Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: April 6, 2020

FILE NO.: DM 163792

Moving Party(ies): Municipal Property Assessment Corporation Region 15

Respondent(s): Angelo Di Paola, Ida Di Paola

Respondent(s): City of Brampton

Property Location(s): 19 Bowman Avenue

Municipality(ies): City of Brampton

Roll Number(s): 2110-120-002-35900-0000

Appeal Number(s): 3381572

Taxation Year(s): 2019

Hearing Event No.: 728314

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

APPEARANCES:

Parties	Counsel*/Representative
Angelo Di Paola, Ida Di Paola	Pasquale Di Paola
Municipal Property Assessment Corporation	Curtis Nielsen, Olivia Medeiros
City of Brampton	James Lee

HEARD: January 31, 2020 in person

ADJUDICATOR: Subuola Awoleri, Member

MOTION DECISION

INTRODUCTION

1Angelo Di Paola and Ida Di Paola (“the Appellants”) appealed the assessment of 19 Bowman Avenue (the “Subject Property”) to the Assessment Review Board (the “Board”) for the 2019 taxation year, pursuant to s. 40 of the Assessment Act R.S.O. 1990, c. A.31, (the “Act”).

2Respecting the previous 2018 taxation year, the Appellants requested a review of the assessment made by the Municipal Property Assessment Corporation (“MPAC”), pursuant to 39.1(9) of the Act, a process which is known as a Request for Reconsideration (“RfR”). Negotiations between the Appellants and MPAC during this RfR process resulted in an agreement regarding the current value of the Subject Property for the 2018 taxation year, which was evidenced by written Minutes of Settlement executed by MPAC and the Appellants. Under the Act, the City of Brampton (the “City”) is not a participant in the RfR process. MPAC and the Appellants settled the matter, therefore no appeal for the 2018 taxation year was filed with the Board.

3At the commencement of the hearing respecting the 2019 appeal, the Appellants raised a preliminary motion requesting the Board’s permission to allow late filing of additional documents. The Board denied this request. The Appellants then requested an adjournment of the hearing, so that they could appeal the Board’s ruling to the Divisional Court. The Board refused this request. As the Appellants expressed an intention to appeal the Board’s ruling, the Board, in this Decision, is providing written reasons for its ruling.

4In light of the resolution of the 2018 taxation year appeal by Minutes of Settlement, the Board raised the question whether this resolution would apply to the 2019 taxation year. More, specifically, the Board raised the question whether the legal doctrine of issue estoppel would apply. MPAC argued that the issues raised in the 2019 taxation year appeal are the same as the issues addressed when negotiating the resolution of the current value for the 2018 taxation year. As such, MPAC submits that these issues cannot be adjudicated again in this appeal proceeding for the 2019 taxation year. Therefore, MPAC requests that the Board dismiss this appeal. The City supports MPAC's position. The Appellants’ oppose the dismissal request, taking the position that issue estoppel does not apply. The Board asked the parties for oral submissions at the hearing and reserved its decision. The Board then adjourned the hearing pending its disposition of MPAC's request.

RESULT

5For reasons that follow, MPAC’s request to dismiss the appeal is denied, and the Board directs that the Main Hearing in this appeal proceeding be re-scheduled.

WRITTEN REASONS FOR THE BOARD’S DISPOSITION OF THE APPELLANTS’ MOTION

6As noted above, the Appellants requested that the Board admit into evidence additional documents that have not been previously served on the City and MPAC, submitting that the additional documents are significant to their appeal. MPAC and the City objected, arguing that it would be prejudicial to them, as it was not disclosed prior to the hearing.

7MPAC advised the Board that it had asked the Appellants to provide the additional disclosure in advance of the hearing to explore the possibility of settlement, but it was not provided. The Appellants denied this assertion.

8Rule 34 of the Board’s Rules of Practice and Procedure (the “Rules”) provides for a Schedule of Events (“SOE”) for this appeal proceeding which requires that the parties serve their documents on all other parties by December 10, 2019. Rule 48 provides:

A document, including an expert report, will only be admitted into evidence at a hearing event if it has been disclosed, and filed with the Board, in accordance with these Rules, unless the Board determines that there are exceptional circumstances.

9Parties must also adhere to the filing dates set out in the SOE, as Rule 37 provides:

On or before the filing deadline set out in the schedule of events for a proceeding, each party must file all materials that they intend to rely on at a hearing event, including:

(a) all evidence, including expert reports;

(b) statements of issues and responses; and

(c) witness statements.

10The Appellants acknowledge receiving the SOE that was sent by the Board to all the parties. However, they argue that the Board should have amended the SOE when the hearing format was converted from a telephone conference call (“TCC”) to an in-person hearing. The Board finds no merit to this argument. The date fixed by the Board for the TCC was the same day as the date scheduled for the in-person hearing. In any event, a hearing is not scheduled until after the due dates in events set out in the SOE have expired. Therefore, changing the hearing date or the format of the hearing has no bearing on the pre-hearing due dates set out in the SOE.

