Chedoke Redevelopment Corporation v. Municipal Property Assessment Corporation, Region 19, 2022 CanLII 34936

Tribunals Ontario

Assessment Review Board

ISSUE DATE: April 29, 2022 FILE NO.: DM 177995

Assessed Person(s): Chedoke Redevelopment Corporation Appellant(s): Chedoke Redevelopment Corporation Respondent(s): Municipal Property Assessment Corporation, Region 19 Respondent(s): City of Hamilton

Property Location(s): 501-565 Sanatorium Road Municipality(ies): City of Hamilton Roll Number(s): 2518-081-081-04103-0000 Appeal Number(s): 3386155, 3386156, 3423590, 3343962, 3408245, 3447020 and 3489579 Taxation Year(s): 2017, 2018, 2019, 2020, 2021 and 2022 Hearing Event No.: 763878

Legislative Authority: Sections 33 and 40 of the Assessment Act, R.S.O. 1990, c. A.31 and section 357.(7) of the Municipal Act, 2001, S.O. 2001, c. 25

Parties	Representative
Chedoke Redevelopment Corporation	Jim Betteto Steve Pocrnic
Municipal Property Assessment Corporation	Marissa Cheddi
City of Hamilton	John L. O’Kane

REQUEST FOR: An order striking evidence HEARD: April 13, 2022, in writing ADJUDICATOR(S): Carly Stringer, Member

MOTION DECISION

OVERVIEW

1The Municipal Property Assessment Corporation (“MPAC”) is responding to appeals brought by Chedoke Redevelopment Corporation (the “Appellant”) relating to 501-565 Sanatorium Road in the City of Hamilton (the “Subject Property”).

2MPAC has brought this pre-hearing motion asking the Assessment Review Board (the “Board”) to strike evidence. MPAC submits that the Appellant’s reply materials contain three documents that were not previously disclosed by the Appellant, including a Perimeter Fencing Invoice dated June 7, 2017; an ECOH Environmental Survey for Designated Substances and Hazardous Materials Report dated September 19, 2018; and an ECOH Workplace and Cost Estimate dated October 24, 2018 (together, the “Three Documents”).

3The City of Hamilton supports MPAC’s motion.

4The Appellant opposes MPAC’s motion.

Result

5For the reasons that follow, the Board finds that:

a. The Board’s Rules of Practice and Procedure (the “Rules”) do not provide that the Board may “strike” evidence.

b. The Three Documents were not served in accordance with the Rules. There are no exceptional circumstances. Consequently, the Three Documents will not be admitted into evidence at the hearing.

BACKGROUND

6The Schedule of Events (“SOE”) for these appeals required the Appellant to provide its disclosure and Statement of Issues to all other parties by February 11, 2020. It further required any responding party to provide a Statement of Response and any additional supporting disclosure by November 3, 2020. The Appellant was required to provide its reply, if any, and any additional disclosure to support its reply by December 1, 2020.

7The SOE deadline for the Appellant to serve and file any expert reports it intends to rely on at a hearing, as well as any amendments to the Statement of Issues to address additional evidence or issues raised in any expert’s report, was June 15, 2021. The parties mutually agreed to extend this deadline to October 18, 2021.

8The SOE deadline for the responding parties to serve any expert reports they intend to rely on at a hearing, as well as any amendments to their Statements of Response, was October 5, 2021. The parties mutually agreed to extend this deadline to November 8, 2021.

9The SOE deadline for the Appellant to provide any supplementary expert reports in reply to any expert reports served by a responding party was November 16, 2021. The parties mutually agreed to extend this deadline to November 23, 2021.

10On November 23, 2021, the Appellant provided its Reply. The Three Documents were included with the Appellant’s Reply.

11The Appellant does not dispute that the Perimeter Fencing Invoice dated June 7, 2017, and the ECOH Workplace and Cost Estimate dated October 24, 2018, were provided to the responding parties for the first time on November 23, 2021.

12The Appellant states that it served the parties with the ECOH Environmental Survey for Designated Substances and Hazardous Materials Report dated September 19, 2018, on February 2, 2021. MPAC has provided affidavit evidence that it did not receive the ECOH Environmental Survey for Designated Substances and Hazardous Materials Report dated September 19, 2018. Therefore, while the parties are in agreement that two of the Three Documents were not disclosed by the Appellant prior to November 23, 2021, there is a dispute as to when the third document was disclosed.

