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

ISSUE DATE: December 12, 2023

FILE NO.: DM 185595

Assessed Person(s): Ivanhoe Cambridge Inc

Appellant(s): Ivanhoe Cambridge Inc

Respondent(s): Municipal Property Assessment Corporation Region 03

Respondent(s): City of Oshawa

Property Location(s): 419-507 King Street West

Municipality(ies): City of Oshawa

Roll Number(s): 1813-020-018-00200-0000

Appeal Number(s): 3450157, 3488068, 3512492

Taxation Year(s): 2021, 2022 and 2023

Hearing Event No.: 782164

Legislative Authority: Rule 66 of the Assessment Review Board’s Rules of Practice and Procedure

APPEARANCES:

Parties	Counsel
Ivanhoe Cambridge Inc	Tara Piurko, Jesse White, Noah Gordon
Municipal Property Assessment Corporation	Karey Lunau, Donald G. Mitchell
City of Oshawa	Cynthia Kuehl

REQUEST FOR: An order for Issue Estoppel and dismissal of appeals

HEARD: October 23, 2023 in writing

ADJUDICATOR(S): Dirk VanderBent, Vice-Chair; Paul Brennan, Member

MOTION DECISION

OVERVIEW

1Ivanhoe Cambridge Inc. (the “Appellant”) is the owner of the property located at 419-507 King Street West in the City of Oshawa (the “Subject Property”) which is described as a regional shopping centre. The Appellant has filed an appeal pursuant to s. 40 of the Assessment Act, S.O. 1990, c. A.31 (the “Act”) for the 2021 taxation year, which now includes deemed appeals for the 2022 and 2023 taxation years (the “Current Appeal Proceeding”).

2The Appellant previously filed an appeal for the 2017 taxation year, which then included deemed appeals for the 2018 to 2020 taxation years (the “Prior Appeal Proceeding”). The Prior Appeal Proceeding was resolved by an agreement negotiated by the parties. Written Minutes of Settlement were prepared and signed by all parties, and then submitted to the Board with a request that the Board issue a decision in accordance with these Minutes of Settlement.

3It is not disputed that the parties to both the Current and Prior Appeal Proceedings are the same. It is also not disputed that each of these Appeal Proceedings addressed three issues. The first issue is the determination of the correct current value of the Subject Property. The second subsidiary issue is whether the current value, once determined, should be adjusted (reduced), pursuant to s. 44(3)(b) of the Act, to make the assessment equitable with the assessments of similar lands in the vicinity (“Equitable Adjustment”). The third issue is the question of the application of an eligible change pursuant to s.19.1(5) of the Act (“Eligible Change”).

4It is not disputed that, under the Act, a property’s current value must be determined as of a specific point in time (the valuation day). However, one of the main issues in dispute in the Current Appeal Proceeding is the valuation day to be used to determine the Subject Property’s current value for each of the 2021 to 2023 taxation years. The Appellant argues that it is different than the January 1, 2016 valuation day which was used to determine the Subject Property’s current value in the Prior Appeal Proceeding.

5The Municipal Property Assessment Corporation (“MPAC”) has filed a motion with the Board, requesting that the Board dismiss the Current Appeal Proceeding, based on the application of the legal doctrine of issue estoppel (“MPAC's Estoppel Motion”).

6The purpose of the legal doctrine of issue estoppel is to prevent a re-hearing of a question that has been determined in a previous proceeding.

7In this case, the first question is: What is the correct current value of the Subject Property? MPAC asserts that the valuation day for determining current value is January 1, 2016 for both the Current and Prior Appeal Proceedings. As the Subject Property’s current value was determined in the Prior Appeal Proceeding, MPAC argues that the Appellant should be estopped from raising this issue in the Current Appeal Proceeding. MPAC further asserts that the issue of whether there should be an Equitable Adjustment was also raised and determined in the Prior Appeal Proceeding, and, therefore, the Appellant should also be estopped from raising this issue. MPAC makes the same argument respecting the question of Eligible Change.

8If the Appellant is estopped from raising these issues, there would be no other remaining issues to be determined by the Board. As such, MPAC requests that the Current Appeal Proceeding should be dismissed.

9Issue estoppel is a discretional remedy. Where the criteria to establish issue estoppel have been established, the Board has the discretion to decide whether it will order that issue estoppel applies, which means that the Appellant could not raise the issue in the Current Appeal Proceeding. MPAC asserts that there are no special circumstances to support a conclusion that the Board should decline to order that issue estoppel applies, and that there would be no potential injustice if issue estoppel is applied. For these reasons, MPAC submits that the Current Appeal Proceeding should be dismissed.

10The City of Oshawa agrees with MPAC and relies on MPAC's submissions in this Motion Hearing.

11The Appellant opposes MPAC's request for dismissal. As stated above, the Appellant argues that the valuation day for determining current value in the Current Appeal Proceeding is different from the valuation day applicable to the Prior Appeal Proceeding, so the same question of current value has not been raised. Consequently, the Appellant maintains that issue estoppel cannot apply to this question. Regarding the question of Equitable Adjustment, the Appellant observes that MPAC does not dispute that, when making a determination respecting current value, the Board has a statutory duty to consider whether an Equitable Adjustment is required. In this context, the Appellant argues that it cannot be estopped from raising the issue that the assessments for the 2021 to 2023 taxation years are inequitable. Similarly, the Appellant argues that it cannot be estopped from raising the question of Eligible Change. For these reasons, the Appellant submits that MPAC's Estoppel Motion should be dismissed.

RESULT

12MPAC's Estoppel Motion is granted. The Current Appeal Proceeding is dismissed.

ISSUES

Background

13The following background information will assist in understanding the specific issues to be addressed in this Motion Decision.

14The factual foundation for the Current Appeal Proceeding is that a significant number of legislative regulations made under the Emergency Management and Civil Protection Act, R. S. O. 1990, c. E.9 and, subsequently, under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17, (the “COVID-19 Legislation”) mandated the closure of the Subject Property. The Appellant states that this severely restricted the Appellant’s ability to use the Subject Property as it had been used prior to March 2020, resulting in a loss of income, which, for ease of reference, the Board describes as the “COVID-19 Change in Circumstances”. It is not disputed that the property appraisal method used to value the Subject Property was the Income Approach.

Current Value

15The Appellant asserts that the COVID-19 Change in Circumstances constitutes a detrimental condition which negatively impacts the Subject Property’s current value. However, the primary issue before the Board in the Current Appeal Proceeding is not the impact of the COVID-19 Legislation per se. Instead, it is the valuation day for determining current value. MPAC asserts that the applicable Valuation Day is January 1, 2016, which is the valuation day specified in s. 19.2 of the Act for the 2017 to 2024 taxation years. MPAC argues that the COVID-19 Change in Circumstances is irrelevant to the determination of current value on the January 1, 2016 valuation day. MPAC advances two reasons for this conclusion.

16First, MPAC maintains that there has been no change to the Subject Property since the return of the assessment roll for the 2020 taxation year (as noted above, the Board’s decision issued in accordance with the Minutes of Settlement included the 2020 taxation year). MPAC uses the lexicon ‘state and condition’. MPAC maintains that the ‘state and condition’ of the Subject Property was the same at the return of the assessment roll for the 2021 to 2023 taxation years as it was for the previous taxation years. In support of this view, MPAC submits:

In addition to there being no material physical changes, there was no change to the zoning (permitted use), actual use, or highest and best use of the Subject Property. The intermittent, temporary closures did not result in change the use of the subject as a regional mall.

The pandemic is not a characteristic of a property. Rather, any loss or perceived loss in the value of land resulting from the pandemic relates to changes in the market. To consider market changes because of events occurring after the January 1, 2016 valuation day defeats the purpose of having a fixed, legislated valuation day.

17MPAC’s second reason is based on property appraisal methodology. MPAC asserts that the circumstances affecting the Subject Property in 2020 and 2021 is appraisal data that is too far removed from the January 1, 2016 valuation day to provide an accurate representation of market conditions as of this valuation day. MPAC has provided affidavit evidence which indicates that the market, as it existed on January 1, 2016 is very different from the market as it existed in the 2020 to 2023 taxation years.

18The Appellant also uses the lexicon ‘state and condition’. The Appellant states that there is a statutory right to file an appeal for any given taxation year based on a change to the state and condition of a property. The Appellant further maintains that it is well established that the ‘state and condition’ of a property on the date for the return of the assessment roll for a taxation year determines how the property is assessed for that taxation year. The Appellant argues that s. 36 of the Act requires that MPAC return the assessment roll on an annual basis, and, therefore, MPAC is required to determine the value of a property on an annual basis based on its ‘state and condition’ as of the date specified for the return of the assessment roll, this date being the second Tuesday in December of the calendar year preceding the taxation year (“Annual Valuation Day”).

