Tribunals Ontario / Tribunaux décisionnels Ontario

Assessment Review Board / Commission de révision de l’évaluation foncière

ISSUE DATE: September 18, 2023

FILE NO.: DM 185044

Assessed Person(s): Vale Canada Limited; Glencore Canada Corporation; Xstrata Canada Corporation

Appellant(s): City of Greater Sudbury

Respondent(s): Municipal Property Assessment Corporation Region 30

Respondent(s): City of Greater Sudbury

Property Location(s): See Schedule A

Municipality(ies): City of Greater Sudbury

Roll Number(s): See Schedule A

Appeal Number(s): See Schedule A

Taxation Year(s): 2017, 2018, 2019, 2020, 2021 and 2022

Hearing Event No.: 781283

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

Parties	Counsel
Vale Canada Corporation	Submissions not received
Glencore Canada Corporation	Submissions not received
Xstrata Canada Corporation	Submissions not received
Municipal Property Assessment Corporation	Sarah Corman and Hilary Brown
City of Greater Sudbury	Richard Minster and Dan Rosman

REQUEST FOR: An Order for Disclosure

HEARD: August 4, 2023 in writing

ADJUDICATOR(S): Carly Stringer, Member

MOTION DECISION

OVERVIEW

1The City of Greater Sudbury (the “City”) has brought a motion for disclosure from the Municipal Property Assessment Corporation (“MPAC”). The City seeks an order from the Assessment Review Board (the “Board”) pursuant to Rule 45 of the Board’s Rules of Practice and Procedure (the “Rules”) compelling MPAC to disclose the information listed in Attachment 1 (“Disclosure Requests”).

2MPAC opposes the motion.

3The Board will focus these reasons on addressing the particulars of each Disclosure Request rather than revisiting the extensive factual and procedural background leading to this motion. In summary, these proceedings relate to the assessments of eight mining properties in the City. The properties are improved with specialized heavy industrial buildings. The parties agree that the Cost Approach valuation methodology will be used to value these properties.

Result

4The Board orders that:

a. MPAC provide sales verification questionnaires for the property sales listed as “excluded” from the analysis in the final pages of properties in MPAC’s MVR Addendum, with the provision that MPAC is permitted to redact information protected by s. 53 of the Act. In the event the City believes it requires information that MPAC has redacted, the City may bring a motion before the Board for an order pursuant to s. 53(5) of the Assessment Act, R.S.O. 1990, c. A.31 (“Act”).

b. MPAC disclose MPAC’s sales questionnaires with respect to 11 sales MPAC relies on for land value (Appx “C” to MPAC’s RSOI), with the provision that MPAC is permitted to redact information protected by s. 53 of the Act. In the event the City believes it requires information that MPAC has redacted, the City may bring a motion before the Board for an order pursuant to s. 53(5) of the Act.

c. MPAC provide the City with MPAC’s 2016 Automated Cost Systems (“ACS”) Cost Rates in a legible format.

PRELIMINARY MATTERS

Timing of the Request

5MPAC opposes several Disclosure Requests on the basis that they are being made too late. MPAC states that it agreed to a timeline for this disclosure motion on the understanding that the motion would relate only to documents that were requested by the City on or before March 23, 2023.

6The Board has reviewed DM 184194 Case Management Report and Order dated June 7, 2023, pursuant to which the Board ordered a timeline for this disclosure motion. The Board did not limit the scope of disclosure that could be requested.

7Therefore, the Board does not accept MPAC’s submission that some Disclosure Requests should be denied on the basis they are being made too late in the proceeding.

ANALYSIS

Applicable Law

8Rule 45 requires that parties to a proceeding provide a copy of “…all relevant documents in their possession, control or power to all other parties in the proceeding, except for privileged documents.”

9In determining whether to order disclosure in accordance with Rule 45, the Board applies a two-part test. First, the Board considers whether the information sought is relevant to the issues in dispute. Second, the Board considers whether ordering disclosure is proportionate to the issues in dispute: see Metro Ontario Inc. v Municipal Property Assessment Corporation, Region 13, 2019 CanLII 47974 (ON ARB) (“Metro”) at paragraph 11.

