Municipal Property Assessment Corporation v. 1056626 Ontario Inc, 2017 CanLII 57389

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

August 28, 2017

FILE NO.:

DM 147144

Moving Party(ies):

Municipal Property Assessment Corporation (“MPAC”)

Respondent(s):

1056626 Ontario Inc (“Assessed”)

Respondent(s):

Town of Whitby (“Municipality”)

Property Location(s):

Garden Street CON 1PT LOT 25 NOW RP

Municipality(ies):

Town of Whitby

Roll Number(s):

1809-030-023-08801-0000

Appeal Number(s):

3041519, 3080266, 3110333, 3150165 and 3150360

Taxation Year(s):

2014, 2015 and 2016

Hearing Event No.:

679177

Legislative Authority:

Section 40 of the Assessment Act, R.S.O. 1990, c. A.31, as amended (“Act”)

Heard:

June 07, 2017 in Toronto, Ontario

APPEARANCES:

Parties

Counsel

MPAC

Karey Lunau

Town of Whitby

John Hart

1056626 Ontario Inc.

Peter Milligan

DISPOSITION OF THE BOARD DELIVERED BY SONIA LIGHT

BACKGROUND

1The Town of Whitby (the “Municipality”) appealed the assessment of the subject property located on Garden Street for the 2013 taxation year. On April 7, 2014, this Board issued the decision (WR 123050) of Member G. Minnie, Whitby (Town) v. MPAC, Region 13, 2014 CarswellOnt 4540 (“Minnie Decision”) finding that the subject property was not farm lands used only for farm purposes within the meaning of s. 19(5) of the Assessment Act (“Act”) and changing the classification of the subject property from residential to vacant land/commercial and increasing its assessment from $45,000 to $1,715,000.

2That decision did not specifically address the deemed appeal respecting the 2014 taxation year, provided for in s. 40(26) of the Act. The deemed appeal was not properly disposed of by the Minnie Decision and consequently remained open. The Minnie Decision was subsequently administratively applied by the Board to the 2014 taxation year to correct the apparent oversight. The deemed appeal was later reinstated by ruling of the Board’s Associate Chair on December 19, 2014 after considering the request of the Assessed for this relief. The Associate Chair did not consider or make any ruling on the applicability of the doctrine of issue estoppel to the 2014 appeal.

3The Assessed requested a review of the Minnie Decision and the request for a review of the decision was denied by the Board on August 1, 2014.

4The Assessed applied to the Divisional Court for judicial review of the Minnie Decision and on December 17, 2015 that application was dismissed by the Divisional Court.

5The Assessed appealed the 2015 assessment which had been applied by MPAC to the subject property in accordance with the Minnie Decision for the 2013 taxation year and the 2015 appeal resulted in a deemed appeal for the 2016 taxation year. The Municipality’s reinstated 2014 appeal also deemed appeals for the 2015 and 2016 taxation years.

6MPAC has requested that the findings in the Minnie Decision be applied to the outstanding appeals respecting the 2014, 2015 and 2016 taxation years on the basis of the doctrine of issue estoppel and the Municipality is in agreement.

ISSUES

7Does the doctrine of issue estoppel apply to the assessment appeals respecting the subject property in the 2014, 2015 and 2016 taxation years?

DECISION

8The doctrine of issue estoppel applies to the appeals respecting the subject property in the 2014, 2015 and 2016 taxations years and therefore the findings in the Minnie Decision respecting the current value and classification of the subject property should be applied to these appeals. The appeals are disposed of as follows:

a) Appeals 3080266, 3110333, 3150165 and 3150360 respecting the subject property for the 2015 and 2016 taxation years are dismissed and the returned assessments for 2015 and 2016 are confirmed.

b) Respecting appeal 3041519 for the 2014 taxation year the Board’s previous order in WR 123050 is applied and the current value of the assessment is increased from $45,000 to $1,715,000 and the classification of the property is changed to the commercial class, vacant land subclass (CX).

REASONS FOR DISPOSITION OF MOTION

9The legal doctrine of issue estoppel applies to these appeals. The issues of the current value and classification of the subject property in these appeals are the same as in the appeal for the 2013 taxation year, disposed of by Member Minnie in WR 123050. Furthermore, the parties are the same and the previous decision is final; both a request for review by the Board and judicial review were denied.

10There has been no material change in the circumstances respecting the subject property or any other compelling reasons in the interests of justice to justify the Board exercising its discretion to re-open the issues previously determined and permit a further hearing.