19The Appellant’s interpretation of the Act would indicate that the current value of a property must be determined each taxation year based on the circumstances of the Subject Property as they existed on each of the Annual Valuation Days, which means the impact of the COVID-19 Legislation is relevant. Because a property’s value must be determined as of a specific point in time, the Appellant argues that the determination of the Subject Property’s current value for the 2021 to 2023 taxation years raises a new and different valuation issue that was not determined in the Prior Appeal Proceeding.

Equitable Adjustment and Eligible Change

20The parties’ positions on whether the Appellant should be estopped from raising the issues of Equitable Adjustment and Eligible Change has been described in the Overview above.

Issues to be addressed

21The issues to be addressed in this Motion Decision are:

1. What is the valuation day for determining the current value of the Subject Property for the 2021 to 2023 taxation years?

2. If the valuation day is January 1, 2016, does issue estoppel apply to the question respecting the correct current value of the Subject Property?

3. If the answer to Issue 2 is yes, should the Board exercise its discretion to order that the Appellant is estopped from raising the question of correct current value in the Current Appeal Proceeding?

4. If the valuation day is January 1, 2016, does issue estoppel apply to the question respecting Equitable Adjustment of the correct current value of the Subject Property?

5. If the answer to Issue 4 is yes, should the Board exercise its discretion to order that the Appellant is estopped from raising the question of Equitable Adjustment in the Current Appeal Proceeding?

6. If the valuation day is January 1, 2016, does issue estoppel apply to the question respecting Eligible Change?

7. If the answer to Issue 6 is yes, should the Board exercise its discretion to order that the Appellant is estopped from raising the question of Eligible Change in the Current Appeal Proceeding?

8. If the Appellant cannot raise the issues of correctness of current value, Equitable Adjustment, and Eligible Change, should the Current Appeal Proceeding be dismissed?

22MPAC has advanced an alternative argument that, should the Board find that issue estoppel does not apply, or declines to exercise its discretion to order that issue estoppel applies, then the Current Appeal Proceeding should be dismissed on the grounds of abuse of process. In light of the Board’s finding that issue estoppel does apply, it is unnecessary to address abuse of process in this Motion Decision.

ANALYSIS

23While the Board has reviewed all the parties’ submissions in detail, for purposes of this Motion Decision, the Board outlines only the most salient submissions.

Issue 1: What is the valuation day for determining the current value of the Subject Property for the 2021 to 2023 taxation years?

Introduction

24The Appellant’s position is that MPAC's Estoppel Motion must be understood in the context of annual assessments and the annual right to challenge those assessments based on changes to the state and condition of a property. The Appellant submits that the scheme and object of the Act is to provide for annual assessments reflecting current state and condition and annual rights to appeal from those assessments, both of which exist to achieve the primary objective of the Act, which is equity in taxation. Consequently, the Appellant submits that the current value of a property must be determined annually based on its “state and condition” as of the applicable Annual Valuation Day.

The analysis and findings in National Car

25As noted in MPAC's submissions, the factual circumstances before the Board in National Car Rental (Canada) Inc. v Municipal Property Assessment Corporation, Region 15, 2022 CanLII 53352 (ON ARB) (“National Car”) are, for purposes of this Motion Decision, the same as the circumstances in the Current Appeal Proceeding. In National Car the Board undertook a detailed legislative analysis of the statutory provisions of the Act. At paragraph 229, the Hearing Member concluded:

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.

In arriving at this conclusion, the Hearing Member also included a detailed analysis of prior Board decisions which considered the ‘state and condition’ lexicon. Based on this analysis, the Hearing Member in National Car found, at paragraph 217, that none of the prior Board decisions stood as “persuasive authority that, under the Act, the current value of a property must be reassessed annually.”

26In light of the broad scope of the analysis, the Board will not provide a summary of the findings in National Car in this Motion Decision. The reader is invited to review the decision in National Car in its entirety.

Findings respecting relevant aspects of the legislative regime under the Act

27In light of the reference to the analysis in National Car in the parties’ submissions, the Board will first provide its analysis and findings respecting the relevant aspects of the legislative regime under the Act, followed by an analysis of the parties’ submissions respecting Issue 1.

Valuing Property

28Because a property’s value changes over time, its value must be determined as of a specific point in time. Property appraisers refer to this point in time as the ‘effective date’ for the valuation of a property. In other commercial circumstances, the property owner will determine the effective date for valuing a property. For purposes of municipal taxation, the Act prescribes the effective date, which is described as the valuation day.

29The process undertaken to determine a property’s value as of the valuation day is commonly referred to as “an appraisal” or “an assessment”. Section 19.2 of the Act describes a valuation day as “the day as of which land is valued”. “Land” is defined in s. 1(1) of the Act as interchangeably referring to “real property” or “real estate”. Therefore, for purposes of this Motion Decision, the Board describes the valuation process as Property Valuation. In summary, Property Valuation is the process of determining a property’s value based on a specific valuation day.

30A Property Valuation can be conducted at any time. When the Property Valuation is conducted after the valuation day, the Property Valuation is described as a retrospective determination of property value. Therefore, when valuing a property, the date of the Property Valuation and the effective date (valuation day) for determining value are separate concepts.

31The Act has specific provisions to identify the valuation day, and for prescribing the time when a Property Valuation must be conducted.

32The provisions of the Act indicate that a Property Valuation must be conducted when:

1. The property must be valued as of a new valuation day; or

2. An error was made in a Property Valuation, in which case the property’s value will be redetermined based on the same valuation day that applied to the original Property Valuation.

Assessment of Property and Municipal Taxation

33The quantum of municipal taxes payable is based on a property’s assessed value multiplied by a taxation rate, the latter being based on the property’s use. Under the Act, property classification reflects the property’s use. Under the Municipal Act, 2001, S.O. 2001, c. 25 (“Municipal Act”) and the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A (“COTA”) (collectively described as “Municipal Legislation”), the municipality sets the tax rates for each property classification.

34For purposes of municipal taxation, the Act provides that MPAC has the sole authority to value a property and determine its classification. MPAC is also required to provide additional information that a municipality will require to levy taxes on property owners, such as the name of the owner. Section 14 of the Act defines “the assessment roll” as the compilation of this information for all properties situated within a municipality’s geographic jurisdictional boundary. The process of collecting and reporting this information is described as an “assessment’. While the Act does not expressly define the term ‘assessment’, s. 31 – Notice of Assessment makes this clear. It states:

Notice of assessment

31 (1) If there is a change in any information described in subsection 14 (1), (1.1) or (1.2) in respect of a parcel of land and the change is not reflected in the last assessment roll as returned, the assessment corporation shall deliver to every person described in subsection 14 (1) who is affected by the change a notice, . . . [Emphasis added.]

Section 31 also makes it clear that a change in an assessment means a change in any of the information listed in s. 14 of the Act.

35Section 36 of the Act requires that the “assessment”, i.e. the information required under s. 14 of the Act, for each property situated within a municipality’s geographical jurisdictional boundary is to be compiled in “the assessment roll for a municipality”. MPAC's delivery of this information is described in s. 36 as the “Return of the assessment roll”.

36The “Municipal Legislation, as well as the Act, refer to the compendium of the information listed in s. 14 of the Act either as an ‘assessment’ or ‘assessment of real property’. Under Municipal Legislation, a municipality has no authority to amend this information. Section 307(1) of the Municipal Act, found in ‘Part VIII – MUNICIPAL TAXATION’ states:

307 (1) All taxes shall, unless expressly provided otherwise, be levied upon the whole of the assessment for real property or other assessments made under the Assessment Act according to the amounts assessed and not upon one or more kinds of property or assessment or in different proportions. [Emphasis added.]

37While the above describes what an assessment of a property is, it does not address when MPAC must make an assessment. Section 36 of the Act provides that “assessments of land under this Act shall be made annually . . .”. This requirement is complementary to the requirement under Municipal Legislation to annually levy municipal property taxes. Section 340 of the Municipal Act states:

Tax roll

340 (1) The treasurer of a local municipality shall prepare a tax roll for each year based on the last returned assessment roll for the year. [Emphasis added.]

The assessment roll for a taxation year, once returned, can only be changed in a limited number of circumstances as provided in the Act.

38However, the annual assessment made pursuant to s. 36 of the Act is not the only time an assessment may be made and reported to a municipality. As noted in National Car, s. 32 of the Act provides that MPAC may correct errors, defects, etc.” in any assessment” and report this to the municipality, which is then required to alter its tax roll. Under s. 33 of the Act, MPAC may make an ‘assessment’ to correct an omission. Section 34 of the Act permits ‘supplementary assessments’.

