Tribunals Ontario
Tribunaux décisionnels Ontario
Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE: June 02, 2022
Assessed Person(s): Cadillac Fairview Corp. Ltd.; Realty Holdings Inc.
Appellant(s): Cadillac Fairview Corp. Ltd.
Respondent(s): Municipal Property Assessment Corporation Region 19
Respondent(s): City of Hamilton
Property Location(s): 999 Upper Wentworth Street
Municipality(ies): City of Hamilton
Roll Number(s): 2518-070-652-06010-0000
Appeal Number(s): 3489691, 3447133 and 3417078
Taxation Year(s): 2020, 2021 and 2022
Hearing Event No.: 765073
Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31
Parties
Counsel*/Representative
Cadillac Fairview Corp. Ltd.; Realty Holdings Inc.
Richard Minster*
Dan Rosman*
Municipal Property Assessment Corporation
Donald G. Mitchell*
City of Hamilton
John L. O’Kane
REQUEST FOR: An Order for Disclosure
HEARD: May 3, 2022, in writing
ADJUDICATOR(S): Carly Stringer, Member
MOTION DECISION
OVERVIEW
1The City of Hamilton (the “City”) is responding to appeals brought by Cadillac Fairview Corp. Ltd. (“Cadillac Fairview”) relating to 999 Upper Wentworth Street (the “Subject Property”) in Hamilton, Ontario. The Subject Property is known as the CF Lime Ridge Mall.
2The City has brought this motion seeking disclosure from Cadillac Fairview and the Municipal Property Assessment Corporation (“MPAC”). MPAC is another responding party to these appeals.
3The City requests the disclosure outlined in Appendix A to this motion (“Disclosure Requests”).
4Cadillac Fairview opposes the City’s motion. Cadillac Fairview asks the Board to dismiss this motion due to non-compliance with the Schedule of Events (“SOE”). In the alternative, if the Board grants some or all the City’s Disclosure Requests, Cadillac Fairview asks the Board to order that all disclosure be subject to the execution of a non-disclosure agreement (“NDA”).
5MPAC opposes the motion on the basis that Cadillac Fairview, and not MPAC, should be ordered to disclose. MPAC also submits that it cannot disclose the information requested without Cadillac Fairview’s consent, or a Board order, in accordance with s. 53 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”).
Result
6For the reasons that follow, the Board denies the motion.
BACKGROUND
7The Subject Appeals were assigned a commencement date of January 15, 2021. That day set all of the procedural due dates in these proceedings, outlined in the SOE. The important dates are as follows:
February 12, 2021
MPAC provides initial disclosure to all parties
February 19, 2021
All other parties to request any additional disclosure from MPAC
March 19, 2021
Any motions for disclosure from MPAC completed, if required
June 11, 2021
Cadillac Fairview to provide its disclosure and Statement of Issues (“SOI”)
July 2, 2021
Each responding party to advise if any additional disclosure is required from Cadillac Fairview
August 6, 2021
Any objection regarding a request for additional disclosure to be resolved by motion
September 10, 2021
If additional disclosure is required, it is completed
December 3, 2021
Each responding party to provide its Statement of Response and any additional supporting disclosure
8On June 11, 2021, Cadillac Fairview delivered its SOI.
9On June 30, 2021, the City requested additional disclosure from Cadillac Fairview.
10On July 12, 2021, Cadillac Fairview responded to the City’s request for additional disclosure. Cadillac Fairview stated that it required that an NDA be executed for disclosure dealing with confidential financial information, such as rent rolls and leases. Cadillac Fairview also stated that the City’s request for disclosure was not particularized to the Subject Appeals.
11On August 9, 2021, the City responded to Cadillac Fairview. The City stated it was agreeable to signing an NDA. The City also provided particulars of its June 30, 2021 disclosure request.
12On August 11, 2021, the City followed up with Cadillac Fairview. The City asked for Cadillac Fairview’s disclosure by August 13, 2021, and stated it would bring a motion if Cadillac Fairview did not provide the disclosure requested.
