Lowland Gage Avenue GP Ltd. v. Municipal Property Assessment Corp. Region 21, 2025 CanLII 96317

Tribunals Ontario

Assessment Review Board

ISSUE DATE: September 16, 2025

FILE NO.: DM 188942

Assessed Person(s): Lowland Gage Avenue GP Ltd.

Appellant(s): Lowland Gage Avenue GP Ltd.

Respondent(s): Municipal Property Assessment Corp. Region 21

Respondent(s): City of Kitchener

Property Location(s): 259-335 Gage Avenue

Municipality(ies): City of Kitchener

Roll Number(s): 3012-050-009-14900-0000

Appeal Number(s): 3523616 and 3535800

Taxation Year(s): 2024 and 2025

Hearing Event No.: 786865

Legislative Authority: Rule 45 of the Assessment Review Board’s Rules of Practice and Procedure

Parties	Representative
Lowland Gage Avenue GP Ltd.	Mark Blidner
Municipal Property Assessment Corporation	Kashifa Aslam
City of Kitchener	Submissions not received

REQUEST FOR: An Order for Disclosure

HEARD: March 20, 2025 in writing

ADJUDICATOR(S): Dirk VanderBent, Vice-Chair; Anita Lovrich, Member

MOTION DECISION

OVERVIEW

1The Municipal Property Assessment Corporation (“MPAC”) brings this motion for disclosure pursuant to the Assessment Review Board’s (the “Board”) Rules of Practice and Procedure (the “Rules”), Rule 45. MPAC is seeking “Subject Sale Information: income or sale information reviewed in the purchase of sale, income at the time of sale, and any appraisals.” Pursuant to s. 40(26) of the Act, the Appellant is deemed to have brought the same appeal in respect of the 2025 taxation year.

The Appellant’s Appeal

2Lowland Gage Avenue GP Ltd (the “Appellant”) purchased 259-335 Gage Avenue in Kitchener, Ontario (the “Subject Property”) in 2021.

3The Subject Property was assessed by MPAC for the 2016 to 2022 tax years at $6,409,000 in the commercial property class using the cost valuation methodology. The Subject Property was subsequently re-assessed by MPAC for the 2023 and 2024 tax years based on a revised current value assessment of $13,126,000, where this value was appraised using the income approach.

4The Appellant submits that the physical characteristics and use of the Subject Property have not changed, nor has any new construction occurred, since the general reassessment for the 2017 taxation year. It states that there has been no change to the “state or condition” of the Subject Property during the current assessment cycle. It is the Appellant’s position that there is no basis to apply different valuation assumptions or a different methodology mid-cycle.

MPAC’s Motion

5MPAC’s disclosure requests are in respect of the 2021 Subject Sale. MPAC seeks disclosure of “Subject Sale Information: income or sale information reviewed in the purchase of sale, income at the time of sale, and any appraisals” (“Disclosure Requests”). MPAC also requests that the Schedule of Events (“SOE”) be paused until a decision is received from the Board. The current SOE has the Statement of Response due January 15, 2025. MPAC requests this date be extended to 30 days after the requested information is disclosed to allow the disclosure to be produced.

6The Appellant opposes the motion. The Appellant submits that, as the valuation day is January 1, 2016, the sale information MPAC is seeking is not relevant to an issue in dispute on the appeal. The Appellant argues that there has been no change to the Subject Property that would warrant a change to the current value, asserting that there is no evidence of a change in the “state and condition” of the property. The Appellant also submits that the Board has, in any event, rejected the “state and condition” paradigm in recent decisions. It argues that the documents in the Disclosure Requests are not relevant to the current value of the Subject Property and submits that MPAC’s motion should be dismissed in its entirety.

7The Board has not received submissions from the City of Kitchener. However, the City supports MPAC’s disclosure requests.

Result

8For the reasons that follow, the Board grants the motion for disclosure in part. The Board’s specific disposition for each Disclosure Request is set out in the Board’s findings below. The Board will grant an extension to the SOE to accommodate this motion.