Interplay between Property Valuation and property assessment

39The complexity of the overall legislative regime imposed by the Act results from the interplay of its separate legislative regimes for Property Valuation and property assessment. This interplay is best demonstrated by an example.

40Section 19.2 of the Act prescribes a new valuation day on which property is to be valued for each of four taxation years. This four-year period is commonly described as the ‘assessment cycle’, although this term is not defined or used in the Act. When there is a new valuation day, this triggers a requirement for MPAC to conduct a Property Valuation to redetermine the property’s value. For the current assessment cycle, commencing in the 2017 taxation year, the valuation day is January 1, 2016 (see 19.2(1)5). Therefore, MPAC was required to conduct a Property Valuation based on a January 1, 2016 valuation day, and to report the value in MPAC's return of the assessment roll for the 2017 taxation year. As the “cut-off” date for returning this assessment roll is the second Tuesday in December, 2016, MPAC had to complete its Property Valuation and report the current value by this date (see s. 36(1)).

41Obviously, the separate provisions of the Act do not expressly document this interplay as demonstrated in the above example. Consequently, Property Valuation and property assessment may appear to be synonymous, leading to an incorrect supposition that the requirement to return an annual assessment is synonymous with a requirement to conduct an annual Property Valuation.

Distinction between a property’s value versus adjustments made to the property’s value

42In the Act, a property’s value is described as its “current value” which is defined in s. 1(1) of the Act, as:

“current value” means, in relation to land, the amount of money the fee simple, if unencumbered, would realize if sold at arm’s length by a willing seller to a willing buyer;

43For purposes of this Motion Decision, the Board describes this as the property’s “Defined Current Value”. As discussed above, a property’s Defined Current Value is determined by conducting a Property Valuation based on a prescribed valuation day.

44As discussed in greater detail below, in certain circumstances the Act also requires that adjustments must be made to the Defined Current Value, resulting in what the Board describes as an “Adjusted Current Value”. A prime example is an adjustment required pursuant to s. 19.1 of the Act. However, the Act uses the term “current value” to refer to both Defined Current Value and Adjusted Current Value. For instance, s. 14(1)(5) requires that the assessment roll contain “[t]he current value of the land”. The value reported on the assessment roll could be the Defined Current Value if no adjustments are required under the Act, or the Adjusted Current Value. As noted above, it is the current value reported on the assessment roll that will be used to calculate the quantum of municipal taxes to be levied.

45As will be discussed in greater detail below, s. 19.1 provides that an adjustment to the Defined Current Value may be required when there is an increase in a property’s Defined Current Value because of a general reassessment (s. 19.1(3)) or other specific provisions of the Act, which includes s. 32, 33 or 34 (s. 19.1(4)). Section 19.1 prescribes a specific formula to determine the quantum of the adjustment if the Defined Current Value increases because of a general reassessment. However, if there are subsequent changes to the Defined Current Value required by sections such as 32, 33 or 34, s. 19.1 further requires that the adjustment made to the Defined Current Value be recalculated using a different formula.

46The distinction between Defined Current Value and Adjusted Current Value is important. The Defined Current Value is obtained by conducting a Property Valuation based on the valuation day prescribed by the Act. An Adjusted Current Value is obtained by applying a prescribed increase or reduction to the Defined Current Value. The adjustment process does not require that a Property Valuation be conducted to redetermine the property’s Defined Current Value. Furthermore, the adjustment requirement is only triggered when a provision in the Act first requires that the Defined Current Value be redetermined.

The distinction between assessment and valuation

47The Board begins by first observing that, while a change in an assessment can refer to a change to any of the items of information to be included in the contents of the assessment roll, it is a change in a property’s value that predominantly impacts the calculation of the quantum of taxes to be levied.

48As a change in property value will result in a change to be reported on the assessment roll, common parlance will often describe the Property Valuation process as ‘an assessment of value’. Furthermore, in practice, persons who conduct property valuations describe themselves as either ‘assessors’ or ‘appraisers’. An assessor’s determination of property value is often described as an ‘assessment of value’. The net effect of this lexicon is to conflate Property Valuation (the determination of a property’s value) with the separate requirement under the Act to make an assessment (report information to a municipality).

49The Board’s above description of the legislative regime under the Act is based on the wording of the Act. The Act expressly uses the phrase “land is valued” to denote the Property Valuation: see sections 2(2)(h), 19.2, 19(5), s. 33(6)). The distinction between ‘value’ and ‘assessment’ is reinforced by s. 34(1)(a) which addresses supplementary assessments and states that “If … an increase in value occurs which results from the … improvement of any building … the assessor may make the further assessment that may be necessary to reflect the change” (emphasis added). Notably, this section does not state that ‘if an increase in assessment occurs … the assessor may make the further assessment’.

50The Act includes a number of sections which refer to “assessed value”: for example, see s. 19(2.2.2). Where the Act refers to a property’s value reported on the assessment roll, it is referred to as the “assessed value”. The assessed value is the current value, which, in turn, refers to the Defined Current Value unless there has been adjustment, in which case the assessed value is the Adjusted Current Value. The term “assessed” is an adjective to describe the value reported on the assessment roll; for example, see s. 3(4) (5) and (6) of the Act. These sections do not refer to a requirement to conduct a Property Valuation. Importantly, there are no sections in the Act where “assess” is used as a verb in the sense of directing MPAC to “assess value” or “assess the value”.

51Another example is found in s. 32(4) of the Act which addresses the circumstance where the amendment to the Act changes “the method of determining the assessed value of land”. A changed method could impose a modified property appraisal methodology which may require a redetermination of Defined Current Value. However, the use of the term “assessed value” can also provide for a change in methodology that prescribes a specific formula to calculate a property’s value (such as the Act has done for electricity generation systems) where a Property Valuation is not required. It could also refer to a change in how adjustments to a property’s value are to be calculated where a redetermination of Defined Current Value is also not required. Section 32(4) then expressly directs that MPAC “shall make any assessment necessary to change the assessed value”. In other words, MPAC is to make the change to the assessment roll.

52The import of the above observations is that any requirement to redetermine the Defined Current Value would be as a result of a change in methodology, not the requirement to report a changed assessed value on the assessment roll.

s. 36(1) of the Act and the ‘state and condition’ paradigm

53Notably, s. 36 of the Act makes no specific reference to “value” or “current value”. Furthermore, as noted in National Car, the Act does not define or use the term ‘state and condition’. As such, s. 36 cannot be interpreted as imposing an obligation on MPAC to annually redetermine a property’s value.

54Even if one accepts the premise that s. 36 requires an annual Property Valuation, this raises the question of what the applicable valuation day would be. Section 36 states that “assessments of land under this Act shall be made annually at any time between January 1 and the second Tuesday following December 1” (emphasis added). As such, the valuation day applicable to such an annual valuation of property could be any date between January 1 and the second Tuesday in December. This result runs contrary to the scheme of the Act. It has been long established that fairness in the taxation system requires that all properties should be valued as of the same valuation day. If different valuation days are used, different Defined Current Values could be obtained due to changes in a property’s value over time. This would result in inequity in taxation.

55In their submissions, both MPAC and the Appellant refer to the ‘state and condition’ paradigm, although they disagree on precisely what this paradigm means. Generally, it means that if there is a change in the property’s characteristics that would affect a property’s value, then s. 36 of the Act requires that the property’s value be redetermined as of the Annual Valuation Day. However, there is nothing in the wording of s. 36 to suggest that this is the case. Section 36 simply requires that MPAC report the required information on the assessment roll. As noted in National Car, MPAC is obviously required to report correct information. If a section of the Act has required a redetermination of Defined Current Value, then s. 36(1) requires that this redetermined Defined Current Value, (or Adjusted Current Value if further adjustments are required) be reported on the assessment roll. However, this does not indicate that s. 36(1), itself, requires a redetermination of current value.

Appeal regime

56Because the Appellant’s submission places considerable emphasis on the annual right of appeal, it is necessary to briefly discuss the Act’s legislative regime respecting appeals.

57Under Section 40(1) of the Act, after the return of the assessment roll for a taxation year, a property owner has the right to an appeal for that taxation year, based on any of the enumerated grounds set out in s. 40(1), which includes correctness of current value.

58Regarding the Board’s jurisdiction in a s. 40 appeal, s. 44(1) of the Act authorizes the Board to “reopen the whole question of the assessment”. Section 45 further provides that the Board “may review the assessment and, for the purpose of the review, has all the powers and functions of the assessment corporation in making an assessment”.

59However, as noted in National Car, the Act does not give MPAC the authority to select the valuation day for the purpose of conducting a Property Valuation required by the Act, and, if MPAC does not have this authority, then neither does the Board. Consequently, an annual right of appeal does not indicate either that a Property Valuation must be conducted annually, or that the valuation day for such valuation must be the Annual Valuation Day.