13On August 19, 2021, the City followed up with Cadillac Fairview. The City stated it was agreeable to extending the date for disclosure to August 27, 2021. The City stated it would bring a motion for disclosure if not received by that date. The City also requested that Cadillac Fairview provide a copy of its NDA.
14On that same day, Cadillac Fairview provided a draft NDA to the City.
15On August 20, 2021, Cadillac Fairview provided a response to the City’s particularized disclosure request, noting that all its responses were subject to an NDA.
16On September 9, 2021, the City asked Cadillac Fairview if it would agree to personal undertakings rather than a confidentiality agreement. Cadillac Fairview responded on September 15, 2021 that it would agree if the City’s lawyer and City staff with access to the information sign the NDA.
17The City did not provide copies of personal undertakings, nor did it otherwise respond to Cadillac Fairview for some time.
18On December 1, 2021, the City asked for an extension to submit its Statement of Response due December 3, 2021. The parties agreed to the following revised timeline:
a. The City to provide signed NDAs to Cadillac Fairview by December 3, 2021;
b. Cadillac Fairview to provide disclosure by January 7, 2022;
c. The City to provide its Statement of Response by January 28, 2022;
d. Cadillac Fairview to provide its Reply by February 18, 2022.
19On December 2, 2021, the City advised Cadillac Fairview that it would require amendments to the draft NDA that Cadillac Fairview had sent to it on August 19, 2021. The City and Cadillac Fairview exchanged further emails on December 2, 2021, regarding the City’s proposed amendments.
20Cadillac Fairview provided a revised NDA to the City on December 15, 2021.
21On January 4, 2022, the City advised Cadillac Fairview of concerns with the revised NDA.
22On January 11, 2022, the City asked Cadillac Fairview to reconsider its requirement for an NDA, referencing the Board’s decision in Simon Halton Hills Holding Inc. v Municipal Property Assessment Corporation, Region 15, 2021 CanLII 74737 (ON ARB).
23On January 11, 2022, Cadillac Fairview responded. It confirmed the information is commercially sensitive and reiterated its requirement for an NDA.
24On March 8, 2022, the City served its Statement of Response.
25On March 11, 2022, the City brought this motion for disclosure.
PRELIMINARY MATTERS
Timelines Pursuant to the Schedule of Events
26Cadillac Fairview has asked the Board to dismiss the City’s motion against it on the basis that the City has missed the deadlines in the Schedule of Events (“SOE”) and any extensions agreed to by the parties for delivering its Statement of Response and for bringing this motion for disclosure. Cadillac Fairview states that the City has missed these deadlines without showing exceptional circumstances that would warrant altering the SOE.
27The City has not provided a reply to Cadillac Fairview’s request to dismiss this motion due to non-compliance with the SOE. The City has not made reference to exceptional circumstances in its affidavit evidence on this motion, nor has the City made submissions on exceptional circumstances.
Applicable Rules
28Rule 40 of the Board’s Rules of Practice and Procedure (the “Rules”) provides that after the commencement day, “the Board will not alter any due date set out in the Schedule of Events other than in exceptional circumstances.”
29In relation to exceptional circumstances, “exceptional means, among other things, something that does not occur regularly, something unusual, or something atypical”: see Mississauga (City) v Michalakos, 2018 CanLII 126632 (ON ARB) at paragraph 10.
30Rule 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.”
31Finally, Rule 7 provides that the Board will determine the appropriate consequences of non-compliance with the Rules.
Findings on Due Dates in the SOE
32The SOE required the City to bring a request for any additional disclosure from MPAC by February 19, 2021 and complete any motions for disclosure from MPAC by March 19, 2021. The City did not comply with these deadlines, nor has it provided the Board with an explanation for its non-compliance. The City has not provided the Board with evidence of exceptional circumstances warranting an extension to this deadline in the SOE. Accordingly, the Board will not alter the deadline in the SOE for completing a motion for disclosure from MPAC.
