Tribunals Ontario
Tribunaux décisionnels Ontario
Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE: January 24, 2022
Assessed Person(s): National Car Rental (Canada) Inc., Aviscar Inc., Budget Car Inc., Dollar Thrifty Auto Group Canada Inc., and Hertz Canada Limited
Appellant(s): National Car Rental (Canada) Inc., Aviscar Inc., Budget Car Inc., Dollar Thrifty Auto Group Canada Inc., and Hertz Canada Limited
Respondent(s): Municipal Property Assessment Corporation Region 15
Respondent(s): City of Mississauga
Property Location(s): 0 Airport Road, Terminal 1
Municipality(ies): City of Mississauga
Roll Number(s): 2105-050-113-60091-0000, 2105-050-113-60092-0000, 2105-050-113-60093-0000, 2105-050-113-60094-0000 and 2105-050-113-60095-0000
Appeal Number(s): See Schedule A
Taxation Year(s): 2017-2021
Hearing Event No.: 753421
Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31
Parties
Counsel
National Car Rental (Canada) Inc., Aviscar Inc., Budget Car Inc., Dollar Thrifty Auto Group Canada Inc., Hertz Canada Limited
Lauren Lackie
Municipal Property Assessment Corporation
Donald G. Mitchell
City of Mississauga
Brad Teichman
REQUEST FOR: An order to separate appeals for the 2021 taxation year from appeals for the 2017 to 2020 taxation years
HEARD: October 8, 2021 in writing
ADJUDICATOR(S): Carly Stringer, Member
MOTION DECISION
OVERVIEW
1This motion is brought by National Car Rental (Canada) Inc., Aviscar Inc., Budget Car Inc., Dollar Thrifty Auto Group Canada Inc., and Hertz Canada Limited (the “Appellants”). The Appellants are car rental companies with locations at the Toronto Pearson International Airport (the “Subject Properties”). The Appellants, the Subject Properties and the appeal numbers relating to the January 1, 2016 valuation date (the “Subject Appeals”) are identified in Schedule “A” attached hereto.
2On this motion, the Appellants seek to have appeals relating to the 2021 taxation year (appeals 3445154, 3444640, 3445153, 3444638, 3444958, or the “2021 Appeals”) proceed separately from appeals relating to the 2017 to 2020 taxation years.
3The Municipal Property Assessment Corporation (“MPAC”) and the City of Mississauga (the “City”) are respondents in the Subject Appeals. MPAC and the City (together, the “Respondents”) oppose separating the 2021 Appeals.
Result
4For the reasons that follow, the Board denies the Appellants’ motion to separate the 2021 Appeals.
Background
5The Appellants appealed the 2017 taxation year assessments for the Subject Properties, and appeals were deemed for the 2018 to 2021 taxation years in accordance with s. 40(26) of the Assessment Act, R.S.O. 1990, c. A.31.
6The Subject Appeals were assigned a Commencement Date of February 15, 2019. The Appellants delivered their Statements of Issues (“SOI”) on February 11, 2019. MPAC delivered its Responses to the SOIs on January 3, 2020 and Amended Response to the SOIs on January 19, 2020. The City delivered its Responses to the SOIs on February 7, 2020 and the Appellants delivered their Statements of Reply on February 21, 2020.
7The Appellants delivered their expert reports on or about February 26, 2021. MPAC delivered responding expert reports on June 4, 2021, and the Appellants delivered their reply expert report on or about August 11, 2021.
8On August 12, 2021, the Appellants brought a request by Expedited Board Direction Form to separate the 2021 Appeals. The Board set this request to the within motion.
ISSUES
9There is one issue on this motion: should the Board separate the 2021 Appeals from the 2017-2020 Appeals?
SHOULD THE BOARD SEPARATE THE 2021 APPEALS FROM THE 2017-2020 APPEALS?