Summary

60In summary, the Act requires that a property’s Defined Current Value be determined by conducting a Property Valuation based on a prescribed valuation day. The Act also requires that adjustments be made to the Defined Current Value. Therefore “current value” may either be the Defined Current Value or the Adjusted Current Value.

61This approach provides for a cohesive regime. Section 14(1) of the Act lists “current value” as the item to be reported on the assessment roll. As “current value” will be an Adjusted Current Value, where an adjustment is required, this ensures that the Adjusted Current Value will be the value reported on the assessment roll.

62It is also clear that the sole purpose of s. 36(1) is to require that MPAC report the current value on the assessment roll. As correct information is to be reported, MPAC is required to report any changes made to “current value”, pursuant to other sections of the Act. However, s. 36, itself, does not direct MPAC to determine a property’s Defined Current Value or Adjusted Current Value.

Conclusion on Issue 1

63After carefully reviewing the submissions of the parties, the Board concludes that these submissions do not negate or refute the validity of the National Car analysis and findings. Therefore, the Board adopts the analyses and conclusion in National Car. In reaching its conclusion on Issue 1, the Board also relies on its above-described analysis of the legislative regime of the Act. Consequently, in this Motion Decision, the Board concludes that, under the Act, the current value of a property determined in the general reassessment will apply to all taxation years in the assessment cycle, unless a further redetermination of Defined Current Value is required pursuant to specific sections of the Act.

64The Board also concludes that the requirement for an annual return of the assessment roll pursuant to s. 36 of Act does not require a redetermination of Defined Current Value. Therefore, as stated in National Car, the Defined Current Value determined in the general reassessment will be the property’s current value for all four years in the assessment cycle unless another section of the Act requires a redetermination of this value. Accordingly, the Board must consider whether the COVID‑19 Change in Circumstances meet the requirements of any other sections of the Act which authorize a redetermination of Defined Current Value.

65For purposes of this Motion Decision, the Board is prepared to assume that the COVID-19 Change in Circumstances could negatively impact the value of the Subject Property.

66In its submissions, the Appellant has not asserted that any of the sections of the Act which provide for a redetermination of current value will apply in the circumstances of this case. The Appellant has relied solely on its view that s. 36(1) provides this authority.

67In National Car, at paragraphs 230 to 232, the Board analyzed whether s. 32, 33, or 34 could apply in essentially the same circumstances as the COVID‑19 Change in Circumstances in this case, finding that none of them do. The Board adopts this analysis in this case.

68For these reasons, in the Current Appeal Proceeding, the Board finds that the applicable valuation day for determining the Subject Property’s Defined Current Value is January 1, 2016.

Analysis of the parties’ submissions

Introduction

69The Board reiterates that, although it has considered the parties’ submissions in reaching its final conclusion, the Board has chosen to first present its conclusion and findings, as they provide further context to better understand the parties’ submissions. Therefore, the Board now turns to its analysis of these submissions.

MPAC's Submissions

70As noted earlier in this Motion Decision, MPAC adopts the ‘state and condition’ lexicon, arguing that a property can only be further assessed after the general reassessment if there are material physical changes, changes to zoning (permitted use), actual use, or highest and best use of the Subject Property. As MPAC maintains that none of these circumstances exist for the Subject Property, the correct valuation day is January 1, 2016 for the 2021 to 2023 taxation years. MPAC further maintains the COVID-19 Change in Circumstances relates to “changes in the market’, and to consider such market changes after the January 1, 2016 valuation day would defeat the purpose of having a fixed, legislated valuation day.

71Regarding the question of whether MPAC agrees with the finding in National Car, i.e. that s. 36 of the Act does not allow for an annual reassessment of current value, MPAC's submissions are somewhat enigmatic.

72MPAC continues to maintain its use of the ‘state and condition’ lexicon, despite the finding in National Car that it places an unnecessary interpretive gloss on the legislative interpretation of the Act by adopting and applying a ‘state and condition’ paradigm. This would suggest that MPAC may not support the above-referenced finding. Furthermore, in its reference to the above-stated types of changes that would lead to a further assessment of current value, MPAC makes no reference to the specific sections of the Act which would authorize such further assessment. This would again suggest that MPAC may not agree with the findings made in National Car, only the final disposition of that case.

73However, as discussed below, MPAC relies on the two Board Decisions which address virtually the same circumstances as the case before the Board in this Motion Hearing, where MPAC argued that the appeal proceedings should be dismissed based on the application of issue estoppel: Canadian Niagara Hotels Inc. v Municipal Property Assessment Corporation, Region 18, 2022 CanLII 54916 (ON ARB) (“Canadian Niagara Hotels Inc.”) and First Capital Holdings (Ontario) Corporation v Municipal Property Assessment Corporation, Region 09, 2022 CanLII 58354 (ON ARB) (“First Capital”). In both of these decisions, the Board applied the findings in National Car to conclude, as the Board has done in this case, that January 1, 2016 is the applicable valuation day for determining current value in the Current Appeal Proceeding. This would suggest that MPAC does agree with the findings made in National Car.

74The only other observation that can be made, is that, in its reply submissions, MPAC has not expressly stated that it disagrees with the analysis in National Car, even though the Appellant has expressly argued that that this analysis is incorrect.

75While a party is entitled to challenge the findings in another Board decision, it is incumbent on that party to provide a cogent analysis to support its position. In this case, MPAC's submissions provide no such analysis. Consequently, the Board finds that MPAC's submissions do not serve to refute or negate the findings in National Car.

Analysis of the Appellant’s Submissions

76In overview, the Appellant’s position is:

1. The law in Ontario is well-established that the state and condition of a property on the roll return date determines how that property is assessed for the following taxation year.

2. The Hearing Member’s finding in National Car, as stated at paragraph 229, is contrary to the taxpayers’ right to challenge their annual assessment based on a change to a property’s state and condition as of the return of the assessment roll, as set out in the Act. The National Car paradigm cannot be read harmoniously with the scheme and object of the Act, which provides for annual assessments reflecting current state and condition and annual rights to appeal from those assessments, both of which exist to achieve the primary objective of the Assessment Act, which is equity in taxation.

77In support of this position, the Appellant submits:

1. The Divisional Court, in Municipal Property Assessment Corporation v. Claireville Holdings Limited, 2022 ONSC 3293 (“Claireville - Div. Ct.”), at paragraph 27, has confirmed that the state and condition of a property affects the annual assessments to be returned by MPAC, contrary to the Hearing Member’s statements, in obiter, in National Car. Furthermore, the Board has subsequently returned to the well-established principle in recent decisions. In support of this observation the Appellant cites Lazareva v Municipal Property Assessment Corporation Region 16, 2022 CanLII 123515 (ON ARB) (“Lazareva”).

2. MPAC has previously argued, and the Board has accepted, that “the annual assessment roll is to be returned in December of the year prior, and it represents a new, separate and independent assessment, despite the four-year cycle”. In support of this submission, the Appellant cites Reininghaus v Municipal Property Assessment Corp., Region No. 15 2013 CarswellOnt 3528 [2013] O.A.R.B.D. No. 65, 77 O.M.B.R. 485 (“Reininghaus”) at paragraphs 17-19.

3. The National Car paradigm used in the Estoppel Decisions cannot be reconciled with various rights and obligations set out under the Assessment Act. In support of this submission, the Appellant provides its analyses of s. 19.2(1), s. 31(1), s. 36(1), s.40(6) and the s.1 definition of “general reassessment” of the Act, as well as s. 48.3(2)(c) and s. 48.5 of O. Reg. 282/98 (the “General Regulation”) which are addressed in detail below.

4. In Wabi Iron & Steel Corp. v. Municipal Property Assessment Corp., Region No. 29, 2005 CanLII 3984 (ON SCDC) (“Wabi Iron – Div. Ct.”), the Divisional Court has explicitly recognized the right to challenge assessments as an annual right.

The Board will address each of these submissions in turn.

Submission 1 – the finding in Claireville - Div. Ct.

78Paragraph 27 of the Claireville - Div. Ct. decision states:

27Annual assessments are done so that changes in assessment can be made when there is a change in the state or condition of the property. If there is no change in the state or condition of the property, the assessed value would be expected to remain unchanged until current value is re-assessed for a new four-year cycle.

79The Board first notes that the decision in National Car was issued three weeks after the issuance of the Claireville - Div. Ct.. Therefore, the analysis in National Car was not before the Divisional Court. Furthermore, as the Board observed in National Car, at paragraphs 197 and 198, the parties did not ask the Court to decide whether the Act supports the application of the ‘state and condition paradigm’ and, consequently, the Court did not engage in a detailed analysis of the relevant inter‑dependent provisions of the Act. As such, it was unnecessary for the Divisional Court to consider the prior Board decisions that were reviewed in detail in National Car. Because this question was not determined by the Divisional Court, the Board is not bound by this decision.