10Relevance is determined in relation to whether a document is relevant to an issue in dispute: Walmart Canada Corporation and Target Canada Corporation v Municipal Property Assessment Corporation, Region 01, 2018 CanLII 67789 (ON ARB) (“Wal-Mart”) at paragraph 18; Metro at paragraph 11. As noted by the Board in Toyota Motor Manufacturing Canada Inc. v Municipal Property Assessment Corporation, 2020 CanLII 77938 (ON ARB) (“Toyota”) at paragraph 13, “the test for relevance really comes down to whether or not the production of documents requested relates to the issues in dispute. If so, they are relevant.”

11With respect to proportionality, Rule 5 of the Board’s Rules provides “[t]hese 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.” Therefore, the requirement to disclose relevant documents must also be applied in a proportionate manner. As noted by the Board in Toyota, supra at paragraph 15,

In making this determination it is necessary for the Board to consider the competing interests of non-disclosure and excessive disclosure which may unreasonably increase the cost in a particular case and delay the final resolution of the matter on its merits.

12Although the Rules do not include specific criteria to assess proportionality, the Board has previously applied the criteria enumerated in Rule 29.2.03(1) and (2) of Ontario’s Rules of Civil Procedure: Walmart, supra at paragraph 18. This is considered a non-exhaustive list and other criteria may be considered on a case-by-case basis.

Disclosure Request No. 1

Submissions of the Parties

13The City is requesting several items as part of Disclosure Request No. 1, namely i) sales details and reasons that the five pages of properties from MPAC’s MVR Addendum were excluded from the analysis; ii) any memorandums or reports relating to the study; and iii) “sales verification questionnaires” explaining the reasons for exclusion. The City submits that it relies on MPAC’s “Appendix H – Land Curve Sales – MVR Addendum – Sales Used to Determine Commercial and Industrial Land Values in Northern Ontario” which was included as Exhibit C to the affidavit of Mathias Hintikka sworn January 22, 2023 in support of this motion.

14MPAC submits that the City has failed to establish that this information is relevant to the correct current value of the subject properties. MPAC further submits that this request is overbroad and unclear.

15MPAC also refuses to disclose sales verification questionnaires without an order pursuant to s. 53(5) of the Act.

Findings on Disclosure Request No. 1

16The Board finds that the sales questionnaires requested as part of Disclosure Request No. 1 are relevant. The land value is squarely in issue in these proceedings as a component of the Cost Approach valuation methodology. The City has provided uncontested evidence from its expert that he is using the MVR Addendum and that MPAC sale verification questionnaires are essential to him determining if individual sales can be used in the land value analysis as, in many cases, independent verification of sales details is impossible. The Board accepts this uncontested evidence in relation to the sales verification questionnaires. However, the Board is not satisfied the balance of the request is relevant to the issues in dispute since MPAC has indicated that its land sales analysis is set out in Appendix “C” to its Statements of Response and not the MVR Addendum.

17However, ordering disclosure of Disclosure Request No. 1, as a whole, is not proportionate to the issues in dispute. First, the City’s request is very broadly worded and is not limited to the sales verification questionnaires which the Board has found are relevant. The request for “sales details” and “any memorandums or reports relating to the study” is overbroad and imprecise. The City has not narrowed its request to a specific timeframe, for instance. Further, the City is requesting “reasons” that some sales were excluded. Rule 45 compels parties to serve copies of relevant documents that are in their possession, control, or power – nothing more. In the event the City wants to understand the “reasons” behind a document, the City may seek an order for discovery pursuant to Rule 47.

18It is not the Board’s job to tailor or rewrite a party’s disproportionate disclosure request: see Canadian Niagara Hotels Inc. v Municipal Property Assessment Corporation, Region 18, 2022 CanLII 21299 (ON ARB) at paragraph 40. However, the Board is prepared to grant Disclosure Request No. 1 insofar as it relates to sales verification questionnaires for the specific property sales listed as “excluded” from the analysis in the final pages of properties in MPAC’s MVR Addendum. The remainder of Disclosure Request No. 1 is denied.

