2871220 Canada Limited v. Municipal Property Assessment Corporation Region 09, 2022 CanLII 101421

Tribunals Ontario Tribunaux décisionnels Ontario Assessment Review Board Commission de révision de l’évaluation foncière

ISSUE DATE: October 27, 2022

FILE NO.: DM 181592

Assessed Persons: 2871220 Canada Limited; Home Depot Holdings Inc.

Appellants: 2871220 Canada Limited; Home Depot Holdings Inc.; City of Toronto

Respondent: Municipal Property Assessment Corporation Region 09

Respondents: City of Toronto

Property Locations: See Schedule A

Municipality: City of Toronto

Roll Numbers: See Schedule A

Appeal Numbers: See Schedule A

Taxation Years: 2017 to 2022

Hearing Event No.: 773164

Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31

Parties	Counsel
Home Depot	Ian Andres and Mark Blidner
Municipal Property Assessment Corporation	Karey Lunau
City of Toronto	Angus MacKay

REQUEST FOR: Motion to Strike

HEARD: August 30, 2022 in writing

ADJUDICATOR: Jean-Paul Pilon, Member

MOTION DECISION

OVERVIEW

1This is a motion brought by Home Depot Holdings Inc., Home Depot of Canada, 2871220 Canada Limited and 2974070 Canada Limited (collectively referred to as “Home Depot”) in appeals relating to several Home Depot properties outlined in Schedule “A” to this decision. Home Depot is the appellant in some of these appeals, while the City of Toronto (the “City”) is the appellant in others.

2In its motion, Home Depot requests that the Assessment Review Board (the “Board”):

a. strike the City’s Amended Statements of Issues dated August 7, 2020 (the “City’s Amended SOIs”);

b. order that the City is bound by its Statements of Issues dated September 10, 2018 (the “City’s SOIs”) and its Statements of Response dated March 4, 2018 (the “City’s SORs”); and

c. strike five sets of expert reports.

Alternatively, Home Depot asks that the Board strike those expert reports, or portions thereof, that identify new positions or raise new issues that were not raised in the City’s SOIs or the City’s SORs. Home Depot also requests cost of the motion.

3The Municipal Property Assessment Corporation (“MPAC”) agrees that the City’s Amended SOIs and some, but not all, of the expert reports should be struck or, alternatively, that the Board should prohibit the City from raising any issues not raised in the City’s (original) SOIs. MPAC does not agree that there should be costs ordered.

4The City opposes Home Depot’s requests.

Result

5In summary, the Board finds that:

a. pleadings cannot be struck;

b. the City may not rely on any portion of its reply reports that address highest and best use (“HABU”) because HABU is not an issue in these appeals;

c. the City may not rely on any of its reports that address replacement cost new (“RCN”) because RCN is not an issue in these appeals;

d. the City may not amend its SOIs to address HABU or RCN;

e. the City’s reply report on depreciation and economic obsolescence is properly before the Board in these appeals; and

f. Home Depot’s request for costs is denied.

PRELIMINARY MATTER

Applicable Rules

6This motion was filed on September 18, 2020 when the Board’s Rules of Practice and Procedure effective April 1, 2017 and amended May, 2019 were still in force. While the Board has since updated its Rules of Practice and Procedure, in this decision and unless otherwise stated, references to the “Rules” are to the Rules of Practice and Procedure effective April 1, 2017 and amended May, 2019, which are no longer in force. References to these superseded Rules in this decision are therefore in the past tense.

BACKGROUND

The Schedule of Events

7All appeals at issue in this motion share the same Schedule of Events (“SOE”) pursuant to Rule 34(a). The SOE prescribes procedural deadlines governing these appeals.

8Based on the SOE, the following timelines were applicable:

Event	Date
Commencement Date	April 16, 2018
Appellants to serve Statements of Issues	September 11, 2018
Respondents to serve Statements of Response	March 5, 2019
Appellants to serve Reply	April 2, 2019
Appellants to serve expert reports as well as any amendment to the Appellant’s Statement of Issues to address any additional evidence or issues raised in an expert’s report	October 15, 2019
Respondents to serve expert reports and any amendment to the Respondent’s Statement of Response to address any additional evidence or issues raised in an expert’s report	February 4, 2020
Appellants to serve supplementary reports by its experts in reply to any expert reports served by the Respondents	July 14, 2020 (extended deadline due to Covid-19 pandemic)
Each party to file documentation with Board	August 11, 2020 (extended deadline due to Covid-19 pandemic)

The Statements of Issues

9The City served its SOIs on time on September 10, 2018.

