Tribunals Ontario

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

ISSUE DATE: June 24, 2022

FILE NO.: DM 176493

Assessed Person(s): Canadian Niagara Hotels Inc.

Appellant(s): Canadian Niagara Hotels Inc

Respondent(s): Municipal Property Assessment Corporation Region 18

Respondent(s): City of Niagara

Property Location(s): 4800 Bender Street

Municipality(ies): City of Niagara Falls

Roll Number(s): 2725-030-002-01300-0000

Appeal Number(s): 3415962, 3446729 and 3489522

Taxation Year(s): 2020, 2021 and 2022

Hearing Event No.: 759267

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

APPEARANCES:

Parties

Counsel

Canadian Niagara Hotels Inc.

Ian Andres and Matthew Lakatos-Hayward

Municipal Property Assessment Corporation

Karey Lunau and Donald G. Mitchell

City of Niagara Falls

Submissions not received

REQUEST FOR: Dismissal of Appeal(s)

HEARD: February 7, 2022 in writing

ADJUDICATOR(S): Dirk VanderBent, Vice-Chair

MOTION DECISION

OVERVIEW

1Canadian Niagara Hotels Inc. (“the Appellant”) is the owner of the property located at 4800 Bender Street, in the City of Niagara Falls (the “Subject Property”) and has filed an appeal pursuant to s. 40 of the Assessment Act, S.O. 1990, c. A.31 (the “Act”) for the 2020 taxation year. The ground of this appeal is that the current value of the Subject Property is too high, and, therefore, is incorrect. Pursuant to s. 40(26) of the Act, the Appellant is deemed to have brought the same appeal in respect of the 2021 and 2022 taxation years.

2The Act requires that the Municipal Property Assessment Corporation (“MPAC”) conduct a general reassessment, once every four years, to update the current value of all properties in Ontario (“General Reassessment Value”). Section 19.2(1) prescribes a single valuation day for determining this value which will apply to several taxation years (commonly described as an ‘assessment cycle’). In this case, the valuation day specified for the 2017 to 2020 taxation years is January 1, 2016.

3However, s. 19.2(5) also authorizes the Minister of Finance to prescribe a valuation day that is different from the valuation day prescribed in s. 19.2(1). Pursuant to O. Reg. 186/20, the Minister of Finance has set January 1, 2016 as the valuation day for the 2021 to 2023 taxation years. In effect, therefore, the assessment cycle is extended to include seven taxation years from 2017 to 2023.

4The Appellant had earlier filed an appeal for the 2017 taxation year on the ground that MPAC's general assessment of the Subject Property’s current value as of the applicable January 1, 2016 valuation day, at $12,125,000, was incorrect. As this appeal was not resolved until mid-2019, there were deemed appeals for the 2018 and 2019 taxation years. The parties were able to resolve these appeals as follows. The appeal for the 2017 taxation year was withdrawn. The deemed appeals were resolved by agreement of the parties, as reflected in written Minutes of Settlement executed by all parties. The parties’ agreement was to amend the General Reassessment Value to $13,028,000 for these two taxation years (“amended General Reassessment Value”). The Assessment Review Board (the “Board”) then issued decisions for these two taxation years in accordance with the Minutes of Settlement (the “Decisions”).

5Accordingly, the General Reassessment Value, i.e. the current value of the Subject Property as of the appliable valuation day prescribed by s. 19.2 of the Act, was resolved by agreement of the Parties. It is important to note that the amended General Reassessment Value is the current value to be reported on the Assessment Roll for the 2020 to 2022 taxation years. Therefore, in filing its appeal for the 2020 taxation year, the Appellant asserts that the amended General Reassessment Value is incorrect.