Preliminary Issue – Did MPAC File this Motion Late

9The Appellant has requested the Board dismiss MPAC’s disclosure motion on the basis it has been brought too late and there are no “exceptional circumstances” which warrant altering the deadline in the SOE. It submits that the SOE deadline for MPAC to seek productions from the Appellant was November 7, 2024.

10MPAC submits that the SOE states that weeks 11 to 12 of the SOE are the deadline by which, where an inspection or additional disclosure is required, these are to be completed. It states that, for the Subject Property SOE, this was November 7, 2024, and no productions were received from the Appellant as outlined in MPAC’s Notice of Motion.

11MPAC submits that Rule 47 permits parties to bring motions for discovery, and there is no time limit to bring such a motion, but instead the Rules contemplate ongoing disclosure requirements.

12MPAC argues that, in accordance with the SOE, MPAC made its disclosure request on time, and filed its motion for disclosure in a timely manner. MPAC’s first request for additional disclosure was made on October 17, 2024, its second request for additional disclosure was made on October 31, 2024, and its third request for additional disclosure was made on November 5, 2024.

13According to the SOE, November 7, 2024 is the date by which, where an inspection or additional disclosure is required these are to be completed. MPAC submits that the Appellant refused to provide additional disclosure on November 7, 2024.

14MPAC states that it circulated its Expedited Board Directions Form (“EBDF”) for disclosure to the parties on December 17, 2024, and filed its EBDF for disclosure with the Board on December 23, 2024. On January 8, 2025, the Board denied the request and directed that MPAC may resubmit the request with sufficient information and documents.

15MPAC refiled its EBDF on January 14, 2025 with the added information requested by the Board. MPAC requested to extend the deadline for the Statement of Response until a decision from the Board was received, which was denied by the Appellant.

Findings on Preliminary Issue

16According to the SOE, November 7, 2024 is the date by which, where an inspection or additional disclosure is required these are to be completed. MPAC made its disclosure requests to the Appellant in accordance with this deadline in the SOE and was denied. When a party refuses to disclose information, the requesting party should immediately bring a motion for disclosure to compel disclosure. MPAC then filed its first attempted EBDF six weeks later.

17The Board finds that MPAC’s delay in bringing a disclosure motion was not inordinate and the Board will therefore allow the motion, in part.

ANALYSIS

Applicable Law

18Rule 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.”

19Relevance is determined in relation to whether a document is relevant to an issue in dispute.

20The Board will also consider proportionality in reference to each of the Appellant’s Disclosure Requests. As noted by the Board in Toyota Motor Manufacturing Canada Inc. v Municipal Property Assessment Corporation, 2020 CanLII 77938 (ON ARB) 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.

Submissions

MPAC submissions

21MPAC submits that it does have authority to update assessments annually. It states that MPAC continuously makes updates to current value assessments, whether it is for factual changes, state and condition changes, change in opinion, or otherwise.

22MPAC submits that although the valuation date for the 2024 taxation year is January 1, 2016, the Act mandates that the assessment of land shall be made annually and, in making the annual assessment required by section 36 of the Act, MPAC may, at any time before the return of the roll, correct any defect, error, omission or misstatement and alter the roll accordingly in accordance with section 32(1) of the Act, which provides:

Correction of errors, etc., in assessment roll

32 (1) Despite the delivery of any notice provided for under this Act, the assessment corporation at any time before the time fixed for the return of the assessment roll may correct any defect, error, omission or misstatement in any assessment and alter the roll accordingly.

Same, factual error only

(1.1) Despite the delivery of any notice provided for under this Act, for 2009 and subsequent taxation year, correct any error in the assessment or classification of a property that has resulted from incorrect factual information about the property and not from a change in opinion as to current value, and the following rules apply:

Appellant submissions

23The Appellant submits that any market data or knowledge the Appellant may have had in its possession when deciding to purchase the Subject Property in 2021 cannot shed any light on the correct current value as of January 1, 2016. Accordingly, any information related to the Appellant’s 2021 acquisition is too far removed from the statutory valuation date to have any relevance to the determination of 2016 current value.

