City of Greater Sudbury v. Municipal Property Assessment Corporation Region 30, 2022 CanLII 77306

Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: August 26, 2022

FILE NO.: DM 180742

Assessed Person(s): Vale Canada Limited; Glencore Canada Corporation; Xstrata Canada Corporation

Appellant(s): City of Greater Sudbury

Respondent(s): Municipal Property Assessment Corporation Region 30

Respondent(s): Vale Canada Limited; Glencore Canada Corporation; Xstrata Canada Corporation

Property Location(s): See Schedule A

Municipality(ies): City of Greater Sudbury

Roll Number(s): See Schedule A

Appeal Number(s): See Schedule A

Taxation Year(s): 2017, 2018, 2019, 2020, 2021 and 2022

Hearing Event No.: 771965

Legislative Authority: Sections 33, 34, and 40 of the Assessment Act, R.S.O. 1990, c. A.31

Parties	Counsel
Glencore Canada Corporation, Xstrata Canada Corporation	Kathleen Poole and Karina Wong
Vale Canada Limited	Philip Sanford and Belinda Schubert
Municipal Property Assessment Corporation	Sarah Corman and Hilary Brown
City of Greater Sudbury	Richard Minster and Dan Rosman

REQUEST FOR: An order requiring the parties to proceed in the manner in the Expedited Board Direction Forms filed on April 8 and 29, 2021 An order prohibiting the City of Greater Sudbury from advancing issues and making amendments to pleadings on the basis of abuse of process An order that the City of Greater Sudbury is estopped from raising issues on the basis of issue estoppel and promissory estoppel An order precluding the City of Greater Sudbury from raising issues on the basis they contradict admissions

HEARD: July 28, 2022 in writing

ADJUDICATOR(S): Carly Stringer, Member

MOTION DECISION

OVERVIEW

1Glencore Canada Corporation (“Glencore”) and Vale Canada Limited (“Vale”) are respondents in appeal proceedings before the Assessment Review Board (the “Board”). The appeals have been brought by the City of Greater Sudbury (the “City”) and relate to eight large mining properties within the City’s boundaries.

2The Municipal Property Assessment Corporation (“MPAC”) is also responding to the City’s appeals.

3Glencore and Vale have brought this motion asking the Board to stop the City from making amendments to the City’s pleadings that would allow the City to advance certain issues. MPAC consents to this relief.

4The City opposes the motion.

Result

5The Board denies the motion.

BACKGROUND

The City’s Appeals

6The City brought appeals of the assessments of 14 large mining properties relating to the January 1, 2016 valuation date. Vale owns nine of these properties, while Glencore owns the other five.

7This represented over 100 appeals.

8The City, Glencore, Vale and MPAC jointly submitted an Expedited Board Direction Form (“EBDF”) on April 8, 2021 requesting a procedural order from the Board regarding the conduct of these appeals. This EBDF request, and the resulting Board directions, provide the procedural background to this motion.

April 8, 2021 EBDF (“First EBDF”)

The Six Appeals

9First, the parties requested that appeals relating to six of the 14 properties be heard together. These six properties are known as 6 Edison Road, 487 Power Street, 1700 Elm Street, 18 Rink Street, 1045 Regional Road, and Garson Mine (collectively, the “Six”). This represented nearly 50 appeals (the “Six Appeals”).

10According to the parties’ joint submissions in the First EBDF, each of the Six Appeals had an identical June 15, 2018 Commencement Date and were at an “advanced” stage. The parties stated that “there has been substantial effort by all the parties to prepare these appeals for a hearing.”

The Eight Appeals

11Second, the parties requested that the Board suspend the Schedule of Events (“SOE”) for the remaining eight “additional, closely related matters.” These eight properties are known as Levack Con 1 Lot 6 PCL 8144, MacLennan Con 2 Lots 9, 6 Totten Mine Road, Copper Cliff, (Waters Con. 6 Lot 1), Levack Con 4 Lot 4 PCL 1613, Levack Mine Mill, Fraser Mine Road and Coleman Mine Road (the “Eight”). This represented nearly 60 appeals (the “Eight Appeals”).

12The Eight Appeals had been assigned six different Commencement Dates and, according to the First EBDF, were at an earlier stage than the Six Appeals. In some of the Eight Appeals, the parties had provided pleadings, disclosure and initial expert reports. In others, no materials had been provided.