11In the exercise of its discretion in determining the applicability of the doctrine of issue estoppel, the Board has also considered the following enumerated discretionary factors cited in the Supreme Court of Canada case of Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460: (“Danyluk”)

(a) The Wording of the Statute from which the Power to Issue the Administrative Order Derives

12While s. 40 of the Act permits any person to appeal an assessment for a taxation year, there is no wording in the Act that would overrule the applicability of the common law doctrine of issue estoppel to any such appeal or oust the right of any party to rely on this doctrine. If that is what the legislature had intended, it would certainly have done so.

(b) The Purpose of the Legislation

13The focus of the 2013 appeal was the classification and current value of the lands. It was determined that the subject lands did not qualify to be classified as farm lands used only for farm purposes. In so finding, Member Minnie considered that the purpose of s. 19(5) of the Act to be maintaining existing farms and not “to be an incentive to create “new” farms” or “to apply to new farming operations.” Even if the Assessed were to be permitted to adduce additional evidence in a new hearing of farming activity on the subject property, that would not be sufficient to demonstrate that the farming activity meets the legislative objective of protecting and maintaining already existing farms.

(c) The Availability of an Appeal

14The Assessed had the opportunity to seek a review as well as judicial review of the decision. The Assessed in fact applied for both of these remedies and was unsuccessful.

(d) The Safeguards Available to the parties in the Administrative Procedure

15The representative of the Assessed attempted to introduce at the Minnie Decision hearing a large stack of documents that he had not previously disclosed to the other parties in accordance with the Board’s Rules of Practice and Procedure respecting disclosure and the Board ruled that the documents would not be admitted. The representative for the Assessed offered no explanation why he did or could not have provided these documents to the other parties within the required timelines despite being specifically warned by a Board Member in another proceeding for the previous taxation year respecting the subject property of the applicable disclosure requirements.

16In any case, the Board has reviewed copies of this material and finds that while it may provide some support of an alleged attempt by the Assessed to establish a farming activity on the subject property, the material would not support a finding that the subject lands were existing farmlands that should be protected or maintained under the Act.

(e) The Expertise of the Administrative Decision-Maker

17The issues of classification and current value considered in the Minnie decision were issues commonly determined by the Board. The issues to be determined were also not of a particularly complex nature or ones that would require considerations which would be foreign to the expertise of the Board. In fact, Member Minnie relied heavily on a recent comprehensive Board decision in WR 120132, Delta Bingo Inc. v. Municipal Property Assessment Corp., Region No. 18, 2013 CarswellOnt 15084, 78 O.M.B.R. 24, released on October 30, 2013.

18Member Minnie based his conclusion on the best evidence provided at the hearing of the time adjusted sale price of a comparable property valued at about $493,000 per acre. Again, this was not a particularly complex matter and was in fact a common methodology employed and applied in similar cases at the Board.

(f) The Circumstances Giving Rise to the Prior Administrative Proceedings

19The Assessed had also unsuccessfully appealed its assessment for the 2012 taxation year on the basis that the land should be classified as farmland based on its use as a honey bee farm. That appeal was also denied but it was an assessment appeal in respect of the 2012 taxation year and the 2008 assessment cycle. The Assessed therefore had sufficient experience in proceedings before the Board and time to consider whether or not to retain professional assistance in the subsequent appeal before Member Minnie.

(g) The Potential Injustice

20The Board is not persuaded by the specific oral arguments of counsel for the Assessed that the application of issue estoppel to the 2014, 2015 and 2016 appeals would work an injustice to the Assessed because the Assessed was not able to submit the farm lease agreement as an exhibit at the Minnie Decision hearing to demonstrate that the subject property was farm lands used for farm purposes. In fact, Member Minnie was aware of this document and it was discussed in his decision. Furthermore, Member Minnie was quite aware in his decision of the tree planting activity on the subject property and the fact that the trees had grown taller by the time the photos were taken in November, 2015 would not have had any impact on his conclusion. Therefore, the Board does not consider that the photos constitute new evidence to support a change in circumstances required for a new hearing.

CONCLUSION

21After considering the applicability of the doctrine of issue estoppel to the subject appeals and in particular the discretionary factors set out in Danyluk, the Board finds that the doctrine of issue estoppel applies to the subject appeals. Therefore, the Minnie decision should be applied to the 2014, 2015 and 2016 taxation years.