6In its appeal for 2020, the Appellant argues that, commencing in this taxation year, the current value of the Subject Property has decreased dramatically as a result of regulatory restrictions associated with the COVID‑19 emergency which were introduced in 2020, stating that this constitutes a change in the ‘state and condition’ of the Subject Property. The Appellant maintains that the correct day for valuing the Subject Property is the date for the return of the roll prescribed by s. 36 of the Act, i.e. the second Tuesday in December of the calendar year preceding the 2020 taxation year, described as the ‘state and condition’ date, which, in this case, is December 10, 2019 (referred to by the parties as the ‘state and condition date’).

7MPAC disagrees. MPAC observes that the Appellant does not assert that there have been any changes to the physical or legal characteristics of the Subject Property or a change in its use since the Decisions have been issued. MPAC maintains that, instead, the Appellant has only identified changes in the market which the Appellant alleges have impacted the value of the property. MPAC asserts that ‘state and condition’ must mean something other than the state of the market, and for this reason, the current value of the Subject Property cannot be reassessed as of the ‘state and condition’ date. Consequently, it is MPAC's position that the correct valuation day for determining the current value of the Subject Property for the 2020 and subsequent taxation years remains the January 1, 2016 valuation day for determining the General Reassessment Value.

8For this reason, it is MPAC's position that the issue of the current value of the Subject Property as of the January 1, 2016 valuation day has already been resolved by the parties in the settlement agreement made in respect of the Appellant’s 2018 and 2019 appeals, and, therefore, the legal doctrine of issue estoppel applies. In overview, this legal doctrine provides that a party is not permitted to raise an issue in an appeal proceeding where that issue has been previously raised and resolved. However, it is a discretionary remedy, which means that even if it is established that issue estoppel can apply, the Board has the authority to exercise its discretion not to apply it, based on the circumstances of the individual case. If the Board does so, it would mean the Appellant would be able to further challenge the General Reassessment Value for the 2020 to 2022 taxation years.

9Consequently, MPAC has brought a Motion requesting the following:

1. An order that the Appellant be estopped from raising the issue of the correct current value of the Subject Property for the 2020, 2021 and 2022 taxation years, and any subsequent taxation years to which the amended General Reassessment Value applies.

2. An order confirming that the amended General Reassessment Value applies to each of these taxation years.

3. An order dismissing the Appellant’s appeals for the 2020, 2021, and 2022 taxation years, or alternatively, dismissing these appeals as an abuse of process.

10The Appellant has responded to this Motion. The municipality has not.

RESULT

11The Motion is granted. The Board finds that the correct valuation day for determining the current value of the Subject Property is the January 1, 2016 valuation day prescribed under s. 19.2 of the Act for the taxation years under appeal. The Board finds that the doctrine of issue estoppel can apply and exercises its discretion to apply this doctrine in the circumstances of this case. Consequently, the Appellant is estopped from raising this issue in the appeal proceedings for the 2020, 2021 and 2022 taxation years. As this is the only issue raised in these appeal proceedings, there are no other issues to be addressed. Therefore, these appeal proceedings are dismissed.

ISSUES

12The information provided in the above Overview explains that the application of issue estoppel can only arise if the Appellant is raising the same issue that has been previously resolved. It is clear that the Appellant would be raising the same issue if the correct valuation day for determining the current value of the Subject Property for the 2020 to 2022 taxation years is January 1, 2016. As noted above, the Appellant asserts that correct current value is to be determined as of a different valuation day, i.e. the December 10, 2019 ‘state and condition’ date. Therefore, the primary question that must first be addressed in this Motion Decision is: What is the applicable valuation day to determine the current value of the Subject Property for the 2020 to 2022 taxation years?

13Accordingly, the issues to be addressed in this Motion Decision are:

1. What is the correct applicable valuation day for determining the current value of the Subject Property for the 2020, 2021, and 2022 taxation years?

2. If the correct valuation day is January 1, 2016, has MPAC satisfied the legal criteria to establish that the doctrine of issue estoppel may apply? If so, should the Board exercise its discretion to order that issue estoppel does apply to the appeal proceedings for 2020, 2021, and 2022 taxation years, as well as any subsequent taxation years for which the current value of the Subject Property is to be determined as of the January 1, 2016 valuation day?

