Tribunals Ontario
Tribunaux décisionnels Ontario
Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE: June 13, 2022
AMENDED MOTION DECISION ISSUED: June 29, 2022
Assessed Person(s): Bramalea City Centre Equities Inc. c/o Morguard Corporation
Appellant(s): Bramalea City Centre Equities Inc. c/o Morguard Corporation
Respondent(s): Municipal Property Assessment Corporation Region 15
Respondent(s): City of Brampton
Property Location(s): 25 Peel Centre Drive
Municipality(ies): City of Brampton
Roll Number(s): 2110-090-014-01200-0000
Appeal Number(s): See Schedule A
Taxation Year(s): 2017, 2018, 2019, 2020, 2021 and 2022
Hearing Event No.: 756164
Legislative Authority: Rule 45 of the Assessment Review Board’s Rules of Practice and Procedure
| Parties | Counsel/Representative* |
|---|---|
| Bramalea City Centre Equities Inc. c/o Morguard Corporation | Jesse White, Robert Brazzell |
| Municipal Property Assessment Corporation | Damian Bernacik, Matthew Kanter* |
| City of Brampton | John L. O’Kane* |
REQUEST FOR: Order to restrict use of undisclosed information
HEARD: November 26, 2021 in writing
ADJUDICATOR(S): Christopher Voutsinas, Vice-Chair
AMENDED MOTION DECISION
AMENDED MOTION DECISION
In accordance with Rule 99 of the Assessment Review Board’s Rules of Practice and Procedure, effective April 1 2021, related to the correction of minor errors and in accordance with Rule 21.1 of the Statutory Powers and Procedure Act regarding the correction of errors, this Amended Motion Decision is issued to correct error(s) in the Motion Decision regarding the Appearances section on page 1. The amendments have been underlined for ease of reference. There are no other changes in this Amended Motion Decision.
OVERVIEW
1Bramalea City Centre Equities Inc. c/o Morguard Corporation (“the Appellant”) is the owner of the property located at 25 Peel Centre Drive, City of Brampton (“the Subject Property”), which has open appeals pursuant to s. 40 of the Assessment Act, S.O. 1990, c. A.31 (the “Act”) for the 2017 - 2022 taxation years. The appeals are based on the grounds that the current value of the Subject Property, which was determined by the Municipal Property Assessment Corporation (“MPAC”) in its general reassessment of current value, is too high and therefore, is incorrect.
2Pursuant to s. 40 of the Act, MPAC and the City of Brampton are parties to the appeal proceedings.
3The Parties have exchanged pleadings including expert reports.
4In its Statement of Response and expert report, MPAC relies on lease information and income and expense data from comparable properties to determine the fair market rent and the capitalization rate for the Subject Property. In accordance with s. 53(1) of the Act, MPAC submits that it is prohibited from disclosing such information on an individual property. As such, MPAC’s Statement of Response and expert report contain redacted or undisclosed information.
5In this appeal proceeding, the Appellant has brought a motion requesting that MPAC be prohibited from relying on information in its evidence that is not fully disclosed, and that such evidence and any references or conclusions based on the same be removed from its Statement of Response and expert report. Further, the Appellant requests that MPAC be restricted from relying on conclusions that cannot be substantiated by disclosed evidence.
6MPAC and the City of Brampton oppose the Appellant’s motion.
7The Appellant and MPAC have provided submissions on this motion. The City of Brampton has not.
RESULT
8The Motion is denied.
9The Appellant has a remedy available to it. Specifically, the Appellant may request an order of the Assessment Review Board (“Board”) pursuant to s. 53(5) of the Act that would enable MPAC to disclose the currently undisclosed information in its evidence. The Appellant has chosen not to exercise this remedy and has waited until all hearing documents have been filed with the Board to object to MPAC’s use of undisclosed information in its evidence, and to bring this motion.
10For the reasons that follow, MPAC may rely on undisclosed information in its evidence that it submits it is prohibited by law from disclosing, and specifically in the case of s. 53 of the Act, absent a Board order requiring it to do so.
11The issues to be addressed in this Motion Decision are:
Should MPAC be prohibited from relying on information in its evidence that it submits it is prohibited from disclosing in accordance with s. 53(1) of the Act, requiring that such evidence be removed from its Statement of Response and expert report; and,
Should MPAC be restricted from relying on conclusions that cannot be substantiated by disclosed evidence.
ANALYSIS
Background
12On December 20, 2019, MPAC served its Statement of Response to the Appellant’s Statement of Issues.
13All parties held a mandatory settlement meeting on April 23, 2020. The appeals were not settled.