Applicable Rules
10Rule 87 of the Board’s Rules of Practice and Procedure (the “Rules”) provides that the Board “may separate proceedings heard together at any time when in its opinion the proceedings have become unduly complicated, delayed or repetitive, or a party is unduly prejudiced.”
11The parties have not provided the Board with case law where the Board has applied Rule 87. However, the wording of Rule 87 is fairly straightforward: if, on this motion, the Board decides that the Subject Appeals have become unduly complicated, delayed or repetitive, or that a party is unduly prejudiced, the Board has discretion to separate the 2021 Appeals.
Submissions
12The Appellants submit that the issues for the 2021 taxation year are distinct from those of 2017 to 2020. The Appellants submit that the primary issue relating to the 2021 Appeals is the state and condition of the Subject Properties as of the 2021 state and condition date of December 15, 2020. The Appellants submit the Subject Properties were in a different state and condition on December 15, 2020 than at the state and condition dates for the previous taxation years as a result of the COVID-19 pandemic and related government restrictions. The Appellants submit that this state and condition issue was not contemplated as part of the original proceedings which commenced in 2019, and the parties have not yet tendered evidence on this issue, as expert reports were served prior to information relating to the 2021 state and condition being available. The Appellants submit that the 2017 to 2020 appeals are already at a very late stage in the proceedings, and taking the time to fully plead the 2021 state and condition issue, and bring evidence on this point, will delay the 2017 to 2020 appeals.
13The Respondents have provided joint submissions. They submit that a separate hearing is unnecessary, as the issue for all taxation years is “what is the correct 2016 current value assessment?” The Respondents submit that the impact of the COVID-19 pandemic does not relate to a change in the state and condition of the Subject Properties. The Respondents submit that any loss or perceived loss in the value of the land resulting from the pandemic relates to changes in the market, and to consider changes in the market as a result of events occurring after January 1, 2016 valuation day defeats the purpose of a fixed legislated valuation day. The Respondents submit that refusing the motion will not delay the proceedings, and all taxation year appeals within the 2016 current value assessment cycle may be heard in the hearing month assigned to the Subject Appeals. If the motion is granted, the 2021 taxation year appeals will not be heard within at least a year. Finally, the Respondents submit that any “unfairness” is the direct result of the Appellants’ failure to request separation of the 2021 Appeals in a timely manner.
14In reply, the Appellants submit that the Board may be required to determine how different issues affect different taxation years. The Appellants submit that the 2021 Appeals are distinct because of the new state and condition created by government action in response to the pandemic and Ontario’s postponement of the assessment cycle. The Appellants submit that the combined restrictions by the federal and provincial governments due to COVID-19 amounted to a change in the state and condition of the Subject Properties. The Appellants submit the state and condition of Pearson Airport was not as an operating commercial international/national airport as at December 2020, due to government actions.
15The Appellants further submit that their conduct indicates they did not and do not intend to delay resolution of the appeals, and that their request is timely. The Appellants provided evidence that their expert reports were served prior to the March 31, 2021 deeming date for the 2021 Appeals. They provided evidence that their legal counsel was on leave on or about June 13, 2021, and counsel that took carriage of the Subject Appeals in her absence spoke to counsel for MPAC about separating the 2021 Appeals in or about mid-June 2021. The Appellants submit that separating the 2021 Appeals allows those to proceed expeditiously, and the parties can proceed with the settlement conference for and hearing of the remaining appeals. Finally, the Appellants submit that the important and complex question of whether the COVID-19 pandemic and related government restrictions constitute a change of state and condition ought to be addressed in a full hearing for reasons of procedural fairness.
Analysis
16The parties have devoted a significant amount of their submissions to substantive argument on whether or not government restrictions throughout the COVID-19 pandemic amount to a change in the state and condition of the Subject Properties for the 2021 taxation year. However, this motion does not require the Board to make a determination on that issue, and the Board declines to do so at this time.
17Instead, Rule 87 requires the Board to determine whether the proceedings have become unduly complicated, delayed or repetitive, or whether a party is unduly prejudiced. If any of those circumstances exist, the Board must then consider whether it wishes to exercise discretion and separate the 2021 Appeals.
