Tribunals Ontario
Tribunaux décisionnels Ontario
Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE: March 09, 2023
Assessed Person(s): 505 Consumers Road Limited
Appellant(s): 505 Consumers Road Limited
Respondent(s): Municipal Property Assessment Corporation Region 09
Respondent(s): City of Toronto
Property Location(s): 505 Consumers Road
Municipality(ies): City of Toronto
Roll Number(s): 1908-111-210-02050-0000
Appeal Number(s): 3228231, 3294285, 3351847, 3399870, 3447492 and 3487078
Taxation Year(s): 2017, 2018, 2019, 2020, 2021 and 2022
Hearing Event No.: 778666
Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31
| Parties | Counsel/Representative* |
|---|---|
| 505 Consumers Road Limited | Mark Blidner* |
| Municipal Property Assessment Corporation | Zoe Moraitis |
| City of Toronto | Submissions not received |
REQUEST FOR: An Order for Disclosure
HEARD: February 17, 2023 in writing
ADJUDICATOR(S): Carly Stringer, Member
MOTION DECISION
OVERVIEW
1The Municipal Property Assessment Corporation (“MPAC”) has brought this motion seeking disclosure from 505 Consumers Road Limited (the “Appellant”) of the following information:
a. All subject leases and rent rolls within 18 months on either side of the valuation date that have not been produced to MPAC (“Disclosure Request No. 1”); and
b. All income and expense documents reviewed by the Appellant’s witness (“Disclosure Request No. 2”).
2MPAC is responding to appeals brought by the Appellant relating to the property known municipally as 505 Consumers Road in the City of Toronto (“City”) for the 2017 to 2022 taxation years. The subject property is a commercial office building.
3In this motion, MPAC asks that the Assessment Review Board (the “Board”) order that the Appellant disclose Disclosure Request Nos. 1 and 2 on the basis that the information is relevant to the issues in dispute, and ordering disclosure is proportionate to the issues in dispute. MPAC also seeks amendments to the Schedule of Events (“SOE”) to accommodate this motion.
4The Appellant generally opposes the motion, although consents to provide some of the information requested, as will be described further below. Insofar as the Appellant objects, it argues that MPAC has brought this motion too late in the proceeding without showing exceptional circumstances that warrant amending the SOE. The Appellant also argues that information relating to the 18 months following the valuation date is not relevant or proportionate.
5The City has not made submissions on this motion.
Result
6For the reasons that follow, the Board grants the motion in part.
PRELIMINARY MATTERS
Appellant Consents to Some Disclosure
7The Appellant consents to produce the rent rolls, leases, and income and expense statements that its expert witness reviewed for the purpose of preparing his report, as well as all documentation referenced in the Appellant’s expert’s report.
8At paragraph 20 of its submissions on this motion, the Appellant confirms that this concession addresses Disclosure Request No. 2 in full and “a portion of Disclosure Request No. 1.” The Appellant confirms at paragraph 22 of its material that its offer includes rent rolls, leases, and income and expense statements for the “period prior to the valuation date”.
9The Board grants disclosure in accordance with the Appellant’s consent.
10What remains is the information requested as part of Disclosure Request No. 1 that relates to the period of 18 months after the valuation date. Therefore, the Board restates the remaining disclosure request as follows:
a. All subject leases and rent rolls for 18 months after the valuation date that have not been produced to MPAC (“Outstanding Disclosure Request”).
ISSUES
11There are two general issues to be decided on this motion.
12The first relates to the timing of the motion and has two parts:
a. Is MPAC outside of the timelines prescribed in the SOE for bringing this motion?
b. If MPAC is outside of the timelines prescribed, are there exceptional circumstances that warrant the Board altering the SOE to permit this motion?
13If the Board is satisfied that MPAC is within the timelines prescribed in the SOE, or if the Board alters the timeline prescribed in the SOE to permit this motion, then the second issue is whether the Board should order disclosure. This second issue also has two parts:
a. Is the information sought relevant to the issues in dispute?
b. If the information sought is relevant, is its disclosure proportionate to the importance and complexity of the issues in dispute with a view to resolving appeals within the four-year cycle?
