Michael Purcell and Catherine Purcell v. Municipal Property Assessment Corporation Region 05 and City of Kingston, 2021 CanLII 41885

Tribunals Ontario Tribunaux décisionnels Ontario Assessment Review Board Commission de révision de l’évaluation foncière

ISSUE DATE: May 13, 2021 FILE NO.: DM 170442

Assessed Person(s): Michael Stephen Purcell; Catherine Nye Purcell Appellant(s): Michael Purcell; Catherine Purcell Respondent(s): Municipal Property Assessment Corporation Region 05 Respondent(s): City of Kingston Property Location(s): 300 Wellington Street Municipality(ies): City of Kingston Roll Number(s): 1011-030-110-07730-0000 Appeal Number(s): 3384982, 3397787 and 3440068 Taxation Year(s): 2019, 2020 and 2021 Hearing Event No.: 742378

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

APPEARANCES:

Parties	Representative
Catherine Purcell and Michael Purcell	Michael Purcell
Municipal Property Assessment Corporation	Rox-Anne Poulain
City of Kingston	No one appeared

HEARD: March 22, 2021 by telephone conference call and March 29, 2021 and April 6, 2021 by written submissions

ADJUDICATOR(S): Joanne Laws, Member

MOTION DECISION

OVERVIEW AND BACKGROUND

1Catherine and Michael Purcell (the “Appellants”), are appealing the 2019 assessment of the Subject Property, a row house located at 300 Wellington Street in the City of Kingston. The appeal is brought pursuant to s. 40 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”). Pursuant to s. 40(26) of the Act, the Assessment Review Board (the “Board”) has deemed appeals for the 2020 and 2021 taxation years.

2The Appellants previously appealed the assessment of the Subject Property for the 2017 taxation year, also pursuant to s. 40 of the Act and the Board deemed an appeal for the 2018 taxation year (s.40(26)). A hearing was held on May 18, 2018 which resulted in a written decision issued on July 16, 2018 by Board Member Jennifer Griffith: Purcell v Municipal Property Assessment Corporation, Region 05, 2018 CanLII 67787 (“2018 decision”). The Parties agreed that the current value is $483,000 but disagreed whether an equitable reduction pursuant to s. 44(3)(b) of the Act was required. Member Griffith considered the Parties’ evidence and arguments, including the vertical equity put forward by the Appellants, and found that no equitable reduction was required.

3In a subsequent review decision, the Board’s Associate Chair Paul Muldoon confirmed the 2018 decision on November 30, 2018. The review decision was amended on December 21, 2018 to correct a clerical error: Purcell v Municipal Property Assessment Corporation Region 05, 2018 CanLII 123933 (“2018 review decision”).

4The Municipal Property Assessment Corporation (“MPAC”) has brought a motion to dismiss the current appeals raising the doctrine of issue estoppel, arguing that the issues of current value and equitable value for the 2017 through 2021 taxation years, which all have the same valuation date of January 1, 2016, have been determined by the Board in the 2018 decision and confirmed in the 2018 review decision, that the parties to the appeals are the same and that the Board’s 2018 decisions are final.

5The Appellants argued that MPAC’s motion to dismiss the appeals should be denied.

6On April 6, 2021 the Appellants brought a motion to dismiss MPAC’s motion on the basis that MPAC failed to give notice that it was raising issue estoppel within the time required by the Board’s Rules of Practice and Procedure¹ (the “Rules”).

7The City of Kingston has not made submissions on the motions.

Disposition of Motion

8For the reasons set out below the Appellants’ motion is denied and MPAC’s motion to dismiss the appeals is granted.

Issues

9The issues to be determined on these motions are:

a. Should MPAC’s motion be dismissed because it provided notice that it was raising issue estoppel late?

b. Should the Appellants’ appeals be dismissed on the ground of issue estoppel?

ANALYSIS

10The Board issued a Schedule of Events for the 2019 appeal with a commencement day of November 4, 2019. Rule 40(d) of the Board’s Rules provided that a party raising the doctrine of issue estoppel, must give notice to all other parties within 30 days of that commencement day. On January 27, 2020, MPAC provided a written notice that it was raising the doctrine of issue estoppel for the 2019 appeal. This notice would also apply to the 2020 and 2021 deemed appeals.

11On February 10, 2020, the Appellants provided a written response in which they addressed issue estoppel.