10The City raised three issues with MPAC’s assessments in its SOIs:

a. it disputed the vacant land sales used to determine the applicable land rates;

b. it disputed the nature and scale of adjustments made to those vacant land sales; and

c. it disputed the depreciation rates applied to MPAC’s RCN analysis for the building, improvements and yardworks.

11The City took the position that the income approach was the correct way to determine current value for the properties and sought an increase in value. The City used the cost approach as a “check” on the valuation of the properties, and in this regard expressly “accepted and adopted” MPAC’s RCN.

12Home Depot also served its SOIs on time on August 28, 2018 (the “Home Depot SOIs”). Home Depot agreed with MPAC valuing the properties using the cost approach but took issue with specific elements of MPAC’s valuation. Home Depot raised issues that included replacement cost and components of site improvements, depreciation rates, the value of the land, including adjustments and store model size (for some of the taxation years at issue).

The Statements of Response

13On March 4, 2019, the City served the City’s SORs responding to the Home Depot SOIs.

14The City did not dispute Home Depot’s position that the cost approach should be used to value the properties in those SORs. The City did, however, dispute aspects of Home Depot’s valuations, particularly the depreciation analyses.

15On February 20, 2019, Home Depot served its SORs (the “Home Depot SORs”) responding to the City’s appeals.

16On March 15, 2019, MPAC also served SORs responding to both the City and Home Depot appeals. MPAC disagreed with the City that the income approach was the correct means of determining current value, preferring the cost approach advanced by Home Depot.

Initial Expert Reports

17The City served expert reports in October 2019 in accordance with the SOE entitled “Consulting & Appraisal Report: Estimate of 2016 Current Value Assessment of a Big Box Retail Property” (the “gsi Initial Reports”) and entitled “Opinion on Economic Obsolescence: Home Depot Stores in the City of Toronto as at January 1, 2016” by Frank Clayton (the “Clayton Initial Report”). Among other opinion evidence, the gsi Initial Reports valued the properties using the cost approach and relied on MPAC’s RCN, stating “we have assumed for the purpose of this report that MPAC’s estimated reproduction cost new is reasonable and supported.” The Clayton Initial Report addressed obsolescence, also a component of the cost approach.

18The City did not amend its pleadings following these reports.

19Home Depot served its expert reports in accordance with the SOE. MPAC served responding expert reports, also essentially in accordance with the SOE, addressing aspects of the cost approach without raising any new issues.

Additional Expert Reports

20MPAC and Home Depot allowed the City an extension of time to April 9, 2020 to serve its responding expert reports. However, no reports were served by the City by that date.

21On May 19, 2020 the City served new responding expert reports entitled “Review Appraisal Report - Estimate of 2016 Current value Assessment for a Big Box Retail Property” also prepared by gsi Real Estate and Planning Advisors Inc., dated May 13, 2020 (the “gsi Reply Reports”) addressing HABU, three of which appended a further analysis entitled “Consulting Letter – Planning Analysis & Opinion of Highest and Best Use” dated April 20, 2020 (the “gsi Reply HABU Reports”). On June 9, 2020, the City additionally served new engineering reports entitled “Building Condition Assessment Report” dated June 8, 2020 relating to three properties (the “B&B Building Condition Reports”) on RCN, and on June 16, 2020 served a further report entitled “Reply Witness Report” also prepared by Frank Clayton (the “Clayton Reply Report”) on depreciation and economic obsolescence. Finally, on June 29, 2020, the City served a further engineering report entitled “Theoretical Reproduction Costs & Summary Report” by Brown and Beattie Ltd. in respect of all of the Home Depot properties (“B&B Reproduction Cost Report”).

The Amended SOIs

22On August 7, 2020 the City served Amended SOIs on the other parties. The City’s amendments raised issues relating to HABU and RCN and took new positions as to the current value of some of the Home Depot properties (“Amended City SOIs”).