3. If issue estoppel does apply, should the appeal proceedings for the 2020, 2021 and 2022 taxation years be dismissed?

14While the Board has reviewed all the parties’ submissions in detail, for purposes of this Motion Decision, the Board provides a synopsis of only the most salient submissions.

ANALYSIS

Issue 1: What is the correct applicable valuation day for determining the current value of the Subject Property for the 2020, 2021, and 2022 taxation years?

Submissions

15The main submissions of the parties were summarized in the above Overview. Both parties rely on an approach which indicates that the current value of a property may be reassessed on annual basis if there has been a ‘change’ in the ‘state and condition’ of the Subject Property. If so, the valuation day for reassessing current value is the ‘state and condition date’ described above. However, MPAC argues that while a change in ‘state and condition’ includes a physical change to the property or legal or use changes, it does not include market changes. In response the Appellant does not expressly state that a change in ‘state and condition’ includes a change in ‘market conditions’. However, the Appellant refers to previous Board decisions which cite s. 32 and s. 34 of the Act, leading to the conclusion that MPAC is required to determine the correct current value on an annual basis. Both parties have cited prior Board decisions in support of their respective submissions.

Findings on Issue 1

16The Board observes that in National Car Rental (Canada) Inc. v Municipal Property Assessment Corporation, Region 15, 2022 CanLII 53352 (“National Car”), MPAC and the appellants adopted the same positions and made the same submissions as MPAC and the Appellant have advanced in this Motion Hearing. In addition, the parties in National Car relied on several Board and Court decisions in addition to the decisions cited by the parties in this Motion. Therefore, in National Car, the submissions, including consideration of prior Board and Court decisions, are more comprehensive than the submissions made by the parties in this case.

17The Hearing Member in National Car, who is also the Hearing Member in this Motion Decision, undertook an exhaustive review of the parties’ submissions, and in particular, the decisions on which they relied in support of their positions. The Hearing Member provided a detailed interpretative analysis of the relevant statutory provisions of the Act, arriving at the following conclusion, as stated at paragraph 229:

Sections 32, 33, 34, 39.1, 40, and 40.1 of the Act provide a comprehensive scheme for making amendments to a property’s General Reassessment Value on the Assessment Roll. However, only s. 33 and s. 34 provide that current value may be determined based on a valuation day which follows the general reassessment valuation day prescribed by 19.2 of the Act. Section 36 does not allow for an annual reassessment of current value, nor is it necessary to impose an interpretative gloss on the wording of the legislation by adopting and applying a ‘state and condition’ paradigm.

18In respect of this Motion, the Board adopts the analysis in National Car and accepts and applies the above conclusion in this case. Therefore, the Board finds that the applicable valuation day on which to determine the current value of the Subject Property for the 2020 to 2022 taxation years is January 1, 2016, as prescribed by s. 19.2 of the Act.

19In arriving at this conclusion, and in accordance with the analysis set out in National Car, the Board has considered whether the Appellant’s Statement of Issues, which was filed as evidence in this Motion Hearing, could indicate that either s. 32, 33, or 34 of the Act could apply in the circumstances of this case, so as to raise an aspect of the issue of the correct current value of the Subject Property which would not have been addressed by the parties’ agreement in respect of the 2018 and 2019 taxation years.

20Having reviewed the Statement of Issues served in respect of the 2020 taxation year appeal proceeding, the Board finds that it clearly does not expressly raise an issue respecting either s. 33 or s. 34 of the Act, nor does the information provided in the Statement of Issues suggest that either of these sections of the Act could apply.