80In this Motion Hearing, it is certainly open to the Appellant to challenge the Hearing Member’s analyses in National Car. However, this requires a specific and detailed description of the findings made in National Car, together with a specific and detailed analysis to support the conclusion that the findings in National Car are incorrect. The Appellant has not provided a relevant and probative analysis to support its position. For these reasons, the Board does not accept that the decision in National Car is incorrect.

81The Board now turns to the Appellant’s submission that the Board has subsequently returned the well-established ‘state and condition’ principle in subsequent decisions. In this regard, the Appellant refers to only one decision, Lazareva, which was issued after National Car. In this decision, at paragraphs 30 and 31, the Hearing Member simply endorses the application of the ‘state and condition’ paradigm, but makes no reference to National Car, and, more importantly, provides no statutory analysis in support of his finding. In Lazareva, a residential home had been improved by upgrades to change it from an unfinished to a finished state. Clearly, a redetermination of the property’s Defined Current Value was authorized by s. 34 of the Act, but the decision makes no reference to this section. For these reasons, the Board finds that the analysis in Lazareva is unpersuasive.

Submission 2 – the assessment roll represents a new assessment

82In National Car, the Hearing Member found that ‘assessment’ in s. 36 of the Act, which provides for the annual return of the assessment roll, is a compilation of the “necessary property information which a municipality requires in order to levy municipal property taxes as directed in Municipal Legislation” (paragraph 80), and this ‘necessary information’ is the information prescribed under s. 14 of the Act (“Assessment roll Contents”).

83When viewed in this context, the observation that each annual assessment represents a new assessment is correct. However, as discussed above, the return of an assessment, which includes reporting the property’s current value, is not synonymous with requiring a new valuation of a property’s Defined Current Value. As stated in National Car, a new determination of Defined Current Value can only be made pursuant to a provision of the Act which authorizes such determination.

84Turning to the decision in Reininghaus, this decision was considered in National Car (see paragraphs 175 to 177). As noted in National Car, at paragraph 176, in Reininghaus, the question before the Hearing Member was the scope of MPAC's authority to correct an error pursuant to s. 32 of the Act. The issue of the applicable valuation day was not in question. Therefore, a redetermination of Defined Current Value for the purpose of correcting an error does not represent, as the Appellant has argued, “a new, separate and independent assessment, despite the four-year cycle”.

85In summary, the Board finds that there is nothing in the Appellant’s submission which supports a conclusion that the requirement under s. 36 for an annual return of the assessment roll indicates that a property’s Defined Current Value must be redetermined as of the date prescribed in the Act for the return of the assessment roll.

Submission 3 - the National Car paradigm cannot be reconciled with rights and obligations under the Act

Reference to s. 31(1) of the Act

86The Appellant first refers to s. 31(1) of the Act which states:

Notice of assessment

31 (1) If there is a change in any information described in subsection 14 (1), (1.1) or (1.2) in respect of a parcel of land and the change is not reflected in the last assessment roll as returned, the assessment corporation shall deliver to every person described in subsection 14 (1) who is affected by the change a notice, in a form approved by the Minister, showing,

(a) the person’s assessment and the current value of the parcel of land;

[Emphasis added by the Appellant.]

87The Appellant asserts that this section confirms that changes can occur to a property’s current value even between general reassessments, submitting that this is contrary to the National Car paradigm. The Board finds that this submission misapprehends the finding in National Car, which clearly states that, following the General Reassessment, s. 32, 33, and 34 provide for additional Property Valuations based on the applicable valuation day indicated in each of these sections. For this reason, the Board does not accept this submission.

Reference to s. 36(1) of the Act

88The Appellant next submits that that s. 36(1) of the Act makes annual assessments a requirement, the exception being assessments made during the year as may be required under s. 32, 33, or 34. The Appellant asserts that the finding in National Car would require that s. 36(1) be misread as requiring annual assessments only in the context of an assessment under s. 32, 33, or 34.

89In addressing this submission, the Board finds that the Appellant has, again, mischaracterized the finding in National Car. This decision clearly identifies that s. 36(1) requires an annual assessment, where the assessment is the reporting of the items listed in s. 14(1) of the Act. Current value is one of these items. However, valuation is not the same thing as assessment. As discussed above, if, for any given taxation year, a provision of the Act requires a redetermination of Defined Current Value or Adjusted Current Value, then a different current value will be reported on the assessment roll. For this reason, the Board does not accept the Appellant’s submission.

Reference to s. 1 definition of “general reassessment”

90The Appellant next refers to the definition of ‘general reassessment’. The Appellant submits that, despite being a separately defined term, the findings in National Car would consider ‘general reassessments’, as opposed to annually required assessments, to be the only opinion of value provided by MPAC that is open to an appeal under the Act.

91In addressing this submission, the Board observes that s. 36(1) addresses the requirement for an annual assessment and the return of the assessment roll, as it is this information that a municipality requires to calculate and levy annual municipal taxes. The Appellant’s submission conflates assessment under s. 36(1) of the Act with a redetermination of Defined Current Value. Again, as stated above, the Act authorizes subsequent redeterminations of Defined Current Value after the general reassessment. These changes would be reported on the assessment roll together with any adjustments to Defined Current Value required under the Act. Furthermore, s. 35 of the Act requires that MPAC provide the property owner with notice of any change to Defined Current Value made pursuant to s. 32, 33 or 34, and, under the provisions of s. 40, such changes can be appealed (for example see s. 40(8) of the Act). For these reasons, the Board does not accept the Appellant’s submission.

Reference to s.19.2(1) of the Act

92The Appellant’s next submission refers to s. 19.2(1) which states:

Valuation Days

19.2 (1) Subject to subsection (5), the day as of which land is valued for a taxation year is determined as follows:

The Appellant observes that this section does not say “the date on which land is valued” submitting that this observation, though nuanced, is an important distinction. The Appellant then states that this means that MPAC is required to value property on the roll return date based on its current state and condition.

93Earlier in this Motion Decision, the Board has already observed that s. 19.2(1) sets out the valuation day to be used when determining current value, not the time that this valuation is to be conducted. Section 19.2 does not address when a Property Valuation must be conducted. It only prescribes the valuation day for a general reassessment.

94The Board observes that the Appellant’s submission is conclusory. It does not explain how the prescription of a valuation day for a general reassessment can lead to the conclusion that s. 36(1) of the Act requires an annual redetermination of current value. For this reason, the Board does not accept this submission.

Reference to ‘phase-ins’ and s. 48.3(2) of the General Regulation

95The Appellant’s next submission references ‘eligible increases’, more commonly described as ‘phase-ins’. This refers to s. 19.1 of the Act which states:

19.1 Adjustments for certain property classes

19.1 (1) In this section,

“eligible increase” has the meaning prescribed by the Minister

Property classes

(2) This section applies with respect to land in the residential property class, the farm property class, the managed forests property class and such other property classes or sub-classes as may be prescribed by the Minister.

Phasing in eligible increases

(3) For 2009 and subsequent taxation years, if the current value of land increases because of a general reassessment, the current value of the land shall be reduced according to the following rules:

1. For the first taxation year to which the general reassessment applies, the current value of the land is reduced by an amount equal to 75 per cent of the eligible increase.

2. For the taxation year following the taxation year in paragraph 1, the current value of the land is reduced by an amount equal to 50 per cent of the eligible increase.

3. For the taxation year following the taxation year in paragraph 2, the current value of the land is reduced by an amount equal to 25 per cent of the eligible increase.

Further adjustments

(4) The Minister may, by regulation, provide for such other adjustments to the current value of land for the 2009 and subsequent taxation years as he or she considers appropriate including, without limiting the generality of the foregoing,

(a) adjustments relating to a change made pursuant to section 32, 33 or 34;

(b) adjustments resulting from a request for reconsideration, an appeal or an application under section 39.1, 40 or 46;

(c) adjustments where there is no eligible increase in the current value;

(d) adjustments in such other circumstances as may be prescribed.

96To address the Appellant’s submission, it is necessary to understand the purpose and function of s. 19.1. For this reason, the Board provides the following overview. The Board emphasizes this is a general overview, as some of the applicable legislative provisions can, at best, be described as Byzantine.

Overview of s. 19.1(3)

97As property values typically increase over time, a property’s Defined Current Value for a prior assessment cycle may be lower than its Defined Current Value in the current assessment cycle. The difference between these two current values is the increase in current value. As noted above, the Act refers to this as an “eligible increase”.