24It asserts that MPAC has not provided any evidence which demonstrates how the 2021 sale information it is seeking is relevant to an issue in dispute on the appeal, or to its “vague and unsubstantiated assertion that there has been a change to the state and condition of the Subject Property.”

Findings

25When determining whether to order disclosure in accordance with Rule 45, the Board considers whether the information sought is relevant to the issues in dispute. Secondly, the Board considers whether ordering disclosure is proportionate to the issues in dispute.

26The Appellant submits that the requested documents are not relevant as the 2021 sale is not relevant to the January 1, 2016 valuation day. The Board notes that the determination of relevance in a disclosure motion is relevant to the issues raised by a party, not whether the disclosure would be found to be relevant at the hearing or whether that party will succeed with respect to any particular issue at a hearing. MPAC has raised the relevance of the sale as an issue in dispute (whether the question is whether the sale reflects the valuation day market or whether MPAC is authorized to annual assessments). There was no argument raised that the disclosure requested is not relevant to the issues as raised by MPAC, nor does the Board find that the argument raised by MPAC is unrelated to the assessment under appeal. Irrespective of whether one agrees with MPAC’s position, it is founded in MPAC’s interpretation of the Act.

27The test is whether the request is relevant to the issues validly raised as an issue by a party in this proceeding. Further, the Board notes that Rule 46 of the Board’s Rules of Practice and Procedure provides that a document’s disclosure is not an admission of its relevance or admissibility. Rule 46 states:

No Admission

The disclosure of a document is not an admission of its relevance or admissibility.

28For the above reason, the Board does not accept the Appellant’s submission that the documentation sought is not relevant to an issue in dispute. It is not for the Board to determine, in this motion, whether MPAC will succeed on any specific issue at a hearing before the Board.

29However, the Board finds that MPAC’s Disclosure Requests are not sufficiently particularized. The Board cannot issue an order which creates uncertainty as to what must be disclosed.

30Because the request is too broadly worded, the Board will rely on the requirements as set out in the guideline entitled Disclosure Requirements for General and Summary Proceedings (“Disclosure Guideline”) which the Board has developed and issued and which sets out a non-exhaustive list of the types of disclosure that are generally accepted as relevant to the various issues that are raised in appeals before the Board.

31The Board’s Disclosure Schedule identifies that Sale(s) of the Subject Property at any time within the past five years are to be disclosed. Although the 2021 sale is post-dated, the particulars to be provided should be the same as for a sale with respect to the income approach in the Disclosure Guideline. Accordingly, the Board will grant the Disclosure Request in part, in accordance with the Disclosure Schedule, and limiting its scope to align with the Disclosure Schedule as follows:

a. Particulars of subject property sale(s), including: i. A copy of Agreement of Purchase and Sale and Affidavit of Value of the Consideration with respect to the Subject Property sale in 2021 to the extent the information is in its possession, control, or power; and ii. Full copy of property appraisal(s) prepared for property assessment purposes if an appraisal was completed within the five years preceding the valuation date and confirm the existence of property appraisals prepared for any other purpose to the extent the information is in its possession, control, or power.

CONCLUSION

32The Board grants the motion for disclosure in part. The Board will grant an extension to the SOE to accommodate this motion.

ORDER

33The Board orders as follows:

a. The Appellant is required to disclose as follows to the parties in this appeal proceeding within 30 days after the issuance of this decision: i. A copy of Agreement of Purchase and Sale and Affidavit of Value of the Consideration with respect to the Subject Property sale in 2021 to the extent the information is in its possession, control, or power; and ii. Full copy of property appraisal(s) prepared for property assessment purposes if an appraisal was completed within the five years preceding the valuation date and confirm the existence of property appraisals prepared for any other purpose to the extent the information is in its possession, control, or power.

34The Board amends the deadline for MPAC to file its Statement of Response from January 15, 2025 to 60 days after the issuance of this decision. All subsequent due dates are to be adjusted accordingly.