The Ontario Property Tax Summit Niagara Falls May 16, 2016

Transcription

1 The Ontario Property Tax Summit Niagara Falls May 16, 2016 Litigation and Dispute Resolution Tribunal, Legal and Expert Witness Perspective Remarks of Marcie Bourassa, Vice Chair, Assessment Review Board Thank you so very much for the opportunity to be with you today and to provide my perspective on litigation and dispute resolution as a tribunal member. As many of you know, the ARB will be updating its Rules, processes and procedures and its streaming strategy in advance of the new assessment cycle. Work is ongoing. The Board has been working incrementally over several years to integrate Mediation into its processes and procedures. The Board refers to Mediation in its Rules of Practice and Procedure and the Practice Direction on Mediation. The reference to Mediation was a deliberate choice more to ensure consistency across the ELTO cluster as each tribunal (other than the Board of Negotiation) has its own Rules of Practice and Procedure that reference Mediation rather than an attempt to place the Board s process in the Dispute Resolution spectrum. Currently, the Board s Rules define Mediation and the Practice Direction on Mediation references a Mediation Model. The Board s Practice Direction on Mediation that was posted effective January 4, 2016 clearly states that Mediation is strongly encouraged especially in those cases involving high value non-residential properties in the Standard Stream. The Practice Direction provides a good overview of the Board s expectations. Mediation has really taken off over the past year and especially in recent months. MPAC has demonstrated strong enthusiasm for Mediation. MPAC counsel, Karey Lunau, has been a great champion of requesting that multi-residential appeals be set down for Mediation. 1

2 I was the Duty Vice a couple of weeks ago. Between the matters on the dockets for my assigned TCCs and requests brought to me by staff, I dealt with about 8 requests for Mediations to be scheduled in the late summer/early fall, with many requests involving multiple properties including multi-residential appeals. I looked up the number of Mediations events being scheduled on a monthly basis. A snapshot for the period of April to June 2016 shows a total of 37 scheduled Mediation events with a range of Mediations per month which represents a huge step forward over the same time last year. As you know, the Board has a high rate of hearing events being cancelled close to the scheduled dates due to settlements having been reached. Appeals are then moved over to upcoming Minutes of Settlement/Withdrawal TCCs if Minutes of Settlement or Withdrawals are not filed with the Board. Duty Vice also deal with cancellations and I also found that many Mediations were also resolving in advance of the scheduled Mediation events. The Associate Chair has taken the lead in establishing a Protocol for Scheduling Mediations. It is being finalized and will assist in ensuring consistency in practice in dealing with requests for Mediation among members presiding at pre-hearing events including TCCs, Duty Vice and staff. Once a request for Mediation has been received, the Associate Chair will assign the mediator. There is a Mediation Roster and the parties can request a specific mediator and best efforts will be made to accommodate the request. The Board is now scheduling a Pre-Mediation TCC a few weeks in advance of the Mediation. In making the request for Mediation, it is suggested that you have dates for both a Pre-Mediation TCC and the Mediation, the expected length and location of the Mediation and whether the municipality has indicated whether it intends to participate in the Mediation. With advance notice, it is now easy to schedule a Mediation at 655 Bay St. The Case Coordinator has to follow up in other municipalities and so some alternate dates are recommended. Where a request for Mediation has been made without the express consent of a municipality, the municipality will be notified by way of a notice of the Pre- Mediation TCC. Minimum notice is 21 days. At the Pre-Mediation TCC, the Mediator will schedule the Mediation (if not already scheduled) and deal with any special requirements, will discuss particulars of the appeal(s), the issue(s) the parties think can be resolved, the status of any settlement discussions, status of disclosure, expected attendees and confirm their authority to bind (the parties should discuss the anticipated process and time frame where a matter requires the approval of a municipal body) and the contents and timing of delivery of the Mediation Brief(s). An increasing number of parties before the ARB are opting to mediate. 2

3 So, why mediate? As the Board states in its Practice Direction on Mediation: Where the parties are willing, successful mediation can lead to better results and reduce costs for all of the parties but it requires a commitment from all parties to prepare thoroughly, ensure that all relevant information is available and that their representatives have the authority to bind them. In addition to costing less, it can take less time as Mediation can take place sooner than a formal hearing. It can yield better results. Parties remain in control of the outcome. All parties have opportunities to generate options and approaches. Mediation can also build/ improve relationships. Even if mediation does not settle everything, it can resolve or narrow some of the issues, paving the way to a speedier or less costly hearing. So where is the Board at in the review of its Rules, its processes and procedures and its streaming strategy in advance of the next assessment cycle? This is a major undertaking and the Board is still synthesizing input from a number of sources including: -The ARB Dialogue Day on Improving Decision Making Processes held on January 26, The day included 48 participants representing owners, municipalities, MPAC, valuation experts (who do not serve as advocates), lawyers and representatives (who advocate for all three statutory parties) and ARB members and administrators. This was a very worthwhile day and we have shared a document with highlights of the discussions. We talked about the main barriers to early resolution of appeals, changes that would help resolve appeals before the Board becomes substantially involved and support early resolution (suggestions included the informal exchange of issues, a mandatory first meeting between parties, the triaging of appeals and strict enforcement of timelines), the timing of exchange of information to facilitate settlement (suggestions included earlier disclosure of detailed GRAD, any model relied on and any equity analyses and that owners of income-producing properties need to provide information and documentation earlier), the role of experts in early resolution, how the Board can support early resolution after it becomes substantially involved in the appeals (triaging of appeals was mentioned), the role of mediation in assisting with early resolution (there was a general consensus that it can assist, the parties need to be 3

