Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: November 26, 2015

FILE NO.: DM 136486

Moving Party(ies): Municipal Property Assessment Corporation (“MPAC”), Region 25

Respondent(s): Ross Donald McMillan and Marilyn Dorothea McMillan

Respondent(s): Town of Saugeen Shores

Property Location(s): 383 McNabb Street, Unit 138

Municipality(ies): Town of Saugeen Shores

Roll Number(s): 4110-480-001-12330-0000

Appeal Number(s): 3044529 and 3091734

Taxation Year(s): 2014 and 2015

Hearing Event No.: 598233

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

Heard: October 26, 2015 in Port Elgin, Ontario

APPEARANCES:

Parties	Counsel+/Representative
Ross Donald McMillan	Grant Shelton
MPAC	Tony Pileggi
Town of Saugeen Shores	No one appeared

MEMORANDUM OF ORAL DISPOSITION DELIVERED BY WARREN MORRIS ON OCTOBER 26, 2015

BACKGROUND

1This motion relates to the 2014 appeal and 2015 deemed appeal of the assessment for 383 McNabb Street, Unit 138, a property located in a condominium community in Southampton. MPAC brought the motion seeking an order declaring that the Respondents Ross Donald and Marilyn Dorothea McMillan (the “assessed parties”) be estopped from raising the January 1st, 2012 current value or equity as an issue in the proceedings on the basis that the issues have already been decided (“res judicata”) by the Assessment Review Board (the “Board”).

2After applying through MPAC’s Request for Reconsideration (“RFR”) process, the assessed parties appealed their returned assessment of $148,000 to the Board for the 2013 taxation year. The Board heard this appeal on its merits on November 27, 2013. At the 2013 hearing, the sole issue raised by the assessed parties was the January 1, 2012 current value. In its written decision dated January 30th, 2014 (WR 123045) by Board Member R. Levasseur, the Board determined the January 1, 2012 current value to be $148,000. With respect to s. 44.(3)(b) of the Assessment Act (the “Act”), the Board found that no adjustment was required in order to achieve equity. Thus, the current value for the 2013 taxation year was found to be $148,000.

3At the motion hearing, the Board delivered its decision orally. The representative for the assessed parties requested reasons in writing.

DISPOSITION OF MOTION

4The order sought in the motion is granted. The Board finds that the equitable doctrine of issue estoppel applies. The assessed parties are estopped from raising the issues of the January 1st, 2012 current value and/or equity in their appeals currently before the Board as both issues are res judicata.

5The Board confirms the assessment of the property for the 2014 and 2015 taxation years at $148,000.

REASONS FOR DISPOSITION OF MOTION

6The Latin term res judicata means “the thing has already been decided”. There are two types of res judicata. The two types are: i) cause of action estoppel, and ii) issue estoppel.

7Cause of action estoppel prevents a party from relitigating a dispute which has already been decided. It is rare for courts or tribunals to entertain claims for cause of action estoppel as most litigants recognize that you cannot be given more than one chance to try the same case. However, in assessment matters, it is well established that an assessed person can appeal their current assessment in each and every year. For the motion at hand, MPAC is not seeking to invoke cause of action estoppel.

8Issue estoppel prevents parties from re-arguing one or more issues that either have or could have been settled between the parties in an earlier proceeding. It is issue estoppel that MPAC is seeking to invoke on this motion. The purpose of issue estoppel is obvious. Without the issue estoppel rule, virtually any losing party could simply bring another appeal leading to duplicative litigation, potential inconsistent results, undue costs and inconclusive proceedings.

9The test for issue estoppel is well settled in law. The Board finds that all three criteria have been met. The three criteria are as follows:

(1) that the parties to the first proceeding are the same persons as the parties to the subsequent proceeding;

(2) that the same question has been decided and was fundamental, as opposed to collateral or incidental, to the decision; and

(3) that the decision in the first proceeding said to create the estoppel was final;

Same Parties

10This was not an issue

Same Question to be Decided

11The Board finds that the two issues to be decided for the 2014 and 2015 taxation year appeals are the same as those decided in the 2013 taxation year appeal. The two issues are: i) current value, and ii) equity.

12At the hearing of the motion, the MPAC representative Tony Pileggi presented evidence that the issues of the current value as of January 1, 2012 and equity were previously decided by the Board at a hearing that took place on November 27, 2013. Tab 3 of Exhibit 1, submitted to the Board by Mr. Pileggi, consisted of the written decision of Board Member R. Levasseur released on January 30, 2014 McMillan v. Municipal Property Assessment Corp., Region No. 25 [2014] O.A.R.B.D. No. 44 (“WR 123045”). In paragraph 2 of WR 123045 under the heading “Issue”, the Board Member states the issue at that hearing to be whether the subject property has “… been correctly and equitably assessed for the taxation year 2013….”.

13At paragraph 30 of WR 123045, the Board Member provides s. 44.(3) of the Act as the legislative authority for the two-step test for determining assessed value:

44.(3) Same, 2009 and subsequent years. – For 2009 and subsequent taxation years, in determining the value at which any land shall be assessed, the Board shall,

(a) determine the current value of the land; and

(b) have reference to the value at which similar lands in the vicinity are assessed and adjust the assessment of the land to make it equitable with that of similar lands in the vicinity if such an adjustment would result in a reduction of the assessment of land.

14At paragraphs 27 and 29 of WR 123045, the Board Member establishes the definition of assessment as being “current value” and the legislative valuation day to be January 1st, 2012, by providing s. 19.(1), and 19.2(1) of the Act, as follows:

19.(1) Assessment based on current value. – The assessment of land shall be based on its current value.