12The Board scheduled a hearing by telephone conference call to commence on January 8, 2021. The Board cancelled that hearing, rescheduling it to commence on March 22, 2021.

13On January 9, 2021 the Appellants submitted arguments and evidence regarding their appeals and issue estoppel.

14On January 13, 2021 MPAC filed a motion to dismiss on the ground of issue estoppel and on March 19, 2021 the Appellants filed a written response to MPAC’s motion.

15On March 22, 2021 MPAC’s motion to dismiss was heard by the Board. MPAC’s representative, Rox-Anne Poulain, stated she had not received the Appellants’ March 19, 2021 written response and requested an adjournment to review it and provide a reply. The Board granted the adjournment and, in consultation with the parties, MPAC’s deadline to reply was March 29th and the Appellants were granted an additional opportunity to respond to MPAC’s reply, the deadline of which was April 6, 2021.

16On April 6, 2021 and in addition to their written response, the Appellants filed a motion to dismiss MPAC’s motion on the basis that MPAC provided its notice under Rule 40 late.

17I have reviewed the evidence and submissions of the Parties. Regarding the Appellants’ April 6, 2021 motion to dismiss MPAC’s motion, I do not require a response from MPAC because the issues raised were addressed at the March 22, 2021 motion hearing and in the materials submitted by the parties.

The Appellants’ Motion to Dismiss MPAC’s Late Motion

18Rule 40(d) of the Board’s Rules provides that a party must give the Board and all other parties notice that it intends to raise issue estoppel and that notice must be given within 30 days of the Schedule of Events’ commencement date. MPAC did not meet this timeline and is seeking an alteration of time pursuant to Rule 17 to file its motion. Rule 17 provides that periods set out in the Rules can be altered by the Board.

19The Appellants move that MPAC’s motion for issue estoppel be dismissed due to the non-compliance with Rule 40.

20Both parties argued prejudice, MPAC if issue estoppel was not applied and the Appellants if it was. The Appellants argued they are prejudiced because MPAC received the appeal in a timely fashion, that the parties discussed the issues raised in the appeal on or about January 23, 2020 at the pre-hearing mandatory meeting and that MPAC did not raise issue estoppel until January 27, 2020 which exceeds the 30 day time period in Rule 40. They argued that because MPAC did not raise issue estoppel within the timelines of the Board’s Rules, it does not apply and, therefore, they are further prejudiced on having to respond to the motion. The Appellants argued that MPAC is not prejudiced if issue estoppel is denied because MPAC should have raised issue estoppel within 30 days of the commencement date, see Mississauga (City) v Michalakos, 2018 CanLII 126632.

21The purpose of the timeline in Rule 40 was to provide the opposing parties an opportunity to consider and respond to the doctrine of issue estoppel. MPAC first raised it on January 27, 2020 followed by its written motion on January 13, 2021. As previously noted, the Appellants provided responses to issue estoppel on February 10, 2020, January 9, 2021 and April 6, 2021.

22I find that no prejudice is caused to the Appellants by considering issue estoppel despite MPAC’s late notice because the Appellants had an adequate opportunity to consider and respond. Further, the Board would have, on its own initiative, sought submissions from the Parties regarding the doctrine of issue estoppel because of the previous decisions for 2017 and 2018, two of the five years in the current assessment cycle.

23Accordingly, The Appellants’ motion is denied.

Does Issue Estoppel Apply?

24For the following reasons, I find that issue estoppel applies to the 2019, 2020 and 2021 appeals.

25The purpose of issue estoppel is to prevent re-litigating issues that have already been decided. The two-step process for determining whether issue estoppel occurs was set out in Danyluk v Ainsworth Technologies Inc, [2001] 2 SCR 460, 2001 SCC 44 (“Danyluk”). The first step involves assessing whether the three criteria for issue estoppel exist. The second step is to determine whether discretion ought to be exercised.

26The three criteria that must be met for issue estoppel to apply have been addressed in the Ontario Court of Appeal decision, Rasanen v. Rosemount Instruments Ltd., 1994 CanLII 608 (ON CA) (“Rasanen”), articulated by the Board in Wabi Iron & Steel Corp. v. Municipal Property Assessment Corp., Region No. 29, O.A.R.B.D. No 219 and confirmed in numerous subsequent decisions of this Board. In Rasanen the Court held that the requirements of issue estoppel are:

(1) that the same question has been decided;

(2) that the judicial decision which is said to create the estoppel was final; and

(3) that the parties to the judicial decision…were the same persons as the parties to the proceeding in which estoppel is raised.

