Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

February 14, 2024

FILE NO.:

DM 185702

Assessed Person(s):

New Liskeard Property Corp.

Appellant(s):

New Liskeard Property Corp.

Respondent(s):

Municipal Property Assessment Corporation Region 29

Respondent(s):

The City Temiskaming Shores

Property Location(s):

11B Hwy

Municipality(ies):

The City Temiskaming Shores

Roll Number(s):

5418-010-001-12600-0000

Appeal Number(s):

3499465 and 3514167

Taxation Year(s):

2022 and 2023

Hearing Event No.:

783082

Legislative Authority:

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

Parties

Counsel*/Representative

New Liskeard Property Corp.

Scott McAnsh*

Municipal Property Assessment Corporation

Jonathan Langille

The City Temiskaming Shores

Submissions not received

REQUEST FOR:

An order to permit late filing of witness statements

HEARD:

January 19, 2024 in writing

ADJUDICATOR(S):

Carly Stringer, Member

MOTION DECISION

OVERVIEW

1New Liskeard Property Corp. (the “Appellant”) has brought a motion asking the Assessment Review Board (the “Board”) to permit it to file two witness statements past the deadline in the Schedule of Events (“SOE”) that applies to these appeals. The Appellant has appealed the assessment of the property municipally known as 11B Hwy in the City of Temiskaming Shores (the “Subject Property”) pursuant to s. 40 of the Assessment Act R.S.O. 1990, c. A.31 for the 2022 and 2023 taxation years.

2The Municipal Property Assessment Corporation (“MPAC”) opposes the motion.

3The City of Temiskaming Shores has not provided submissions on this motion.

Result

4For the reasons that follow, the Board grants the motion.

BACKGROUND

5The facts underlying this motion are as follows:

a. The Appellant retained new legal counsel on July 6, 2023.

b. Expert reports were exchanged on July 21, 2023. The Appellant’s expert opined that the current value of the Subject Property should be determined based on the sale of the Subject Property in 2021 (the “2021 Sale”). MPAC’s expert opined that the 2021 Sale was too far removed from the valuation date; and that it was not a valid sale because i) the Subject Property was listed “unpriced”; ii) it was being sold on an “as is, where is" basis; and iii) it was owned by a government body.

c. The expert reports and pleadings were filed with the Board by the SOE deadline of August 24, 2023. No supplementary (reply) expert reports or witness statements were filed with the Board at this time.

d. The settlement conference for these appeals was held on November 16, 2023. The Appellant provided uncontested evidence that, at this settlement conference, MPAC took the view that the 2021 Sale was not a usual market transaction. At that point, the Appellant decided that fact witnesses should be called to provide evidence on the 2021 Sale, including evidence that there was more than one offer to purchase the Subject Property.

e. The Appellant subsequently filed this motion seeking to file statements from two proposed witnesses (the “Proposed Witnesses”). The Proposed Witnesses would provide factual evidence regarding the 2021 Sale, including:

i. That in 2019, the seller retained realtors to market the Subject Property for sale;

ii. that it was standard practice to list properties without an asking price;

iii. that there were at least two offers on the Subject Property that were not completed at the due diligence stage;

iv. that the Appellant became aware of the Subject Property in December 2019 by reviewing real estate listings, and then made inquiries of the vending realtors; and

v. that the Appellant made two offers to purchase the Subject Property that were not accepted before the third offer was accepted and the 2021 Sale occurred.

ANALYSIS

Issue 1 – Should the Board extend the time in the Schedule of Events for the Appellant to file witness statements?

Applicable Law

6Rule 40 of the Board’s Rules of Practice and Procedure (“Rules”) provides that after the Commencement Day, the Board will not alter any due date set out in the SOE other than in exceptional circumstances.

7Exceptional circumstances mean, “…among other things, something that does not occur regularly, something unusual, or something atypical”: see Mississauga (City) v Michalakos, 2018 CanLII 126632 (ON ARB) at paragraph 10.

