Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: January 06, 2017 FILE NO.: DM 144942

Moving Party(ies): Mark Gregory Hamilton and Janet Lorraine Hamilton Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Respondent(s): Municipality of Trent Lakes

Property Location(s): Plan 4 Lot 18 and 33 Fire Route 351A Municipality(ies): Municipality of Trent Lakes Roll Number(s): 1542-020-104-00400-0000 and 1542-020-104-00500-0000 Appeal Number(s): 3095127, 3145956, 31095128 and 3146045 Taxation Year(s): 2015 and 2016 Hearing Event No.: 647964

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

Heard: October 27, 2016 in Trent Lakes, Ontario

APPEARANCES:

Parties Representative

Mark Gregory Hamilton and Janet Lorraine Hamilton Self-represented

MPAC Jon White

Municipality of Trent Lakes No one appeared

DISPOSITION OF THE BOARD DELIVERED BY MARCELLE BOURASSA

1This motion came before the Assessment Review Board (“Board”) on October 27, 2016 in the Municipality of Trent Lakes.

INTRODUCTION

2Jon White, on behalf of MPAC, by letter dated July 6, 2016 provided notice in accordance with the Board’s Rules of Practice and Procedure, of MPAC’s intention to pursue issue estoppel in relation to appeals for the 2015 and 2016 taxation years in relation to two properties – 33 Fire Route 351A (the “cottage lot”) and Con 15 Pt Lot 3 Plan 4 (the “vacant lot”) and brought this motion before the Board.

3He is seeking an Order of the Board estopping the respondents/appellants from raising the issue of current value of the subject properties as of January 1, 2012 and whether the assessments are equitable in respect to the assessments for the 2015 and 2016 taxation years, by reason of the doctrine of issue estoppel. He seeks an Order that the decision of the Board regarding the assessments of the subject properties for the 2013 and 2014 taxation years in Hamilton v. Municipal Property Assessment Corp., Region No. 7, [2015]. O.A.R.B.D. No. 55 be applied to the 2015 and 2016 taxation year appeals. In the alternative, an Order adjourning the hearing of the appeals to a new date and such further and other relief as MPAC may request and the Board permit.

4The respondents/appellants oppose the motion and wish to proceed with a hearing on the merits of the appeals in relation to the 2015 and 2016 taxation years.

DISPOSITION OF MOTION

5The Board finds that the equitable doctrine of estoppel applies and that the respondents/appellants are precluded from re-arguing the issue of current value of the subject properties as of January 1, 2012.

6The Board confirms the assessments of the two properties – 33 Fire Route 351A (the “cottage lot”) and Con 15 Pt. Lot 3 Plan 4 (the “vacant lot”) at $220,000 and $18,000, respectively.

REASONS FOR DISPOSITON OF MOTION

MPAC’s Position

7Mr. White takes the position that the three pre-conditions of issue estoppel have been met as follows:

1. The issue in these appeals is the same as in the previous decision, namely the correct current value of the subject properties as of the January 1, 2012 valuation day and whether the assessments are equitable. There have been no physical changes to the subject property since the last hearing.

2. The parties are the same as in the previous decision.

3. The previous decision in respect of the 2013 and 2014 taxation years was a final decision. A decision (Written Reasons Number 126354) by Members Flemming and Tchegus was released on February 13, 2015 in regard to the assessments on the subject properties for the 2013 and 2014 taxation years in which the Board considered the purchase price for both properties in September 2012 of $239,000 as the best evidence of current value due to its nexus to the January 1, 2012 valuation date. The Board agreed that a reduction of the assessment of the vacant lot to the recommended $18,000 would be equitable. The Board therefore confirmed the current value of the cottage lot at $220,000 and reduced the assessment of the vacant lot below its current value to $18,000 to make it equitable with that of similar lands in the vicinity. Associate Chair Paul Muldoon denied the request for review by letter dated December 24, 2015 and the Board’s decision was confirmed. The decision was not appealed to the Divisional Court.

8Re-litigating the January 1, 2012 current value would constitute an abuse of process under s. 23(1) of the Statutory Powers Procedure Act.

9The 2013 and 2014 taxation year appeals’ decision is final and ought to be applied to the 2015 and 2016 taxation year appeals.

Respondents/Appellants Position

10Ms. Hamilton, on behalf of the respondents/appellants, relies on the decision of Members Flemming and Tchegus to proceed with these appeals. More specifically, she referred to the last paragraph of the decision as follows:

Balancing the fact that the Hamiltons’ subsequent investigation into the title and surveying matters may or may not have affects on these values with the need to provide finality to the municipality tax rolls for the 2013 and 2014 taxation years, the Board makes this Order without prejudice to the Appellants’ filing a subsequent appeal to the current and assessed values as herein set out herein for the 2015 and/or 2016 taxation years notwithstanding the fact that there may be no change in circumstances or change in use of the properties.

11Ms. Hamilton acknowledges that there have been no changes to the property or the building. However, there is still a lot boundary dispute. She added that they do not wish to register their survey with the Land Registry as it does not reflect an encroachment which she maintains still exists.