SUBMISSIONS OF THE PARTIES

Home Depot

23In this motion, Home Depot argues that the other parties had not had the opportunity to respond to additional expert reports that were not in accordance with the City’s pleadings. It bases its motion on principles of procedural fairness and fundamental justice where it had been, in its words, ambushed. Home Depot also relies on Rules 4 and 5 which provided for the liberal interpretation of the Rules “to ensure the just, most expeditious and least expensive determination of every proceeding”, proportionality and the importance of resolved appeals within the current cycle.

24Specifically, Home Depot argues that the gsi Reply HABU Reports, which now relate to appeals for a single Home Depot location, raised HABU, an issue that was not in the City’s pleadings which were not amended at that time. The City attempted to amend its pleadings on August 7, 2020, and Home Depot’s position is that it had no opportunity to respond. It therefore argues that the City should be prohibited from relying on those reports and amending its SOIs.

25Home Depot acknowledges that the City’s initial B&B Reports addressed RCN, but states that the City had accepted MPAC’s RCNs in its pleadings. Additionally, prior to the filing date set out in the SOE in August, 2020, the City served new B&B Building Condition Reports which were different from the earlier B&B Building Condition Reports that had been served earlier. Home Depot further objects to the City’s last-minute amendment to its SOIs to raise RCN as an issue which, in its view, “deliberately attempted to deprive Home Depot and MPAC of the opportunity to respond.”

26In June 2020, after the parties had agreed to extend the deadline for service of responding expert reports of April 9, 2020, the City served the Clayton Reply Report. Home Depot acknowledges the relevance of the contents of that report but requests that it be struck along with the gsi Reply Reports because it was late.

MPAC

27MPAC’s position in this motion is that the Board should not strike the gsi Reply Reports, the gsi Reply HABU Reports or the Clayton Reply Report. It also opposes Home Depot’s request for costs.

28On the issue of the RCN, MPAC notes that the first indication that the City was not accepting MPAC’s RCN rates was in the B&B Building Condition Reports served in June 2020. MPAC also concurs with Home Depot that HABU was not raised in the City’s original SOIs, and that the City did not seek to raise it until it served the Amended SOI on August 7, 2020.

29As a result, MPAC argues that the B&B Building Condition Reports and amended SOIs which raised RCN as an issue were “a classic example of case-splitting” because up to that time the City had expressly accepted MPAC’s RCN values. Case-splitting is explained as a situation where new matters are raised on reply permitting no response from other parties because those matters could not have been reasonably anticipated. MPAC’s submission raises issues of prejudice, additional delay for responses and injustice creating expense. MPAC submits that the City proceeded in a manner contrary to the Rules, which required the expeditious resolution of appeals. It therefore supports Home Depot’s position on these reports.

30MPAC’s position on the gsi Reply Reports and gsi Reply HABU Reports is that they addressed issues in the original gsi Reports and were within the scope of proper reply.

31MPAC also has no objection to the Clayton Reply Report because it addresses depreciation and obsolescence which were addressed in the City’s SOIs, where MPAC’s and Home Depot’s responding reports also addressed those issues.

32Finally, as to any amendment to the City’s SOIs, MPAC writes that although the Rules “allow(ed) parties to amend their pleadings up to the filing deadline, this right must be limited so as to prevent case-splitting.” Reference is also made to a “‘litigation trap’, in making the respondents respond late to a case they thought they had to meet and then, by means of new reply evidence, make them respond to a different case.”

City

33The City’s position is that the motion should be dismissed. The City argues that it should be permitted to rely on the Amended SOIs and its reports, and that if the Board determines that the City missed SOE deadlines that those deadlines should be amended because of exceptional circumstances.

34The City argues that its supplementary expert reports did not raise any issues that had not been pled, and that they had been served in accordance with the SOE. It argues that the Amended SOIs were filed on August 7, 2020, also prior to the filing date in the SOE, that their amendment was permitted by the Rules, and that these raised no new issues. The City writes in its response to the motion that “Home Depot seeks to bar the City from responding to the very issues that Home Depot and MPAC raise in their pleadings, including their responses to the City’s statements of issues.” The City further argues that its expert reports did not amount to case-splitting or litigation traps as characterized by Home Depot and MPAC.

35The City adds that RCN and effective age are fundamental elements of the cost approach and that the author of one of the gsi expert reports reserved the right to adjust their opinion on the cost approach if other parties’ experts addressed the cost approach, which they did. The City writes that it was “impacted in terms of understanding the case it is to meet on the RCN and effective age issues because MPAC’s disclosure was delayed” and because MPAC did not disclose as it was required to.

