Tribunals Ontario / Tribunaux décisionnels Ontario
Assessment Review Board / Commission de révision de l’évaluation foncière
ISSUE DATE: July 17, 2024 FILE NO.: DM 186550
Assessed Person(s): Avondale Stores Limited Appellant(s): Avondale Stores Limited Respondent(s): Municipal Property Assessment Corporation Region 18 Respondent(s): City of St Catharines Property Location(s): 431 Welland Avenue Municipality(ies): City of St Catharines Roll Number(s): 2629-030-027-00300-0000 Appeal Number(s): 3511279 and 3525814 Taxation Year(s): 2023 and 2024 Hearing Event No.: 783707 Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31
| Parties | Representative |
|---|---|
| Avondale Stores Limited | Jonas Perov |
| Municipal Property Assessment Corporation | Nakita Ramjeawan |
| City of St Catharines | Submissions not received |
REQUEST FOR: An Order for Disclosure HEARD: May 21, 2024 in writing ADJUDICATOR(S): Carly Stringer, Member; Anita Lovrich, Member
MOTION DECISION
OVERVIEW
1Avondale Stores Limited (the “Appellant”) brings this motion for disclosure pursuant to the Assessment Review Board’s (the “Board”) Rules of Practice and Procedure (the “Rules”) Rule 45 and s. 53 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”). The Appellant is seeking disclosure from the Municipal Property Assessment Corporation (“MPAC”).
2The Appellant has challenged the assessment of 431 Welland Avenue in St. Catharines, Ontario (the “Subject Property”). The Subject Property is a small shopping centre and gas bar valued at $728,000 as of January 1, 2016. The Appellant argues that the current value reflected on the assessment is too high.
3The Appellant seeks disclosure of the items outlined in Schedule A attached to this Motion Decision (“Disclosure Requests”).
4MPAC opposes the motion.
5The Board has not received submissions from the City of St. Catharines.
Result
6For the reasons that follow, the Board:
a. Denies all Disclosure Requests in relation to 368-400 Scott Street and 33-35 Lakeshore Road.
b. Denies Disclosure Request Nos. 2, 3, 4, 5, 6, 8 and 9.
c. Grants Disclosure Request No. 1 insofar as MPAC is ordered to provide an unredacted version of the information contained in paragraph 35 of MPAC’s expert report and paragraph 8 of MPAC’s Amended Statement of Response (“SOR”).
d. Grants Disclosure Request No. 1 insofar as MPAC is ordered to provide the 2015 and 2016 Rent Rolls (which may include lease commencement dates; square footage leased to each tenant in each unit; actual rent for each tenant in each unit; and rent per square foot for each unit) for 258 Merritt Street, 191 Welland Avenue, 211 Martindale Road, 252-262 Lakeshore Road, 282 Linwell Road, 106 Rockwood Avenue, 10 Mac Turnbull Drive, 359 Carlton Street and 395-397 Ontario Street in St. Catharines.
e. Grants Disclosure Request No. 7 insofar as MPAC is ordered to provide any and all sales investigation sheets for the Subject Property and the specific sales relied on by MPAC of the properties listed in Attachment 1.
ANALYSIS
Applicable Law
7Rule 45 requires that all parties provide a copy of “…all relevant documents in their possession, control, or power to all other parties in the proceeding, except for privileged documents…”.
8On a motion for disclosure, the Board’s first task is to determine whether the disclosure sought is relevant to the issues in dispute. The issues in dispute are determined by reference to the pleadings.
9The Board’s second task is to determine whether ordering disclosure is proportionate to the issues in dispute.
10The Board will consider relevance and proportionality in reference to each of the Appellant’s Disclosure Requests.
Preliminary Matters - 368-400 Scott Street and 33-35 Lakeshore Road
11The Appellant seeks disclosure of materials relating to almost 20 properties (see Attachment 1 to this Motion Decision).
12MPAC submits that 368-400 Scott Street and 33-35 Lakeshore Road should be excluded from consideration as they are not relied on by MPAC’s expert, nor are they referenced in MPAC’s Amended SOR.
13The Appellant has not responded to MPAC’s submission in this regard.
14The Board finds that neither 368-400 Scott Street nor 33-35 Lakeshore Road are referenced in the parties’ materials. The Board finds that the Appellant has not proven that information relating to these properties is relevant to the issues in dispute. Accordingly, the Board denies the Appellant’s Disclosure Requests in relation to 368-400 Scott Street and 33-35 Lakeshore Road in St. Catharines.
