T Valeri Construction Limited v. Municipal Property Assessment Corporation Region 19, 2024 CanLII 52308

Tribunals Ontario Tribunaux décisionnels Ontario Assessment Review Board Commission de révision de l’évaluation foncière

ISSUE DATE: June 07, 2024

FILE NO.: DM 186361

Assessed Person(s): T Valeri Construction Limited

Appellant(s): T Valeri Construction Limited

Respondent(s): Municipal Property Assessment Corporation Region 19

Respondent(s): City of Hamilton

Property Location(s): 1670 Garth Street

Municipality(ies): City of Hamilton

Roll Number(s): 2518-081-101-08175-0000

Appeal Number(s): 3505087, 3513370 and 3525928

Taxation Year(s): 2022, 2023 and 2024

Hearing Event No.: 783680

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

Parties	Counsel*/Representative
T Valeri Construction Limited	Submissions not received
Municipal Property Assessment Corporation	Submissions not received
City of Hamilton	Patrick Kraemer*

REQUEST FOR: An order to permit late service of expert evidence and amended Statement of Response. An order confirming compliance with Rule 43. An order confirming that a party can produce evidence regarding the income approach to value.

HEARD: May 7, 2024 in writing

ADJUDICATOR(S): Anita Lovrich, Member; Carly Stringer, Member

MOTION DECISION

OVERVIEW

1The City of Hamilton (the “City”) has brought this motion asking the Assessment Review Board (the “Board”) to allow it to serve expert reports and an amended Statement of Response (“Amended SOR”) past the timelines prescribed in the Schedule of Events (“SOE”) that applies to these appeal proceedings. The City also seeks a Board order confirming that its pleadings substantially comply with the Board’s Rules of Practice and Procedure (the “Rules”), and that it can adduce evidence on the income approach to value at the hearing of these appeals.

2The Municipal Property Assessment Corporation (“MPAC”) and T Valeri Construction Limited (the “Appellant”) are also parties to these appeals. They have not provided the Board with evidence or submissions in response to the City’s motion.

Result

3For the reasons that follow, the Board allows late service of the expert evidence and Amended SOR. The Board declines to make any findings or order in relation to Rule 43. The Board finds that the City may adduce evidence in relation to the income approach to value.

BACKGROUND

4The SOE that applies to these appeal proceedings required the parties to:

a. Serve expert reports by February 27, 2024.

b. “Serve any supplementary report(s) by [their] expert(s) in reply to any additional expert reports served by other parties, as well as any amendment to the party’s Statement of Issues or Statement of Response, to address any additional evidence or new issues raised in the expert’s [sic] reports” by March 12, 2024.

c. File with the Board their pleadings, settlement conference brief, and all documentary evidence, witness statements and expert reports on which they intend to rely if the matter proceeds to a hearing, by April 9, 2024.

5The parties exchanged expert reports on February 27, 2024.

6On March 19, 2024, the City brought this motion seeking permission to serve two supplementary reports that were prepared past the March 12, 2024 deadline for service. The first supplementary report is entitled “A Technical Review Report of a Valuation Report Prepared by Derek McCullough of Municipal Property Assessment Corporation” prepared by Pat Del Sordo and dated March 18, 2024. The second supplementary report is entitled “A Technical Review Report of a Valuation Report Prepared by Ms. Helen Teng of the Altus Group” prepared by Pat Del Sordo and dated March 18, 2024 (both reports together, the “Supplementary Reports”).

7The City also seeks permission to serve an Amended SOR dated March 19, 2024, which was also prepared past the March 12, 2024 deadline for service.

ANALYSIS

Issue 1 – Should the Board allow the City to serve and file the Supplementary Reports and Amended SOR outside of the timeline prescribed in the Schedule of Events?

Submissions

8The City submits that amendments to its SOR are required as a result of information contained in its expert reports. The City further submits that it requires its expert’s reports to be admitted at the hearing of these appeals to determine the issues fully and fairly.