The Basis for the Requests

13The parties provided the Board with the following information to support their requests:

a. The appeals “raise complex methodology-based issues which require substantial and lengthy expert evidence”.

b. These “methodology-based issues” raised by the City “in each of the appeals for which pleadings have been served are identical and precisely the same issues will be raised by the City in the balance of the appeals for which pleadings are not yet due” (emphasis added).

c. The responses from MPAC, Vale and/or Glencore are also “identical across the appeals”.

d. “[T]he Board only need hear this evidence once. The expert evidence on the high-level issues in dispute on these appeals is, and will be, identical across appeals.”

e. “The approach proposed by the parties avoids extensive duplication of evidence and considerable unnecessary hearing days for the Board as well as the risk of inconsistent decisions on the same evidence”.

14Specifically with respect to their request to suspend the SOEs for the Eight Appeals, the parties stated as follows:

The issues in the eight remaining appeals are the issues in the first six. The expert evidence on the high-level issues in dispute will be the same as the evidence in respect of the first six. The parties anticipate that any decision of the Board in respect of the issues raised in the first six appeals will be of significant assistance to the parties in resolving the issues on the remaining 8 appeals. However, unless the Board takes some procedural steps it will need to conduct a series of hearings which the parties believe should be unnecessary.

15The parties provided a detailed explanation to the Board what these “identical”, “methodology-based” issues were:

a. Costing of Improvements: “The City challenges the construction rates arising from MPAC’s ACS costing system employed to derive market values in Sudbury. The City proposes an alternate methodology which is not accepted by MPAC or [Glencore and Vale] and which is the subject of extensive expert evidence from all parties”;

b. Land Value: “The City challenges MPAC’s land valuation methodology for all of the properties under appeal. The City proposes an alternate methodology which is not accepted by MPAC or the taxpayers and which is also the subject of extensive expert evidence from all parties”;

c. Depreciation: “The City challenges an aspect of the methodology behind the breakdown method of depreciation employed by MPAC. The City proposes an alternate approach which is not accepted by MPAC or the taxpayers. This too is the subject of extensive expert evidence”; and

d. Equity: “The parties fundamentally disagree as to how equity applies in the context of these appeals which will be the subject of expert evidence and legal argument.”

The Board’s Direction on the First EBDF

16The Board provided a response to the parties on April 16, 2021.

17Regarding the Six Appeals, the Board stated that it “understands that there is merit in having the six matters heard together.” The Board told the parties to request that the Six Appeals be scheduled to the same settlement conference and, if not resolved at that stage, the Board Member conducting the settlement conference can give directions for hearing the Six Appeals together.

18Regarding the parties’ request to suspend the SOEs for the Eight Appeals, the Board stated as follows:

… Board practice does not allow for appeal proceedings to be suspended without a specific return date. In other cases, parties have proposed, and the Board has accepted the following approach, which, as applied to these appeal proceedings would be as follows:

1. For [the Six Appeals] with the common Commencement Date, the parties identify the date the Settlement Conference should be scheduled, and also confirm the length of the hearing and the specific hearing dates.

2. For [the Eight Appeals] with different Commencement Dates, their Commencement Dates will be amended to one common Commencement Date.

3. The parties then request that the applicable due date in this amended SOE for [the Eight Appeals] be extended to a date 3 months following the hearing date for [the Six Appeals] (as described in step 1). If the hearing decision is not issued by this extended due date, the parties can request a further extension.

The above approach will achieve the parties’ goals, while at the same time maintaining the application of the SOE for all of the properties.

The above direction and suggested approach, completes the disposition of this EBD request. The parties are directed to submit a further EBD to implement the above approach, or provide an explanation why this approach is not feasible, and, if so, propose an alternate solution.

April 29, 2021 EBDF (“Second EBDF”)

19Following the Board’s direction dated April 16, 2021, the parties submitted a further EBDF on April 29, 2021.

20In it, the parties jointly proposed a process to implement the approach outlined in paragraph 18 above. With respect to the Eight Appeals, the parties requested to amend the SOEs to a common Commencement Date of February 15, 2021, to which a 104 week Schedule of Events would apply. The parties also requested that the next due date for the Eight Appeals be extended to a date three months following the hearing date for the Six Appeals.

21The parties concluded by stating:

The parties are grateful for the assistance of the Board in providing this direction and reiterate that it is the expectation of the parties that the decision of the Board in respect of the issues raised in the first six appeals will be of significant assistance to the parties in resolving the issues on the remaining eight appeals.