Disclosure Request No. 1 - 2015 and 2016 Rent Rolls for each property listed in Attachment 1, including the square footage leased to each tenant in each unit, the actual rent for each tenant in each unit, the lease commencement date for each tenant in each unit, and the rent per square foot for each unit.
Positions of the Parties
15The Appellant submits this disclosure is necessary to verify that the fair market rent (“FMR”) used by MPAC for the Subject Property is consistent with the actual rents being obtained as of the valuation date for each of the comparable properties, and that the Subject Property’s assessment is equitable with these other properties in terms of the relationship between actual and assessed rental income.
16MPAC submits that 464-466 Merritt Street, 436 Vansickle Road, 285 Bunting Road, 290 Glendale Avenue, 137-139 Louth Street, 170-176 Hartzel Road, 20-36 Hartzel Road and 161 Church Street (the “Equity Analysis Properties”) are only used in MPAC’s expert’s equity report, such that disclosure of information like rent rolls, lease commencement dates and rent per square foot is neither relevant nor necessary.
17MPAC agrees to provide the lease commencement dates for the remaining properties listed in Attachment 1.
18For the remaining properties, MPAC submits that the information requested as part of Disclosure Request No. 1 is not relevant. Alternatively, MPAC submits that it can provide a copy of its unredacted materials if the Board so orders in accordance with s. 53 of the Act.
Findings on Disclosure Request No. 1
19The Board accepts MPAC’s submission that the Appellant has not proven the relevance of the information requested as part of Disclosure Request No. 1 as it pertains to the Equity Analysis Properties. Other than a bald assertion that the information is relevant to the appropriate FMR to be used to value the Subject Property, the Appellant has not sufficiently explained how information about the Equity Analysis Properties, which were used by MPAC’s expert solely in the equity analysis, are relevant to the determination of FMR in calculating the correct current value using the Income Approach. Accordingly, the Board denies Disclosure Request No. 1 in relation to the Equity Analysis Properties.
20Insofar as Disclosure Request No. 1 relates to the remaining properties listed in Attachment 1, the Board finds that the information requested as part of Disclosure Request No. 1 is relevant to the issues in dispute, specifically MPAC’s calculation of FMR and the base rents contained in its expert’s report at paragraph 35 and paragraph 8 of MPAC’s Amended SOR.
21For these reasons, the Board will grant Disclosure Request No. 1 as it relates to disclosure of the redacted information contained in MPAC’s expert report at paragraph 35 and MPAC’s Amended SOR at paragraph 8. The Board also grants Disclosure Request No. 1 only in relation to 258 Merritt Street, 191 Welland Avenue, 211 Martindale Road, 252-262 Lakeshore Road, 282 Linwell Road, 106 Rockwood Avenue, 10 Mac Turnbull Drive, 359 Carlton Street and 395-397 Ontario Street in St. Catharines. As a final note, it may be that the Rent Rolls in MPAC’s possession, power and control do not include the square footage leased to each tenant in each unit, the actual rent for each tenant in each unit, the lease commencement date for each tenant in each unit, and the rent per square foot for each unit. In this regard, the Board wishes to make clear that its order for Disclosure Request No. 1 only operates insofar as MPAC is in possession, power and control of documents that are responsive to the request – MPAC is not required to create new documents to respond to this order if the Rent Rolls do not include the square footage leased to each tenant in each unit, the actual rent for each tenant in each unit, the lease commencement date for each tenant in each unit, and the rent per square foot for each unit.
Disclosure Request No. 2 - 2015 and 2016 Financial Statements for each property listed in Attachment 1
Positions of the Parties
22The Appellant submits that this information is relevant to the appropriate FMR to be used to value the Subject Property. The Appellant relies on the same submissions made in relation to Disclosure Request No. 1.
23MPAC relies on the same submissions made in relation to Disclosure Request No. 1.
Findings on Disclosure Request No. 2
24The Board finds that the Appellant has not proven the relevance of the information requested as part of Disclosure Request No. 2 as it pertains to the Equity Analysis Properties. Accordingly, the Board denies Disclosure Request No. 2 in relation to the Equity Analysis Properties.
25The Board finds that the Appellant has not proven the relevance and proportionality of Disclosure Request No. 2 as it relates to the remaining properties. Specifically, the Appellant simply relies on a bald assertion that the 2015 and 2016 Financial Statements are relevant to the appropriate FMR. The Board finds the Appellant has not sufficiently explained the relevance of the 2015 and 2016 Financial Statements to this issue. For this reason, the Board denies Disclosure Request No. 2.