Analysis

12Mr. White provided the Board with several cases on issue estoppel. It is clear that the doctrine of issue estoppel applies to proceedings before administrative tribunals:

As long as the hearing process in the tribunal provides parties with an opportunity to know and meet the case against them, and so long as the decision is within the tribunal’s jurisdiction, then regardless of how closely the process mirrors a trial or its procedural antecedents, I can see no principled basis for exempting issues adjudicated by tribunals from the operation of issue estoppel in a subsequent action… On the contrary, the policy objectives underlying issue estoppel, such as avoiding duplicative litigation, inconsistent results, undue costs and inconclusive proceedings, are enhanced in appropriate circumstances by acknowledging as binding the integrity of tribunal decisions.

Rasanen v. Rosemount Instruments Ltd. 1994 CanLII 608 (ON CA), [1994], O.J. No. 200; 17 O.R. (3d) 267 (Ont. C.A.). Furthermore, as stated by the Divisional Court of the Ontario Superior Court of Justice in Wabi Iron & Steel Corp. v. Municipal Property Assessment Corp., Region No. 29. [2002] O.A.R.B.D. No. 219.

There is no principled basis to exclude assessment proceedings from the doctrine of issue estoppel where the decision is within the jurisdiction of the tribunal and there has previously been a full and fair hearing on the merits.

13It is settled law that for the issue estoppel to apply, there are three pre-conditions that must be met. The Board finds that the three pre-conditions have been met:

1. The parties to this appeal are the same as the parties to the proceedings in which the issue estoppel is raised.

14This was not in issue.

2. The same question has been decided.

15The application of issue estoppel does not negate the right of a taxpayer to litigate an assessment. The right to appeal assessments in each year is provided for by the Assessment Act (“Act”). Any person may appeal in writing to the Board on the basis, inter alia, that the current value of the person's land is incorrect (s. 40.(1)(a)(i) of the Act). A Request for Reconsideration must be made if a property is in the residential property class, as a precondition to bringing an appeal before the Board (s. 40.(3) of the Act).

16Mr. White submits that the basis of the current appeals is the correct current values of the subject properties as of the legislated valuation date of January 1, 2012 which is the same as in the previous decision regarding appeals for the 2013 and 2014 taxation years. The Board agrees. The determination of the correct current value of the subject properties as of January 1, 2012 is fundamental to the determination of the assessment for all four taxation years having the same valuation date and it has been decided provided there is no material change that could affect the valuation during the four year cycle.

17As noted above, the application of issue estoppel does not negate the right of a taxpayer to litigate an assessment. There is a continuing right to challenge the current value on the basis of evidence of a change in the property (Wabi Iron & Steel Corp. v. Municipal Property Assessment Corp., Region No. 29, supra). However, the evidence before the Board does not indicate that the property has undergone any change nor has Ms. Hamilton alleged any such change.

18The Board has also taken into account the decision of Members Flemming and Tchegus which made an Order without prejudice to the respondents/appellants filing assessment appeals for the 2015 and 2016 taxation years. The parties confirmed that no new survey has been registered on title with the Land Registry Office. Mr. White stated that in order for it to be considered, it must be registered. Ms. Hamilton stated that there is a new survey but does not want it registered on title as it does not reflect an encroachment.

19The Board finds that there are continuing lot boundary issues. The Board concurs with Members Flemming and Tchegus wherein they stated at paragraph 32 of their decision that “It is not the Board’s purpose or jurisdiction to determine the lot boundary issues. Its purpose is to determine the value of the lots as assessed.” Associate Chair Muldoon also addressed the jurisdiction of the Board when he denied the request for review by letter dated December 24, 2015 and confirmed the Board’s decision, as follows:

The Board’s jurisdiction, in this hearing, was limited to the quantum of the assessed values of the subject properties but it did not extend to determining lot boundary issues.

3. The judicial decision which is said to create the estoppel was final.

20The doctrine of issue estoppel applies to the decisions of administrative tribunals such as the Board. The previous decision of the Board in respect of the 2013 and 2014 taxation years was final. The evidence before the Board indicates that Associate Chair Paul Muldoon denied the request for review by letter dated December 24, 2015 and the Board’s decision was confirmed. The decision was not appealed to the Divisional Court.

21Even when the three pre-conditions have been met, the Board has the discretion not to apply issue estoppel if it would not be in the interest of justice to do so (Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460). A doctrine developed to serve the ends of justice should not be applied mechanically, if this would work an injustice.

22The Board concludes that it would be in the interest of justice to apply issue estoppel, and, accordingly, finds that the respondents/appellants are barred by the doctrine of issue estoppel from re-arguing the issue of current value of the subject properties as of January 1, 2012 and whether the assessments are equitable. These issues were determined by the previous decision in relation to the 2013 and 2014 taxation year appeals.

23The Board confirms the assessments of the subject properties – 33 Fire Route 351A (the “cottage lot”) and Con 15 Pt. Lot 3 Plan 4 (the “vacant lot”) at $220,000 and $18,000, respectively, for the 2015 and 2016 taxation years.