The Board’s Direction on the Second EBDF

22The Board provided a response to the Second EBDF on May 5, 2021.

23The Board did not grant the common Commencement Date proposed by the parties, noting that if the 104-week SOE applied, it would potentially result in an “inordinate” three year delay in the event the Eight Appeals do not resolve. Instead, the Board set a common Commencement Date of February 15, 2022 for the Eight Appeals, with the SOE being the shorter 40-week SOE under the Board’s Rules of Practice and Procedure (the “Rules”).

The Board Hears and Decides the Six Appeals

24The Board heard the Six Appeals on November 15 to 19, and 22 to 25, 2021, and January 21, 2022. Seven experts testified during this ten-day hearing. The Board also received extensive materials and submissions in writing.

25The Board issued a decision on March 30, 2022, Vale Canada Limited v Municipal Property Assessment Corporation, Region 30, 2022 CanLII 48461 (ON ARB) (the “Six Decision”). In relation to the methodology-based issues raised by the City - outlined above at paragraph 15 - the Board decided as follows:

a. Costing of Improvements: The Board found that MPAC presented the best evidence on the cost of improvements: see Six Decision at paragraphs 36 and 45. The Board made extensive findings rejecting the City’s expert’s proposed methodology, including a finding that the City’s costing evidence was not reliable: see Six Decision at paragraphs 38 to 41 and 44.

b. Land Value: The Board accepted MPAC’s evidence on land value and rejected the City’s proposed methodology of taking MPAC’s base land value and adding a “site additive” value derived from analyzing tenders for the Kingsway Entertainment District development: see Six Decision at paragraphs 71 to 77.

c. Depreciation: The Board did not accept the City’s proposed methodology of capping depreciation at 80%: see Six Decision at paragraphs 54 and 55. The Board accepted MPAC’s evidence on depreciation, finding that MPAC’s evidence on depreciation was detailed and supported by appraisal methodology: see Six Decision at paragraphs 56 and 57.

d. Equity: The Board found that no reduction was required for the purpose of equitable assessment.

26Overall, the Board found that MPAC had adduced the best evidence of current value and rejected the methodologies applied by the City’s experts on each issue.

27None of the parties requested a review of the Six Decision. There is evidence before the Board that no party has filed a motion for leave to appeal it to the Divisional Court.

The SOE Deadlines Arrive for the Eight Appeals

28The amended SOE for the Eight Appeals required the City to serve its disclosure and SOIs on MPAC, Glencore, and Vale by April 12, 2022.

29On April 11, 2022, the City requested and was granted a ten-day extension of this deadline.

30On April 22, 2022, the City delivered SOIs and disclosure requests relating to the Eight Appeals (the “April 2022 SOIs”). The City stated that the April 2022 SOIs are “further to the Board’s latest SOE #57001 and [replace] any prior SOIs.”

31As noted above, prior to the Board ordering a common Commencement Date and amending the SOE for the Eight Appeals, the City had served SOIs in some, but not all, of the Eight Appeals. MPAC has provided the Board with the following chart outlining the differences between the original SOIs that had been filed for some of the Eight Appeals, and the April 2022 SOIs.

Issue	Original SOIs	April 2022 SOIs
Costing of Improvements	Based on a review of building permits, actual costs of construction at the subject properties are 2.1 times higher than MPAC’s ACS costing. An ASR study of sales of industrial properties in Sudbury indicates that all of MPAC’s ACS costing values should be increased by a factor of 1.6.	MPAC’s costing system, ACS, under- costs major building elements by at least 33% compared to Marshall Swift’s costing service, “Swift Estimator”, and as such the City would adjust the ACS costing upwards by 33% on a preliminary basis.
Depreciation	The total depreciation applied to specific structures ought to be capped at 80% because if a structure is functional and in use it has a market value of at least 20% of costs new.	MPAC’s excess operating cost adjustment of 15% is not warranted. (The City agreed to the MPAC’s application of excess operating costs in appeals relating to the Six)
Land Value	The high costs of preparing sites for industrial use in Sudbury due to its topography ought to be considered in a land value analysis. MPAC’s land rate is a base industrial rate for undeveloped land, to which an improved land rate developed by the appellant’s expert must be added.	MPAC relies on rates from “land tables” to determine land value. A new developed land rate from that used in the six appeals should be applied and a “semi-developed” land rate should be applied to undeveloped land.