Disclosure Request No. 3 - MPAC data on any and all land attributes that affect the value (size, shape, access, contamination, etc) for the Subject Property and each property listed in Attachment 1
Positions of the Parties
26The Appellant states that this information is required “in order for the parties to have a productive conversation about the comparability of the properties identified by MPAC with the subject property, and what adjustments may be required in order to compare these properties with the subject”.
27MPAC submits that the Appellant has been provided with the roll numbers for all comparable properties used by MPAC and the Appellant can conduct its own research to determine if they believe the properties to be comparable.
Findings on Disclosure Request No. 3
28The Board does not accept MPAC’s submission that the Board should not order disclosure because MPAC has provided the roll numbers of its proposed comparable properties and the Appellant can conduct its own research. If MPAC has a relevant document, and its disclosure is proportionate to the issues in dispute, then the document must be disclosed in accordance with Rule 45.
29That said, the Board finds that Disclosure Request No. 3, particularly the request for generalized “MPAC data for any and all land attributes that affect market value”, is broad, vague, and unclear. In particular, the Board finds this request is insufficiently clear to give MPAC appropriate guidance regarding the nature of the documents that would be responsive. Accordingly, the Board finds it is disproportionate.
30Therefore, Disclosure Request No. 3 is denied.
Disclosure Request No. 4 – Any and all inspection notes for the Subject Property and each property listed in Attachment 1.
Positions of the Parties
31The Appellant submits this information is relevant to the comparability of the properties identified by MPAC. The Appellant relies on the submissions made at paragraph 26 above in relation to Disclosure Request No. 3.
32MPAC submits that the Appellant has been provided with the roll numbers for all comparable properties used by MPAC and the Appellant can conduct its own research to determine if they believe the properties to be comparable.
Findings on Disclosure Request No. 4
33The Board does not accept MPAC’s submission that the Board should not order disclosure in accordance with Disclosure Request No. 4 because MPAC has provided the roll numbers of its proposed comparable properties and the Appellant can conduct its own research, for the reasons outlined above in relation to the findings on Disclosure Request No. 3.
34That said, the Board finds that Disclosure Request No. 4 is not proportionate to the issues in dispute. The Appellant has not limited its request to notes taken within specific dates, for instance. It is not proportionate to require MPAC to provide “any and all” inspection notes for 20 properties without providing a relevant timeframe, and it is not the Board’s task to tailor an otherwise overbroad request.
35Accordingly, the Board denies Disclosure Request No. 4.
Disclosure Request No. 5 - Any and all building permits issued, and any change made to the assessment based on the building permits, for the Subject Property and each property listed in Attachment 1
Positions of the Parties
36The Appellant submits this information is relevant to the comparability of the properties identified by MPAC. The Appellant relies on the submissions made at paragraph 26 above in relation to Disclosure Request No. 3.
37MPAC submits that the information presented on Aboutmyproperty and propertyline is correct and accurate. MPAC submits this request is disproportionate and irrelevant to the issues.
Findings on Disclosure Request No. 5
38The Board finds the Appellant has not sufficiently explained why this information is relevant. Further, the Board repeats and relies on its findings in relation to Disclosure Request No. 4 regarding proportionality – namely, the Appellant has not limited the request to a specific timeframe. It is not proportionate to require MPAC to respond to a request for permits relating to 20 properties without providing a relevant timeframe, and it is not the Board’s task to tailor an otherwise overbroad request. The Board finds the request is not proportionate to the issues in dispute.
39The Board denies Disclosure Request No. 5.
Disclosure Request No. 6 - Any and all adjustments made by MPAC to reflect property-specific attributes for the Subject Property and each property listed in Attachment 1
Positions of the Parties
40The Appellant submits this information is relevant to the comparability of the properties identified by MPAC. The Appellant relies on the submissions made at paragraph 26 above in relation to Disclosure Request No. 3.
41MPAC submits that the Appellant has been provided with the roll numbers for all comparable properties used by MPAC and the Appellant can conduct its own research to determine if they believe the properties to be comparable.
Findings on Disclosure Request No. 6
42The Board repeats and relies on its findings in relation to Disclosure Request No. 4.
43The Board denies Disclosure Request No. 6.
Disclosure Request No. 7 – Any and all sales investigation sheets for the Subject Property and each property listed in Attachment 1
Positions of the Parties
44The Appellant submits this information is relevant to the market value of the comparable properties identified by MPAC, and the validity of the sales used by MPAC for equity purposes.
