Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: January 06, 2022

FILE NO.: DM 175698

Assessed Person(s): D Lester Auto Group

Appellant(s): D Lester Auto Group

Respondent(s): Municipal Property Assessment Corporation Region 23

Respondent(s): City of Woodstock

Property Location(s): 1201 Dundas Street

Municipality(ies): City of Woodstock

Roll Number(s): 3242-020-120-11670-0000

Appeal Number(s): 3417168 and 3448035

Taxation Year(s): 2020 and 2021

Hearing Event No.: 757779

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

Parties

Representative

D Lester Auto Group Inc.

Jonas Perov

Municipal Property Assessment Corporation

Jorden Gaiser

City of Woodstock

Submissions not received

REQUEST FOR: An order granting leave to a paralegal to appear at a hearing event as both an advocate and a witness

HEARD: January 6, 2022 in writing

ADJUDICATOR(S): Carly Stringer, Member

MOTION DECISION

OVERVIEW

1The Appellant, D Lester Auto Group Inc (the “Appellant”), has brought this motion in the subject appeals which relate to an auto dealership property located at 1201 Dundas Street in Woodstock (the “Subject Property”). On this motion, the 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”) for its representative, Jonas Perov, to appear at a hearing event as both an advocate and a witness.

2The Municipal Property Assessment Corporation (“MPAC”) is a respondent in the proceeding and opposes the Appellant’s motion. The Board has not received submissions from the City of Woodstock, the other respondent.

Result

3The Board grants leave for Jonas Perov to appear as both an advocate and a fact witness.

BACKGROUND TO THIS MOTION

4While the Appellant did not provide sworn evidence supporting its motion for leave, the Board discerns from the Appellant’s submissions that its representative, Jonas Perov, is a paralegal licensed by the Law Society of Ontario.

5The Appellant served its Statement of Issues in the subject appeals on April 6, 2021. MPAC served its Statement of Response on October 4, 2021. The Appellant advised MPAC on October 22, 2021 that it intended to seek leave for Mr. Perov to appear as both an advocate and a witness, and this motion in writing was scheduled for January 6, 2022. The Schedule of Events for the underlying appeals requires completion of the mandatory settlement meeting by January 25, 2022. No hearing event has been scheduled at this time.

6The Appellant has provided case law in support of its position that the Board has allowed representatives to act as advocate and witness where the issues are factual in nature and the representative is not providing expert evidence. The Appellant submits that it is seeking leave for its representative to appear as a witness and advocate, not as an expert witness and advocate.

7The Appellant submits that the main issue in the underlying appeals is the equity of the Subject Property’s assessment, which is based on fact and not opinion evidence. While the Appellant has not provided much detail regarding what evidence its representative intends to provide, the Board surmises from the Appellant’s Reply submissions that its representative intends to testify regarding “data gathered from MPAC’s own property line subscription and About My Property showing current information on similar properties.”

8MPAC 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 further submits that permitting the Appellant’s representative to appear as both an advocate and a witness could prejudice MPAC, if MPAC is not able to cross-examine Mr. Perov on all issues and evidence if privilege and confidentiality objections are asserted. MPAC has provided the Board with a number of cases it says supports 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 Jonas Perov to appear as both an advocate and a witness?

Applicable Law

9Rule 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

10The 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. I have reviewed the cases provided by the parties to this motion. In general, 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 and there is no significant prejudice. The Board tends to deny leave where a representative seeks to both advocate and tender expert evidence.

11As noted above, the Appellant has not provided much information regarding the nature of the evidence its representative intends to provide. That said, the Appellant has been clear that it is seeking the Board’s permission for Mr. Perov to act as a fact witness, not an expert witness, and that Mr. Perov intends to provide evidence regarding the factual information on which the Appellant relies in its equity analysis, not opinion evidence. In such circumstances, the Board finds it is appropriate to grant leave to the Appellant for Mr. Perov to act as both an advocate and a fact witness. To be clear, the Board does not grant leave for Mr. Perov to act as both an advocate and an expert witness.

12While MPAC has suggested there may be prejudice to it if it is precluded from cross-examining Mr. Perov due to privilege or confidentiality objections, I find this alleged prejudice is merely speculative at this time and does not weigh against granting leave. If any actual prejudice arises at a hearing event from Mr. Perov acting as both advocate and fact witness, the hearing member can take steps to mitigate the impact, including appropriate determinations as to weight of the evidence.

ORDER

13The Board grants leave for Jonas Perov to appear as both advocate and fact witness in accordance with Rule 14(b).