Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

October 05, 2023

FILE NO.:

DM 185206

Assessed Person(s):

Canuck Properties Ltd.

Appellant(s):

Canuck Properties Ltd.

Respondent(s):

Municipal Property Assessment Corporation Region 14

Respondent(s):

City of Vaughan

Property Location(s):

8094 - 8214 Kipling Avenue

Municipality(ies):

City of Vaughan

Roll Number(s):

1928-000-421-70301-0000

Appeal Number(s):

3503301 and 3512745

Taxation Year(s):

2022 and 2023

Hearing Event No.:

781485

Legislative Authority:

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

Parties

Representative

Canuck Properties Ltd.

Chantelle MacMillan

Municipal Property Assessment Corporation

Submissions not received

City of Vaughan

Jaroslaw Wowk

REQUEST FOR:

An Order for Disclosure

HEARD:

August 31, 2023 in writing

ADJUDICATOR(S):

Carly Stringer, Member

MOTION DECISION

OVERVIEW

Motion for Disclosure

1The City of Vaughan (the “City”) has brought this motion seeking disclosure from Canuck Properties Ltd. (the “Appellant”) of the following information:

a. The full lease (including any lease renewals, lease extensions, lease amendments, lease assignments) of Woodbridge Foam Corporation or any of its subsidiaries, affiliates or other related entities that held a leasehold interest at the subject property from 2017 to present (“Disclosure Request No. 1); and

b. All correspondence exchanged between Canuck Properties Ltd and Woodbridge Foam Corporation or any of its subsidiaries, affiliates, or related entities regarding the 2017-2020 section 40 appeals (appeal numbers 3236289, 3303399, 3357525, 3404368) and associated property tax refunds (“Disclosure Request No. 2”).

2The City asks the Assessment Review Board (the “Board”) to order the Appellant to 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.

3The Appellant opposes the motion.

4The Municipal Property Assessment Corporation (“MPAC”), another responding party, takes no position on this motion.

The Subject Appeals

5The City is responding to appeals relating to the property known municipally as 8094-8214 Kipling Avenue. The subject property is an automotive parts production plant owned by the Appellant and tenanted by Woodbridge Foam Corporation.

6The Appellant appealed the assessment of the subject property for the 2022 taxation year and an appeal was deemed pursuant to s. 40(26) of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”) for the 2023 taxation year (the “2022-2023 Appeals”). The Appellant raises various issues in the 2022-2023 Appeals, including that the site area should be revised; a portion of the lands should be valued as conservation lands; the property classification for part of the subject property should be revised; and a reduction of 9% should be applied as an equitable adjustment.

7The City served a Statement of Response (“SOR”) in this proceeding. In the SOR, the City argues that the Appellant is estopped from raising i) the current value of the subject property; ii) whether an equitable adjustment should be made; and iii) the property classification of the subject property, as issues in dispute. The City says these issues were determined in earlier appeals relating to the 2017 to 2020 taxation years (the “2017-2020 Appeals”). The City argues that issue estoppel applies to preclude the Appellant from obtaining the relief it is seeking in the 2022-2023 Appeals.

8The City subsequently brought this motion for disclosure from the Appellant.

Result

9For the reasons that follow, the Board grants Disclosure Request No. 1 and denies Disclosure Request No. 2.

ISSUES

10There are two general issues to be decided on this motion.

11The first relates to the timing of the motion and has two parts:

a. Is the City outside of the timelines prescribed in the Schedule of Events (“SOE”) for bringing this motion?

b. If the City is outside of the timelines prescribed, are there exceptional circumstances that warrant the Board altering the SOE to permit this motion?

12If the Board is satisfied the City 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 the City outside of the timelines prescribed in the SOE for bringing this motion?

Submissions of the Parties

13The Appellant states this request is being made outside the time provided in the SOE. The Appellant states that disclosure requests were to have been made by March 27, 2023.

14The City submits that it did not request the disclosure by March 27, 2023 as the issue of issue estoppel was raised for the first time in the City’s SOR served on May 31, 2023. The City submits that it is only after issues have been identified and fully articulated that the parties can determine the relevance of specific documents and request appropriate disclosure.

Findings on Issue 1(a)

15The Board does not accept the Appellant’s submission that this request for disclosure is too late. In this instance, the SOE required that the City advise the Appellant if additional disclosure is requested by March 27, 2023, and that disclosure from the Appellant be completed by April 11, 2023. However, there is a final deadline for full disclosure by all parties by August 1, 2023. The rationale behind this timing is so that the responding parties have the information they need to prepare their SORs. However, the duty to disclose relevant documents remains ongoing through the duration of a proceeding, and the Board’s “Practice Direction on How to Interpret the Schedule of Events for the General Proceedings” explicitly recognizes that issues may be raised for the first time in a SOR, and a responding party may include a request for any additional relevant documents which have not already been disclosed by an appellant. In this instance, the City’s SOR is the first pleading that raised the issue of issue estoppel and the City requested documents relevant to that. The Appellant became obliged to produce documents relevant to any new issues raised in the SOR, with the final deadline for full disclosure by August 1, 2023.

16To summarize, while there are deadlines for disclosure requests as between the parties, the SOE in this case also contemplates that additional disclosure may be required throughout the exchange of pleadings. The Board finds that the City’s request for disclosure on May 31, 2023 and bringing this motion in July 2023 are within the deadline for final disclosure of August 1, 2023. Therefore, the City’s request is not too late.

Issue 2 – Disclosure

a. Is the information sought relevant to the issues in dispute?