98Because the calculation of the quantum of taxes payable is based, in part, on a property’s value, if a property’s value increases as a result of the general reassessment, this means that the taxes payable will be higher for the taxation years in the current assessment cycle as compared to the previous assessment cycle. To ‘cushion the blow’ of the increased tax burden, the Legislature has made a policy decision to “phase-in” the eligible increase in the property’s value over the four years of the assessment cycle. For example, as noted in s. 19.1(3)(a), in the first taxation year of the assessment cycle, the current value (i.e. the Defined Current Value) is adjusted by reducing it by an amount equal to 75 percent of the eligible increase (resulting in an Adjusted Current Value).

Overview of s. 19.1(4)

99Section 19.1(4) provides that the Minister may make regulations to provide for further adjustments to be made to the eligible increase. These regulations are found in Part IX of the General Regulation, “Adjustments under Section 19.1 of the Act”, sections 48 to 48.5 (the “Change Provisions”). A broad description of the core function of the Change Provisions can be explained as follows.

100Where the Defined Current Value of a property changes after the general reassessment, the ‘further change’ replaces the quantum of the ‘eligible increase’ determined under s. 19.1(3) (but the percentage phase-in of the eligible increase remains the same). Because the property has changed, it is no longer the same as it was in the prior assessment cycle. For example, assume a property was vacant land in the prior assessment cycle, but, following the general reassessment for the current assessment cycle, a house is built on the property. As required under s. 34 of the Act, due to the addition of the house, the property’s Defined Current Value may be redetermined. Consequently, one might describe the comparison of the property’s present day Defined Current Value (based on land plus building) to the property’s Defined Current Value in the prior cycle (based on land only), as an “apples to oranges” comparison.

101To achieve an “apples to apples” comparison, the Change Provisions require an assumption that the present-day changes made to the property notionally existed in the prior assessment cycle. Using the example above, it is assumed the property had both land and building in the prior assessment cycle. The value of this ‘notional property’ is determined by applying a percentage discount factor to the property’s present day Defined Current Value. This discount factor is defined and described in the Change Provisions as a Municipal Discount Factor (“MDF”), which is one of several defined discount factors (each factor applying to a specific property type). The eligible change is the difference between this ‘notional value’ and the present Defined Current Value.

102For purposes of this Motion Decision, the following two observations are important. First, an eligible change is only triggered when the Defined Current Value is redetermined pursuant to a specific provision of the Act. In this regard, s. 19.1(4)(a) to (d) lists these provisions. The provisions listed in (a) to (c) of this list each involve a redetermination of a property’s Defined Current Value. The provision in (d) refers to the General Regulation, which is discussed in greater detail below. Neither 19.1(3) nor (4), themselves, require a redetermination of Defined Current Value. Instead, they only apply an adjustment to the Defined Current Value if a change in the Defined Current Value has been made in accordance with other provisions of the Act.

103The second observation is that neither s. 19.1(3) or (4) includes s. 36 of the Act as one of the sections that will trigger the application of an eligible change. Neither do the Change Provisions (discussed in greater detail below). The Board observes that, if the Legislature had intended that there be such an annual valuation of current value, then s. 36 would have been included as one of the other enumerated changes in s. 19.1(4) and the Change Provisions. This reinforces the finding that s. 36(1) does not provide for, or require, an annual redetermination of Defined Current Value.

The Appellant’s argument

104The Appellant characterizes the operation of s. 19.1(4) and the Change Provisions as follows:

For each assessment returned, MPAC is required to consider the current circumstances then affecting the property, and adjust the assessment to the extent those changes would have impacted the assessment if they had occurred and been considered for the general reassessment.

Thus, for the 2017 tax year (the first tax year in the current cycle), property assessments were returned at their “current value” as of January 1, 2016, reflecting the state and condition of the property on December 13, 2016. For subsequent years in the cycle, annual assessments are returned at their “adjusted current value”, which is the value that would have been the current value if any eligible changes affecting the assessment for that subsequent year had occurred before MPAC returned the assessments for 2017, and assuming MPAC had considered those changes as if they had already occurred when determining the current value for that first tax year in the cycle.

The result is that, even though properties continue to be assessed on the basis of what they would have sold for as of the January 1, 2016 valuation date, the annual assessment returned by MPAC must annually reflect the property’s current state and condition. The annual assessment should reflect what this property, in its current state and condition, would have sold for on that date⁵². Consequently, within an assessment cycle, annual assessments can differ and different issues may arise year-to-year.

105For the following reasons the Board does not accept this argument.

106Section 19.1 does not require that MPAC redetermine a property’s Defined Current Value. The phase-in of eligible increases or eligible changes only makes an adjustment to a property’s Defined Current Value. Regarding s. 19.1(4), the express wording of this section is clear. As noted above, a precondition to applying a further adjustment is that a property’s Defined Current Value has changed. The adjustments to value, themselves, are not based on a further Property Valuation. They are simply applied by operation of statute.

107For these reasons, the Board does not accept the Appellant’s argument that s. 19.1 confirms that each annual assessment should reflect an updated “current value” of the property based on what it would have sold for on the valuation date had it been in its current state and condition at that time.

108However, the Board recognizes that s. 19.1(4)(d) provides for adjustments “in such other circumstances as may be described”. These are set out in the General Regulation, and it is one of these provisions which the Appellant has referenced in its submissions. The Board will now turn to this submission.

109Section 48.3(2) of the General Regulation states:

(2) In this section,

“eligible change” means, subject to subsection (3),

(a) a change with respect to which an additional assessment of land is made under section 33 or 34 of the Act,

(b) a change for which an adjustment is made under section 32 of the Act to the assessment of land,

(c) a change to the state or condition of land that results in the assessment made under section 36 of the Act for the taxation year differing from the assessment made for the previous taxation year,

(d) a change in the classification of land,

(e) a change in the status of land from taxable to tax-exempt or vice-versa,

(f) a change in the valuation approach with respect to whether land is eligible for assessment under section 19.0.1 of the Act,

(g) a change in valuation from current value to current use value, or vice versa, or

(h) a change of the type described in any of clauses (a) to (g) that is made under section 39.1, 40 or 46 of the Act;

[Emphasis added.]

110The Appellant points to s. 48.3(2)(c) noting this change is in addition to, and distinct from, the changes described in s. 48.3(2)(a) and (b). The Appellant then submits that these provisions are at odds with the conclusion expressed at paragraph 229 of National Car, asserting that changes to state or condition of property are explicitly required to be taken into account annually.

111In addressing this submission, the Board observes that s. 48.3(2) must be considered in its full context under the Act and the General Regulation. First, s. 48.3 addresses the method for phasing in of eligible changes under s. 19.1 of the Act. As noted above, phasing in of eligible increases only applies to an adjustment to the Defined Current Value.

112In reviewing subsections (a) to (g) above the Board notes that; (a), (b), (c), (e), (f) and (g) all refer to a change that would require that the Defined Current Value be redetermined as of a valuation day as indicated in an applicable provision of the Act; (d) is, nonetheless, relevant because the prescribed discount factors are based on property classification; and (e) is relevant as an eligible change is only of practical effect when a property is not exempt from taxation.

113To understand the purpose of s. 48.3(2)(c) some additional legislative context is required. First, the Act makes special provision for determining the Defined Current Value of farm lands and buildings (s. 19(5) of the Act) and conservation land and managed forests (s. 19(5.2) of the Act). Because the qualifications for these categories of property are based on use, a property that, in a previous taxation year, may not have qualified as farm lands, conservation land or managed forests, can qualify in a subsequent taxation year. Upon qualifying, the Defined Current Value of the land must be redetermined in accordance with the provisions of the applicable subsections of s. 19 of the Act.

114Second, s. 34(1)(b) only requires that MPAC may make a further assessment where land ceases to be: (i) exempt from taxation; (ii) farm lands; (iii) conservation land; (iii.1) managed forests; and (iv) the current value of which is based on current use under regulations made under s. 19(2). The import of this observation is that s. 32, 33, or 34 do not address when lands qualify as the above stated types of land or become exempt. Section 34(1)(b) only addresses when lands cease to qualify or be exempt.

115The definition of eligible change under s. 48.3(2)(c) of the General Regulation must be considered in this context. A change in land will only qualify as an eligible change if it is expressly included in the definition of eligible change. If subparagraph (c) were not included, then when land qualifies as farm lands, conservation land, or managed forests, the resultant change in Defined Current Value could not qualify as an eligible change.