45MPAC submits that the Appellant has been provided with the roll numbers for all comparable properties used by MPAC and the Appellant can conduct its own research to determine if they believe the properties to be comparable.
Findings on Disclosure Request No. 7
46The Board does not accept MPAC’s submission that the Board should not order disclosure because MPAC has provided the roll numbers of its proposed comparable properties and the Appellant can conduct its own research. If MPAC has a relevant document, and its disclosure is proportionate to the issues in dispute, then the document must be disclosed in accordance with Rule 45.
47The Board finds that sales investigation sheets are relevant to the validity of the sales relied upon by MPAC. The Board finds the Appellant’s request is proportionate only insofar as it relates to the specific sales relied on by MPAC in its materials.
48For this reason, the Board grants Disclosure Request No. 7 insofar as it relates to the specific sales relied on by MPAC of the properties listed in Attachment 1.
Disclosure Request No. 8 - Data on any and all changes made to the original 2016 CVA for any reason, and the reason for the adjustment, for the Subject Property and each property listed in Attachment 1
Positions of the Parties
49The Appellant submits that this information is relevant to verifying whether the assessment details currently available on Aboutmyproperty and propertyline reflect the original assessment details as of the valuation date.
50MPAC submits that the information on Aboutmyproperty and propertyline is correct and accurate. MPAC submits it has provided an SOR outlining its position, and that this request is disproportionate and irrelevant to the issues presented in the pleadings.
Findings on Disclosure Request No. 8
51The Board finds that this request is vague and too broad. In particular, the Board finds this request is insufficiently clear to give MPAC appropriate guidance regarding the nature of the documents that would be responsive to this request. Accordingly, the Board finds it is disproportionate.
52The Board denies Disclosure Request No. 8.
Disclosure Request No. 9 - Any and all data that MPAC used in 2016 to determine the Subject Property’s original land value, building value, and income valuation for the 2016 CVA
Positions of the Parties
53The Appellant submits that this is relevant to why MPAC is choosing to depart from its original 2016 CVA for the Subject Property rather than relying on the evidence that it originally used to value the property in 2016.
54MPAC submits that the 2016 CVA is determined using MPAC’s model which is not under appeal. MPAC submits that once an Appellant appeals a property and provides its Statement of Issues, it is MPAC's duty to review both the issues presented and the property as a whole to determine the correct current value. In accordance with its review, MPAC has provided an SOR outlining its position on the correct current value. This request is not relevant to the issues pled in the SOI.
Findings on Disclosure Request No. 9
55The Board finds that the Appellant has not established this information is relevant to the issues in dispute. The Board’s task on these appeals is to determine the current value of the Subject Property, and to determine whether an equitable adjustment should be made. Whether or not MPAC is arguing for a different current value than the value provided in the returned assessment is not at issue in these appeals.
56The Board denies Disclosure Request No. 9.
[Section 53](https://www.canlii.org/en/on/laws/stat/rso-1990-c-a31/latest/rso-1990-c-a31.html) of the [Assessment Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-a31/latest/rso-1990-c-a31.html)
57Notice of this motion was served on each of the owners/tenants of the properties listed in Attachment 1 (the “Other Property Owners”) with respect to disclosure of information relating to their property(ies). The Other Property Owners were given notice that they must notify the Appellant in writing within 14 days of service of the notice of any objection, failing which, the Board would decide the request.
58The Appellant has satisfied the Board that notice has been served on the Other Property Owners. The owner of 290 Glendale Avenue objected to disclosure. The Board provided the owner of 290 Glendale Avenue a further opportunity to provide submissions explaining the nature of its objection, and no such submissions were provided. The Appellant has satisfied the Board that none of the remaining Other Property Owners object to MPAC's production of the Requested Documents.
ORDER
59The Board orders as follows:
a. Subject to the terms imposed by MPAC pursuant to its authority under s. 53(5) of the Act, MPAC is required to disclose as follows to the parties in this appeal proceeding.
i. In relation to Disclosure Request No. 1, an unredacted version of the information contained in paragraph 35 of MPAC’s expert’s report and paragraph 8 of MPAC’s Amended SOR;
ii. In relation to Disclosure Request No. 1, the 2015 and 2016 Rent Rolls (which may include lease commencement dates; square footage leased to each tenant in each unit; actual rent for each tenant in each unit; and rent per square foot for each unit) for 258 Merritt Street, 191 Welland Avenue, 211 Martindale Road, 252-262 Lakeshore Road, 282 Linwell Road, 106 Rockwood Avenue, 10 Mac Turnbull Drive, 359 Carlton Street and 395-397 Ontario Street in St. Catharines:
iii. In relation to Disclosure Request No. 7, any and all sales investigation sheets for the Subject Property and the specific sales relied on by MPAC of the properties listed in Attachment 1.
b. The Appellant has not requested an amendment to the Schedule of Events to accommodate this motion. The Board notes that the June 2024 filing deadline has passed, and an amendment to the Schedule of Events will be required. The Appellant, in consultation with MPAC, is directed to file an Expedited Board Direction Form within 10 days of this order, confirming whether and to what extent it is seeking an extension to the Schedule of Events.