19With respect to MPAC’s refusal to produce the items requested without a s. 53 order, the Board observes that s. 53 of the Act creates an offence for an employee of MPAC to willfully disclose or permit to be disclosed “proprietary information of a commercial nature prescribed by the Minister relating to an individual property”, or “actual income and expense information on an individual property.” In this instance, other than baldly stating that s. 53 applies, MPAC has not explained the nature of the information in the sales verification questionnaires that would be protected by s. 53. Accordingly, the Board cannot determine that s. 53 applies.

20Therefore, to the extent these documents are in MPAC’s possession, power and control, the Board orders that MPAC provide sales verification questionnaires for the property sales listed as “excluded” from the analysis in the final pages of properties in MPAC’s MVR Addendum, with the provision that MPAC is permitted to redact information protected by s. 53 of the Act. In the event the City believes it requires information that MPAC has redacted, the City may bring a motion before the Board for an order pursuant to s. 53(5) of the Act.

Disclosure Request No. 2

Submissions of the Parties

21The City is requesting two items as part of Disclosure Request No. 2: i) MPACs sales questionnaires with respect to 11 sales MPAC relies on for land value (Appx “C” to MPAC’s RSOI) with ii) the explanation of how the land rate adjustments for these 11 sales (time, location, size) was made. The City states that the correct land value, as a component of the current value using the cost approach, is at issue in these appeals, referencing paragraphs 41 and 42 of its Amended Statement of Issues.

22MPAC has not made submissions relating to the relevance or proportionality of Disclosure Request No. 2. Instead, MPAC refuses to disclose “sales questionnaires” without an order pursuant to s. 53(5) of the Act, which MPAC says can only be made following a motion by the City on notice to affected third parties. MPAC also submits that it is not required to create new documents to provide an “explanation” in response to a disclosure motion.

23The City states that “sales questionnaires” do not fall under s. 53 of the Act, as they are not “actual income and expense information” on an individual property, nor has the Minister prescribed this sales information as proprietary and protected by s. 53.

Findings on Disclosure Request No. 2

24MPAC does not dispute the relevance and proportionality of the sales questionnaires, and the Board accepts the City’s uncontested evidence and submissions on these points, which are consistent with the Board’s findings with respect to relevance for Disclosure Request No. 1. The Board finds that sales questionnaires with respect to 11 sales MPAC relies on for land value (Appx “C” to MPAC’s RSOI) are relevant and ordering their disclosure is proportionate to the issues in dispute.

25With respect to MPAC’s refusal to produce the items requested without a s. 53 order, again, other than baldly stating that s. 53 applies, MPAC has not explained the nature of the information in the sales questionnaires that would be protected by s. 53. Accordingly, the Board cannot determine that s. 53 applies.

26The Board accepts MPAC’s submission that it is not required to provide an “explanation” relating to how the land rate adjustment was made, and therefore denies the City’s request for an explanation regarding how land rate adjustments were made. Rule 45 compels parties to serve copies of relevant documents that are in their possession, control, or power – nothing more. In the event the City wishes to obtain an “explanation”, the City may seek an order for discovery pursuant to Rule 47.

27Therefore, the Board orders MPAC to disclose MPAC’s sales questionnaires with respect to 11 sales MPAC relies on for land value (Appx “C” to MPAC’s RSOI), subject to MPAC being permitted to redact information protected by s. 53 of the Act. In the event the City believes it requires information that MPAC has redacted, the City may bring a motion before the Board for an order pursuant to s. 53(5) of the Act. The Board denies the latter half of the City’s request for the reasons outlined above.

Disclosure Request No. 3

Submissions of the Parties

28The City is requesting Appendix D: Hanscomb Report: Report listed in the Cost Analytics Guide Hanscomb Report to MPAC for 2016 with recommendations on construction costs for assemblies. The City submits that this item is relevant to the correctness of MPAC’s costing of components of structures on the Subject Properties, performed using MPAC’s ACS. The City’s Amended Statement of Issues alleges that ACS, based on Hanscomb costing data, understates building assemblies relative to other costing systems.

29MPAC states that the City already has this document. MPAC confirms that the document entitled “2B – Third Party – Everything Else p3001-4000 – NDA” at Exhibit B to the Affidavit of Matthias Hintikka, p. 875 responds to Disclosure Request No. 3.