Submissions of the Parties

17The City says that this information is relevant to its allegation that Woodbridge Foam Corporation is a tenant occupying the subject property; that the Appellant is the landlord and assessed owner; and the nature of the contractual relationship between them, which all relates to its issue estoppel argument. In particular, the City is arguing that the Appellant and Woodbridge Foam Corporation are privies and share a similar interest in the property assessment appeal.

18The Appellant says that the City has not satisfied the test for issue estoppel, making the requested disclosure irrelevant and disproportionate. The Appellant devotes a significant portion of their submissions arguing that issue estoppel does not apply, and that the City has not established that the Appellant and Woodbridge are privies.

19Specific to Disclosure Request No. 1, the Appellant submits that the parties do not appear to dispute the cost approach to value that was applied by MPAC in assessing the subject property, nor do the parties dispute that Woodbridge is a tenant. The Appellant states that Disclosure Request No. 1 is therefore irrelevant to the determination of value.

20Specific to Disclosure Request No. 2, the Appellant’s position is that the City has not proven that the Appellant ought to be estopped, and the correspondence between the Appellant and Woodbridge Foam Corporation is irrelevant to the determination of current value.

Findings on Issue 2(a)

21On a motion for disclosure, the Board’s first task is determining whether the information sought is relevant to the issues in dispute. The Board is not tasked with determining the merits of the issues in dispute. Accordingly, the Board does not accept the Appellant’s submissions that the City’s request is not relevant because the City has not satisfied the requirements of issue estoppel, nor does the Board make any findings with respect to issue estoppel in the context of these appeals.

22The issues in dispute are determined by reference to the pleadings, which includes the Statement of Issues from the Appellant and the SORs from MPAC and the City: see Adams v Municipal Property Assessment Corporation, Region 7, 2019 CanLII 18798 (ON ARB) at paragraph 7; see also the Board’s “Practice Direction on How to Interpret the Schedule of Events for the General Proceeding.”

23The Board finds that Disclosure Request No. 1 is relevant to the City’s issue estoppel argument, particularly the nature of the contractual arrangement between the Appellant and its tenant. The City explicitly raises this issue in its SOR.

24The Board also finds that Disclosure Request No. 2 is relevant to the issues in dispute, particularly the City’s allegations that the Appellant was served with notice of the 2017 to 2020 Appeals and elected not to participate despite this knowledge. The Board finds the information requested as part of Disclosure Request No. 2 is clearly relevant to the Appellant’s knowledge and involvement in the 2017 to 2020 Appeals.

b. Is disclosure proportionate to the importance and complexity of the issues in dispute with a view to resolving appeals within the four-year cycle?

Submissions of the Parties

25The City submits that ordering disclosure is proportionate to the issues in dispute.

26The Appellant submits that the requested disclosure is not proportionate to the issues in dispute. The Appellant submits that:

a. Retrieving correspondence from as far back as 2020 is extraneous, and there is no indication that it exists or can be retrieved.

b. The expense is extensive.

c. There is prejudice to the Appellant by being asked to disclose documents when it was not afforded the right to respond to issues pled in the 2017 to 2020 Appeals.

d. The City has delayed the progress of the appeals by repeated and extraneous requests for disclosure.

e. The information requested as part of Disclosure Request No. 2 is not readily available to the Appellant at this time. This is stale-dated information that is not kept in a central repository and is not easily accessible.

f. The request is excessive.

27In reply, the City submits that the Appellant has not provided affidavit evidence to support its submissions with respect to proportionality.

Findings on Issue 2(b)

28The Board does not accept the Appellant’s submissions with respect to proportionality. The Board finds there is insufficient evidence on which the Board can rely to find that it would be time-consuming, costly, disruptive to the proceeding to produce the Disclosure Requests. Importantly, there is insufficient evidence with respect to cost; any efforts made or challenges faced in ascertaining whether relevant documents exist; volume of material; or prejudice.

29The Board finds that ordering disclosure of Disclosure Request No. 1 is proportionate to the issues in dispute. It is a discrete request that is narrowly defined and easily identifiable.

30The Board does not accept that ordering disclosure of Disclosure Request No. 2 is proportionate to the issues in dispute. The request is overbroad. The City requests “correspondence” but does not provide further specificity such as emails, letters, or text messages. The City also expands the request to “any of its subsidiaries, affiliates and related entities” without i) confirming whether it means the subsidiaries, affiliates and related entities of the Appellant, or Woodbridge Foam Corporation, or both; and ii) confirming how to define “related entities.” Moreover, there is no evidence that any subsidiaries, affiliates or related entities are a party to this appeal. The City has not provided sufficient evidence for the Board to understand the purported relationship between the Appellant, Woodbridge Foam Corporation, and any “subsidiaries, affiliates and related entities.” The Board simply cannot understand the scope of this request. For these reasons, the Board finds that ordering disclosure of Disclosure Request No. 2 is not proportionate to the issues in dispute.

CONCLUSION

31The Board finds that Disclosure Request Nos. 1 and 2 are relevant to the issues in dispute. Ordering disclosure of Disclosure Request No. 1 is proportionate to the issues in dispute. Ordering disclosure of Disclosure Request No. 2 is not proportionate to the issues in dispute.

ORDER

32The Board orders that the Appellant disclose the items requested as Disclosure Request No. 1 to the City within 15 days of this motion decision being issued.

33In its motion materials filed in support of this disclosure motion, the City requested that the Board suspend the SOE that applies to these proceedings. However, the parties were required to provide the Board with a Notice of Mandatory Meeting Form by September 26, 2023, a deadline which has already passed. Accordingly, the Board directs the parties to confer regarding any extension required to the SOE, and submit an Expedited Board Direction Form within 15 days confirming the nature of the SOE extension being requested.