33The analysis is more complicated as it relates to the City’s disclosure request from Cadillac Fairview. The City complied with the July 2, 2021 deadline to make its request for disclosure from Cadillac Fairview, but did not comply with the August 6, 2021 deadline to resolve any motions relating to that disclosure.
34The Board’s “Practice Direction on How to Interpret the Schedule of Events for the General Proceedings” (“Practice Direction”) provides that parties are expected to comply with the due dates in the SOE but recognizes that there may be times that a party requires a short extension of a due date. Such consent alterations of due dates among and between the parties do not generally require Board approval.
35The evidence does not establish that the parties contemplated or mutually agreed to an extension of time for the City to bring a motion for disclosure. The Board finds that on December 1, 2021, the parties agreed that the City would provide a signed NDA by December 3, 2021; that Cadillac Fairview would provide its disclosure by January 7, 2022; and that the City would provide its Statement of Response by January 28, 2022. The Board finds that the context behind this mutual agreement is relevant: namely, that Cadillac Fairview had been explicit since July 12, 2021 that it would require an NDA prior to disclosure; that the City had agreed to execute an NDA, without reservation; that the City had a copy of the draft NDA as early as August 19, 2021; that on August 20, 2021, Cadillac Fairview provided the City with its written position on the City’s disclosure requests; that the City did not communicate with Cadillac Fairview in relation to either the content of the NDA, or Cadillac Fairview’s position on disclosure, until December 2, 2021. The evidence is clear that Cadillac Fairview granted its consent to extend the SOE deadlines following the City’s commitment, without reservation, to providing an executed NDA by December 3, 2021.
36Disputes relating to disclosure are meant to be addressed in a timely fashion. This motion reveals the challenges that arise when parties do not comply with the deadlines prescribed in the SOE. In this instance, the Board finds that the City has not complied with the August 6, 2021 deadline to complete a motion for disclosure from Cadillac Fairview. The Board finds that the parties did not explicitly mutually agree to extend this deadline. Even if the actions of the parties demonstrated an implied agreement to extend this deadline, which neither party has argued, the Board finds any such tacit agreement would not extend to the City’s bringing of this motion in March 2022, roughly seven months after the SOE deadline; three months after the date by which the parties agreed the City would provide an executed NDA; two months after the date by which the parties agreed that Cadillac Fairview would provide its disclosure; over a month after the date by which the parties agreed that the City would provide its SOR; and three days after the City provided its SOR on March 8, 2021.
37Further, the Board finds there is insufficient evidence of exceptional circumstances explaining the City’s non-compliance with the SOE, in the sense of circumstances that are atypical or unusual.
38In all of the circumstances, the Board will not alter the due date in the SOE for bringing this motion.
ORDER
39The Board denies the City’s motion for disclosure.
"Carly Stringer"
CARLY STRINGER
MEMBER
Assessment Review Board
Website: www.tribunalsontario.ca/arb
APPENDIX A
The City seeks disclosure of the following materials related to the capitalization rate:
| Disclosure Request No. | Disclosure Requested | Requested From |
|---|---|---|
| 1a | Information included in the Property Income and Expense Request (PIER) Questionnaire for the year of the valuation date (2016) and equivalent information for four years prior to the valuation date (2012 – 2015) | Cadillac Fairview and/or MPAC |
| 1b | Taking into account the relevant market area and appropriate valuation parameters, the total sales investigated: i. Sale price ii. Address of property iii. Sales not used in analysis with reason for exclusion |
Cadillac Fairview and/or MPAC |
| 1c | Beginning with the year of the valuation date, five years (2016 – 2020) of audited financial statements for the property, including all income and expenses incurred for the property, if available | Cadillac Fairview and/or MPAC |
| 1d | Copies of all redevelopment studies, engineering studies, or due diligence reports prepared on behalf of the subject property in the year of the valuation date or four preceding years (including but not limited to related documents such as planning opinions, development applications, and zoning amendments for this period) | Cadillac Fairview and/or MPAC |
