Ashteck Capital Developments v. Municipal Property Assessment Corporation Region 18, 2022 CanLII 51356

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

ISSUE DATE: June 10, 2022

FILE NO.: DM 179342

Assessed Person: Ashteck Capital Developments

Appellant: Ashteck Capital Developments

Respondent: Municipal Property Assessment Corporation Region 18

Respondent: City of Thorold

Property Location: 1837 Merrittville Hwy

Municipality: City of Thorold

Roll Number: 2731-000-027-10400-0000

Appeal Numbers: 3467055 and 3489505

Taxation Years: 2021 and 2022

Hearing Event No.: 767864

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

Parties	Representative
Ashteck Capital Developments	Arun Anand and Ahmed Refai
Municipal Property Assessment Corporation	Kyle Petterson
City of Thorold	Submissions not received

REQUEST FOR: Issue Estoppel

HEARD: June 8, 2022 in writing

ADJUDICATOR: Jean-Paul Pilon, Member

MOTION DECISION

OVERVIEW

1Ashteck Capital Developments Inc. (the “Appellant”) is the owner of a property at 1837 Merrittville Hwy in the City of Thorold (the “Subject Property”). It appealed its assessment of the Subject Property for the 2017 taxation year, and further appeals were deemed for the 2018 to 2020 taxation years pursuant to section 40(26) of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”).

2The Assessment Review Board’s (the “Board”) decision WR 164342 issued on May 8, 2020 (the “Decision”) resolved those appeals.

3After completion of the required Request for Reconsideration process with the Municipal Property Assessment Corporation (“MPAC”), the Appellant appealed its assessment for the 2021 taxation year, and a further appeal was deemed for the 2022 taxation year pursuant to section 40(26) of the Act. The appeals were given a summary stream Schedule of Events pursuant to Rule 39(b) of the Board’s Rules of Practice and Procedure (the “Rules”).

4By way of an Expedited Board Directions Form (“EBDF”), MPAC requested that the Board set a written motion. In that motion, MPAC sought the dismissal of the Appellant’s appeals through application of the legal doctrine of issue estoppel because the Appellant was seeking to re-litigate issues that had already been considered by the Board.

5Beyond its EBDF, MPAC did not make any further submissions in the motion as it had the opportunity to do pursuant to the Board’s letter to the parties dated April 21, 2022. However, the barebones motion set out in the EBDF complied with Rule 66 because it provided the order MPAC requested of the Board, the grounds for the motion and whether the parties had responded to the request.

Result

6This motion is granted.

ANALYSIS

7In Loblaw Properties Limited v Municipal Property Assessment Corporation, Region 9, 2020 CanLII 89077 at para. 5, the Board determined that “the principle of issue estoppel prevents re-litigating issues that have already been judicially decided.”

8The Appellant’s grounds for its 2021 appeal were set out in its Property Assessment Appeal Form filed with the Board. These were: that the “value of property (sic) is too high as compared to neighbouring properties” and that part of the property had been expropriated so that the property was “smaller than the originally purchased area.” The Appellant also acknowledged in the appeal that it had been paid for the part of the property that had been expropriated.

9MPAC essentially argued that the appeal was an attempt to re-litigate issues in the previous appeals in that the Board had already considered the assessed value of the Subject Property, the expropriation and payment to the Appellant for the land expropriated.

Issue 1 – Assessment Too High

10MPAC first argued that the Appellant’s complaint in its appeal that the assessment was too high was resolved in the Decision.

11MPAC referred to para. 27 of the Decision which determined the current value of the Subject Property to be $422,000. In addition, para. 4 of the Decision set out one of the issues to be determined in the Decision as the current value of the Subject Property.

12There was no indication in any of the material before the Board that there was any change to the state and condition of the Subject Property after the taxation years considered in the Decision, and there was no general reassessment in the 2021 taxation year. In addition, the Appellant did not provide any response to that part of the EBDF.

Finding on Issue 1

13The Board finds that the current value of the Subject Property in the current taxation cycle was already decided in the Decision and cannot be re-litigated.

Issue 2 - Expropriation

14A ground in the Appellant’s 2021 appeal was that part of its property had been expropriated. In the EBDF, MPAC argued that the expropriation had been taken into account in para. 19 of the Decision “and is irrelevant to further discussion.”

15In its response to the motion, the Appellant repeated that part of its property had been expropriated and that it was smaller than the property it originally purchased. The Appellant also noted that $60,000 was paid for the expropriated land when it had wanted $120,000. Finally, the Appellant wrote that new water systems had to be built after the expropriation because they “became ineffective” as a result of the expropriation.

16Paragraph 19 of the Decision determined that the expropriation was irrelevant to the question of current value. This was because the Appellant had not provided any evidence that the expropriated land was included as part of the property that was the subject the earlier appeals. The Board further noted in the same paragraph of the Decision that the Appellant’s representative admitted “that the expropriated land is not part of the 3.48 acres of the Subject Property” which was “the size of the lot after the expropriation (emphasis added).”

Finding on Issue 2

17The Decision took into account the expropriation and that issue cannot be re-litigated.

Issue 3 – Payment for Expropriated Land

18Finally, the relevant part of the Appellant’s 2021 appeal did not explain why the assessment was incorrect when it noted simply that part of the property had been expropriated and paid for. Nevertheless, MPAC indicated in the EBDF that it took this to mean that the Appellant was attempting to raise the irrelevant expropriation again for which the Appellant had been compensated.

Finding on Issue 3

19The Decision addressed the expropriation which was taken into account in its determination of the current value of the Subject Property.

CONCLUSION

20All of the issues in the Appellant’s notice of appeal were already considered by the Board in the Decision and cannot be re-litigated. As a result, the Appellant is estopped from raising the same issues in its 2021 appeal and in its deemed appeal for the 2022 taxation year. The Board therefore concurs with MPAC that these two appeals should be dismissed.

ORDER

21This motion is granted. The Board orders that the Appellant’s appeal for the 2021 taxation year and its deemed appeal for the 2022 taxation year are dismissed.