Tribunals Ontario
Tribunaux décisionnels Ontario
Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE:
February 03, 2022
FILE NO.:
DM 176104
Assessed Person(s):
2155110 Ontario Inc.
Appellant(s):
Old Oak Downtown Inc.
Respondent(s):
Municipal Property Assessment Corporation Region 23
Respondent(s):
City of London
Property Location(s):
140-148 Fullarton Street
Municipality(ies):
City of London
Roll Number(s):
3936-010-010-04000-0000
Appeal Number(s):
3448192, 3409740, 3366512, 3312983 and 3235684
Taxation Year(s):
2017, 2018, 2019, 2020 and 2021
Hearing Event No.:
762268
Legislative Authority:
Section 40 of the Assessment Act, R.S.O. 1990, c. A.31
APPEARANCES:
Parties
Representative
2155110 Ontario Inc.; Old Oak Downtown Inc.
Drew Samuels
Municipal Property Assessment Corporation
Michael Radan
City of London
No one appeared
REQUEST FOR:
An order that MPAC cannot rely on an amended Statement of Response, an amended expert report, an acknowledgment of expert duty signed by Jennifer Williston, and the curriculum vitae of Jennifer Williston
An order that MPAC cannot rely on Jennifer Williston as an expert at the hearing of the Subject Appeals
HEARD:
January 25, 2022 by telephone conference call
ADJUDICATOR(S):
Carly Stringer, Member
MOTION DECISION
OVERVIEW
1The Appellant 2155110 Ontario Inc. (Old Oak Downtown Inc.) (the “Appellant”) brought a motion asking that the Assessment Review Board (“Board”):
a. refuse to permit the Municipal Property Assessment Corporation (“MPAC”) to rely on an amended Statement of Response dated December 13, 2021;
b. refuse to permit MPAC to admit and rely on the amended valuation report authored by Scott Harloff;
c. refuse to permit MPAC to admit and rely on the acknowledgment of expert duty and curriculum vitae (“CV”) of Jennifer Williston; and
d. refuse to allow MPAC to tender Ms. Williston as an expert witness at the hearing of the Subject Appeals.
2At the outset of the hearing of the motion, MPAC stated the amended documents were filed in error, and it did not intend to rely on an amended Statement of Response, or the amended valuation report authored by Scott Harloff. MPAC committed to file its original Statement of Response and original valuation report with the Board.
3Therefore, the Appellant’s motion was narrowed to requests (c) and (d) above. MPAC opposed the Appellant’s requests and confirmed it is seeking to tender Ms. Williston as an expert in the proceeding.
4The Board heard the Appellant’s motion via telephone conference on January 25, 2022 and provided oral reasons for decision, with written reasons to follow. These are those written reasons.
RESULT
5The Board grants the Appellant’s motion. MPAC is not permitted to rely on the acknowledgment of expert duty and CV of Jennifer Williston, or tender her as an expert witness, at the hearing of the Subject Appeals.
BACKGROUND
6The Schedule of Events for the Subject Appeals required MPAC to provide its expert report to the Appellant by October 4, 2021. Rule 50 of the Board’s Rules of Practice and Procedure (the “Rules”) requires that every expert report shall include the expert’s qualifications, employment and educational experiences in their area of expertise, as well as an acknowledgment of expert duty signed by the expert. MPAC provided a valuation report and an equity report, both authored by Scott Harloff, in accordance with the prescribed timeline.
7On December 13, 2021, MPAC filed an acknowledgment of expert duty signed by Jennifer Williston dated December 13, 2021. At the same time, MPAC filed Ms. Williston’s CV. MPAC did not file an additional expert report from Ms. Williston or otherwise indicate upon which issue(s) she would opine.
8At the hearing, the Appellant stated that December 13, 2021 was the first time it saw these documents and was put on notice that MPAC intends to rely on Ms. Williston as an expert in these proceedings.
9MPAC conceded that it did not provide Ms. Williston’s acknowledgment of expert duty and CV to the Appellant prior to filing them with the Board, or otherwise put the Appellant on notice that it would seek to have Ms. Williston provide expert evidence.
ISSUES
10Given that MPAC conceded to the relief sought by the Appellant in relation to the Statement of Response and the expert reports, the sole issue on this motion is whether or not the Board should permit MPAC to file and rely on Ms. Williston’s acknowledgment of expert duty and CV, and rely on Ms. Williston as an expert witness at the hearing of the Subject Appeals.
SUBMISSIONS OF THE PARTIES
11The Appellant submits that the Schedule of Events provides timelines for providing expert reports including expert information, and MPAC failed to comply. The Appellant submits that there is no evidence from MPAC in support of its response to this motion, including no evidence of exceptional circumstances which are needed for the Board to alter the timelines in the Schedule of Events to permit late filing. The Appellant provides a number of cases where the Board has refused to permit new evidence and witnesses where a party failed to comply with the timelines in the Schedule of Events. The Appellant submits that there is significant prejudice to the Appellant, including that it does not know what evidence comes from Ms. Williston. Finally, the Appellant submits there is no prejudice to MPAC, because Mr. Harloff is providing expert evidence and has certified his work on both the valuation report and the equity report tendered by MPAC.