ANALYSIS
Issue 1 - Timing of the Motion
a) Is MPAC outside of the timelines prescribed in the SOE for bringing this motion?
Submissions of the Parties
14The Appellant states that:
a. MPAC brought this motion too late in the proceeding.
b. The original Commencement Date for this property was March 16, 2020 and the date by which all disclosure was to be resolved was October 18, 2020. If MPAC was dissatisfied with the Appellant’s response to its disclosure requests, then it should have brought a motion for disclosure by October 18, 2020.
c. In the alternative, the Board reassigned the new commencement date of February 16, 2021 and at the very least MPAC needed to bring a disclosure motion no later than September 7, 2021.
d. Notwithstanding these deadlines, MPAC did not request a motion for disclosure until December 22, 2022.
15MPAC acknowledges the passing of the SOE due date for a disclosure motion, but submits that the obligation to provide disclosure remains ongoing throughout the duration of the appeal proceeding. MPAC states that it made multiple disclosure requests for necessary information, and new evidence was included in the Appellant’s expert report which was submitted on August 29, 2022, past the disclosure motion due date in the SOE. MPAC provided the Board with excerpts from the Appellant’s expert’s report in support of its argument that the Appellant produced new evidence past the disclosure motion deadline in the SOE.
Findings on Issue 1(a)
16The Board has reviewed the Amended SOE No. 11823 for this appeal proceeding, and finds that the deadline for “[a]ny objection regarding a request for an inspection or a request for additional disclosure is to be resolved by motion” was September 7, 2021.
17MPAC filed an Expedited Board Direction Form (“EBDF”) requesting a motion for disclosure on December 22, 2022. In response, the within motion was scheduled for February 17, 2023.
18The Board does not accept MPAC’s submission that the deadline to bring a motion for disclosure is not engaged because the Appellant’s expert provided new evidence for two reasons:
a. The Board is only considering the Outstanding Disclosure Request, which relates to leases and rent rolls for 18 months after the valuation date. The excerpts from the Appellant’s expert report that were provided by MPAC do not show that the Appellant’s expert provided new evidence regarding the timeframe of 18 months after the valuation date.
b. Even if there were new evidence in the expert’s report relating to the Outstanding Disclosure Request, that would not change the deadline in the SOE for requests for additional disclosure to be resolved by motion. At most, new evidence provided after the disclosure motion deadline could be considered an exceptional circumstance warranting an amendment to the SOE.
19The SOE deadline to resolve requests for additional disclosure by motion was September 7, 2021. MPAC filed its request on December 22, 2022. The Board finds that MPAC is outside the timeline prescribed in the SOE to resolve this request for additional disclosure.
20Therefore, in order to proceed, the Board would have to alter the SOE.
b) Are there exceptional circumstances that warrant the Board altering the Schedule of Events?
Applicable Rules and Law
21Rule 40 of the Board’s Rules of Practice and Procedure (the “Rules”) states that once a SOE has begun, “… the Board will not alter any due date set out in the Schedule of Events other than in exceptional circumstances.”
22In IG Investment Management Ltd. v Municipal Property Assessment Corporation, Region 32, 2020 CanLII 83829 (ON ARB) at paragraph 10, the Board confirmed that “[e]xceptional means, among other things, something that does not occur regularly, something unusual, or something atypical…”
23Therefore, MPAC must satisfy the Board that there are exceptional circumstances warranting an extension to the SOE to permit this late request for additional disclosure.
24Several other Rules are relevant. Rule 3 provides that the Rules “shall be liberally interpreted to ensure the just, most expeditious and least expensive determination of every proceeding.”
25Rule 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.”
26Rule 7 provides that “[t]he Board will determine the appropriate consequences of non-compliance with these Rules.”