Submissions

8The Appellant submits there are exceptional circumstances that warrant extending the SOE deadline to file witness statements. The Appellant submits that legal counsel was retained at a late stage, and that counsel was not advised of the circumstances of the 2021 Sale including that there were many offers on the Subject Property. The Appellant submits that it only became apparent at the settlement conference that evidence about the 2021 Sale might assist in addressing MPAC’s concerns about the sale.

9MPAC submits that these are not exceptional circumstances. MPAC submits that it has consistently maintained that the 2021 Sale was encumbered, and that counsel was retained prior to the exchange of expert reports. MPAC submits that the discovery of facts and information within the course of a proceeding is not unusual.

Findings on Issue 1

10The Appellant has not satisfied the Board that exceptional circumstances exist. MPAC’s Statement of Response dated April 13, 2023 challenged the Appellant’s reliance on the 2021 Sale. Paragraph 19 of MPAC’s expert report clearly challenged the validity of the 2021 Sale. These facts belie the Appellant’s submission that it did not become aware until the settlement conference that evidence about the 2021 Sale was necessary. For these reasons, the Board does not accept the Appellant’s submissions that exceptional circumstances exist. The Board accepts and relies on MPAC’s submissions in this regard.

11Accordingly, the Board finds there are no exceptional circumstances that warrant altering the SOE to permit late filing of the witness statements.

Issue 2 – Should the Appellant be permitted to file witness statements and call the Proposed Witnesses to testify at the hearing of these appeals?

Applicable Rules

12Rule 40 and the “exceptional circumstances” test applies only to whether the Board will alter the Schedule of Events. Rule 40 does not speak to circumstances where there is non-compliance with the Rules, including filing deadlines.

13Rule 7 addresses non-compliance with the Rules, and it provides that the Board shall determine the appropriate consequence for non-compliance.

Submissions of the Parties

14The Appellant asks that, in the alternative to exceptional circumstances, the Board confirm that the Proposed Witnesses can still provide evidence at the hearing. The Appellant submits that Rule 35(c) requires that witness statements be filed at the filing deadline, but that there is no Rule that explicitly prohibits witnesses from testifying unless a witness statement has been filed. The Appellant submits that a close reading of the Rules shows that fact witnesses can be called if their evidence is limited to the issues raised in the pleadings, and if procedural fairness concerns are addressed by providing all parties with advance notice of who will be called.

15MPAC has not made submissions in response to this aspect of the Appellant’s request. MPAC has requested that if the Board permits the Appellant to file these witness statements, it also amend the SOE to permit MPAC an opportunity to amend its Statement of Response and its expert report.

Findings on Issue 2

16The Appellant has not complied with the deadline to file witness statements and therefore is in non-compliance with the Rules, such that Rule 7 applies. In considering the circumstances, the Appellant has now filed a sworn affidavit confirming the nature of the evidence its Proposed Witnesses will provide. A hearing has not yet been scheduled, which means that MPAC has had sufficient notice. In this instance, and in the absence of evidence of prejudice to MPAC, the Board determines that the appropriate consequence of non-compliance is to permit the late filing of witness statements and testimony from the Proposed Witnesses at the hearing of these appeals, but also to grant MPAC a reasonable opportunity to respond to the evidence. This approach allows the Board to receive relevant evidence while preserving procedural fairness.

CONCLUSION

17The Board will permit late filing of the witness statements and will permit the Appellant to call the Proposed Witnesses to testify at the hearing of these appeals.

ORDER

18The Board orders that the Appellant is permitted to file witness statements of the Proposed Witnesses, and call the Proposed Witnesses to testify at the hearing of these appeals, provided their evidence is purely factual and relates only to issues raised in the pleadings. The Board directs that the Appellant file these witness statements within five (5) days of this Order.

19The Board further orders that MPAC is granted five (5) weeks from the date of this Order to serve and file any amendments to its Statement of Response and/or expert report to respond only to the facts contained in the witness statements of the Proposed Witnesses.

20The Board directs that the case coordinator shall schedule a hearing, in consultation with the parties, to occur in the month of April 2024.