36As to HABU, the City’s position is that it needed not be specifically raised as an issue because the Board is required to address it applying recent jurisprudence from the Divisional Court.

37Finally, the City relies on an alternative argument that it should be entitled to amend its SOIs as a result of exceptional circumstances resulting from delays arising from the pandemic.

ANALYSIS

Striking Pleadings

38A preliminary issue to be addressed is the relief requested by Home Depot in the form of “striking” pleadings and reports.

39In General Motors of Canada Company v St. Catharines (City), 2021 CanLII 794 (“General Motors”) at paras. 5, 11 and 14 the Board determined that there was no provision in the Rules to strike pleadings.

40Instead, Rule 49 provided that an issue could only be raised at a hearing if it had been set out in the Statements of Issues and Response, unless the Board determined there were exceptional circumstances. Rule 8 also provided that the Board would determine the appropriate consequences of non-compliance with the Rules.

Issue 1 – gsi Reply Reports, gsi Reply HABU Reports and Amending SOIs

41In this part of this decision, the Board makes several determinations. First, it determines that HABU was not pled by the City until just before the filing deadline, and that this amounted to case-splitting even if a literal interpretation of the Rules might have permitted it. It goes on to determine that a party intending to raise HABU as an issue must plead it as an issue, and it finally determines that there are no exceptional circumstances to extend time to permit HABU to be raised as an issue in these proceedings.

Rule 41

42HABU was not pled until the City sought to amend its SOI on August 7, 2020, just before the filing deadline. The City relies on Rule 41 which provided that pleadings “cannot be amended after the filing date set out in the SOE unless all parties consent, or as provided in these Rules, unless the Board directs otherwise” as its authority to amend its pleadings right up to the filing date (emphasis added).

43A literal reading of Rule 41 would have allowed for such an amendment. However, this interpretation would not have allowed a response by the other parties to new issues raised in the amendment. This could not have been the intended result when that Rule was drafted because it would effectively have permitted case-splitting. Moreover, Rule 41 should be read in conjunction with the SOE which provides that amendments are to be filed with expert reports because amendments are meant only to address additional evidence or issues raised in an expert’s report.

44In this case, the City’s interpretation would have permitted the City to have made HABU an issue on reply depriving Home Depot of the opportunity to respond to that issue in its pleadings at that late date. Moreover, the Board finds that an order for a further round of pleadings to remedy that unfairness would not be consistent with Rule 4 which required the Board to address appeals expeditiously.

Expert Reports

45While the gsi Initial Report raised the issue of HABU in relation to a Home Depot property at 2911 Eglinton East, the fact is that HABU was not raised as an issue until the City sought to amend its SOIs on August 7, 2020, which would not have permitted any response from Home Depot. Moreover, an issue raised in an expert report does not mean it is a live issue to be adjudicated. Expert reports do not define the issues to be decided in a proceeding, the pleadings do. At para. 26 of General Motors, the Board noted that “pleadings lock the issues in place and ground all further work on appeals.” The Board finds that permitting a further issue to be raised on reply, even if grounded in an expert report, would not be procedurally fair.

HABU and Claireville

46The City argues that the Divisional Court’s recent decision in Municipal Property Assessment Corporation v. Claireville Holdings Limited, 2022 ONSC 3293 determined that HABU, in its words, “need not be specifically raised in these appeals because by law the Board is required to determine (HABU) when it decides the current values of the Home Depot properties.” The City quotes para. 17 of that decision which stated that HABU is “the governing element in establishing value for assessment purposes.”

47That determination was not new, it was quoted verbatim from the first paragraph of Re Tyandaga Golf & Country Club and Town of Burlington, 1970 CanLII 251 (ONCA) (“Tyandaga”). Nevertheless, HABU has not been codified in section 44(3) of the Assessment Act (the “Act”) as an issue that “shall” be considered by the Board in appeals, nor is it mentioned in the Rules or in the Rules of Practice and Procedure effective April 1, 2021 currently in force. In addition, if it is the case that there is no presumption that a current use is presumed to be the highest use of a property as was determined even more recently by the Board in TKS Holdings Inc. v. Municipal Property Assessment Corporation, Region 03, 2022 CanLII 93147, a party intending to make it an issue in a proceeding is obliged to properly plead it.