18The Appellants’ submissions describe the proceedings as having become unduly complicated by the state and condition issue, with the risk for either undue delay to the 2017 to 2020 appeals, or undue prejudice to the Appellants, if the 2021 Appeals are not separated.
19The Board does not accept that the proceedings have become unduly complicated by the state and condition issue. The Board is not satisfied that this singular issue for one taxation year would pose undue complications in the appeals.
20The Board does not accept that the Appellants will be unduly prejudiced if it does not separate the 2021 Appeals. If the 2021 Appeals continue with the 2017 to 2020 appeals, it remains open to the Appellants to exercise options pursuant to the Rules to be permitted to raise the state and condition issue, including bringing a motion to alter the due dates in the Schedule of Events pursuant to Rule 40.
21The Board accepts that not separating the 2021 Appeals may result in some delay of the proceedings if, for instance, the Appellants seek additional time to amend pleadings and file further expert evidence to add the state and condition issue for the 2021 Appeals. However, the Board does not find this potential for delay is undue.
22Echoing the wording of Rule 87, the Board is not of the opinion that the proceedings have become unduly complicated, delayed or repetitive, or that the Appellants are unduly prejudiced.
23Even if the Board found there was undue complication, delay or prejudice – which it has not - the Board would decline to exercise its discretion to separate the 2021 Appeals for the primary reason that any impact on the Subject Appeals, including delay, would be as a result of the Appellants’ failure to bring this motion in a timely way.
24While the Board accepts that the state and condition issue was not contemplated when proceedings commenced in 2019, the Appellants have not adequately explained to the Board why they waited until mid-June 2021 to even raise this issue with opposing counsel. The Board does not accept the Appellants’ statement that “expert reports were served prior to information relating to the point at which the 2021 state and condition was available.” The Appellants have not explained what “information” relating to the state and condition remained unavailable to them until after February 26, 2021, when expert reports were served, particularly when:
i. The state and condition date was December 15, 2020, over two months prior to the Appellants’ expert reports being served.
ii. The various government restrictions allegedly impacting the 2021 state and condition date occurred prior to December 15, 2020.
iii. The Minister of Finance announced postponement of the assessment cycle on March 25, 2020 – roughly nine months before the state and condition date for 2021; 11 months before the Appellants’ served their expert report; and almost a year before the March 31, 2021 deeming date for the 2021 Appeals.
iv. Although the 2021 Appeals were not deemed until March 30, 2021, the Appellants ought to have been aware of that deeming date given the provisions of the Assessment Act and the Board’s usual processes.
b. Ultimately, if a change in the state and condition indeed occurred on December 15, 2020, and that change was a result of government action in response to the pandemic and the postponement of the assessment cycle (as asserted by the Appellants), the Appellants did not adequately explain why they did not produce evidence relating to the change in state and condition, or seek to amend the SOI, in advance of serving expert reports on February 26, 2021; nor did they adequately explain why they did not make any attempt to raise the issue until a conversation with opposing counsel in mind-June 2021.
CONCLUSION
25The Board is not of the opinion that the proceedings have become unduly complicated, delayed or repetitive, or that the Appellants are unduly prejudiced
26The Board declines to separate the 2021 Appeals.
ORDER
27The Board denies the Appellants’ motion.
28In view of the time it took for this motion to be resolved and pursuant to Rule 40, the Board orders that the SOE for the Subject Appeals will resume, with the following amendments:
a. The due date for all parties to file documents to be relied on at the hearing is fifteen (15) days from the date this decision is issued;
b. All other subsequent due dates are to be adjusted accordingly.
29The Board’s Case Coordinator will advise the parties of the specific due dates.
"Carly Stringer"
CARLY STRINGER
MEMBER
Assessment Review Board
Website: www.tribunalsontario.ca/arb
Schedule A
Schedule A