ANALYSIS

Applicable Rules

13The Rules do not include a provision to “strike” evidence: see General Motors of Canada Company v St. Catharines (City), 2021 CanLII 794 (ON ARB) (“General Motors”) at paragraphs 5, 11 and 14.

14Instead, Rule 48 provides that a document may only be admitted into evidence at a hearing if it has been served and filed in accordance with the Rules, unless the Board finds there are exceptional circumstances.

15Rule 3 confirms that the Rules “shall be liberally interpreted to ensure the just, most expeditious and least expensive determination of every proceeding.” Rule 4 provides that the 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 assessment cycle.” Finally, parties are not held to a standard of perfection when it comes to compliance with the Rules. Rule 6 provides that substantial compliance with the Rules is sufficient. Rule 7 provides that the Board will determine the appropriate consequences of non-compliance with the Rules.

16On this motion, MPAC requests relief in relation to the Three Documents. MPAC says the Three Documents were not served in accordance with the Rules.

Issue 1 – Documents Not Served in Accordance with the Rules

Findings

17MPAC asks this Board to “strike” the New Documents. As noted above, the Rules do not include provisions to “strike” evidence. Accordingly, the Board will not grant this relief.

18However, Rule 48 is engaged where a party seeks to admit a document at a hearing that has not been served in accordance with the Rules. Therefore, the Board must determine first whether the Three Documents were served in accordance with the Rules. If they were not, the Board must determine whether there are exceptional circumstances that warrant permitting the Appellant to seek to admit the Three Documents at the hearing of the Subject Appeals.

19The Board makes the following findings with respect to the Perimeter Fencing Invoice dated June 7, 2017, and the ECOH Workplace and Cost Estimate dated October 24, 2018:

a. The Schedule of Events in this proceeding required the Appellant to provide its disclosure by February 11, 2020, and any additional disclosure to support its reply by December 1, 2020.

b. The Appellant does not dispute that it provided these two documents for the first time on November 23, 2021.

c. Accordingly, the Appellant did not serve the Perimeter Fencing Invoice dated June 7, 2017, and the ECOH Workplace and Cost Estimate dated October 24, 2018, in accordance with the Rules.

d. The Appellant has not provided an explanation for its failure to provide either of these two documents within the timeline prescribed by the Rules. Both documents are dated well in advance of the SOE disclosure deadline. The Appellant has not provided evidence or made submissions regarding exceptional circumstances. The Board finds there are no exceptional circumstances.

20The Board makes the following findings with respect to the ECOH Environmental Survey for Designated Substances and Hazardous Materials Report dated September 19, 2018:

a. The Schedule of Events in this proceeding required the Appellant to provide its disclosure by February 11, 2020, and any additional disclosure to support its reply by December 1, 2020.

b. The Appellant states that it served this document on February 2, 2021, by email to MPAC and the City. MPAC has provided evidence that this document was not received. Even if the document was in fact served on February 2, 2021, that is still well past the deadline in the SOE.

c. Accordingly, the Appellant did not serve the ECOH Environmental Survey for Designated Substances and Hazardous Materials Report dated September 19, 2018, in accordance with the Rules.

d. The Appellant has not provided an explanation for its failure to provide this document within the timeline prescribed by the Rules. The document is dated well in advance of the SOE disclosure deadline. The Appellant has not provided evidence or made submissions regarding exceptional circumstances. The Board finds there are no exceptional circumstances.

21The Three Documents were not served in accordance with the Rules. There are no exceptional circumstances that warrant permitting the Appellant to seek to admit the Three Documents at the hearing of the Subject Appeals. In all of the circumstances, particularly in the absence of exceptional circumstances, permitting the Appellant to introduce the Three Documents at the hearing would not result in the just, most expeditious and least expensive determination of the proceeding. In accordance with Rules 3, 4, 6, 7 and 48, the Three Documents will not be admitted into evidence at the hearing.

ORDER

22The Board orders that the Three Documents will not be admitted into evidence at the hearing of the Subject Appeals.