Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: January 25, 2016

FILE NO.: DM 127786

Moving Party(ies): Municipal Property Assessment Corporation (“MPAC”) Region 03

Respondent(s): Connie Zuberbuehler – 595772 Ontario Inc.

Respondent(s): City of Ottawa

Property Location(s): 1423 Star Top Road

Municipality(ies): City of Ottawa

Roll Number(s): 0614-600-195-20600-0000

Appeal Number(s): 2024436, 2330920, 2675036 and 2900494

Taxation Year(s): 2009, 2010, 2011 and 2012

Hearing Event No.: 560436

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

Heard: September 15, 2014 in Ottawa, Ontario

APPEARANCES:

Parties

Counsel⁺/Representative

595772 Ontario Inc. C. Zuberbuehler

T. White

MPAC

L. Kelleher and K. Rogers

City of Ottawa

No one appeared

DISPOSITION OF THE BOARD DELIVERED BY LES NALEZINSKI

ISSUE

1MPAC brought a motion asking the Board to find that the doctrine of issue estoppel applies to the appellant’s appeals of the assessment of the property located at 1423 Star Top Road for the 2009 through 2012 taxation years.

2Ted White, representing the respondent/assessed person, opposes the motion on the basis that the tests for issue estoppel have not been met. He argues that there is a change in the material facts which should be taken into account in determining the classification of the property for the taxation years under appeal.

DISPOSITION OF MOTION

3The Assessment Review Board (“Board”) dismisses the procedural objection raised by the respondent/appellant.

4The Board finds that the doctrine of issue estoppel applies and that the appellant is precluded from re-arguing the issue of classification for the 2009 through 2012 taxation years.

REASONS FOR DISPOSITION OF MOTION

Procedural Objection

5These appeals are in the Standard Stream.

6Rule 33 (b) of the Board’s Rules of Practice and Procedure (“Rules”) states that “If a party intends to raise issue estoppel at a hearing it must give notice: …(b) in the Standard Stream, in the Response to the Statement of Issues.” Rule 58 provides for the time for service of a motion and supporting documents and states “the notice of motion and all supporting documents must be served 10 days before the date for the hearing of the motion.”

7The Board determines that proper notice was issued pursuant to Rules 33 (b) and 58 of the Rules and dismisses the procedural objection.

8The evidence before the Board is that issue estoppel was raised in the Statement of Issues and a Notice of Motion was served on September 3, 2016.

Issue Estoppel

9As to matter of issue estoppel, the three requirements have been met:

1. The issue remains the same. The classification of the property was litigated and decided by the Board in a previous decision WR 114188 to be the industrial property class.

2. That decision was not the subject of a request for a review and the decision was final.

3. The parties to the proceeding remain the same.

10The subject property is a large bakery operation which includes some retail and administrative offices which are attached to the bakery. While the respondent /appellant has testified that the retail sales to customers has increased by some 10% since 2005, it is the Board’s opinion that while there is a minor change in the scheme of things the industrial use, production and operation within the subject property has not changed in context changed from the industrial property class.

11Further, it is the Board’s opinion that a small change in the retail business does not change the material facts concerning the classification of the subject property in the industrial property class since its decision for the 2006-2008 taxation years and that no injustice would result in applying the doctrine of issue estoppel in this case. The Board is satisfied that the activity on the property has essentially remained the same for each of the years under appeal.

12It is the decision of the Board that the doctrine of issue estoppel applies and that the respondent/assessed person is precluded from re-arguing the issue of classification of the subject property as of January 1, 2008.