32Glencore and Vale subsequently brought this motion.

ANALYSIS

33Glencore and Vale are seeking relief on various grounds. The Board will consider each in turn.

Issue Estoppel

34Glencore and Vale seek an order that the City is estopped from raising issues in the Eight Appeals that they say have been determined by, or that are inconsistent with, the Board’s findings in the Six Decision because these issues have been decided.

Applicable Law

35Issue 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.

36This serves the policy objectives of avoiding duplicative litigation, inconsistent results, undue costs, and inconclusive proceedings: see Rasanen v. Rosemount Instruments Ltd., 1994 CanLII 608 (ON CA).

37The 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.

38Even if the above-noted criteria are met, the Board has discretion not to apply issue estoppel if it would be against the interests of justice to do so: see Municipal Property Assessment Corporation Region 25 v McMillan, 2015 CanLII 78769 (ON ARB) at paragraph 19.

Issue 1 - Does issue estoppel apply?

Submissions of the Parties

39Glencore and Vale submit that issue estoppel applies. First, they state that the following issues were determined by the Board in the Six Decision:

a. the land value for mining properties in the City;

b. the RCNLD (Reconstruction Cost New Less Depreciation) methodology; and

c. that MPAC’s costing methodology should be relied upon in valuing mining properties in the City.

40Glencore and Vale submit that these decided issues were fundamental to the Six Decision, which has not been appealed or reviewed and is therefore final. They further submit that the parties are identical. Glencore and Vale submit that while there are property-specific issues in relation to each of the Eight, the land value; RCNLD methodology; and MPAC’s costing methodology do not change and deciding differently will constitute inconsistency that harms the integrity of the assessment appeal process. Glencore and Vale confirm that they are not seeking to dismiss the Eight Appeals, but rather estop the City from relitigating and taking a new approach to certain decided issues in an attempt to increase its chance of success.

41MPAC relies upon the submissions made by Glencore and Vale. MPAC submits that relitigating the issues is precluded by issue estoppel. MPAC submits that the purpose of the parties’ joint request in the EBDFs was to define the issues for appeals across all 14 properties, and to have them determined in the most expeditious, fair and cost-efficient manner – not to give a party a “second kick at the can” to reformulate and relitigate issues for the Eight Appeals should they be unsuccessful on the Six Appeals.

42The City submits that the issue of current value for each of the Eight has not been decided and that the Six Decision does not apply to the Eight Appeals.

Findings of the Board on Issue Estoppel

43The Board finds that the first requirement of issue estoppel – that the same question has been decided – is not met.

44The questions decided by the Board in the Six Decision were i) the current values of the Six on January 1, 2016, and ii) if those current values were equitable. In addressing those questions, the Board had to consider various sub-issues including the applicable land value for the Six; the cost new of improvements on the Six; and the depreciation to be applied to such improvements.

45In reviewing the Six Decision, it is clear that the Board was not asked to, nor did it in fact, decide the land value for all mining properties in the City, nor did the Board determine that MPAC’s costing methodology should be relied on in valuing mining properties throughout the City. The Board made case-specific findings, based on the evidence before it, that MPAC provided the best evidence of current value of the Six. While Glencore and Vale may argue that the methodology applied in the Six Decision should be applied to the Eight, that is a question to be determined at a hearing of the Eight Appeals.

46The first requirement of issue estoppel is not met. This ground fails.

Promissory Estoppel

47Glencore and Vale seek an order that the City is estopped from raising issues in the Eight Appeals that are inconsistent with the City’s representations in the EBDFs on the basis of promissory estoppel.

Applicable Law

48Promissory estoppel seeks to protect against the “inequity of allowing the other party to resile from his statement where it has been relied upon to the detriment of the person to whom it was directed”: Fort Frances v. Boise Cascade Canada Ltd., 1983 CanLII 47 (SCC), [1983] 1 S.C.R. 171 at p. 202, cited in Trial Lawyers Association of British Columbia v. Royal & Sun Alliance Insurance Company of Canada, 2021 SCC 47 (“Trial Lawyers Association”) at paragraph 16.

49Promissory estoppel requires that i) the parties be in a legal relationship at the time of the promise or assurance; ii) the promise or assurance be intended to affect that relationship and to be acted on; and iii) the other party in fact relied on the promise or assurance to their detriment: see Trial Lawyers Association at paragraph 15.