19.2(1) Valuation days – Subject to subsection (5), the day as of which land is valued for a taxation year is determined as follows:

1. For the 2006, 2007 and 2008 taxation years, land is valued as of January 1, 2005.

2. For the period consisting of the four taxation years from 2009 to 2012, land is valued as of January 1, 2008.

3. For each subsequent period consisting of four consecutive taxation years, land is valued as of January 1 of the year preceding the first of those four taxation years.

15In paragraph 37 of WR 123045, the Board Member applies s. 44.(3)(a) of the Act and finds the current value of the subject property to be $148,000 for the taxation year 2013.

16In paragraphs 37 to 42 of WR 123045, the Board Member applies s. 44.(3)(b) of the Act and finds that no adjustment is required to achieve equity.

17Based on the above, the Board is satisfied that the Board Member in WR 123045 determined both the current value of the subject property as of January 1, 2012, and that the current value was equitable. These were exactly the same two questions to be decided before the Board for the 2014 and 2015 appeals.

First Decision Final

18Case law in our courts establishes that the principal of issue estoppel apply to administrative tribunals such as the Board. The uncontroverted evidence at the motion hearing was that the assessed parties did not request a review of WR 123045 pursuant to Rule 146 of the Board’s Rules of Practice and Procedure (“Rules”), nor did the assessed parties seek an appeal to the courts. WR 123045 was, therefore, a final decision of the Board.

The Board’s Discretion

19Even though all three criteria for issue estoppel have been established, it is within the Board’s discretion not to apply issue estoppel if it would be against the interest of justice to do so.

20During the hearing of the motion, Grant Shelton on behalf of the assessed parties presented oral evidence in support of his argument that there should be a rehearing, essentially because the original hearing was unfair. Mr. Shelton arguments included the following:

i) the assessed parties were unskilled at assessment matters and the law;

ii) the Board’s Rules are complex and were overwhelming for the assessed parties;

iii) the assessed parties had a number of health issues, which required adjournments;

iv) the best comparable sale (Unit 114 in the same condominium complex), was not properly considered at the original hearing;

v) MPAC did not provide the assessed parties with the Property Profile for their comparable sale at Unit 114;

vi) the equity issue at the original hearing was decided based on evidence from MPAC that was not disclosed to the assessed parties prior to the hearing in accordance to the ARB Rules; and

vii) there is new evidence available today, both in regards to current value and equity, that was not presented or available at the original hearing.

21Mr. Shelton further argued in the alternative, that if the Board were to decide this motion in favour of MPAC, that it do so only with respect to the 2014 taxation year, and provide the assessed parties the opportunity to submit a new appeal for the 2015 taxation year. Mr. Shelton did not submit any documentary evidence on behalf of the assessed parties.

22Regarding items i), ii) and iii) above, there was no evidence presented on the motion that was lead to the conclusion that the assessed parties were treated unfairly at the 2013 hearing. The assessed parties could have requested an adjournment to either retain counsel or to allow for further hearing preparation. In fact, there was evidence that the assessed parties did request adjournments on a number of occasions which were appropriately granted.

23Regarding items iv) and v) above, the evidence at the motion was that the assessed parties made reference to Unit 114 in their RFR but did not make any request to MPAC for the Property Profile or other property data related to Unit 114. The Board is satisfied with MPAC’s submission that it would have provided the Property Profile if asked.

24Regarding item vi), the burden for proving that an equitable adjustment is necessary under s. 44.(3)(b) of the Act lies with the assessed party. At the 2013 hearing, the assessed parties had the opportunity to present equity evidence but did not do so. The Act requires the Board to address equity. MPAC filed an Equity Analysis as an exhibit on the day of the hearing. It is clear from Member R. Levasseur’s decision that the assessed party was given the opportunity to object to MPAC filing of the Equity Analysis but “…did not object to its filing because he felt that equity was not an issue in this appeal.”

25Regarding item vii), the Board is not convinced that the alleged new evidence that Mr. Shelton wishes to rely on today could not have been available at the 2013 hearing.

26Although Mr. Shelton has argued that he would present different and more fulsome evidence today than was presented in November 2013, the Board is not satisfied that there is sufficient reason for the Board to exercise its discretion in favour of the assessed parties by superseding the general legal principles that a matter should only be heard once. It would simply be too prejudicial to require MPAC to mount a case a second time for the exact same issues.

27In the circumstances of this matter, the Board finds that it is in the interest of justice to apply issue estoppel and accordingly prohibits the assessed party from raising the issues of current value and equity on the appeals before the Board.

2014 and 2015 APPEALS

28At the conclusion of the motion, Mr. Shelton stated that the basis of the appeal was the alleged new the evidence relating to current value and equity. Mr. Shelton confirmed that since the hearing in 2013, that there was no substantial physical change to the property, nor was there any issue related to a change in taxation class. Mr. Shelton also made submission requesting that the motion only apply to the 2014 appeal since the 2015 appeal was deemed, and he did not want the assessed parties to be prejudiced from appealing 2015.

29The Board is satisfied that the only issues for the 2014 and 2015 appeals are current value and equity, both of which the assessed party is estopped from advancing. In regard to the 2015 deemed appeal, the assessed parties had the opportunity to file such an appeal however the time limit for such has lapsed. The Board’s deeming of the 2015 appeal was in no way prejudicial to the assessed parties.

30For the reasons stated, the Board confirms the current value assessment at $148,000 for the 2014 and 2015 taxation years.