30The City submits that there is no affidavit to support MPAC’s claim that this document has already been produced.

Findings on Disclosure Request No. 3

31The Board accepts MPAC’s submission that “2B – Third Party – Everything Else p3001-4000 – NDA” at Exhibit B to the Affidavit of Matthias Hintikka, p. 875 is the same document as “Appendix D: Hanscomb Report: Report listed in the Cost Analytics Guide Hanscomb Report to MPAC for 2016 with recommendations on construction costs for assemblies.” Although MPAC has not provided affidavit evidence confirming that the two documents are the same, the Board accepts the submissions of MPAC’s legal counsel in this regard, recognizing counsel’s professional obligations to this Board and the administration of justice.

32For these reasons, no order will be made in relation to Disclosure Request No. 3.

Disclosure Request No. 4

Submissions of the Parties

33The City is requesting “any document, data, or information prepared by MPAC or its assessors/costing department explaining why adjustment from Hanscomb report recommendations on costing assemblies.” The City submits that Hanscomb data forms the basis of the analysis in MPAC’s “Market Valuation Report, Assessing Special Purpose Properties in Ontario: Base Metal Mining, 2016 Assessment Update, Valuation Date: January 1, 2016” and “Cost Analytics How Preliminary Replacement Cost New Per Square Foot Rates Were Derived 2016 Base Year January 31, 2016”, which are relied on by the City. The City states any modifications from MPAC to Hanscomb data is relevant and ought to be produced.

34MPAC submits that the City has not established that this information is relevant to the issues in this proceeding. MPAC further submits that this request is overly broad and unclear, stating that: it fails to point to a specific document; it is not targeted and does not allow MPAC to know what needs to be produced; and it is too broadly framed.

Findings on Disclosure Request No. 4

35The Board finds the information requested as part of Disclosure Request No. 4 is relevant. Relevance is determined broadly at the disclosure stage, and determining relevance for disclosure purposes is not a finding of admissibility for the purposes of a hearing. That task belongs to the hearing adjudicator. In this instance, the City is challenging the rates used by MPAC to cost structures on the subject properties, as well as the assemblies used. The City’s expert provided uncontested affidavit evidence that he will rely on MPAC’s “Cost Analytics How Preliminary Replacement Cost New Per Square Foot Rates Were Derived 2016 Base Year January 31, 2016.” This is sufficient to satisfy the Board of relevance at the disclosure stage.

36However, the Board finds that ordering disclosure of Disclosure Request No. 4 is not proportionate to the issues in dispute. This Disclosure Request is overbroad and imprecise. While the City is not expected to know specific names or dates of documents containing relevant information, the request must still be proportionate. Here, the City has not narrowed its request to a certain timeframe, for instance.

37For these reasons, the Board denies Disclosure Request No. 4.

Disclosure Request No. 5

Submissions of the Parties

38The City is requesting the “careful review of Hanscomb report” conducted by MPAC as referred to at page 3 (pdf pg 250) of “Cost Analytics How Preliminary Replacement Cost New Per Square Foot Rates Were Derived 2016 Base Year January 31, 2016.”

39MPAC states that it is not in possession of any document matching this description.

40The City states that MPAC has not provided any evidence that it searched for this information or any affidavit witness who can be cross-examined.

Findings on Disclosure Request No. 5

41The Board accepts MPAC’s submission that it does not have a document that is responsive to Disclosure Request No. 5. Although MPAC has not provided affidavit evidence on this point, its legal counsel has professional obligations to this Board and the administration of justice when it provides submissions to the Board. Accordingly, the Board accepts that MPAC does not have any documents that are responsive to Disclosure Request No. 5.

42Therefore, the Board makes no order in respect of Disclosure Request No. 5.

Disclosure Request No. 6

Submissions of the Parties

43The City is requesting MPAC’s independent cost review using Marshall and Swift Cost Manual as referred to at page 5 of MPAC’s Cost Analytics Report.

44MPAC says this document is already in the City’s possession at Appendix C (p.102) of Cost Analytics – How Preliminary Replacement Cost New Per Square Foot Rates Were Derived – 2016 Base Year.