The City requests disclosure of the following materials related to the fair market rents:
| Disclosure Request No. | Disclosure Requested | Requested From |
|---|---|---|
| 2a | Information included in the Property Income and Expense Request (PIER) Questionnaire for the year of the valuation date (2016) and the equivalent information for four years prior to the valuation date (2012 – 2015) | Cadillac Fairview and/or MPAC |
| 2b | Copies of all leases in effect at the Subject Property for the five years prior to the assessment date January 1, 2016 and any and all new leases or lease renewals entered since the assessment date and before the end of the latest tax year under appeal. These documents must include original agreements and lease renewals, extensions, and lease amending agreements. |
Cadillac Fairview and/or MPAC |
| 2c | A copy of all tenant inducements, including all cost breakdowns, for the year(s) under appeal and four years prior to the year(s) under appeal, if available | Cadillac Fairview and/or MPAC |
The City requests disclosure of the following materials related to vacancy and collection:
| Disclosure Request No. | Disclosure Requested | Requested From |
|---|---|---|
| 3a | Information included in the Property Income and Expense Request (PIER) Questionnaire for the year of the valuation date (2016) and the equivalent information for four years prior to the valuation date (2012 – 2015); | Cadillac Fairview and/or MPAC |
| 3b | A copy of all advertisement(s) for all vacant space, including the marketed lease rates for the year under appeal(s) and four years prior to the year under appeal or an affidavit in lieu. | Cadillac Fairview and/or MPAC |
| 3c | Tenant leases and/or rent rolls for the subject property for 4 years preceding the base year |
Cadillac Fairview and/or MPAC |
| 3d | If a portion of the building was shut down or vacant, particulars including timing | Cadillac Fairview and/or MPAC |
| 3e | If studies completed, copies of the studies, save and except any information subject to section 53 of the Assessment Act |
Cadillac Fairview and/or MPAC |
| 3f | Vacancy rebate information | Cadillac Fairview and/or MPAC |
The City requests disclosure of the following material related to expense ratios:
| Disclosure Request No. | Disclosure Requested | Requested From |
|---|---|---|
| 4a | Information included in the Property Income and Expense Request (PIER) Questionnaire for the year of the valuation date (2016) and the equivalent information for four years prior to the valuation date (2012 – 2015) | Cadillac Fairview and/or MPAC |
| 4b | Beginning with the year of the valuation date, five years (2012 – 2016) of audited financial statements for the property, including all income and expenses incurred for the property | Cadillac Fairview and/or MPAC |
| 4c | If studies completed, copies of the studies, any information subject to section 53 of the Assessment Act. | Cadillac Fairview and/or MPAC |
The City requests disclosure of the following materials related to reinvestment and modernization expenses at the Subject Property:
| Disclosure Request No. | Disclosure Requested | Requested From |
|---|---|---|
| 5a | Capital expenditure report and a report of any renovations, additions or other modifications made to the property for the fiscal year covering the valuation date(s) under appeal and preceding four years, detailing - What was modified - The time period; and - Associated costs |
Cadillac Fairview and/or MPAC |
| 5b | If all, or a portion, of the property was shut down or vacant, details as to the area and timing of such vacancy or closure. | Cadillac Fairview and/or MPAC |
The City requests disclosure of the following materials related to appraisals of the Subject Property:
| Disclosure Request No. | Disclosure Requested | Requested From |
|---|---|---|
| 6a | A full copy of all property appraisal(s) prepared for property assessment purposes for the year(s) under appeal and four years prior to the year(s) under appeals | Cadillac Fairview and/or MPAC |
| 6b | Confirm the existence of property appraisal(s) for any other purpose | Cadillac Fairview and/or MPAC |
The City requests disclosure of the following materials related to the Appellant’s equity pleading:
| Disclosure Request No. | Disclosure Requested | Requested From |
|---|---|---|
| 7a | Total number of properties selected, vicinity selected, criteria for similar properties and vicinity; test for equity selected; and adjustments in comparison to the subject property and rationale for adjustments | Cadillac Fairview and/or MPAC |