Patrick Gamble v. Municipal Property Assessment Corporation Region 32, 2022 CanLII 21303

Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: March 17, 2022

FILE NO.: DM 176844

Assessed Person(s): Patrick Joseph Gamble

Appellant(s): Patrick Gamble

Respondent(s): Municipal Property Assessment Corporation Region 32

Respondent(s): City of Thunder Bay

Property Location(s): 567 Memorial Avenue

Municipality(ies): City of Thunder Bay

Roll Number(s): 5804-010-036-26300-0000

Appeal Number(s): 3383257, 3411366 and 3449255

Taxation Year(s): 2019, 2020 and 2021

Hearing Event No.: 763567

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

Parties

Representative

Patrick Joseph Gamble

Jonas Perov

Municipal Property Assessment Corporation

Shelby Roper

City of Thunder Bay

No one appeared

REQUEST FOR: An Order by the Assessment Review Board granting leave for a paralegal to appear at a hearing event as both an advocate and a witness

HEARD: February 28, 2022, in writing

ADJUDICATOR(S): Christopher Voutsinas, Vice-Chair

MOTION DECISION

OVERVIEW

1Patrick Joseph Gamble (the “Appellant”) has brought this motion in connection with the subject appeals relating to the property located at 567 Memorial Avenue (the “Subject Property”) in the City of Thunder Bay (the “City”). The Subject Property is categorized under property code 410, being retail – one storey, under 10,000 square feet.

2The Appellant seeks leave of the Assessment Review Board (the “Board”), pursuant to Rule 14(b) of the Board’s Rules of Practice and Procedure (the “Rules”), to allow his representative, Jonas Perov (the “Appellant Representative”), to appear at a hearing event as both an advocate and a witness.

3The Municipal Property Assessment Corporation (“MPAC”) is a respondent in the proceeding and opposes the Appellant’s motion.

4The Board has not received submissions from the City, the other respondent.

Result

5The Board grants leave for the Appellant Representative to appear as both an advocate and a fact witness only.

BACKGROUND TO THIS MOTION

6In the Appellant’s Notice of Motion, the Appellant Representative submits that he is a paralegal licensed by the Law Society of Ontario.

7The subject appeal regarding the 2019 taxation year commenced on October 15, 2019, as a General Proceeding. Subsequent appeals were deemed for the 2020 and 2021 taxation years.

8The parties to the subject appeals held a Mandatory Settlement Meeting on or about April 1, 2021.

9On April 23, 2021, the Appellant Representative advised MPAC that he intended to appear as both an advocate and a witness at a hearing event and filed an Expedited Board Direction form requesting leave of the Board to allow him to do so. MPAC opposed this request, and the City took no position. The matter was set to this written motion.

10The Appellant has provided case law in support of his position that the Board has allowed representatives in General Proceeding appeals to act as both advocate and witness where the issues are factual in nature and the representative is not providing expert evidence. The Appellant submits that he is seeking leave for his representative to appear as a witness and advocate, and not as an expert witness and advocate.

11The Appellant submits that the main issue in the underlying appeals is the equity of the Subject Property’s assessment, which the Appellant further submits is based on factual evidence and not opinion evidence. While the Appellant does not provide a detailed description of the factual evidence that the Appellant Representative will testify to, he does submit that the following elements of an equity analysis are questions of fact: the characteristics of the subject lands, selection and determination of similar properties, and determination of vicinity. In support of that argument, the Appellant references the Ontario Property Tax Assessment Handbook, 2nd Edition. The Appellant submits in his reply that: “No opinion is being made by the Appellant as to the current value assessment produced by MPAC, but rather that an equity adjustment is warranted under s. 44(3)(b) of the Act.”

12MPAC submits that the motion should be denied. MPAC submits that a paralegal who advocates for their client cannot provide the Board with objective evidence relating to the assessment of a property. MPAC submits that while the Appellant Representative is not seeking to be an expert witness, the Appellant Representative has advanced evidence from a position of judgment and opinion. MPAC further submits that permitting the Appellant’s Representative to appear as both an advocate and a witness could prejudice MPAC, as MPAC would not be able to cross-examine the Appellant Representative on all issues and evidence, as his duty to his client would prevent an objective and factual answer.

13MPAC has provided the Board with a number of cases in support of its position, where the Board has refused leave for a representative to appear as both an advocate and witness.

ANALYSIS

Issue 1 – Should the Board grant leave to the Appellant for the Appellant Representative to appear as both an advocate and witness?

Applicable Law

14Rule 14 of the Board’s Rules states:

Representative as Advocate and Witness

14. A representative who is licensed by the Law Society of Ontario as a paralegal or lawyer may appear at a hearing event as both an advocate and a witness:

a) in a summary proceeding before the Board; or

b) in a general proceeding with leave of the Board.

Findings on Issue 1

15The Board’s Rules recognize there may be situations where it is appropriate for a representative to appear at a hearing event as both an advocate and a witness. Having reviewed the cases provided by the parties to this motion, the Board tends to grant leave where a representative is seeking to be both an advocate and a fact witness, particularly where the facts are not significantly in dispute, the matters are not particularly complex, and there is no significant prejudice. The Board tends to deny leave where a representative seeks to both advocate and provide expert evidence and opinion. The Board has held that for opinion evidence to be admitted, it must be provided by a property qualified expert witness, and that an advocate’s first duty is to his client and an expert’s first duty is to be impartial before the Board.

16As noted above, the Appellant has been clear that he is seeking the Board’s leave for its representative to act as a fact witness only, not an expert witness, and that its representative intends to provide evidence regarding only the factual information in its equity analysis, not opinion evidence. In such circumstances, the Board finds it is appropriate to grant leave to the Appellant for its representative to act as both an advocate and a fact witness. To be clear, the Board does not grant leave for the Appellant Representative to act as both an advocate and an expert witness.

17While MPAC asserts that the Appellant has advanced evidence from a position of judgment and opinion, the Appellant Representative is clear that he only intends to speak to factual evidence. And while MPAC asserts that there may be prejudice to MPAC if it is precluded from cross-examining on all issues and evidence, this alleged prejudice is speculative at this time. If the Appellant Representative attempts to provide expert evidence, contrary to its stated intent and the basis of this decision, and if any actual prejudice to MPAC arises at the hearing event, the hearing member can take steps to mitigate these including appropriate determinations as to the weight of the evidence.

ORDER

18The Board grants leave for the Appellant Representative to appear as both advocate and fact witness in accordance with Rule 14(b).