21As for s. 32, as indicated in National Car, the correction of any error, must be in respect of the property information relevant to the determination of the current value on the January 1, 2016 valuation day. The Appellant’s Statement of Issues understandably only refers to the change in circumstances for the 2020 and following taxation years. Therefore, this does not indicate there were any errors made when determining the current value as of the January 1, 2016 valuation day. Furthermore, as the ground for the 2017 to 2019 appeals before the Board was that the current value was incorrect, the whole issue of the determination of current value was re-opened. Therefore, if there were any errors made in conducting the general reassessment, they were corrected when the parties agreed to the alter the General Reassessment Value. In this regard, the Board notes that the Appellant’s Statement of Issues for the 2020 to 2022 appeal proceedings does not assert that there were errors made when conducting the general reassessment that were not considered by the parties in the 2017 to 2019 proceedings. For these, reasons, the Board finds that is it clear that s. 32 does not apply in the circumstances of this case.

22In light of the above analysis, the Board finds that the appeals filed for the 2020 to 2022 taxation years, which raise the ground that the correct current value of the Subject Property is incorrect, can only raise the same issue that was raised and addressed in the earlier appeal proceeding, namely, what is the current value of the Subject Property as of the January 1, 2016 valuation day.

Issue 2: If the correct valuation day is January 1, 2016, has MPAC satisfied the legal criteria to establish that the doctrine of issue estoppel may apply? If so, should the Board exercise its discretion to order that issue estoppel does apply to the appeal proceedings for the 2020, 2021, and 2022 taxation years, as well as any subsequent taxation years for which the current value of the Subject Property is to be determined as of the January 1, 2016 valuation day?

Test to be Applied

23The Board notes that the parties’ submissions have provided well-written comprehensive reviews of the law pertaining to application of the legal doctrine of issue estoppel. The leading decision in this area is the decision of the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460 (“Danyluk”). For purposes of this Motion, the main aspects of law pertaining to this Motion Hearing are as follows.

a. There are three criteria which must be met for issue estoppel to apply:

1. the same question has been decided;

2. the decision which is said to create issue estoppel was final; and

3. the parties to the decision are the same parties in the proceeding in which issue estoppel is claimed.

(see Danyluk, paragraphs 54 to 59)

b. Administrative tribunals have the jurisdiction to apply the doctrine of issue estoppel (see Spadacini-Kelava v Kelava, [2020] OJ No 5728, 2020 ONSC 7907, 52 RFL (8th) 143, a decision of the Ontario Supreme Court (“Spadacini”) at paragraph 106, point no. 9).

c. Issue estoppel applies to equal effect to consent judgements (see Spadacini, at paragraph 106, point no. 4).

d. Issue estoppel is a discretionary remedy. It is necessarily broader in relation to prior decisions of administrative tribunals. The list of factors is open, but includes:

1. The wording of the statute from which the power to issue the administrative order derives.

2. The purpose of the legislation.

3. The availability of an appeal.

4. The safeguards available to the parties in the administrative procedure

5. The expertise of the administrative decision maker.

6. The circumstances giving rise to the prior administrative proceedings.

7. The potential injustice.

(see Danyluk, paragraphs 67 to 80)

Submissions

Appellant’s Submissions

24The Appellant made the following alternative submission that, should the Board find that issue estoppel applies, the Board should not exercise its discretion to apply issue estoppel in this case.

25Regarding consistency with the wording of the Act, the Appellant emphasizes that the Act permits an appeal for each taxation year in the assessment cycle, and submits that applying issue estoppel would “preclude the Appellant from appealing a mid-cycle change simply because it had previously appealed a mid-cycle assessment on different issues.”

26Regarding the purpose of the legislation, the Appellant submits that the “primary objective” of the Act is to achieve equity in taxation. The Appellant argues that “it would not be consistent with the purposes of the Act for the Board to “so readily come to a conclusion” that deprives the Appellant of a remedy arising from a novel issue.” In this regard, the novel issue is the Legislature’s decision to extend the assessment cycle for the 2017 to 2020 taxation years to include the 2020 to 2023 taxation years, which is not something the Appellant could have anticipated at the time it negotiated a settlement of the 2018 and 2019 appeals. The Appellant submits that, if the Board refuses to apply issue estoppel, this would allow the Board to properly adjudicate a complex issue and determine the correct current value for the Subject Property for the 2020 to 2022 tax years.