Issue 2 – Does promissory estoppel apply?

Submissions of the Parties

50Glencore and Vale submit that the requirements of promissory estoppel are met. They submit that the parties were in a legal relationship as a result of being parties to the appeals. They submit that counsel for the City clearly intended that both they and the Board rely its assurance in the First EBDF that the issues on all appeals were and would be identical. Glencore and Vale submit that the assurances in the First EBDF that the issues on all appeals were and would be identical were intended to convey to the Board that:

a. all of the appeals need not be heard together to avoid a multiplicity of proceedings;

b. the delay sought would aid in a resolution of the issues in the Eight Appeals; and

c. the delay would not result in relitigation on the basis of the Six Decision.

51Glencore and Vale submit that the City’s assurances were in fact relied upon by the Board and the parties in seeking and granting delay in the Eight Appeals. Glencore and Vale submit that as a result of their reliance on the City’s representations which caused them to agree to the new Commencement Date for the Eight Appeals, they are now faced with substantial prejudice including that they must now respond to different issues; the process of seeking and providing disclosure is being repeated for the Eight Appeals, doubling time and effort where the time for disclosure has already closed; inspections are restarting; and the expert witness relied on by Glencore in responding to the Six Appeals has retired, resulting in Glencore losing the benefit of his evidence at high cost to Glencore.

52MPAC supports Glencore and Vale’s submissions.

53The City submits that it did not make promissory statements or engage in promissory conduct. The City submits that even if a promise were made out, which is denied, none of the other parties suffered a detriment and there is no prejudice. They have not changed their position based on reliance on the City. The prejudice claimed is that they have to respond to the Eight Appeals and that their consultant is retiring, which are neither detrimental nor prejudicial. The City submits that all of the parties requested new commencement dates for the Eight Appeals, which means freshly responding to the appeals. Glencore and Vale cannot now claim they are prejudiced by what they jointly sought and the Board ordered.

Findings of the Board on Promissory Estoppel

54The Board finds that promissory estoppel does not apply. The Board is not satisfied that the City provided the unequivocal assurances that Glencore, Vale and MPAC say it did.

55First, the Board considers the wording of the parties’ joint submissions in the First EBDF, including without limitation their statements that “[t]he issues raised by the City in each of the appeals for which pleadings have been served are identical and precisely the same issues will be raised by the City in the balance of the appeals for which pleadings are not yet due” and “the issues in the [Eight Appeals] are the issues in the six. The expert evidence on the high-level issues in dispute will be the same as the evidence in respect of the first six.”

56The Board considers this language alongside the following contextual factors:

a. Neither the City nor any other party stated unequivocally that they would not seek to amend their pleadings in accordance with the Rules, or otherwise advance new arguments and evidence in the Eight Appeals.

b. When the Board proposed applying a new, common Commencement Date for the Eight, neither MPAC, Glencore, Vale, nor the City raised a concern that the pleadings, issues, positions and evidence be “frozen in time” or suggested that the regular procedural steps in the SOE should not apply to the Eight.

c. Neither the City nor any other party asked the Board to apply the findings in the Six Decision to the Eight Appeals. If that was their intention, it would have been more than open to the parties to ask the Board to make such an order.

d. In the First EBDF, the parties were seeking to suspend the SOEs applicable to the Eight. Out of the Eight, two properties had reached the stage where Amended SOIs, Statements of Response, Replies, and initial expert reports had been served. One property had reached the stage of an SOI, Statements of Response, and disclosure having been delivered. Three properties had reached the stage of SOIs having been delivered. Most notably, two properties had not yet hit any deadlines in the SOE – no pleadings or reports had yet been served. In this context, even if the Board had suspended the SOEs as requested by the parties, the City would still have had the opportunity to prepare expert reports and either prepare or amend pleadings for over half of the Eight Appeals. This does not lend itself to the interpretation suggested by Glencore, Vale and MPAC that the parties unequivocally intended to apply the findings of the Six Decision to the Eight Appeals.