116The up-shot of the above legislative analysis is that the purpose of subparagraph (c) is to ensure that all changes to Defined Current Value under the Act will qualify as an eligible change. In this regard, the Board observes that the wording of subparagraph (c) is generic. Because subparagraph (c) refers only to a change in current value as compared to the previous taxation year, this includes both increases and decreases in value. Furthermore, the generic wording in (c) will ensure that eligible change will include any future amendments to the Act that will require a redetermination of Defined Current Value.

117As a result, the Board finds that subparagraph (c) does not, from a purposive perspective, indicate that a property’s current value must be annually reassessed. To the contrary, subparagraph (c) reinforces that Defined Current Value must only be redetermined at specific points in time as specified in the relevant sections of the Act that require such redetermination. Therefore, when considered in this context, a ‘change to the state or condition’ in s. 48.3(2)(c) is a “catch all” provision which captures sections of the Act or the General Regulation which require a redetermination of Defined Current Value that are not covered by the other subsections of s. 48(2). Therefore, this does not support the Appellant’s contention that s. 36(1) requires an annual redetermination of Defined Current Value.

118In further support of the above conclusion, the Board cites s. 42.6 of the General Regulation, which requires a redetermination of Defined Current Value if specific forms of a heating or cooling system are added to a property. This section states:

Systems for Energy Conservation or Energy Efficiency

42.6 The following rules apply if an active solar heating or cooling system or a ground-sourced geothermal heating or cooling system has been installed on, erected or placed upon, in, over, under or affixed to land:

1. If the system would result in an increase to the value of the land, the current value of the land shall not reflect that increase and the land must be instead assessed as if it contained a non-renewable energy system that is typically found in similar lands in the vicinity.

2. If the system would result in a decrease to the value of the land, the current value of the land shall reflect that decrease and the land must be assessed at the lesser value.

[Emphasis added.]

119Pursuant to s. 42.6 of the General Regulation, if one of the specified heating systems is installed on a property in a taxation year, this could result in a change in the Defined Current Value of the property as compared to current value of the property reported on the assessment roll for the previous taxation year.

120Section 34(1) of the Act requires a further re-valuing of current value when equipment is added to land, but only if it increases the Defined Current Value. Section 42.6(2) of the General Regulation expressly provides for a redetermination of Defined Current Value if a decrease occurs. Consequently, s. 34(1) of the Act does not apply to the heating systems referenced in s. 42.6 of the General Regulation. It follows, therefore, that the addition of a heating system which decreases the Defined Current Value of a property does not qualify as an eligible change under s. 48.3(2)(a) of the General Regulation.

121Therefore, this is a specific example where the generic wording in s. 48.3(2)(c) of the General Regulation would capture a redetermination of Defined Current Value made pursuant to s. 42.6 of the General Regulation.

Summary

122Based on the above analysis, neither the wording of subparagraph 48.3(2)(c) itself, nor the purpose of this provision, indicate that the Act provides for an annual redetermination of Defined Current Value based on an Annual Valuation Day. Therefore, the Board does not accept the Appellant’s submission that the finding in National Car is “at odds” with the above-referenced provisions of the Act.

Reference to s. 40(26) of the Act

123Section 40(26) states:

Deemed appeals, 2009 and subsequent years

(26) For 2009 and subsequent taxation years, an appellant shall be deemed to have brought the same appeal in respect of a property,

(a) in relation to the assessments under sections 32, 33 and 34 for the year; and

(b) in relation to the assessment, including assessments under sections 32, 33 and 34, for a subsequent taxation year to which the same general reassessment applies, if the appeal is not finally disposed of before March 31 of the subsequent taxation year or, if an assessment has been made under section 32, 33 or 34, before the 90th day after the notice of assessment was mailed.

124The Appellant submits that this deeming provision references appeals in relation to specific taxation years, not all taxation years to which a general reassessment valuation date applies. The Appellant further maintains that, while s. 40(26)(a) references appeals for taxation years under s. 32, 33 and 34, s. 40(26)(b) references appeals of the assessment, which are made further to s. 36(1), including assessments under s. 32, 33 and 34, for a subsequent taxation year to which the same general reassessment applies. The Appellant states that it has appealed its annual assessment for several different taxation years to which the same general reassessment applies, being “the updating of assessments as a result of the application of a new valuation date under subsection 19.2(1).”

125In addressing this submission, the Board must observe that the Appellant’s submission is somewhat unclear as to the probative point being raised. The Appellant’s statement that “subsection 40(26)(b) references appeals of the assessment, which is made further to subsection 36(1)” is not expressly stated in s. 40(26). Furthermore, the Board has already noted that an appeal may be filed respecting a redetermination of current value made pursuant to s. 32, 33, or 34 of the Act.

126Deeming of appeals is part of the legislative regime under the Act governing appeals. It is not part of the legislative regime governing the valuation day to be applied when determining Defined Current Value. It also is not part of the legislative regime which prescribes when such value determinations are to be made. Therefore, the Board finds that there is nothing in the wording of s. 40(26) to suggest that the Act provides for an annual revaluation of Defined Current Value based on an Annual Valuation Day.

Submission 4 – the finding in Wabi Iron – Div. Ct.

127Wabi Iron – Div. Ct. addressed a Board decision (“Wabi Iron”) where the Board adjudicated a property owner’s appeals for the 1998 and 1999 taxation years. The valuation day for determining current value was June 30, 1996, and the Hearing Member decided that MPAC's appraised value of the property was correct. The property owner subsequently filed an appeal for the 2000 taxation year challenging current value, although the property owner acknowledged that no change had occurred to the property. MPAC then brought a motion to dismiss the 2000 appeal proceeding on the basis of issue estoppel, which the Hearing Member granted. The property owner then appealed this decision to Divisional Court.

128The ground of appeal raised by the property owner was whether the doctrine of issue estoppel could apply. The property owner relied on a prior Board decision which specifically rejected that the Board would be bound by a previous finding on the value of the subject property. The Divisional Court rejected this ground, relying instead on the decision of the Ontario Court of Appeal in Rasanen v. Rosemount Instruments Ltd., 1994, CanLII 608 (ON CA) which held that the doctrine of issue estoppel does apply to proceedings before administrative tribunals. The Divisional Court then dismissed the appeal.

129The Appellant cites paragraph 18 of Wabi Iron – Div. Ct., which states:

18The application of issue estoppel in this case does not negate the right of the taxpayer to litigate the assessment. The right to complain of assessments in each year is provided for by the Assessment Act. The Board is required to hold a hearing when a complaint is filed. There is continuing right to challenge the current value on the basis of evidence of a change in the property.

The Appellant submits that this finding stands as binding authority that it has an annual right to challenge assessments and that this right includes a hearing on the merits. The Appellant further submits that, even where issue estoppel is found to apply, taxpayers have a right to annually appeal their assessment and bring evidence of a change; they are not action estopped.

130In addressing this submission, the Board first observes that there is no dispute that a property owner has a right to file an appeal with the Board on an annual basis. This right is provided by the Act. It is also not disputed that, in a Board appeal proceeding, a taxpayer can appeal on the ground that the current value is incorrect, based on the fact that there has been a change in the property. However, the issue then is: what is the applicable valuation day for determining Defined Current Value? The fact that there is an annual right of appeal does not answer this question.

131The issue of whether s. 36(1) of the Act requires a redetermination of Defined Current Value based on an Annual Valuation Day, was not before the Divisional Court in Wabi Iron – Div. Ct., as there was no dispute that the applicable valuation day was the general reassessment valuation day. This decision does not state that the annual right to appeal current value means that the Act provides for an annual redetermination of Defined Current Value. To the contrary, the Board held that the Appellant was estopped from raising this issue. Had the Court’s finding been that an annual redetermination of Defined Current Value is required by the Act, the Court could not have upheld the Board’s decision to apply issue estoppel. Consequently, the Board finds that Wabi Iron – Div. Ct. does not support the Appellant’s position.

Summary

132The Board has found that none of the submissions made by the Appellant support the Appellant’s arguments that: (i) the Act provides for an annual redetermination of Defined Current Value based on an Annual Valuation Day; or (ii) the legislative scheme reflected in the findings made in National Car cannot be read harmoniously with the scheme and object of the Act.

Issue 2: If the valuation day is January 1, 2016, does issue estoppel apply to the question respecting the correct current value of the Subject Property?

Introduction

133The Board will first present its conclusion for Issue 2, followed by a presentation of the Board’s analysis of the Appellant’s submissions respecting this issue.

Conclusion on Issue 2

134In this case, the Appellant has not suggested that the COVID-19 Change in Circumstances would be relevant to the determination of the Defined Current Value of the Subject Property as of the January 1, 2016 valuation day. Obviously, this evidence post-dates the January 1, 2016 valuation day. In its materials filed in support of its Estoppel Motion, MPAC has included affidavit evidence regarding property appraisal guidance respecting retrospective valuation opinions. This evidence indicates that market data which post-dates the valuation day can be considered, to the extent that it confirms a market trend that was apparent on the valuation day.