27Regarding the circumstances giving rise to the prior administrative proceedings, the Appellant submits that the previous appeals initially raised MPAC’s failure to consider the appropriate operating revenues and expenses, as well as the sale of a recent comparable property, noting however, that the previous settlement only addressed the agreed-upon current value for the Subject Property.

28Furthermore, the Appellant, at the time the Decisions were issued, reasonably presumed that a new reassessment would occur for the 2021 tax year based on a new valuation date of January 1, 2019.

29The Appellant asserts that it could not have reasonably anticipated that a global pandemic would lead to significant impediments to the Subject Property’s utility, nor could it have reasonably anticipated that the Province would extend the application of the current valuation date through to 2023.

30Regarding the potential injustice, the Appellant submits that it would suffer a very real harm of being denied its right to have its appeals concerning a complex matter heard by the Board. The Appellant argues that, at a minimum, the Appellant must have an opportunity to be heard in respect of these matters given that the Minister of Finance, pursuant to s. 19.2(5) of the Act, has prescribed January 1, 2016 as the valuation day on which to determine current value for the 2020 to 2023 taxation years. The Appellant describes this as extending the valuation day. The Appellant states that, if the Appellant is not given this opportunity, this may mean that the Appellant will be left with little, if any recourse to have the issues arising from the pandemic considered by the Board.

31The Appellant notes that MPAC has argued that, if the Appellant is allowed to proceed with its appeals, the municipalities will be prejudiced in terms of a loss of stability and certainty. In response, the Appellant argues that it will suffer a far greater prejudice, as it will have its appeal rights curtailed for at least four taxation years (2020 to 2023).

MPAC's Submissions

32MPAC submits that:

a. The Act provides for a complete code for the assessment of property for municipal tax purposes.

b. Correctness, timeliness, stability and finality are important principles underlying property assessment and taxation. Allowing the Appellant to re-litigate the current value defeats all these objectives.

c. The application of the Decisions to subsequent tax years in the same cycle does not contravene procedural safeguards and furthers the purpose the Act.

d. There is no suggestion that the Decisions were improper, unfair or that there was a denial of natural justice. There is no injustice in holding the Appellant to its deal: the correct current value of the Subject Property is the value determined by the agreement by the parties.

e. There is injustice to other stakeholders – MPAC, municipalities, other rate payers and the Board, if the Appellant is permitted to proceed to re-litigate the issue of correct current value, in terms of expending additional resources, loss of much needed stability and certainty for municipalities, and in the uncertainty of finality of Board decisions which have been issued on consent of the parties.

Findings on Issue 2

33The Board accepts that the Act provides for a complete code which governs the assessment of property for municipal tax purposes.

34In light of the Board’s finding under Issue 1, the Board finds that the doctrine of issue estoppel can apply in this case, as the three criteria cited above clearly have been satisfied.

35In arriving at this conclusion, the Board has considered the Appellant’s submission that the settlement of the 2018 and 2019 appeals only addressed the agreed-upon current value for the Subject Property but did not address the specific detailed evidentiary issues regarding the determination of the appropriate operating revenues and expenses.

36In addressing this submission, the Board first re-iterates that the doctrine of issue estoppel extends to the material facts and the conclusions of law or of mixed fact and law (“the questions”) that were necessarily (even if not explicitly) determined in the earlier proceedings. In this case, the Board notes that these evidentiary issues had to be considered in order to arrive at a final opinion as to the correct current value. Consequently, they were determined in the settlement of the 2018 and 2019 appeal proceedings, albeit, not explicitly. Therefore, the Board finds that the doctrine of issue estoppel can apply in this case.

37However, the issue remains whether the Board should exercise its discretion to apply the doctrine of issue estoppel in this case. In other words, should the Board allow the Appellant to re-litigate the issue of the correct current value of the Subject Property? In deciding this question, the Board must consider whether there is something in the circumstances of this case such that the usual operation of the doctrine of issue estoppel would work an injustice? (see Danyluk, paragraph 63). For the following reasons, the Board concludes that there is no injustice.