Findings on Disclosure Request No. 6

45The City indicates in its reply that it accepts MPAC’s submission. Therefore, the Board makes no order in respect of Disclosure Request No. 6.

Disclosure Request No. 7

Submissions of the Parties

46The City is requesting “MPAC’s 2016 ACS Cost Rates in legible format.” The City submits it received the 2016 ACS Cost Rates in response to a Freedom of Information Request, but the document is illegible and cannot be analyzed. The City’s expert has provided evidence that a legible version is required for him to conduct his analysis.

47MPAC submits that the City has failed to show how the entirety of the ACS cost rate data is relevant to the issues in dispute, which relate to the costing of improvements on the subject properties and not a trial of the entirety of MPAC’s ACS valuation tool.

Findings on Disclosure Request No. 7

48The Board accepts that the information is relevant to an issue in dispute. The City’s expert has provided evidence disputing both the cost and components used by MPAC in its valuation. The City’s expert states that he needs a legible version of the rates to conduct his own analysis. While MPAC states that it has already provided ACS rates for each of the components that are present on the subject properties, this misses the point – the City disagrees with the components and rates used by MPAC. The City argues that MPAC used the wrong assemblies and rates – for this reason, MPAC’s ACS rates for the components it costs for the subject properties are not enough. Relevance is broadly defined at the disclosure stage – disclosure is not an admission of relevance of evidence at the hearing. For this reason, the Board finds Disclosure Request No. 7 is relevant to the issues in dispute.

49The Board also finds that this request is proportionate. MPAC has already provided this information in response to the City’s Freedom of Information Request, just not in a legible format. MPAC does not suggest it is unable to produce the information in a legible format. MPAC has not provided evidence or submissions to explain what efforts would be required to produce this information, the time that would be required, the expense, or the volume of material that would be produced.

50For these reasons, the Board finds the request is relevant and proportionate, and orders that MPAC provide the City with MPAC’s 2016 ACS Cost Rates in a legible format.

Disclosure Request No. 8

Submissions of the Parties

51The City is requesting “Private Roads & Structures Associated with the Private Roads – Documents, information or data demonstrating, providing or pointing to where the private roads are assessed, for what value, what length and what depreciation was placed on the roads, including the source of the depreciation.”

52MPAC submits that it reviewed aerial imagery of the properties, and already produced the Property Profile reports which are the only other documents in MPAC’s power, possession and control respecting the private roads and asphalt on the subject properties.

Findings on Disclosure Request No. 8

53The Board accepts MPAC’s submission that it does not have any further documents that are responsive to Disclosure Request No. 8. Although MPAC has not provided affidavit evidence on this point, its legal counsel has professional obligations to this Board and the administration of justice when it provides submissions to the Board. For this reason, no order will be made in relation to Disclosure Request No. 8.

Disclosure Request No. 9

Submissions of the Parties

54The City is requesting “MPAC’s valuation of the private roads, MPAC’s determination of the construction type of the private roads and MPAC’s calculation of the length of the roads on each site” and MPAC’s source of depreciation for the roads.

55MPAC submits that it reviewed aerial imagery of the properties, and already produced the Property Profile reports which are the only other documents in MPAC’s power, possession and control respecting the private roads and asphalt on the subject properties.

Findings on Disclosure Request No. 9

56The Board accepts MPAC’s submission that it does not have any further documents that are responsive to Disclosure Request No. 9. Although MPAC has not provided affidavit evidence on this point, its legal counsel has professional obligations to this Board and the administration of justice when it provides submissions to the Board.

57For this reason, no order will be made in relation to Disclosure Request No. 9.