48In short, despite the existence of the Tyandaga decision since 1970, there is no support for the position that HABU is an issue that must be addressed by the Board in the absence of a dispute evidenced in pleadings before the Board.

Rule 82

49The City’s alternate request is to amend its SOIs pursuant to Rule 82, which allowed the alteration of timelines in SOEs in “exceptional circumstances.”

50The first exceptional circumstance cited in the City’s material is the pandemic which caused the extension of deadlines in SOEs. However, the City’s submission does not explain its relevance to these circumstances.

51The second exceptional circumstance alleged is that the SOE did not allow for the amendment of pleadings on reply. In Mississauga (City) v Michalakos, 2018 CanLII 126632 at para. 10, the Board determined that “exceptional means, among other things, something that does not occur regularly, something unusual, or something atypical.” That could not have described the SOE because all SOEs in the expert report stream issued at that time would have been the same as set out in the Rules. That “ambiguity”, as it is described by the City, was not unusual. These are not exceptional circumstances.

52In summary, the City did not plead HABU and requested relief in order to plead it on reply because it was raised in expert reply reports. The City correctly notes that expert reports were not evidence, however nor were they pleadings. The pleadings dictate the issues to be adjudicated by the Board, not expert reports.

53The Board finds that permitting an amendment to SOIs in this instance would be unfair and would amount to case-splitting, where HABU could have been raised at first instance. The Board also finds that to extend the SOE further for yet more pleadings and reports would be inappropriate in the circumstances where the oldest appeals before the Board are from 2017 and where the Board was and continues to be directed to expeditiously resolve the appeals before it.

Rule 49

54Finally, Rule 49 provided that “an issue can only be raised at a hearing event if it has been set out in the statements of issue and response which have been served, and filed with the Board in accordance with these Rules, unless the Board determines there are exceptional circumstances.”

55In this instance the Board has determined that HABU was not properly set out in the pleadings and that there are no exceptional circumstances.

Findings on Issue 1

56The Board finds that HABU was not an issue that was properly pled in the City’s SOIs.

57The Board finds that there are no exceptional circumstances pursuant to Rule 82 to allow for the alteration of any timeline in the SOE or to allow HABU to be raised an issue pursuant to Rule 49.

58As a result, the Board finds that the City may not now amend its SOIs to include HABU as a disputed issue in these appeals.

59The Board finds that there are no exceptional circumstances pursuant to Rules 82 and 49. As a result, the City may not rely on any portion of the gsi Reply Reports or gsi Reply HABU Reports that address HABU.

Issue 2 – B&B Building Condition Reports

60The next issue in this motion relates to the B&B Building Condition Reports, which Home Depot argues were served after the agreed to dates for responding reports. These reports addressed RCN, an issue that had not been pled as an issue in the City’s SOIs to that point.

61MPAC argues that it did not obtain expert reports on RCNs because RCN had not been raised as an issue in the pleadings. MPAC writes that this was a “classic example of case-splitting” and that it was prejudiced because it did not have an opportunity to respond. In its material, the City argues it was not a “litigation trap” because RCN was an issue that had been dealt with in the expert reports to date, to which the City was simply responding.

62The City further argues that it had difficulty understanding the issues surrounding RCN and effective age because MPAC’s disclosure was delayed and because Home Depot did not provide the disclosure required by the Rules.

63In fact, the City provided evidence that a request for disclosure was made by the City on August 15, 2019 with no response. The City did not bring a motion for disclosure and any lack of disclosure is not an issue in this motion.

64The Board concurs with Home Depot and MPAC that the City’s raising of RCN at this late date amounted to case-splitting which should not be permitted. It is an issue that had not been pled and to which Home Depot and MPAC had no opportunity to respond. The Board further determines that the City cannot amend its SOIs for the same reasons as above.

Findings on Issue 2

65The Board finds that RCN was not an issue that was pled in the City’s SOIs.

66The Board finds that there were no exceptional circumstances pursuant to Rule 82 to alter any timeline in the SOE or to allow RCN to be raised as an issue pursuant to Rule 49.

67As a result, the Board finds that the City may not now amend its SOIs to include RCN as a disputed issue in these appeals. The City may not, therefore, rely on any portion of the B&B Building Condition Reports that address RCN.

