Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: November 10, 2020

FILE NO.: DM 166742

Assessed Person(s): CP REIT Ontario Properties Ltd.

Appellant(s): Loblaw Properties Limited

Respondent(s): Municipal Property Assessment Corporation Region 9

Respondent(s): City of Toronto

Property Location(s): 720 Broadview Avenue

Municipality(ies): City of Toronto

Roll Number(s): 1904-075-310-01300-0000 and 1904-075-310-01400-0000

Appeal Number(s): 2958701, 3009790, 3078556, 3148612, 2958702, 3011188, 3074283 and 3148265

Taxation Year(s): 2013, 2014, 2015 and 2016

Hearing Event No.: 735762

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

Parties	Counsel
Loblaw Properties Limited	Stephen Longo
Municipal Property Assessment Corporation	Melissa Wright and Francis X. Shea
City of Toronto	No one appeared

HEARD: October 20, 2020 in writing

ADJUDICATOR(S): Carly Stringer, Member

MOTION DECISION

OVERVIEW

1The Subject Property consists of two parcels of land, being a Loblaw grocery store and a paved parking lot overlooking the Don Valley on the east side of Broadview Avenue in Toronto. Loblaw Properties Ltd. (the “Appellant”) has brought appeals relating to the Subject Property for the 2013-2016 taxation years based on the statutory valuation date of January 1, 2012. The Appellant challenges the correctness of the current value assessment of the Subject Property.

2Several years ago, the Appellant appealed assessments for the same property relating to the 2006 to 2012 tax years. Those appeals were decided by the Board on November 6, 2015: Loblaw Properties Limited v Municipal Property Assessment Corporation Region No. 9, 2015 CanLII 72781 (ON ARB), in WR 125176 (the “2015 Decision”).

3The Municipal Property Assessment Corporation (“MPAC”) has brought a motion arguing that issue estoppel applies to the appeals, on the basis that the Appellant is attempting to re-litigate questions that were finally decided in the 2015 Decision.

Result

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

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 Corp., Region No. 29, 2005 CanLII 3984:

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.

7Parts (b) and (c) of the test enumerated above are not in dispute on this motion. I find those elements of the test are satisfied.

8The parties disagree over whether part (a) is satisfied.

Has the same question been decided?

9MPAC argues that issue estoppel applies as the Appellant is arguing the same issues that were decided in the 2015 Decision, namely:

a. That the Subject Property has development potential as of right;

b. That the highest and best use is development land; and

c. That the income approach is not appropriate since the Grocery Store Model and the Large Income Retail Analysis models cannot be applied to determine the correct current value to the Subject Property.

10The Appellant disagrees, arguing that the 2015 Decision relates to valuation base years of 2005 and 2008, not the January 1, 2012 valuation date that is before the Board in the within appeals.

11MPAC has provided several cases where the Board has determined that issue estoppel applies. I have carefully reviewed these cases, and it appears that in all but one, issue estoppel applied where appellants had brought new appeals for different taxation years with the same valuation day as appeals that were previously decided. For instance, in Wabi Iron, supra, the Board had issued a decision in 2000 regarding the 1998 and 1999 tax years, with a June 30, 1996 valuation date. The appellant brought another appeal for the 2000 taxation year that involved the same parties, property and issues relating to the same valuation date - June 30, 1996. The appellant in that case was estopped. In Country Garden Academy Inc. v. Municipal Property Assessment Corp., Region No. 14, [2007] O.A.R.B.D. No. 339 (“Country Garden”) and Wilson et al. v. Municipal Property Assessment Corporation (4 April 2008), (Ont. A.R.B.) [unreported] (“Wilson”), appellants were estopped from arguing the same issues on new appeals for different tax years with the same valuation dates as appeals that were previously decided. Ultimately, issue estoppel applied because the taxation values under appeal were based on the same valuation day as values that were previously determined by the Board.

12In Municipal Property Assessment Corp. Region No. 9 v. Bank of China I(Canada), [2010] O.A.R.B.D. No 724, 67 OMBR 282, the Board did find that issue estoppel applied in appeals involving different valuation dates. I do not find this case persuasive. It differs from the other cases I have cited above, in that the issue before the Board was classification of a property, rather than current value across valuation dates. Moreover, the case is difficult to reconcile with the outcomes in Wabi Iron, Country Garden and Wilson, supra, particularly the strong language in Smith, supra, at paragraphs 22-23 that current values on different valuation dates are not “the same question” for the purposes of the first criteria for issue estoppel.

13In the subject appeals, the question before the Board is the correct current value of the Subject Property for the statutory valuation date of January 1, 2012. This is not the same as the questions before the Board in the 2015 Decision. In the 2015 Decision, the Board had to determine the correct current value for the statutory valuation dates of January 1, 2005 and January 1, 2008.

14This is consistent with the approach taken by the Board in many previous decisions, including Wabi Iron at para. 28; Smith at para. 23; as well as Country Garden and Wilson cited above. As noted in Smith:

[t]he decision of the Board for the 2008 base year would have been a final decision for four taxation years, but it cannot be considered a final decision for all taxation years thereafter due to the very nature of the changes that occur to real property over time.

Findings on Issue 1

15The first part of the test for issue estoppel is not met. In the 2015 Decision, the Board determined the correct current value of the Subject Property for the 2005 and 2008 base years. The question before the Board in the subject appeals is the correct current value of the Subject Property as of the statutory valuation date of January 1, 2012. The same question has not been decided.

16Because all three criteria for issue estoppel must be met, issue estoppel does not apply.

CONCLUSION

17The Board finds that the first part of the test for issue estoppel is not met. As such, MPAC’s motion is dismissed.

18I thank the parties for their excellent submissions.

ORDER

19The Board orders that motion be dismissed, and the Schedule of Events be amended, such that the due date for filing pleadings, all documents to be relied on at the hearing, and settlement conference briefs is five (5) weeks from the date this order is issued.