ORDER

58The Board orders that:

a. MPAC provide sales verification questionnaires for the property sales listed as “excluded” from the analysis in the final pages of properties in MPAC’s MVR Addendum, with the provision that MPAC is permitted to redact information protected by s. 53 of the Act. In the event the City believes it requires information that MPAC has redacted, the City may bring a motion before the Board for an order pursuant to s. 53(5) of the Act.

b. MPAC disclose MPAC’s sales questionnaires with respect to 11 sales MPAC relies on for land value (Appx “C” to MPAC’s RSOI), with the provision that MPAC is permitted to redact information protected by s. 53 of the Act. In the event the City believes it requires information that MPAC has redacted, the City may bring a motion before the Board for an order pursuant to s. 53(5) of the Act.

c. MPAC provide the City with MPAC’s 2016 ACS Cost Rates in a legible format.

d. MPAC is directed to provide this disclosure no later than 20 days after the issuance of this motion decision.

"Carly Stringer"

CARLY STRINGER MEMBER Assessment Review Board Website: www.tribunalsontario.ca/arb

Disclosure Requests

Disclosure Request No. 1 Sales details and reasons that the five pages of properties excluded from MPAC’s MVR Addendum were excluded from the analysis. Any memorandums or reports relating to the study. The “sales verification questionnaires” explaining the reasons for exclusion.

Disclosure Request No. 2 MPACs sales questionnaires with respect to 11 sales MPAC relies on for land value (Appx “C” to MPAC’s RSOI) with the explanation of how the land rate adjustments for these 11 sales (time, location, size) was made.

Disclosure Request No. 3 Appendix D: Hanscomb Report: Report listed in the Cost Analytics Guide Hanscomb Report to MPAC for 2016 with recommendations on construction costs for assemblies.

Disclosure Request No. 4 Any document, data, or information prepared by MPAC or its assessors/costing department explaining why adjustment from Hanscomb report recommendations on costing assemblies.

Disclosure Request No. 5 The “careful review of Hanscomb report” conducted by MPAC as referred to at page 3 (pdf pg 250) of the Cost Analytics Report.

Disclosure Request No. 6 MPAC’s independent cost review using Marshall and Swift Cost Manual as referred to at page 5 of MPAC’s Cost Analytics Report.

Disclosure Request No. 7 MPAC’s 2016 ACS Cost Rates in legible format.

Disclosure Request No. 8 Private Roads & Structures Associated with the Private Roads – Documents, information or data demonstrating, providing or pointing to where the private roads are assessed, for what value, what length and what depreciation was placed on the roads, including the source of the depreciation.

Disclosure Request No. 9 MPAC’s valuation of the private roads, MPAC’s determination of the construction type of the private roads and MPAC’s calculation of the length of the roads on each site. ** MPAC’s source of depreciation for the roads.

Schedule A

Address	Roll No.	Appeal Nos.	Assessed Person
Copper Cliff (Waters Con.6, Lot 1)	5307-110-002-12300-0000	3411131, 3411045, 3410975, 3367963, 3367885, 3314684, 3314501, 3278756, 3278755, 3242169, 3314629, 3367824, 3449052, 3449080, 3449089, 3490676, 3490635, 3490634, 3410975	Vale Canada Limited
6 Totten Mine Road	5307-120-001-01000-0000	3411136, 3367959, 3314706, 3242170, 3449092, 3490672	Vale Canada Limited
Levack Mine Mill	5307-150-003-25100-0000	3411067, 3367960, 3314504, 3242172, 3449108, 3490663	Vale Canada Limited
Coleman Mine Road	5307-150-004-05400-0000	3411118, 3367860, 3314678, 3242173, 3449100, 3506357, 3506355, 3490704	Vale Canada Limited
Levack Con 1 Lot 6 PCL 8144	5307-140-002-03900-0000	3431966, 3431965, 3431964, 3431963, 3431962, 3431961, 3431960, 3431959, 3431958, 3411062, 3367792, 3314677, 3241739. 3514194, 3490700, 3449058	Glencore Canada Corporation
MacLennan Con 2 Lots 9 and	5307-210-015-03304-0000	3410994,3367917, 3314615, 3241742, 3514186, 3490638, 3449032	Glencore Canada Corporation
Fraser Mine Road	5307-140-002-05800-0000	3241740, 3314450, 3367918, 3411014, 3490658, 3449088	Glencore Canada Corporation
Levack Con. 4 Lot 4 PCL 1613	5307-150-004-05600-0000	3241741, 3314712, 3367961, 3411030, 3490677, 3449056	Xstrata Canada Corporation