4 interested and willing to resolve disputes) and where Mediation should occur in appeal process. A recurring theme throughout the day was the desire to transform the process from a litigation based process to a mediation-based dispute resolution process. -The annual Stakeholders Meeting held on January 28, Minutes of the meeting have also been shared. - Various pilot projects including: --The pilot project on Alternative Hearing Formats. Video-conferencing (once Adobe Connect is mastered) could be ideally suited for simple motion hearings, with counsel arguing from their respective offices, saving on time and travel. There is already a process for exchanging hard copies of motion materials which could probably be converted to electronic filing and distribution of documents. The format may be useful for other types of hearing events. --The Rapid Results Mediation Project - phase 1that included 30 properties has just been completed. It is my understanding that Georgia Ribeiro and Karey Lunau are preparing a paper on Mediation at the ARB where they talk about this project for publication in the Spring 2016 edition of the IMA s InstiNews --The Shopping Centres Pilot Project which is ongoing. --Recommendations, comments and proposals generated within the ARB. --The ongoing work of the ARB s Circle of Mediators in integrating mediation into the ARB s processes and practices. --The Rules Committee Working Groups working on defined topics including: ---looking at implementing new processes/streams- for instance, including multiresidential appeals and perhaps other suitable groupings into a Direct to Mediation Stream, early dispute resolution and triaging of appeals The Board wants to work with representatives but needs to better allocate, manage and finalize the appeals workload over the course of the next four year assessment cycle. Work is ongoing and the Board is aiming to have a draft of the new Rules ready by the fall for consultation. I would also like to talk about the application of the 10 Year Rule and its impact on the ARB. So, what is this 10 Year Rule all about? Well, it is actually contained in the 4

5 Agencies & Appointments Directive that was issued in 2006 and provides for a 10 year maximum term of appointment to a given position on an adjudicative tribunal or regulatory agency. The underlining purpose of the rule is to achieve renewal of tribunal rosters, promote diversity in the membership and bring opportunities to others to engage in public service in the tribunal sector. The result is that by 2016/17, a large number of ARB members and other ELTO members from several boards are affected. The same holds true for members with the other clusters too. Extensions may only be made in exceptional circumstances in the public interest. The ultimate decision to reappoint rests with the appointing authority. Exceptions will be considered for one or two years to address a specific challenge faced by a board or tribunal in meeting its responsibilities to the public. To date, there has only been one exception at ELTO. One Vice Chair from the OMB was extended for one year beyond the date that her term would normally end. A limited number of extensions are anticipated. Any questions should be referred to the Executive Chair. There have been a few extensions within the other clusters. You may have noticed that some Part-time ARB Members are already gone. The ARB will have lost 11 part-time members and a part-time Vice Chair by the end of 2016 with more terms set to expire in 2017 at the Part-time and Full-time Member levels. So what is the plan? Departures at the ARB and at ELTO will be addressed through aggressively timed recruitment and training. The Executive Chair is using the opportunity to re-balance the number of Full-time and Part-time members to achieve a larger full-time complement of Members and Vice Chairs. The first round of advertisements to fill several Full-time Member positions and one Full-time Vice Chair in 2016 have closed. Another round is expected in the fall. The positions are available to everyone, including departing ARB members and members from other boards, through a competitive merit based recruitment. Upcoming vacancies within the adjudicative tribunal sector are posted on the Public Appointments Website. The latest round of advertisements for all of ELTO also appeared in the Ontario Reports. So, the face of the ARB will be changing over the next year. I would add that the ARB has excellent new member training and ongoing professional development programs and this will help a lot. Both past Associate Chair Rick Stephenson and current Associate Chair Paul Muldoon have demonstrated a strong commitment to ongoing professional training and development. Dedicating time and resources has long been considered a worthwhile investment. I see this continuing. 5

6 I also want to mention briefly that the issues of appointments and reappointments of Order-in Council appointments in Ontario is very much on the radar for the Society of Ontario Adjudicators and Regulators (SOAR). A paper on the Results of Research into the Process of Appointments and Re-appointments to Administrative Tribunals in Quebec was prepared for SOAR as part of SOAR s Advocacy and Innovation Committee s consideration of these issues and was posted on its website in April Interestingly, the appointment of administrative judges in Quebec follows a different regime from other provinces. Also, there is a Conseil de la justice administrative that oversees the conduct of certain administrative judges. Currently, members of the The Tribunal Administratif du Quebec (TAQ) (Administrative Tribunal of Quebec) are appointed to serve until retirement during good behaviour. The TAQ has four divisions Social Affairs, Mental Health, Immovable Property Section, Territory and Environment Section and Economic Affairs Section. There are other agencies whose enabling statutes specify five year re-appointment terms. One such agency is the Regie du logement (the Landlord and Tenant Board). And, other tribunals have discretionary terms for up to five years. Some of these enabling statutes contemplate re-appointment but do not mention rules that apply; others make no mention of re-appointment. Lastly, I want to mention that there are also changes taking place on the Ontario Pubic Service side. There have been several retirements on the OPS side at the ARB and at ELTO and more are expected in the coming months. The government is making changes to the post-retirement insured benefits. Any eligible member who has not started to receive a pension before January 1, 2017, would be required to pay 50 per cent of the retiree benefits premium costs to participate in the benefit plan. So, many dedicated public servants throughout the OPS have looked at the numbers and have opted to retire. Positions at the ARB (and at ELTO) are being posted and filled and new staff provided with training and support. So you can probably expect some new faces on the staff side as well. I would be pleased to answer any questions. 6