assessment Corporation	Karey Lunau and Jennifer Barlow
City of Pickering	Submissions not received

REQUEST FOR: An Order for Disclosure HEARD: June 14, 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 the Appellant Home Depot of Canada (“Home Depot”) and/or the Assessed Owner, KS Brookdale Centre East Inc. (“Assessed Owner”). MPAC also seeks an amendment to the Schedule of Events (“SOE”) to accommodate this motion.

2MPAC initially made six Disclosure Requests in its Notice of Motion, however the parties have advised the Board that Disclosure Request Nos. 1 to 4 and 6 have been resolved. Accordingly, the following Disclosure Request is at issue on this motion:

Disclosure Request No. 5: Any appraisals or opinions of value for the Subject Property, the Home Depot store or any of the comparable Home Depot Stores listed in Disclosure Request 2 since 2005, including any valuations performed for financial accounting purposes.

3Since filing of its initial materials on this motion, MPAC has advised the Board that it is only pursuing Disclosure Request No. 5 as it relates to the Subject Property.

4Home Depot opposes the motion and seeks that it be dismissed.

5The Board has not received submissions from the Assessed Owner or the Corporation of the City of Pickering (“Pickering”).

Result

6The Board has carefully reviewed and considered all of the evidence, submissions, and case law provided by the parties. For the reasons that follow, the Board denies the motion for disclosure.

BACKGROUND

7The property at issue is located at 1105 Kingston Road in Pickering, Ontario, on 16.91 acres of land abutting Highway 401 (the “Subject Property”). It is part of a shopping centre known as “Brookdale Centre” and it includes a Home Depot retail store (the “Subject Store”). Home Depot is a tenant at the Subject Property.

8Home Depot and the Assessed Owner appealed MPAC’s returned 2016 current value assessment (“CVA”). The 2016 CVA for the entire Subject Property is $36,952,000 (2017) and $37,052,000 (2018 forward). Home Depot’s portion relating to the Subject Store is $21,561,783. The current value was returned by MPAC using an income approach to value.

9Home Depot submits that its portion should be valued at $10,921,000. Among other submissions, Home Depot’s position is that the Subject Store should be valued using the cost approach.

ANALYSIS

The Schedule of Events

Submissions

10Home Depot submits that MPAC’s motion is far too late, as the Schedule of Events required that all disclosure requests and disputes be resolved by October 11, 2019.

11In reply, MPAC submits that Home Depot’s position does not reflect the Rules, which contemplate ongoing disclosure requirements. MPAC submits that Rule 45 requires parties to serve “all relevant documents” and the only limit on this requirement is in Rule 48, which requires leave to introduce new evidence after the filing deadline. MPAC further submits that Rule 47 permits parties to bring motions for discovery, and there is no time limit to bring such a motion. MPAC submits that it requested disclosure of the appraisals and opinions of value in its Response to Home Depot’s Statement of Issues, Home Depot failed to respond to this request, and Home Depot should not now be permitted to rely on its own failure to respond to deny relevant disclosure.

Findings on the Schedule of Events

12The Board will consider MPAC’s compliance with the SOE as a preliminary issue, as the outcome may prove dispositive of the motion.

13The Board finds the Amended SOE applicable to these appeal proceedings provided the following relevant deadlines:

a. July 12, 2019 - Each Appellant provides its disclosure and SOI to all other parties.

b. August 2, 2019 - Each party who responds to the Appellant(s) to advise if an inspection or any additional disclosure is requested.

c. September 6, 2019 - Any objection regarding a request for an inspection or a request for additional disclosure is to be resolved by motion.

d. October 11, 2019 - Where an inspection or additional disclosure is required, these are to be completed.

e. January 3, 2020 - Each party who responds to the Appellant(s) is to provide its Statement of Response and any additional supporting disclosure.

f. January 31, 2020 - Each Appellant to provide its statement of reply and any additional disclosure to support of its reply to all other parties.

14MPAC submits that the Rules contemplate ongoing disclosure requirements, and there is no time limit on a request for disclosure. The Board does not accept this submission. The SOE provides clear deadlines relating to disclosure. Although there is an ongoing disclosure obligation in accordance with Rule 45, this obligation is not inconsistent with the SOE imposing deadlines to provide and seek disclosure.

15In light of the relevant dates outlined above, particularly the October 2019 deadline to have completed the Appellant’s disclosure, the Board finds that an amendment extending the timelines in the SOE will be required to accommodate this disclosure motion and its outcome.

16Rule 82 of the Board’s Rules states that once a SOE has begun, “… the Board will not alter any timeline set out in the schedule of events, other than in exceptional circumstances.”

17MPAC has not provided evidence of or submissions relating to exceptional circumstances. MPAC ought to have identified any additional disclosure required by the Appellant in accordance with the August 2, 2019 deadline prescribed by the SOE. If Home Depot or the Assessed Owner objected or otherwise refused the request for additional disclosure, the issue ought to have been resolved by motion by September 6, 2019 per the SOE. Additional disclosure from Home Depot and the Assessed Owner ought to have been completed by October 11, 2019 to comply with the SOE. No steps were taken between August 2 and October 11, 2019 to procure additional disclosure from Home Depot and/or the Assessed Owner. Instead, in its Responses to Statements of Issues served in January 2020, MPAC requested that Home Depot and the Assessed Owner provide the exact information sought on this motion. Home Depot filed its Reply on April 3, 2020, and this Reply did not respond to MPAC’s production request. Inexplicably, a year passed during which MPAC took no steps to procure its requested disclosure by motion, until submitting its disclosure motion on the day its expert reports were due on April 6, 2021.

18MPAC has not provided evidence or explanation supporting exceptional circumstances to warrant an extension to the SOE for the bringing of this motion. Accordingly, the Board finds there are no exceptional circumstances, and has no basis to amend the SOE for the bringing of this motion.

CONCLUSION

19The Board requires strict compliance with its Rules. As confirmed in Greater Sudbury (City) v Municipal Property Assessment Corporation, Region 30, 2021 CanLII 19610 (ON ARB) at paragraph 31, “[p]arties are expected to complete their pre-hearing exchange of disclosure in a timely way in order to properly complete their pleadings and expert reports.”

20There are no exceptional circumstances warranting an amendment to the SOE to permit Disclosure Request No. 5 at this stage in the proceeding. Therefore, the Board will not grant an amendment to the SOE in relation to Disclosure Request No. 5 and the motion fails on this basis.

ORDER

21The motion for disclosure is denied.

22Although the Board has determined there are no exceptional circumstances warranting amendment to the SOE, some adjustment is required to allow for this motion. The Board orders the Schedule of Events will resume, with the due date for MPAC serving its expert reports amended to a date 20 days from the issuance of this Motion Decision. All other subsequent due dates are to be adjusted accordingly. The 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.