Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: December 24, 2020

FILE NO.: DM 167599

Assessed Person(s): Arlene M. Jagosky

Appellant(s): Arlene M. Jagosky

Respondent(s): Municipal Property Assessment Corporation Region 17

Respondent(s): Town of Huntsville

Property Location(s): 285 Lakeshore Road

Municipality(ies): Town of Huntsville

Roll Number(s): 4442-020-002-04700-0000

Appeal Number(s): 3419295

Taxation Year(s): 2020

Hearing Event No.: 737379

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

Parties Counsel/Representative*

Arlene M. Jagosky Robert Jagosky

Municipal Property Assessment Corporation Charmaine Siddle and Justin Johnstone

Town of Huntsville Submissions not received

HEARD: December 1, 2020 in writing

ADJUDICATOR(S): Carly Stringer, Member

INTERIM DECISION

OVERVIEW

1The Subject Property is a single-story detached residence on water, located at 285 Lakeshore Road in the Town of Huntsville, Ontario. Arlene Jagosky (the “Appellant”) has brought an appeal pursuant to section 40 of the Assessment Act (the “Act”), challenging the current value assessment of the Subject Property for the 2020 taxation year, based on the statutory valuation date of January 1, 2016.

2The Appellant previously appealed to the Assessment Review Board (the “Board”) for the Subject Property relating to the 2018 taxation year, based on the statutory valuation date of January 1, 2016. An appeal was deemed for the 2019 taxation year. Both appeals were decided by the Board on May 2, 2019 in Jagosky v Municipal Property Assessment Corporation, Region 17, 2019 CanLII 39627 (ON ARB) (the “2019 Decision”). In the 2019 Decision, the Board determined the correct current value of $290,000.00 as of January 1, 2016 for the 2018 and 2019 taxation years.

3The Municipal Property Assessment Corporation (“MPAC”) has brought a motion arguing that issue estoppel applies, asking the Board to order that the Appellant is estopped from raising the current value of the Subject Property as of the January 1, 2016 valuation date because this issue was already decided by the Board in the 2019 Decision. The Appellant argues the motion should be denied. The Town of Huntsville has not made submissions on this motion.

Result

4For the reasons that follow, the motion is granted.

ANALYSIS

Issue 1 – Does Issue Estoppel Apply?

Test for Issue Estoppel

5The principle of issue estoppel prevents re-litigating issues that have already been judicially decided, see: Smith v Municipal Property Assessment Corporation, Region No. 23, 2018 CanLII 35052 (ON ARB) (“Smith”) at para. 15.

6The three criteria that must be met for issue estoppel to apply are well-settled, as articulated by the Board in Wabi Iron & Steel Corp. v. Municipal Property Assessment Corp., Region No. 29, [2002] O.A.R.B.D. No. 219 (“Wabi Iron”) at para. 26, upheld at the Divisional Court in Wabi Iron & Steel Corp. v. Municipal Property Assessment Corporation, Region No. 29, 2005 CanLII 3984 and confirmed in numerous subsequent decisions of this Board:

a. The same question has been decided;

b. The judicial decision said to create the estoppel was final; and

c. The parties to the decision were the same parties as those to the proceedings in which the estoppel is raised.

7Even if the above-noted criteria are met, the Board has discretion not to apply issue estoppel if it would be against the interest of justice to do so: see Municipal Property Assessment Corporation Region 25 v McMillan, 2015 CanLII 78769 (ON ARB) at paragraph 19.

a) Has the same question been decided?

8Some background respecting the 2019 Decision is necessary to contextualize the analysis.

9MPAC originally assessed the Subject Property at $414,000.00 for the January 1, 2016 valuation date. As noted above, the Appellant challenged the current value assessment for 2018 and 2019 taxation years based on a January 1, 2016 valuation date, arguing the following factors diminished the value of the Subject Property:

a. Noise pollution;

b. Air pollution;

c. Proximity to the Trans Canada Trail;

d. Safety issues attributed to the Trans Canada Trail;

e. A parking lot at the end of the driveway;

f. Water level mismanagement affecting the waterfront; and

g. Hydro and MTO easements.

10The question before the Board in the 2019 Decision was the correct current value of the Subject Property as of January 1, 2016: 2019 Decision at paragraph 6.

11The Board determined a current value of $579,000.00 using the direct comparison approach and considering comparable property sales. Then, the Board applied a 51% negative adjustment to address the various site-specific factors enumerated at paragraph 6 above. No adjustment in equity was required. Overall, in the 2019 Decision, the Board considered and determined the correct current value of $290,000.00 for January 1, 2016.

