Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: December 31, 2021

FILE NO.: DM 175492

Assessed Person(s): Alexander Galushkin; Olga Galushkina

Appellant(s): Alexander Galushkin; Olga Galushkina

Respondent(s): Municipal Property Assessment Corporation Region 14

Respondent(s): Town of Richmond Hill

Property Location(s): 52 Canterbury Court

Municipality(ies): Town of Richmond Hill

Roll Number(s): 1938-030-020-75700-0000

Appeal Number(s): 3421863 and 3444429

Taxation Year(s): 2020 and 2021

Hearing Event No.: 756311

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

Parties	Representative
Alexander Galushkin; Olga Galushkina	Self-represented
Municipal Property Assessment Corporation	Carrie Carone
Town of Richmond Hill	Submissions not received

REQUEST FOR: An order for issue estoppel An order applying Board Decision No. WR 163343 to appeals 3421863 and 3444429 An order that the assessed value of the Subject Property for the 2020 and 2021 taxation years is $1,300,000

HEARD: December 6, 2021 in writing

ADJUDICATOR(S): Carly Stringer, Member

MOTION DECISION

OVERVIEW

1The appeals 3421863 and 3444429 (the “Subject Appeals”) relate to 52 Canterbury Court (the “Subject Property”) in the Town of Richmond Hill (“Richmond Hill”). The Appellants own the Subject Property, which is a single-family detached two-storey home with an attached double garage.

2The Appellants brought appeal 3421863 before the Assessment Review Board (the “Board”) pursuant to s. 40 of the Assessment Act (the “Act”), challenging the current value assessment of the Subject Property for the 2020 taxation year based on the January 1, 2016 statutory valuation date. Appeal 3444429 was deemed for the 2021 taxation years in accordance with s. 40(26) of the Act.

3The Appellants previously appealed to the Board for the Subject Property relating to the 2019 taxation year, based on the statutory valuation date of January 1, 2016 (the “2019 Appeal”). The Board decided the 2019 Appeal in Galushkin v Municipal Property Assessment Corporation, Region 14, 2020 CanLII 12227 (ON ARB) (the “2019 Decision”). In the 2019 Decision, the Board determined the correct current value assessment of $1,300,000 as of January 1, 2016. The 2019 Decision was upheld on review by the Board: see Galushkin v Municipal Property Assessment Corporation, Region 14, 2021 CanLII 92530 (ON ARB) (“Review Decision”).

4The Municipal Property Assessment Corporation (“MPAC”) and Richmond Hill are respondents in the Subject Appeals. MPAC has brought this motion, arguing that the Appellants should be estopped from raising the assessed value of the Subject Property as of the January 1, 2016 valuation day because this issue was decided in the 2019 Decision. The Appellants submit that MPAC’s motion should be denied. Richmond Hill has not made submissions on this motion.

Result

5For the reasons that follow, the motion is granted.

ANALYSIS

Issue 1 – Does issue estoppel apply?

Applicable Law

6The 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 paragraph 15.

7The 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 (ON SCDC) 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.

8Even 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.

The 2019 Decision

9Some background respecting the 2019 Decision is necessary to contextualize the analysis.

10MPAC originally assessed the Subject Property at $1,358,000. The Appellants argued that MPAC’s assessment was too high. Accordingly, the questions before the Board in the 2019 Decision were the current value of the Subject Property as of January 1, 2016, and whether an equity reduction in the current value should be made to compensate for the assessment of similar properties in the vicinity: see 2019 Decision at paragraph 4.

11Both MPAC and the Appellants utilized the direct sales comparison approach and submitted into evidence the sale of comparable properties in the vicinity of the Subject Property. The Board relied on two of the property sales introduced in evidence as the most similar to the Subject Property and therefore the best evidence to establish current value. The Board applied a time adjustment based on evidence presented by the Appellants, and found that $1,503,000 was the correct current value of the Subject Property as of the January 1, 2016 valuation day.

12The Board then considered evidence of 39 property sales introduced by MPAC and the Appellants, and determined a mean assessment to sale ratio (“ASR”) of 0.865. The Board found an equitable reduction of 13.5% was justified based on this ASR, resulting in an assessed value of $1,300,095 rounded to $1,300,000: see 2019 Decision at paragraphs 36 and 37.

Findings on Issue 1

a) Has the same question been decided?

13The questions decided by the Board in the 2019 Decision were the current value of the Subject Property on January 1, 2016, and if that current value was equitable.

14Those are the very issues raised in the Subject Appeals. The 2020 and 2021 taxation years all use the same January 1, 2016 valuation date, pursuant to s. 19.2 of the Act and s. 48.6 of O. Reg 282/98.

15In their materials on this motion, the Appellants have not identified any new or different questions to be determined in the Subject Appeals, nor have they identified a change in the facts underlying the dispute. Instead, the Appellants have provided materials challenging the evidence that MPAC presented in the 2019 Appeal. The Appellants appear to simply repeat the evidence and arguments considered by the Board when it rendered its 2019 Decision.

16Although the Appellants have a right to pursue appeals relating to the 2020 and 2021 taxation years, the question to be decided in the Subject Appeals has already been decided in the 2019 Decision – namely, the current value assessment of the Subject Property on January 1, 2016.

17The first prong of the test for issue estoppel is satisfied.

b) Was the 2019 Decision final?

18The 2019 Decision was reviewed, and the Appellants’ request for review was denied: see the Review Decision. Accordingly, the 2019 Decision is final.

19The second prong of the test for issue estoppel is satisfied.

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

20The evidence is that the parties to the Subject Appeals are the same parties as the 2019 Appeal.

21Therefore, the third prong of the test for issue estoppel is satisfied.

d) Should the Board exercise its discretion and decline to apply issue estoppel?

22Even where the elements of issue estoppel are met, the Board may exercise discretion and decline to apply it where it would be in the interests of justice to do so: Danyluk v Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460 at paragraph 33; Municipal Property Assessment Corporation, Region No. 9 v Pussar, 2017 CanLII 72907 (ON ARB) (“Pussar, supra”) at paragraph 9.

23There is nothing in the evidence before me that indicates any injustice will flow from the application of issue estoppel to the Subject Appeals. 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.”

24The reasons given in the 2019 Decision were clear and wholly articulated. The Appellants’ evidence and arguments were properly considered and adjudicated. There is no allegation that the Appellants did not have an adequate opportunity to present their case in the 2019 Appeal. The Appellant has not provided evidence respecting a change in the facts underlying the dispute. The Board does not find there is any unfairness, or any other compelling reasons in the interest of justice, to justify the Board re-opening the questions determined in the 2019 Decision and permitting another hearing respecting the January 1, 2016 valuation date.

CONCLUSION

25The Board finds that issue estoppel applies to preclude the Appellant from re-arguing the issue of the current value of the Subject Property on January 1, 2016.

ORDER

26The Board orders that the Appellants are estopped from raising the assessed value of the Subject Property as of the January 1, 2016 valuation date in respect of the Subject Appeals. The Board further orders that the 2019 Decision be applied to the Subject Appeals. The Board orders that the assessed value of the Subject Property is $1,300,000 for the 2020 and 2021 taxation years.