"Carly Stringer" CARLY STRINGER MEMBER
"Anita Lovrich" ANITA LOVRICH MEMBER
Assessment Review Board Website: www.tribunalsontario.ca/arb
Schedule A
| Number | Disclosure Requested |
|---|---|
| 1 | 2015 and 2016 Rent Rolls for each property listed in Attachment 1, including the square footage leased to each tenant in each unit, the actual rent for each tenant in each unit, the lease commencement date for each tenant in each unit, and the rent per square foot for each unit.1 |
| 2 | 2015 and 2016 Financial Statements for each property listed in Attachment 1 |
| 3 | MPAC data on any and all land attributes that affect the value (size, shape, access, contamination, etc) for the Subject Property and each property listed in Attachment |
| 4 | Any and all inspection notes for the Subject Property and each property listed in Attachment 1 |
| 5 | Any and all building permits issued, and any change made to the assessment based on the building permits, for the Subject Property and each property listed in Attachment 1 |
| 6 | Any and all adjustments made by MPAC to reflect property-specific attributes for the Subject Property and each property listed in Attachment 1 |
| 7 | Any and all sales investigation sheets for the Subject Property and each property listed in Attachment 1 |
| 8 | Any and all changes made to the original 2016 CVA for any reason, and the reason for the adjustment, for the Subject Property and each property listed in Attachment 1. |
| 9 | Any and all data used by MPAC in 2016 to determine the Subject Property’s original land value, building value, and income valuation for the 2016 CVA |
Attachment 1
| Municipal Address | Assessment Roll No. | |
|---|---|---|
| 1. | 258 MERRITT ST, ST CATHARINES | 2629-010-010-03000-0000 |
| 2. | 191 WELLAND AVE, ST CATHARINES | 2629-030-012-00100-0000 |
| 3. | 211 MARTINDALE RD, ST CATHARINES | 2629-040-039-28300-0000 |
| 4. | 368-400 SCOTT ST, ST CATHARINES | 2629-050-005-01000-0000 |
| 5. | 252-262 LAKESHORE RD, ST CATHARINES | 2629-050-024-13900-0000 |
| 6. | 282 LINWELL RD, ST CATHARINES | 2629-060-009-11101-0000 |
| 7. | 33-35 LAKESHORE RD, ST CATHARINES | 2629-060-038-39500-0000 |
| 8. | 106 ROCKWOOD AVE, ST CATHARINES | 2629-010-036-14100-0000 |
| 9. | 10 MAC TURNBULL DR, ST CATHARINES | 2629-020-034-10600-0000 |
| 10. | 359 CARLTON ST, ST CATHARINES | 2629-060-002-12402-0000 |
| 11. | 395-397 ONTARIO ST, ST CATHARINES | 2629-060-031-00100-0000 |
| 12. | 464-466 MERRITT ST, ST CATHARINES | 2629-010-031-01700-0000 |
| 13. | 436 VANSICKLE RD, ST CATHARINES | 2629-020-036-14900-0000 |
| 14. | 285 BUNTING RD, ST CATHARINES | 2629-030-032-03400-0000 |
| 15. | 290 GLENDALE AVE, ST CATHARINES | 2629-010-007-08001-0000 |
| 16. | 137-139 LOUTH ST, ST CATHARINES | 2629-020-027-02500-0000 |
| 17. | 170-176 HARTZEL RD, ST CATHARINES | 2629-010-030-00100-0000 |
| 18. | 20-36 HARTZEL RD, ST CATHARINES | 2629-010-026-00600-0000 |
| 19. | 161 CHURCH ST, ST CATHARINES | 2629-040-005-03100-0000 |
Footnotes
- The Appellant originally itemized Disclosure Request No. 1 as five (5) separate disclosure requests relating to rent rolls (i.e. listing square footage leased to each tenant, actual rent, lease commencement dates and rent per square foot as separately numbered requests). The Board has combined all requests in relation to rent rolls as Disclosure Request No. 1.