14The Appellant served its expert report on January 28, 2021 and on May 21, 2021, MPAC served its expert report.
15All parties filed their pleadings and expert reports with the Board by the July 9, 2021 deadline.
Issue 1: Should MPAC be prohibited from relying on information in its evidence that it submits it is prohibited from disclosing in accordance with s. 53(1) of the Act, requiring that such evidence be removed from its Statement of Response and expert report?
Test to be applied
16While the following refer to the Board’s Rules of Practice and Procedure (“Rules”) currently in effect, these are not meaningfully different from the prior Rules in effect when the appeals were commenced.
Disclosure
- All parties must serve an electronic copy of all relevant documents in their possession, control, or power to all other parties in the proceeding, except for privileged documents, or documents that cannot be disclosed by law.
17Section 53(1) of the Act restricts MPAC from disclosing certain information on an individual property basis. Section 53(5) provides for disclosure of such information as required by the Board.
Disclosure of information
53 (1) A person employed by the assessment corporation, a municipality or a school board is guilty of an offence and on conviction is liable to a fine of not more than $2,000, or to imprisonment for a term of not more than six months, or to both if,
(a) in the course of the person’s duties, he or she acquires or has access to information collected under this Act or to information collected pursuant to an assessment appeal or a proceeding in court involving an assessment matter;
(b) the information is,
(i) proprietary information of a commercial nature prescribed by the Minister relating to an individual property, or
(ii) actual income and expense information on an individual property; and
(c) the person wilfully discloses the information or permits it to be disclosed to any person who is not entitled in the course of their duties to acquire or have access to the information.
Disclosure
53 (5) Subject to subsection (1) and to any requirement of the Assessment Review Board concerning the disclosure of evidence, the assessment corporation may disclose any information acquired by it and may do so on such terms as it determines.
Appellant’s Submissions
18The Appellant submits that MPAC has relied on leases and income/expense information and related documents from comparable properties and made inferences and conclusions based on the same to determine the fair market rent and capitalization rate for the Subject Property, without disclosing the information that informs its opinion, despite a request from the Appellant to do so. The Appellant asserts that as it has not had the opportunity to review the undisclosed evidence that MPAC should not be permitted to rely on that evidence in these appeals.
19The Appellant takes the position that MPAC has relied on undisclosed evidence but has not taken the action required to produce the undisclosed evidence. And as a result, the Appellant cannot review, test, or verify the undisclosed evidence or conclusions.
20It is the Appellant’s position that a party cannot rely on undisclosed information to support its opinion of value at a hearing, and that if MPAC intends to rely on the undisclosed evidence, it must disclose that information in the normal course.
21The Appellant acknowledges that Rule 45 makes an exception to disclosure of documents “that cannot be disclosed by law.”
22It is the Appellant’s position that any information that has not been disclosed cannot be admitted into evidence at a hearing, and that the party seeking to rely on such evidence carries the burden of ensuring the evidence is disclosed.
23It is the Appellant’s position that it is incumbent on MPAC to obtain any authorization necessary to release the undisclosed evidence or it must be prohibited from relying on such evidence at a hearing.
24The Appellant asserts that it cannot be compelled to incur the cost, resources, and time to request a disclosure order by the Board pursuant to s. 53(5) of the Act, in order to obtain, review, test and verify evidence on which MPAC is relying.
25As all parties have already filed the documents they intend to rely on at hearing, it is the Appellant’s position that the Board should not permit the undisclosed evidence from being introduced at a hearing.
26The Appellant accepts that some of the undisclosed evidence may constitute “documents which cannot be disclosed by law” and may be exempted from the general disclosure requirement in Rule 45. However, the Appellant submits that if MPAC’s position is that it could not, by law, disclose the undisclosed evidence, then it was incumbent on MPAC, as the party seeking to rely on such evidence, to enable itself to make such disclosure.
27The Appellant makes clear in its submissions, that it is not seeking disclosure of the undisclosed information rather it is seeking that MPAC be prohibited from relying on the undisclosed information in its evidence.
MPAC’s Submissions
28MPAC takes the position that it is prohibited from disclosing “actual income and expense information on an individual property” pursuant to s. 53(1) of the Act which includes significant consequences in the case of a breach.
29It is MPAC’s position that when it served and filed its Statement of Response and expert report that it properly redacted actual income and expense and related information on individual properties to avoid breaching s.53 of the Act.
30MPAC submits that the Board’s Disclosure Schedule Appendix A and B state that MPAC must disclose certain information to the other parties to the appeal proceedings “save and except any information subject to Section 53 of the Assessment Act.”
