Bru-Ben Development Co Limited v. Municipal Property Assessment Corporation Region 26, 2022 CanLII 53792

Assessment Review Board

Issue Date: June 14, 2022 File No.: DM 178942

Assessed Person(s): Bru-Ben Development Co Limited Appellant(s): Bru-Ben Development Co Limited Respondent(s): Municipal Property Assessment Corporation Region 26 Respondent(s): Municipality of Chatham-Kent

Property Location(s): 15 Witherspoon Street Municipality(ies): Municipality of Chatham-Kent Roll Number(s): 3650-420-004-12100-0000 Appeal Number(s): 3265101, 3313635, 3367078, 3410445, 3448576 and 3490401 Taxation Year(s): 2017 to 2022 Hearing Event No.: 766772

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

Parties and Counsel*/Representative

• Bru-Ben Development Co Limited: Daniel Attard*
• Municipal Property Assessment Corporation: Michael Radan
• Municipality of Chatham-Kent: Cynthia Kuehl*

Request For: An order that a person cannot act as an expert witness Heard: May 25, 2022 in writing Adjudicator(s): Carly Stringer, Member

Motion Decision

Overview

1The Municipal Property Assessment Corporation ("MPAC") is a responding party in appeals brought by Bru-Ben Development Co Limited (the "Appellant") relating to 15 Witherspoon Street in the Municipality of Chatham-Kent (the "Subject Property") for the 2017 to 2022 taxation years.

2MPAC has brought this motion requesting an order from the Assessment Review Board (the "Board") that Andrew Attard (the "Proposed Witness") cannot act as an expert witness in these appeals on the basis that the Proposed Witness has been an advocate for the Appellant throughout these proceedings.

3The Municipality of Chatham-Kent supports MPAC's motion.

4The Appellant has not provided the Board with a clearly articulated position on this motion. However, the Appellant states:

a. That the Proposed Witness disagrees that expert reports are required;

b. That submitting an executed Acknowledgement of Expert Duty form should not be taken as an indication that the Proposed Witness intends to present evidence in the capacity of an expert; and

c. That the Appellant intends to have the Proposed Witness give opinion evidence that will assist the Board in its deliberations.

Result

5MPAC's motion is premature and it is dismissed without prejudice.

Background

6The Subject Property is a 40-unit multi-residential apartment building. The Appellant appealed the returned assessment of the Subject Property for the 2017 taxation year. Appeals for the 2018 to 2022 taxation years were deemed pursuant to s. 40(26) of the Assessment Act, R.S.O. 1990, c. A.31.

7The appeals are being heard by general proceeding in accordance with the Board's Rules of Practice and Procedure (the "Rules").

8On March 23, 2022, the Proposed Witness executed an Acknowledgement of Expert's Duty to the Board ("AED"). The AED confirms, among other things, that the signatory has been engaged on behalf of the Appellant to provide expert evidence in the appeals.

9MPAC subsequently brought this motion asking the Board to order that the Proposed Witness cannot act as an expert witness at the hearing of the subject appeals after having been an advocate for the Appellant.

Analysis

10Rule 14 of the Board's Rules provides that:

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.

11These appeals are being heard by general proceeding. Therefore, if the Appellant wants the Proposed Witness to appear at the hearing of the subject appeals as both an advocate and a witness, Rule 14(b) leave of the Board. The Appellant has neither sought, nor been granted, leave.

12MPAC asks this Board to issue an order barring the Proposed Witness from acting as an expert witness. The Board finds that such an order is unnecessary and improper at this time. Rule 14(b) operates to preclude the Proposed Witness from acting as both an advocate and an expert at the hearing unless leave is sought and granted. Leave has not been sought, and it would be improper for the Board to preemptively decide whether to grant leave or not without a request and materials before it.

Conclusion and Order

13The Board finds that this motion is premature and orders it dismissed without prejudice to MPAC raising the same issues if the Appellant seeks leave pursuant to Rule 14(b).