Submissions of the Parties
27MPAC submits that:
a. The obligation to provide disclosure remains ongoing throughout the duration of an appeal proceeding.
b. It made multiple disclosure requests of the Appellant in good faith, to no avail.
c. The Appellant’s expert report was delivered on August 29, 2022, past the disclosure motion due date and the report included references to new evidence. MPAC submits that this creates an exceptional circumstance pursuant to Rule 40, and it is prejudiced.
28The Appellant submits that MPAC has failed to show any exceptional circumstances that would justify extending the SOE. The Appellant submits that making multiple requests for disclosure after the relevant motion dates does not amount to exceptional circumstances.
Findings on Issue 1(b)
29The Board finds there are no exceptional circumstances warranting an amendment to the SOE to allow MPAC’s request for disclosure at this late stage in the proceedings, for the following reasons:
a. The Board does not accept MPAC’s submission that new evidence in the Appellant’s expert report is an exceptional circumstance warranting an extension to the SOE in relation to the Outstanding Disclosure Request. The Board has reviewed the excerpts of the Appellant’s expert report that MPAC provided in its materials, and none of the excerpts provide evidence regarding the time period of 18 months following the valuation date. MPAC’s Outstanding Disclosure Request relates to the time period of 18 months following the valuation date. The Board finds that there is no new evidence in the Appellant’s expert report that justifies an extension of time to bring the Outstanding Disclosure Request.
b. It is the obligation of each party to ensure they get the information they require within the appropriate timeframe. A refusal or delay relating to disclosure can occur as a matter of course, which is why the SOE contemplates the timing of disclosure and motions related thereto: see for instance Greater Sudbury (City) v Municipal Property Assessment Corporation, Region 30, 2021 CanLII 19610 (ON ARB) at paragraph 26. On the facts of this case, the delay or refusal to provide the Outstanding Disclosure Request is not an exceptional circumstance.
c. The Board finds that MPAC has not satisfactorily explained its failure to bring a timely motion for the Outstanding Disclosure Request if it was of the view that the Appellant was not disclosing documents that it required and was requesting. If the information in the Outstanding Disclosure Request was required for MPAC and its expert to respond to the appeals, MPAC ought to have taken steps much earlier to bring this motion. Instead, MPAC filed its responding expert report on December 20, 2022, and filed the EBDF requesting disclosure two days later on December 22, 2022. MPAC is a sophisticated party that appears before this Board on a regular basis, and should be very familiar with the Board’s Rules, the timelines prescribed in the SOEs, and the Board’s expectations that motions for disclosure must be brought in a timely way. There is nothing exceptional that explains why MPAC waited to submit its request to the Board.
30The Board requires strict compliance with its Rules, unless there is good reason to depart from them. Parties are expected to complete their pre-hearing exchange of disclosure, and motions related thereto, in a timely way to properly complete their pleadings and expert reports.
CONCLUSION
31The Board finds that MPAC is outside of the timeline contemplated in the SOE for resolving motions for disclosure. The Board finds there are no exceptional circumstances warranting an amendment to the SOEs to allow the motion for the Outstanding Disclosure Request at this stage in the proceedings. MPAC’s motion for the Outstanding Disclosure Request is denied on this basis.
ORDER
32The Board orders:
a. that the Appellant disclose, within 15 days of this Decision being issued, the rent rolls, leases, and income and expense statements that its expert witness reviewed for the purpose of preparing his report, as well as all documentation referenced in the Appellant’s expert’s report, including rent rolls, leases, and income and expense statements for the 18 months prior to the valuation date (the “Ordered Disclosure”);
b. that within 30 days after receipt of the Ordered Disclosure, MPAC deliver any amendments to its Responding Expert Report previously delivered on December 20, 2022;
c. all other subsequent dates in the SOE are to be adjusted accordingly. For clarity, this includes that the Appellant will be provided with six weeks following the deadline for MPAC to deliver any amendments to its Responding Expert Report to provide any supplementary reports by its expert in reply.
"Carly Stringer"
CARLY STRINGER MEMBER Assessment Review Board Website: www.tribunalsontario.ca/arb