Issue 3 – The Clayton Reply Report

68The Clayton Reply Report addressed depreciation and economic obsolescence. These were issues addressed in an initial report from the same author and this report was, in the City’s submission, served to address a report served by MPAC addressing the same issues.

69These were issues properly pled in the City’s SOIs. Home Depot argues that this report was “served well past the deadline for the City’s responding expert reports (and the agreed-upon extension), thereby depriving Home Depot and MPAC of the opportunity to properly consider and respond to the revised portions therein.”

70That is not MPAC’s view because it was in the scope of proper reply. The Board concurs and finds that this report was in the nature of reply and was served in accordance with the SOE.

Findings on Issue 3

71The Clayton Reply Report is properly before the Board in the remaining appeals. Home Depot’s request for an order limiting the use of this report is denied.

Issue 4 – B&B Reproduction Cost Report

72The B&B Reproduction Cost Report was served on June 29, 2020, before the deadline for reply reports of July 13, 2020. This report addressed RCN which, as noted above, was not properly raised as an issue in the City’s SOIs. MPAC takes the same position as Home Depot on this report saying that it, and the amended SOIs, raised the issue for the first time when it was not an issue raised in the City’s original SOIs.

73The City’s position is that this report was not a “litigation trap”, that the issues were raised by the parties in Home Depot’s original reports and that RCN is a fundamental element of the cost approach.

74The salient issue in the Board’s view is that the City did not plead any issue with RCN, stating in each of its SOIs that “MPAC’s building replacement cost new have been adopted for this statement of issues.” The Board has determined that the City is not permitted to amend its SOI in relation to RCN. Accordingly, the City may not rely on the B&B Reproduction Cost Report as it addresses RCN.

Findings on Issue 4

75The Board finds that RCN is not an issue in these appeals because it was not properly raised in the City’s SOIs.

76The Board finds that there are no exceptional circumstances pursuant to Rule 82 to alter any timeline in the SOE.

77Further, the Board finds that the City may not now amend its SOIs to include RCN as a disputed in these appeals.

78As a result, the City may not rely on any portion of the B&B Reproduction Cost Report.

Issue 5 – B&B Revised Building Reports

79As noted above, Home Depot alleges in its motion that the B&B Revised Building Reports were served on August 6, 2020, that they revised the earlier B&B Building Condition Reports that had been served in June, 2020, and they had not been disclosed previously. MPAC’s earlier submission, that the issues in the earlier B&B Reports had not been pled, equally applies to these revised reports.

80The Board finds that its determination on the B&B Reproduction Cost Reports applies to the B&B Revised Building Reports pursuant to Rule 49.

Findings on Issue 5

81The Board finds that RCN is not a live issue in these appeals because it was not properly raised in the City’s SOIs.

82The Board finds that there are no exceptional circumstances pursuant to Rule 82 to alter any timeline in the SOE.

83Further, the Board finds that the City may not now amend its SOIs to include RCN as an issue in these appeals.

84As a result, pursuant to Rule 49 the City may not rely on any portion of the B&B Revised Building Reports.

Issue 6 - Costs

85Rule 116 provided that “the Board may order costs against any party that has acted unreasonably, frivolously, is vexatious, or in bad faith, on its own initiative or at the request of any party.”

Findings on Issue 6

86Rule 119 provided that “a submission on costs shall set out the reason for the request and the particulars of the other party’s conduct that are alleged to be unreasonable, frivolous, vexatious, or in bad faith, and the amount requested. Home Depot’s request for costs provides none of these details, therefore it is denied.

CONCLUSION

87The Board determines that the City may not amend its SOIs to address HABU and RCN. Since neither HABU nor RCN are set out in the City’s SOIs and there are no exceptional circumstances, these issues cannot be raised at the hearing event. The City may, however, rely on its report addressing depreciation and economic obsolescence because those issues were raised in its pleadings and its report was proper reply. Home Depot’s request for costs is denied.

ORDER

88The Board orders that:

a. the City may not rely on any portion of the gsi reports that address HABU because HABU is not an issue in these appeals;

b. the City may not rely on any of the B&B Reports that address RCN because RCN is not an issue in these appeals;

c. the City may not amend its SOIs to address HABU or RCN;

d. the Clayton Reply Report on depreciation and economic obsolescence is properly before the Board in these appeals; and

e. Home Depot’s request for costs is denied.