31MPAC submits that it cannot be prohibited from relying on properly redacted and relevant information that is necessary to determine the Subject Property’s current value assessment.
32MPAC submits that the Board has already considered the issue of s.53 protected disclosure and has an expedited process for parties who seek disclosure of such information. MPAC asserts that the Appellant should have followed the Board’s process and brought a motion seeking disclosure.
33MPAC outlines the Board’s process for a disclosure order pursuant to s. 53(5) of the Act as follows.
The Board has outlined this expedited process in numerous Orders. Where a party requests that MPAC disclose actual income and expense information on individual properties, the requesting party must bring a motion to the Board and,
the party requesting disclosure must serve a notice on each of the owners/tenants of individual properties whose actual income and expense information may be disclosed;
such notice must provide that the owners/tenants of the other properties shall advise the requesting party within 14 days if the owners/tenants object to the disclosure of their information, failing which, the Board will determine whether to grant the disclosure request;
if an owner/tenant of another property does not consent, the Board will schedule a written motion to adjudicate the disclosure request and direct that the non-consenting owner/tenant be added as a respondent to the motion; and if neither MPAC nor any of the owners/tenants of the other properties opposes the request, the Board will order the disclosure of the Section 53-protected information.
34It is MPAC’s position that it has complied with the Act and with the Board’s Rule as it has disclosed all relevant documents, excluding income and expense information that could not be disclosed by law.
35MPAC submits that the Appellant could have mitigated any concerns by bringing a motion - at any time - for an order requiring MPAC to disclose the income and expense information.
36MPAC asserts that if the Appellant disputed the propriety of MPAC’s decision to redact certain information and/or sought disclosure of information protected by s.53 of the Act - it was incumbent on the Appellant to bring a motion to the Board seeking appropriate relief.
37MPAC further submits that the Appellant offers no explanation for why it ignored the Board’s process and failed to bring a motion requesting disclosure and that as such, the Appellant should not now be able to prohibit MPAC from relying on such information at a hearing.
Board’s Analysis
38The Appellant in its submissions states that MPAC has relied on information from comparable properties and made inferences and conclusions, without disclosing the information that inform its opinion, “despite a request from the Appellant to do so.” MPAC cannot release information that it submits it is prohibited by law from releasing based on a “request from the Appellant to do so.” Only the Board can issue an order in accordance with s. 53(5) of the Act to require the release of that information - and the Appellant has made no such request of the Board.
39In its submissions, the Appellant does not object nor challenge MPAC’s position that it is prohibited from disclosing the undisclosed information.
40While the Appellant submits that it made a request to MPAC to disclose the undisclosed information – it chose not to make the same request to the Board. The Appellant has not provided information on why it chose not to exercise its remedy to seek a Board order for disclosure.
41The Appellant has had the time and opportunity to make a s. 53 disclosure request and has chosen not to do so. That is the Appellant’s remedy.
42While the Board has Rules regarding evidence, specifically Rule 45 in context of this matter, Rule 45 has a clear exception “for privileged documents, or documents that cannot be disclosed by law”.
43The Board notes that the Act does not prevent disclosure of s. 53 protected information by any person being examined as a witness in an assessment appeal (s.53(2)(b)).
44The Appellant has waited until all pleadings have been filed with the Board to raise its objection to MPAC relying on undisclosed evidence, notwithstanding the remedy available to it. The Board determines that seeking a motion to prohibit MPAC from relying on properly undisclosed or redacted information in its evidence in accordance with the Act and the Board’s Rules, is a disproportionate remedy given the more appropriate remedy available to the Appellant, violates procedural fairness and natural justice by seeking to restrict properly filed evidence, and is highly prejudicial to one party, namely, MPAC.
45Should the Appellant continue to choose not to exercise its remedy, disclosure of the relevant information is not prevented by any person being examined as a witness at the appeal hearing.
Findings on Issue 1
46In these circumstances, the Board finds that MPAC may rely on undisclosed information in its evidence.
Issue 2: Should MPAC be restricted from relying on conclusions that cannot be substantiated by disclosed evidence.
47Further to the above analysis and findings on Issue 1, the Board finds that the Board member adjudicating the hearing has the discretion to weigh the evidence and associated conclusions as they determine.
ORDER
48The Board denies the Appellant’s motion request and orders that MPAC may rely on properly undisclosed information in its Statement of Response and its expert report.
"Christopher Voutsinas"
CHRISTOPHER VOUTSINAS
VICE-CHAIR
Assessment Review Board
Website: www.tribunalsontario.ca/arb
SCHEDULE A