Have the same questions been decided?

27I find that the same questions raised here have been decided in the 2018 decision and the 2018 review decision.

28The questions before the Board for the 2017 and 2018 taxation years were the correct current value and equitable value of the Subject Property as of the assessment cycle’s January 1, 2016 valuation date. These are the same issues to be determined for the 2019 through 2021 taxation years. In summary, all have the same valuation date of January 1, 2016 and the issues to be determined are the same.

29The Appellants put forward an opinion that the Subject Property has changed due to water leak(s) and the condition of the roof, concluding that the Subject Property is no longer the same as that considered in the 2018 decisions. Evidence supporting this opinion was not submitted. Accordingly, I find that the Subject Property has not changed during the five-year assessment cycle.

30The 2018 decision shows that the Parties agreed that Subject Property’s current value for the 2017 and 2018 taxation years was $483,000. This same amount has been returned on the assessment roll for the 2019, 2020 and 2021 taxation years.

31In these current appeals, the Appellants have again raised the issue of vertical equity. They argue that during the pre-hearing processes of a Request for Reconsideration and the Mandatory Meeting, MPAC did not consider the Appellants’ arguments and evidence that were “based specifically on the vertical equity”. The relevant consideration for whether issue estoppel is engaged is not whether the assessing body considered the Appellants’ issues but whether the Board decided the issues. In the 2018 decision and review decision, both Member Griffith and Associate Chair Muldoon addressed the issue of equity, specifically vertical equity (see paragraph 9 of the 2018 review decision).

Are the Decisions Final?

32Pursuant to s. 40(22) of the Act, the 2018 decision and the 2018 review decision are final.

33The Appellants acknowledged that the Board’s decisions are final but argued that the finality does not guarantee that either the decision or the review decision “were not in error” nor does it preclude the decision from being reversed by future decisions. The issue of errors was addressed in the 2018 review decision.

34Further, subsequent appeals for the same assessment cycle with the same valuation date do not provide the Appellants an opportunity to re-argue the same issues. Allowing the Appellants to re-litigate the same issues would frustrate the principle of finality and would undermine the purpose of issue estoppel. The Appellants did not seek leave to appeal the 2018 decision or review decision to the Divisional Court, although they had the right to do so.

Are the parties the same?

35The evidence is that the Parties to these appeals have not changed during the five-year assessment cycle.

Would it be unfair or unjust for issue estoppel to apply?

36Despite the three tests being met, the Board has discretion whether to apply issue estoppel.

37In Danyluk the Court found that where the “the pre-conditions for issue estoppel have been met” the Board must “decide whether to refuse to apply estoppel as a matter of discretion” and that the “objective is to ensure that the operation of issue estoppel promotes the orderly administration of justice, but not at the cost of real injustice in a particular case”.

38The Board must, therefore, determine whether it is unfair for issue estoppel to apply to the 2019, 2020 and 2021 taxation years. The reasons given in the 2018 decisions were clearly and wholly articulated. The Appellants’ evidence and arguments were properly considered and adjudicated, and there is no allegation that the Appellants did not have an adequate opportunity to present their case in 2018. Accordingly, I do not find there is any unfairness or injustice in applying issue estoppel. The orderly administration of justice would not be served if issue estoppel were not applied.

Findings on Issue Estoppel

39Based on the above, the doctrine of issue estoppel applies to the 2019, 2020 and 2021 taxation years. I do not find that applying issue estoppel would create any injustice in this case.

CONCLUSION

40The Board finds that issue estoppel applies to preclude the Appellants from re-arguing the issue of the Subject Property’s current and equitable values as of the January 1, 2016 valuation date. The same questions have been decided, the decisions are final, and the parties are the same. Therefore, MPAC’s motion is granted. The current value assessment and equitable value as determined in the 2018 decision and 2018 review decision should be applied to the subject appeals.

ORDER

41The Board orders that the Appellants’ motion is dismissed.

42The Board grants MPAC’s motion and orders that the 2019, 2020 and 2021 appeals are dismissed. The current value of the Subject Property is confirmed at $483,000. As of the January 1, 2016 valuation date and no adjustment is required to make that assessment equitable with similar properties in the vicinity.

Footnotes

1. 1The Rules of Practice and Procedures effective April 1, 2017 and amended May 2019 are utilized in this decision because this was the version in place during the period relevant to these matters.