57In any event, the general issues that were previously identified in original SOIs for the Eight Appeals – namely, MPAC’s land values, MPAC’s cost of improvements and the depreciation applied thereto – remain in dispute. What the City has done in the April 2022 SOIs is change its argument and evidence in relation to those issues. In this regard, even if one takes a very technical view of the statement in the First EBDF that the issues will be “identical” in the Eight Appeals as a promise by the City that it will not change the issues (which the Board does not, for the reasons noted above), it is not clear that the City is in fact breaking that promise by taking a new approach in its submissions and evidence. The underlying issues remain consistent – the cost new of improvements on the Eight, the depreciation applied to the cost new of improvements on the Eight, and the land value for the Eight.

58In the totality of the circumstances, the Board finds there is not a sufficient basis to apply promissory estoppel.

59This ground fails.

Abuse Of Process

60Glencore and Vale seek an order prohibiting the City from advancing issues and amending pleadings in the Eight Appeals that are inconsistent with representations made on the EBDFs and findings of the Board in the Six Decision, on the basis of an abuse of process.

Applicable Law

61Section 23(1) of the Statutory Powers Procedure Act provides broad powers to the Board to prevent an abuse of its process:

23 (1) A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

62The Supreme Court of Canada recently confirmed that “[t]he doctrine of abuse of process is rooted in a court’s inherent and residual discretion to prevent abuse of its process” (citations omitted): Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 (“Abrametz”) at paragraph 33.

63Abuse of process has been recognized as a broad concept that applies in a wide-range of contexts: Abrametz at paragraph 34; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (“CUPE”) at paragraph 36. The doctrine is characterized by its flexibility. In Behn v. Moulton Contracting Ltd., 2013 SCC 26 at paragraph 40, LeBel J. referred with approval to Goudge J.A., dissenting, in Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), rev’d 2002 SCC 63, 2022 SCC 63, [2002] 3 S.C.R. 307., where Goudge J.A. described at paragraph 55 that the doctrine of abuse of process:

engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel.

64The primary focus of abuse of process is the integrity of the courts’ adjudicative functions: CUPE at paragraph 40. Courts have applied the doctrine of abuse of process where allowing the litigation to proceed would violate such principles as judicial economy, consistency, finality, and the integrity of the administration of justice: see CUPE at paragraph 37. The Supreme Court has confirmed that the “proper administration of justice and ensuring fairness are central to the doctrine”: Abrametz at paragraph 36. These statements apply equally to the administrative tribunal context.

Issue 3 – Does the City’s conduct constitute an abuse of process?

Submissions of the Parties

65Glencore and Vale submit that the City has abused the Board’s processes by:

a. adopting a position in the EBDF from which it later resiled, after Glencore and Vale relied on the City’s position to their detriment;

b. obtaining a delay of the orderly progress of the appeals to a hearing on the basis of the assertion that the Board’s indulgence would result in a more efficient resolution of the Eight Appeals; and

c. re-litigating the appeals using an approach that was different to the one used unsuccessfully in the hearing of the Six Appeals, notwithstanding the position adopted by the City in the EBDF clearly indicated that this could not occur.

66MPAC submits that the City’s April 2022 SOIs constitute an abuse of process. MPAC submits that the purpose of the parties’ joint request in the EBDFs in April 2021 was to define the issues across all appeals relating to the 14 mining properties and have them all determined in the most expeditious, fair and cost-efficient manner, not to give a party a “second kick at the can” to reformulate and relitigate the issues for the remaining Eight Appeals should they be unsuccessful on the Six Appeals. MPAC submits that the City’s approach is contrary to the statements in the EBDFs, and the principles underlying abuse of process as it results in an inefficient manner of resolving all of the appeals, unfairness, a more costly and time-consuming process of requiring the parties to adduce expert evidence and argue the issues again, and the risk of inconsistent findings (which would create equity issues).

67MPAC further submits that it relied on the agreement in the EBDFs in deciding how to proceed with the appeals. MPAC submits that allowing the City to resile from the agreement in the EBDFs would not only be unfair to MPAC, Glencore and Vale, but it would abuse the integrity of the Board’s process. MPAC submits that it is an accepted practice before the Board for MPAC and other parties to advance certain appeals and delay the SOE for closely related matters raising the same issues. Allowing the City’s conduct would jeopardize this practice, which promotes fairness and efficiency for the appeals and other appeals before the Board.

68The City submits that there is nothing to suggest that any of the parties agreed to restrict issues in the Eight Appeals. The City submits that they only agreed that the Six Decision would likely be “of assistance.” The City submits that the Eight Appeals are separate and distinct matters involving different properties that each have their own characteristics that must be individually reviewed to determine the correct current value. The City states that there is no abuse of process as the Board is following the process mandated by the Board in the EBDF decisions and the amended SOE.