38In this case, the Board approaches this question first by examining what the result would be if the Appellant is allowed to re-litigate this issue. The Board has found that the correct valuation day for determining the current value of the Subject Property is January 1, 2016. This means that the Appellant can only challenge the analyses, opinions and conclusions which apply to the Subject Property as of this valuation day. Therefore, even if the Appellant is permitted to continue to litigate the issue of correct current value in the proceeding for the 2020, 2021 and 2022 taxation years, the circumstances which have occurred in 2020, 2021 and 2022 are irrelevant. Accordingly, the correct current value will be the General Reassessment Value that the parties negotiated for the 2018 and 2019 taxation years. Accordingly, the outcome of a hearing will be the same even if the Appellant is permitted to continue to litigate the issue of correct current value in the 2020 to 2022 proceeding. Consequently, the Board finds that applying the doctrine of issue estoppel will not work any injustice in this case.

39In reaching this conclusion, the Board has also considered the Appellant’s argument that, as a result of the amendment to apply the January 1, 2016 valuation day to the 2020 to 2023 taxation years, the four year assessment cycle has now been extended to include the 2021 to 2023 taxation years. In its submissions, the Appellant correctly identifies that, before the Minister’s amendments, the prescribed valuation day for each of these four taxation years was January 1, 2019. Therefore, MPAC would have been required to conduct a general reassessment of the Subject Property’s current value as of this valuation day, and that the Appellant could have challenged this value in its 2020 appeal.

40In addressing this submission, the Board first notes that the Act provides that an appeal can be filed for any taxation year. The extension of the assessment cycle has not deprived the Appellant of the right to file an appeal for the 2020 taxation year.

41Furthermore, the Board observes that the January 1, 2019 valuation day precedes the COVID-19 circumstances which occurred in 2020. Therefore, these circumstances are also irrelevant to a determination of the current value as of a January 1, 2019 valuation day. Consequently, the extension of the January 1, 2016 valuation day to the 2021 to 2023 taxation years did not cause any prejudice to the Appellant.

42Turning to MPAC’s request that the Board also order that the doctrine of issue estoppel applies to the 2023 and any subsequent taxation years, the Board observes that it does not have the jurisdiction to do so. The Board’s jurisdiction under s. 40 of the Act is restricted to the appeal proceedings before the Board. For this reason, this request is denied.

Issue 3: If issue estoppel does apply, should the appeal proceedings for the 2020, 2021 and 2022 taxations years be dismissed?

43MPAC has requested that the Board dismiss the appeals. The Board notes that, if it does so, the appeals would be dismissed without a hearing.

Test to be Applied

44Rule 24, of the Board’s Rules of Practice and Procedure, is based on the provisions of both s. 4.6 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, and s. 8.2 of the Assessment Review Board Act, R.S.O. 1990, c. A.32, governs dismissal of a proceeding. In this case, the relevant part of this Rule is Rule 24(b) which states:

Dismissal of a Proceeding

24. The Board may dismiss a proceeding without holding a hearing, or after a hearing, if:

(b) the Board is of the opinion that the proceeding is frivolous or vexatious, is commenced in bad faith or only for the purpose of delay;

Findings on Issue 3

45The Board has found that the doctrine of issue estoppel should be applied, and, consequently, the Appellant cannot proceed with the only issue it has raised in its Statement of Issues, namely, that the current value of the Subject Property for the 2020 to 2022 taxation years is incorrect. Consequently, there is no issue to be addressed in the appeal proceedings for these taxation years. Therefore, the Board finds that it would be frivolous to allow these appeal proceedings to continue. For this reason, the Board dismisses the appeals.

ORDER

46The Board orders that the Appellant is estopped from raising the issue that the current value of the Subject Property for the 2020 to 2022 taxation years is incorrect.

47The Board dismisses the Appellant’s appeals in respect of the Subject Property for the 2020 to 2022 taxation years.