11The Appellants further argued that the Case Coordinator at the Board had advised them to raise their request to file their additional documents with the presiding Member at the hearing. The Board reviewed the chain of emails exchanged between Pasquale Di Paola, the Appellants’ representative, and the Case Coordinator. This reveals that it would be up to the presiding Member to decide on admissibility of these documents. It does not indicate that the documents would be accepted.

12Upon giving its oral ruling on the Appellants’ motion, the Appellants then requested that the Board adjourn the hearing, to allow them time to appeal to the Divisional Court challenging the Board’s ruling.

13The factors to consider when considering whether to grant an adjournment are set out in Rule 84 which states:

Before granting any adjournment of a hearing event, the Board must consider:

(a) the interests of the parties in a full and fair proceeding;

(b) the impact of the adjournment on parties and other persons;

(c) the integrity of the Board’s process, including the Board's ability to efficiently resolve all appeals filed with the Board within the current four year cycle;

(d) the circumstances giving rise to the need for an adjournment;

(e) the timeliness of the request for the adjournment;

(f) the position of the other parties;

(g) the public interest in the delivery of the Board’s services in a just, timely and cost effective manner; and

(h) any practice directions issued by the Board.

14While the Appellants may avail themselves of a right to appeal the decision or to request that the Board review the decision, the established protocol is that the hearing must be completed before they do so. As this hearing is still on-going, their request for the adjournment is denied.

MPAC'S REQUEST TO DISMISS THE APPEAL ON THE BASIS OF ISSUE ESTOPPEL

15As noted above, MPAC and the City argue that the RfR settlement is final and that the Appellants should be prevented from raising the same issues in this proceeding for the 2019 taxation year. They state that, as a result of this settlement, the assessment as returned by MPAC based on the January 1, 2016 valuation date, was reduced from $1,219,000 to $1,184,000. The City adds that, in accordance to s. 39.1(10) of the Act, the assessment roll was altered to reflect this final settlement.

16The Appellants submit that the settlement does not apply to the 2019 taxation year, and therefore, they should be permitted to proceed with their appeal. In support of this submission, they maintain that the paralegal agent who represented them in their 2018 taxation year RfR was not acting in their best interest.

Findings

17The equitable doctrine of issue estoppel, bars parties from relitigating issues that have been decided in a prior proceeding. In Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, (“Danyluk”), the Supreme Court of Canada (“SCC”), at paragraph 20 indicates that the “judicial policy favouring finality is the rule against collateral attack, i.e., that a judicial order pronounced by a court of competent jurisdiction should not be brought into question in subsequent proceedings except those provided by law for the express purpose of attacking it” [emphasis added]. The SCC also states, at paragraph 21,

These rules were initially developed in the context of prior court proceedings. They have since been extended, with some necessary modifications, to decisions classified as being of a judicial or quasi-judicial nature pronounced by administrative officers and tribunals. In that context the more specific objective is to balance fairness to the parties with the protection of the administrative decision- making process, whose integrity would be undermined by too readily permitting collateral attack or relitigation of issues once decided. [emphasis added]

18In Danyluk, the SCC also emphasized the importance of the judicial nature of the prior decision. At paragraph 35, the SCC, stated that, in determining whether the prior decision was a judicial decision, three elements may be considered:

First is to examine the nature of the administrative authority issuing the decision. Is it an institution that is capable of receiving and exercising adjudicative authority? Secondly, as a matter of law, is the particular decision one that was required to be made in a judicial manner? Thirdly, as a mixed question of law and fact, was the decision made in a judicial manner?

19The SCC further determined that:

It is of no avail to prove that the alleged res judicata was a decision, or that it was pronounced according to judicial principles, unless it emanated from such a tribunal in the exercise of its adjudicative functions; nor is it sufficient that it was pronounced by such a tribunal unless it was a judicial decision on the merits. It is important, therefore, at the outset to have a proper understanding of what constitutes a judicial tribunal and a judicial decision for present purposes. [emphasis added]

20The courts have determined that settlements between parties are not judgements or decisions. In Angeltvedt v. Lawes, [1994] A.J. No. 979, the Alberta Court of Queen’s Bench, at paragraphs 23 and 48 determined that settlement agreements are not judgements but contracts between the parties.

21The application of the principles to a settlement made in the RfR process, has been considered by the Board in 1763931 Ontario Ltd. v. Municipal Property Assessment Corp., Region 30, [2018] O.A.R.B.D. No. 207, (“1763931 Ontario Ltd.”). At paragraph 37, the Board stated:

This Board is a creature of statute and only has the powers that the Legislature has conferred upon it. There is nothing in the Act that permits this Board to intervene in a request for reconsideration settlement.”

22In this case, the Board finds that the RfR settlement for the 2018 taxation year, although it is final, is clearly not a decision of the Board. It was not issued by the Board and the Board did not adjudicate any issues respecting the current value of the Subject Property. Therefore, the Board finds that the doctrine of issue estoppel cannot apply in this 2019 taxation year appeal proceeding.

ORDER

23The Appellants’ request for permission to adduce additional documents into evidence is denied.

24MPAC's request to dismiss the Appellants’ appeal is dismissed.

25The continuation of the hearing of this appeal shall be re-scheduled by the Registrar to a date within six weeks of the issuance of this Decision.