12The Appellant appears to argue in the Subject Appeal that the Board did not properly quantify the negative adjustment factors in the 2019 Decision, relying on Thompson v. Municipal Property Assessment Corp. Region No. 22, [2008] O.A.R.B.D. No. 223; Thompson v. Municipal Property Assessment Corp., Region No. 22 [2013] O.A.R.B.D. No. 110; and Drennan Farms Ltd. v Municipal Property Assessment Corporation Region 24, 2016 CanLII 37486 (ON ARB).

13Respectfully, if the Appellant takes issue with the use of adjustment factors in the 2019 Decision, the Appellant ought to have sought review of that Decision, or appealed it.

14The question before the Board in the Subject Appeal is the same as the question before the Board in the 2019 Decision: namely, the correct current value of the subject property as of January 1, 2016. The 2018, 2019, and 2020 taxation years all use the January 1, 2016 valuation date, pursuant to s. 19.2(1) of the Act.

15Therefore, the first element of the test for issue estoppel is satisfied.

b) Was the 2019 Decision final?

16The Appellant argues that the 2019 Decision was not final, referencing the Board’s analysis at paragraph 18 therein:

On the evidence received relating to the public trail, which existed for many years and formally delineated with fencing along the perimeter of the subject property in 2017, I am satisfied that the site area should be changed to 0.85 acres (…) Further, the effective water frontage may also require adjustment, subject to better evidence following the 2017 delineation. That is beyond the scope of the appeals before me since the valuation date under consideration is January 1, 2016 (emphasis added).

17The Appellant further argues that property owners are entitled to appeal on a yearly basis if they are in disagreement with their assessment.

18The Appellant did not seek a review of, or bring an appeal from, the 2019 Decision. Section 40(22) of the Act states that decisions of this Board are final and binding unless appealed.

19Although the Appellant indeed has a right to pursue an appeal relating to the 2020 taxation year, the issues forming part of that appeal have already been decided pursuant to the 2019 Decision – namely, the current value of the Subject Property on the January 1, 2016 valuation date. The Appellant has not presented any new issues that would be determined in the Subject Appeal.

20The 2019 Decision was final and the second element of the test is satisfied.

c) Were the parties to the 2019 Decision the same as the Subject Appeal?

21The parties before the Board in the 2019 Decision were the Appellant, MPAC, and the Town of Huntsville. The parties before the Board in the Subject Appeal are the same.

22Therefore, the third element of the test is satisfied.

d) Should the Board exercise its discretion and decline to apply Issue Estoppel?

23Even where the elements of issue estoppel are met, the Board may exercise discretion and decline to apply it where it would be the interests of justice to do so: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460 at paragraph 33; Municipal Property Assessment Corporation, Region No. 9 v Pussar, 2017 CanLII 72907 (ON ARB) (“Pussar, supra”) at paragraph 9.

24There is nothing in the evidence before me that indicates any injustice will flow from the application of issue estoppel to this appeal. As noted in Pussar, supra, “The Assessment Act has created a four year period in which the same issues are in dispute each taxation year. Unless the facts underlying the dispute change, a decision of the Board will usually apply to all four years in the assessment cycle.”

25The Appellant has not provided any evidence respecting a change in the Subject Property, or the facts underlying the dispute. The Appellant’s evidence on this motion consisted largely of documents dated prior to 2018 which appear to have been used in supporting arguments for the 2019 Decision. For instance, the Appellant has not provided new evidence respecting any adjustment to water frontage, despite reference to the 2019 Decision’s statement respecting potential adjustment for water frontage.

26Absent new or additional evidence, the Board cannot find that there is a change in the circumstances respecting the Subject Property, or any other compelling reasons in the interest of justice, to justify the Board re-opening the previous issues and permitting a further hearing respecting the January 1, 2016 valuation date.

CONCLUSION

27The Board finds that issue estoppel applies to preclude the Appellant from re-arguing the issue of the current value of the Subject Property as of January 1, 2016, and the motion is granted. The determination of current value from the 2019 Decision should be applied to the Subject Appeal.

ORDER

28The Board grants the motion, and orders that the 2019 Decision be applied to the 2020 taxation year appeal. The current value assessment of the Subject Property is confirmed at $290,000.00 for the January 1, 2016 valuation date, and no adjustment is required to make that assessment equitable with similar properties in the vicinity.