9The City submits that the other parties are not prejudiced by allowing late service of the Amended SOR and Supplementary Reports.

10Neither MPAC nor the Appellant have made submissions or provided evidence in response to the City’s request.

Findings on Issue 1

11Based on the uncontested information provided by the City, the Board finds that the City failed to comply with the Rules when it failed to serve its expert report by February 20, 2024, and the Supplementary Reports and Amended SOR by the March 12, 2024 deadline for service.

12Rule 7 states that “the Board will determine the appropriate consequences of non-compliance with these Rules.”

13In determining an appropriate consequence for failure to comply with the Rules, the Board has routinely considered the circumstances surrounding the non-compliance, as well as prejudice to all parties: SGS Lakefield Research Ltd. and Municipal Property Assessment Corp., Region 07, Re, 2020 CarswellOnt 10309 (“SGS Lakefield”) at paragraphs 21-26; Kitchener (City) v CP REIT Ontario Properties Ltd, 2020 CanLII 30640 (ON ARB) at paragraphs 30 to 35.

14The City has not provided information or evidence explaining why it failed to meet the deadlines for service. That said, in the absence of submissions from MPAC and the Appellant, the Board finds that an appropriate consequence for the City’s non-compliance is to permit late service of the expert report, the Supplementary Reports and the Amended SOR. This is an appropriate consequence in light of the circumstances including that both parties exchanged expert reports on February 27, 2024 and, presumably, agreed to the mutual exchange of expert reports outside of the timeline prescribed in the SOE in accordance with the Board’s “Practice Direction on How to Interpret the Schedule of Events for the General Proceedings”; that the Supplementary Reports and Amended SOR were provided within a very short period of time after the March 12, 2024 deadline; that the City promptly brought this motion in advance of the April 9, 2024 filing deadline; that neither MPAC nor the Appellant have made submissions on this motion; and that there is no evidence of prejudice to MPAC or the Appellant.

15For these reasons, the Board will permit late service of the Appellant’s expert report, Supplementary Reports and Amended SOR.

Issue 2 – Do the City’s pleadings substantially comply with Rule 43?

Submissions

16The City submits that its Statement of Response adequately addresses the basis for determining the value of the property including value based on the income approach.

Findings on Issue 2

17With respect to Issue 2, the Board has granted late service of the City’s Amended SOR. Accordingly, the City’s request in relation to Issue 2, as it relates to the City’s original SOR, is moot.

18The Board makes no findings or order in relation to Issue 2.

Issue 3 - Can the City adduce evidence on the income approach to value?

Submissions

19The City submits that the value of the property based on the income approach was raised in its pleadings and, therefore, it is permitted to adduce evidence regarding the income approach.

20The City references Rule 49, which provides that “[a]n issue can only be raised at a hearing event if it has been set out in the Statements of Issues and Response which have 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.”

Findings on Issue 3

21The Board was not provided with a copy of the Appellant’s Statement of Issues. That said, the City’s Amended SOR indicates that the Appellant seeks a revised assessment based on an income approach to value. Further, the City’s Amended SOR indicates that the City will rely on the income approach to value. The City’s Amended SOR also reflects the City’s position on the various components of an income valuation.

22For these reasons, the Board finds that the City is not precluded from raising the issue of current value based on the income approach and may adduce evidence in this regard, provided the City has complied with the Rules regarding admitting documents into evidence and subject to the Hearing Member’s discretion and orders.

ORDER

23The Board orders that the City must serve its Supplementary Reports and Amended SOR within five (5) days of this order.

24The Board orders that the Schedule of Events will resume, giving the parties until June 28, 2024 to file with the Board their Statement of Issues, Statement of Response, and Reply (as the case may be); all documentary evidence, witness statements and expert reports on which the party intends to rely if the matter proceeds to a hearing; and Settlement Conference Briefs.