12MPAC submits that Ms. Williston helped prepare the equity analysis, and it intends to tender her as an expert in relation to the equity report. MPAC submits that it does not propose to tender any new evidence from Ms. Williston. MPAC submits that experts are meant to assist the Board to come to a determination of current value, and Ms. Williston will speak to evidence that is already in the record.
13MPAC further submits that the Appellant’s motion is premature, and that a hearing would be the proper time to consider whether Ms. Williston can provide evidence. MPAC also submits that if the Board makes a decision on this motion, that will preclude MPAC from showing exceptional circumstances closer to the hearing regarding why it requires Ms. Williston as an expert witness. Finally, MPAC submits the Appellant would not suffer prejudice as it has already been provided with the equity report that is the foundation of Ms. Williston’s proposed evidence.
ANALYSIS
Applicable Rules
14Rule 7 provides that “[t]he Board will determine the appropriate consequences of non-compliance with these Rules.”
15Rule 40 provides that “After the Commencement Day set out in Rule 39 as the start of a proceeding, the Board will not alter any due date set out in the Schedule of Events other than in exceptional circumstances.”
16Rule 48 provides that a “document, including an expert report, may only be admitted into evidence at a hearing event if it has been served on all other parties and filed with the Board, in accordance with these Rules, unless the Board determines that there are exceptional circumstances.”
17MPAC has conceded that the acknowledgment of expert duty and Ms. Williston’s CV were not served on all other parties and filed with the Board in accordance with the timelines prescribed in the Schedule of Events. Accordingly, if MPAC is to be permitted to rely on these documents, MPAC must satisfy the Board there are exceptional circumstances to warrant the Board altering the due date set out in the Schedule of Events to permit late service, or MPAC must satisfy the Board there are exceptional circumstances such that admission of these documents is not precluded by Rule 48. Either way, MPAC must first satisfy the Board there are exceptional circumstances.
Issue 1: Are there exceptional circumstances?
Findings on this Issue
18MPAC provided no affidavit or other sworn evidence on this motion.
19In this regard, MPAC has not satisfactorily explained why Ms. Williston was not identified earlier as having assisted in preparing the equity analysis or why it did not file Ms. Williston’s acknowledgment of expert duty and CV on time.
20Overall, there is simply no evidence before the Board on which the Board can make a factual finding regarding exceptional circumstances.
21The Board wishes to address MPAC’s submission that this motion is premature, and the Board should wait until closer to the hearing to make this decision. The Board does not accept this submission. The Board regularly considers pre-hearing motions relating to evidence and non-compliance with the Schedule of Events. The Board finds this is a timely motion. Further, the Board does not accept MPAC’s rationale for why the Board should wait – namely, that making a decision now would preclude MPAC from raising evidence of exceptional circumstances at a later time. Respectfully, the time for MPAC to provide evidence regarding exceptional circumstances is now – in response to this motion – and not at some later date. MPAC did not do so.
22As a final note – although not determinative of this motion – the Board wishes to address the issue of prejudice. MPAC has provided no evidence of prejudice if it is not able to file Ms. Williston’s acknowledgment of expert duty and CV and rely on Ms. Williston as a witness. MPAC already has an expert witness – Scott Harloff - who has certified to his knowledge of the equity report, and his role in preparing the analysis. MPAC has generally stated that Ms. Williston can provide “additional information on her input into the report”, but has not provided detail or evidence to sufficiently satisfy the Board that her evidence is somehow different than Mr. Harloff’s such that MPAC would be prejudiced by her absence. This reinforces to the Board that its decision is fair.
23Accordingly, the Board finds there are no exceptional circumstances. The Board will not alter the Schedule of Events to permit late service of Ms. Williston’s acknowledgment of expert duty and CV, nor will it permit these documents to be admitted at the hearing of the Subject Appeals. In accordance with Rule 7, the Board will not permit MPAC to rely on Ms. Williston as an expert at the hearing of the Subject Appeals.
CONCLUSION
24MPAC has agreed to rely on the original Statement of Response and expert reports served on the Appellant in accordance with the Schedule of Events.
25The Board finds that Ms. Williston’s acknowledgment of expert duty and CV were not served in accordance with the Rules as they were served late, and MPAC did not provide enough evidence to satisfy the Board of exceptional circumstances.
ORDER
26The Board grants the Appellant’s motion and orders as follows:
a. MPAC is not permitted to rely on the amended Statement of Response or amended valuation report filed with the Board on December 13, 2021. MPAC is ordered to serve and file with the Board its original Statement of Response and original expert reports within 5 days of this motion.
b. MPAC is not permitted to rely on the acknowledgment of expert duty form and CV of Jennifer Williston, nor will Ms. Williston be permitted to provide expert evidence at the hearing of this motion.
"Carly Stringer"
CARLY STRINGER
MEMBER
Assessment Review Board
Website: www.tribunalsontario.ca/arb```