69In relation to the various abuses alleged by Glencore and Vale, and MPAC’s submissions, the City submits:

a. It is not resiling from a position in the EBDFs. The EBDF submitted by the parties state that the parties hoped the Six Decision would assist in resolving the remaining appeals – the parties did not propose that the Six Decision would bind them. The EBDF decision by the Board does not restrict the Eight Appeals in any way. The statement in the First EBDF that the issues were identical in all appeals does not mean that new issues could not arise and the parties did not agree to limit any issues or evidence.

b. The delay that Glencore and Vale complain of was jointly requested and suggested by the Board. The delay did result in a more efficient resolution of the appeals, as the Six Appeals were heard together and the Eight Appeals received a common Commencement Date.

c. This is not the case where the City is trying to relitigate the same facts. The Eight Appeals were initiated in 2017 and were not commenced to relitigate the Six Decision. The complicated nature of the properties, their high assessment values, and their importance to the City’s taxation base requires that they be adjudicated and fairness requires that they be heard pursuant to the process in the amended SOE. The City is entitled to rely on the Board’s decision in the EBDF and use the process in the SOE from beginning to end – including documentary disclosure and inspecting the properties. Proceeding with the Eight Appeals cannot be an abuse of process because the Board could not have made determinations about these properties at the hearing of the Six Appeals.

d. The Eight Appeals were at too early a stage in the proceeding for any party to know what the final issues for a hearing would be.

e. The parties anticipated that the Eight Appeals may not resolve, which is reflected in the EBDFs.

f. The parties only submitted that the expert evidence on the “high level” issues would be the same for the Eight Appeals.

g. The Board rejected the parties’ submissions in the First EBDF and granted a new Commencement Date for the Eight Appeals without any limitations or restrictions.

Findings of the Board on Abuse of Process

70The Board finds there is no abuse of process, for the following reasons:

a. The parties’ joint statement in the First EBDF that the issues were and would be identical in all appeals does not go so far as to bar any party from raising new issues, or changing its position and evidence on the existing issues. The parties stopped well short of doing so.

b. The parties’ joint EBDF submissions confirmed that they expected that the Six Decision would significantly assist in resolving the issues on the Eight Appeals – the parties stopped well short of stating that the findings of the Six Decision, including the valuation methodology applied by the Board, would apply to the Eight Appeals. While Glencore and Vale assert that the parties intended that the Six Decision would determine the methodology that would be applied to each of the same issues in the Eight, the parties could have asked the Board to do that, but did not.

c. Despite being afforded the opportunity to make submissions on applying a new Commencement Date to the Eight Appeals, or to propose an alternative solution, the parties did not do so. The parties did not agree, nor did any party ask the Board, to limit or restrict the procedure afforded in the SOE to the Eight Appeals. The parties did not agree, nor did any party ask the Board, to limit any issues or evidence. The Board’s order applying a new Commencement Date to the Eight Appeals does not restrict or limit the procedure in the SOE, the issues, or the evidence in any way.

71The Board finds that the City is following the process ordered by the Board following the parties’ jointly submitted EBDFs. The Eight Appeals received a new, common Commencement Date and – absent any restrictions or limitations being sought by the parties and ordered by the Board – all that follows. If the parties intended that appeals relating to the Eight should be frozen in time, or that all parties would be held to the positions and materials already served in the Eight Appeals, or that the methodology applied in the Six Decision would apply to the Either Appeals, it was incumbent on them to seek such an order from the Board. They did not.

72As noted in relation to estoppel above, even if the Board had granted the parties a suspension to the SOEs for the Eight Appeals, as requested, for six of those properties the deadlines for serving expert reports and amending pleadings had not yet passed. For two of the Eight, the deadline for serving pleadings had not even been reached. The parties were only asking for a suspension to the SOE, and even confirmed in the SOE that if “any or all of the remaining eight appeals have not been resolved then the Board is to order that the Schedule of Events resume for each of the unresolved appeals.” Therefore, it is clear that the parties contemplated that the Eight Appeals may not resolve, and it is far from clear that the parties intended to restrict one another from any of the process afforded by the SOEs.

73While it is an accepted practice before the Board for parties to advance certain appeals and delay closely related matters raising the same issues, it is incumbent on the parties to confirm their intent in delaying the related matters. In this instance, if the parties wished to hold each other to certain positions and evidence without amendment, the parties ought to have asked the Board to make such an order. If the intention of the parties was that the Board would decide which of the disputed methodologies was correct for each of the disputed issues and those methodologies would be applied in the Eight Appeals, they ought to have asked the Board to make that order. They did not.

74In all of the circumstances, the Board is not satisfied there is an abuse of process. This ground fails.

Admissions

75Glencore and Vale seek an order precluding the City from raising issues in the Eight Appeals that are contradictory to the admissions in the EBDFs and SOIs filed before April 22, 2022.

Applicable Law

76Rule 5 of the Board’s Rules provides that “[w]here these rules are silent on any issue, the Board may make whatever procedural orders or directions are required to effectively resolve an appeal or adjudicate a proceeding.”

Issue 4 - Did the City make admissions in the EBDFs and original SOIs?

Submissions of the Parties

77Glencore and Vale reference Rule 51.05 of the Rules of Civil Procedure in asking the Board to preclude the City from raising issues in the Eight Appeals that, they say, are contradictory to admissions in the EBDFs and SOIs filed before April 22, 2022. Rule 51.05 provides that admission in a pleading may be withdrawn only on consent or with leave of the court. Glencore and Vale submit that the statements in paragraphs 5 to 12 and 17 of the First EBDF are unambiguous, deliberate concessions which explicitly limit the issues in the Eight Appeals to that of the Six Appeals. Glencore and Vale submit that the City admitted that:

a. the issues in the Six Appeals are the same as those in the Eight Appeals;

b. the expert evidence on the high-level issues in the Eight Appeals would be the same as that in the Six Appeals; and

c. the Six Decision would be of “significant assistance” in the Eight Appeals.

78Glencore and Vale submit that the parties explicitly acknowledged what issues would remain following the Six Appeals and the Board is precluded from considering evidence that contradicts these admissions.

79Glencore and Vale also submit that for six of the Eight, the City already pled an SOI at the time the Board granted a new Commencement Date for all of the Eight Appeals. They submit that admissions in pleadings are different than other allegations in pleadings as they shape the way the other parties structure their case.

80MPAC has not made submissions on this issue.

81The City submits that Rule 51.05 pertaining to the withdrawal of admissions does not apply to the addition or retraction of issues raised in a proceeding, but applies to admissions of fact. The City submits that the words in the jointly submitted EBDFs do not meet the threshold of unambiguous concessions of fact.

82The City further submits that the Board’s Rules allow parties to raise new issues during a proceeding, and none of the deadlines in the amended SOE for the Eight Appeals have been breached. The City submits that changing or amending issues mid-proceeding is not the withdrawal of admissions.

Findings of the Board on Admissions

83The Board is not satisfied that items identified by Glencore and Vale as “admissions” are, in fact, admissions, and certainly not admissions that would preclude the City from relying on the April 2022 SOIs:

a. “The issues in the Six Appeals are the same as those in the Eight Appeals” – As noted previously above in relation to estoppel, the issues in the Eight Appeals (land value, cost of improvements and depreciation) are generally the same between the Six Appeals and the Eight Appeals but apply specifically in relation to the Eight properties. From a technical standpoint, it is the City’s position, arguments and evidence that have changed in the April 2022 SOIs.

b. “The expert evidence on the high-level issues in the Eight Appeals would be the same as that in the Six Appeals” – no party has provided a clear explanation to the Board regarding how it should interpret “high-level issues.” Accordingly, the Board is not prepared to interpret this as an admission from the City that precludes it from relying on the April 2022 SOIs.

c. The Six Decision would be of “significant assistance” in the Eight Appeals – this is not an admission that the Six Decision binds the parties in relation to the Eight Appeals, or that the methodologies applied by the Board in the Six Decision would necessarily apply to the Eight Appeals. There is no admission here that precludes the City from relying on the April 2022 SOIs.

84This ground fails.

CONCLUSION

85In all of the circumstances, the Board is not satisfied there is a basis in the grounds alleged by Glencore and Vale to grant the relief they seek.

ORDER

86The motion is denied.

"Carly Stringer"

CARLY STRINGER

MEMBER

Assessment Review Board

Website: www.tribunalsontario.ca/arb

Schedule A

Schedule A - Continued

Schedule A - Continued

Schedule A - Continued

Schedule A - Continued