135The Appellant has not suggested that the COVID-19 Change in Circumstances could have been a foreseeable event as of January 1, 2016. Therefore, these circumstances cannot indicate a market trend on this valuation day. As the Appellant has not established that MPAC relied on incorrect information when determining the current value of the Subject Property as of the January 1, 2016 valuation day, a correction of current value pursuant to s. 32 of the Act is also not required.

136Furthermore, the Appellant has not argued that the COVID-19 Change in Circumstances would satisfy the requirements of any other provision of the Act that provides for a redetermination of Defined Current Value based on a different valuation day.

137In summary, the Board finds that the question of the determination of the Subject Property’s Defined Current Value in the Current Appeal Proceeding is the same as it was in the Prior Appeal Proceeding. As: (i) the Board determined current value in the Prior Appeal Proceeding; (ii) the parties are the same; and (iii) the same question has been decided; the Board finds that issue estoppel applies to the question of the correct current value of the Subject Property.

Analysis of the Appellant’s Submissions

138In arriving at the above conclusion, the Board has considered the Appellant’s position that the test for issue estoppel has not been met. In support of this position, the Appellant argues that:

1. the issuance of a Board decision in accordance with Minutes of Settlement does not amount to a consent judgment;

2. the Minutes of Settlement for the Prior Appeal Proceeding do not restrict the Appellant’s continuing right to appeal in later taxation years;

3. the parties are not bound by these Minutes of Settlement for future taxation years, particularly where there has been a change in circumstances; and

4. because the question as to whether changes have affected the Subject Property is an evidentiary matter for the main proceeding, the Board cannot adjudicate MPAC's Estoppel Motion at this time.

Submission 1 - The issuance of a Board decision in accordance with Minutes of Settlement does not amount to a consent judgment.

139The Appellant submits that, as the decision in the Prior Appeal Proceeding was based on a settlement, it was not a decision on merits, i.e. a decision made after the Board conducted a hearing. The Appellant further submits that, while issue estoppel can apply to consent judgments, issuing a decision in accordance with Minutes of Settlement does not amount to a consent judgment.

140The Appellant also submits that the Board’s involvement in the Previous Appeal Proceeding was limited to administratively providing a commencement date and schedule of events, and administratively implementing the Minutes of Settlement. The Appellant asserts that this is the equivalent of an administrative “rubber stamp”, further stating that the Board did not conduct a hearing of the appeals and did not hear, see or review any evidence in the Prior Appeal Proceeding.

141In reply, MPAC submits that the Board, in making the decisions for the 2017 to 2020 taxation years, is not simply implementing an administrative action. MPAC relies on s. 40(20) of the Act which requires that the Board forward its decision to the clerk of the Municipality, who is then required to alter the assessment roll. MPAC submits that, in order to implement the settlement, s. 40(20) of the Act makes it necessary for the Board to make and issue decisions. The Board accepts this submission.

142In addressing the Appellant’s submission, the Board observes that, as a consent judgement is not based on a hearing on the merits, an argument can be advanced that the consent judgement cannot be characterized as determining any right, question, or fact raised in the proceeding. However, the Appellant is simply re-arguing an issue that has already been decided by the courts. In Spadacini-Kelava v. Kelava, 2020 ONSC 7907, at paragraph 106(4), the Superior Court confirmed that issue estoppel applies with equal effect to consent judgments.

143For this reason, the Board does not accept the Appellant’s submission.

Submission 2 - The Minutes of Settlement for the Prior Appeal Proceeding do not restrict the Appellant’s continuing right to appeal later taxation years.

144The Appellant points out that the Minutes of Settlement is specific to the taxation years addressed in these Minutes, and that these Minutes do not reference or restrict the Appellant’s continuing right to appeal in later taxation years. The Appellant argues that, had it been the intention of the parties to resolve future taxation years within the same assessment cycle, they would have clearly set that out in the Minutes of Settlement.

145In addressing this submission, the Board first observes that there is no dispute that the Appellant has a statutory right of appeal for the 2021 to 2023 taxation years, and the Appellant can raise the ground that the current value of the Subject Property is incorrect. Furthermore, MPAC has not argued that issue estoppel applies because the Minutes of Settlement restrict a continuing right of appeal.

146The issue in this Motion Hearing is not whether the Appellant can appeal the current value, it is whether the Appellant, having filed an appeal, should be estopped from raising this issue. As such, the Board finds that this submission is not relevant to the question of whether issue estoppel can apply in the circumstances of this case.

Submission 3 - The parties are not bound by these Minutes for future taxation years where there has been a change in circumstances.

147The Appellant cites a decision of the Saskatchewan Court of Appeal in Arslan v Şekerbank T.A.Ş., 2016 SKCA 77, which is a decision respecting the application of issue estoppel. The Appellant refers to the Court’s statement, at paragraph 101, that the scope of the issues settled by a consent order “is necessarily limited to those that can be ‘fairly regarded as having been disposed of by the order relied on their merits, on admission, or by compromise’.” The Appellant argues that the Minutes of Settlement cannot be binding in future years where there has been a change in circumstances.

148In addressing this submission, the Board, again, observes that MPAC's claim is the Appellant should be estopped from raising the question of the correct current value because this question has been decided in the Prior Appeal Proceeding. MPAC has not argued that the Minutes of Settlement contractually preclude the Appellant from raising the question of correct current value in a future proceeding. Therefore, the Board finds that this submission is not relevant to the question of whether issue estoppel can apply in the circumstances of this case.

Submission 4 - Because the question as to whether changes have affected the Subject Property is an evidentiary matter for the main proceeding, the Board cannot proceed to adjudicate MPAC's Estoppel Motion at this time.

149The Appellant submits that the Board cannot, on this preliminary motion, make decisions as to (i) the state and condition of the Subject Property; and (ii) the effect of that state and condition on the appropriate annual assessments for the 2021 to 2023 taxation years. The Appellant argues that the only issues before the Board in this Motion Hearing are whether the three criteria for issue estoppel have been established and, if so, whether the Board should exercise its discretion to order that issue estoppel applies.

150As stated by the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460 (“Danyluk”), at paragraph 24, any right, question, or fact distinctly put in issue as a ground of recovery cannot be re-tried in a subsequent suit. Consequently, if a question cannot be re-heard, the court or tribunal would not hear evidence respecting the question. Therefore, when adjudicating the application of issue estoppel, the Board only needs to decide if the same question has been previously decided. The Board is not required to decide this question by hearing evidence in the Current Appeal Proceeding.

151In this Motion Hearing, the Board has proceeded on the assumption that the Appellant’s description of the COVID-19 Change In Circumstances is accurate. As the Board found in First Capital and Canadian Niagara Hotels Inc., the issues raised in MPAC's Estoppel Motion are: (i) what is the correct valuation day; and (ii) are the COVID-19 Change In Circumstances, as described by the Appellant, relevant to the determination of current value as of that valuation day.

152For these reasons, the Board does not accept the Appellant’s premise that the Board must make evidentiary rulings in order to adjudicate MPAC's Estoppel Motion.

153In further support of this finding, the Board notes that it is more efficient and cost effective for both the parties and the Board to make this determination at this preliminary stage in the appeal proceeding, as it avoids the cost, in time as well as resources, for preparing evidence respecting an issue that may not be heard at the main hearing.

154Based on the above analysis, the Board finds that it can, and should proceed with MPAC's Issue Estoppel Motion.

Summary

155In summary, the Board finds that none of the Appellant’s submissions can support a conclusion that the criteria to apply issue estoppel have not been established in this case.

Issue 3: If the answer to Issue 2 is yes, should the Board exercise its discretion to order that the Appellant is estopped from raising the question of correct current value in the Current Appeal Proceeding?

Appellant’s Submissions

156The Appellant states that issue estoppel is a discretionary remedy that should not be mechanically applied. Even where the Board is satisfied that issue estoppel can apply, the Board has discretion to decline to order that a party is estopped from raising a question in the proceeding. The Appellant further states that this discretion is “necessarily broader in relation to the prior decisions of administrative tribunals”, citing Danyluk at paragraph 62. The Appellant also states that the Board can choose not to apply issue estoppel if it determines that doing so is in the interest of justice.

157The Appellant submits that, because the Board has a statutory duty to hear appeals and ensure that assessments are correct and equitable, it cannot be in the interest of justice to refuse to hear appeals raised on issues never previously presented to the Board.

MPAC's Submissions

158In light of the Board findings, it is unnecessary to recite MPAC's submissions in detail. As noted above, MPAC relies on the analysis and findings found in the Board decisions in First Capital and Canadian Niagara Hotels Inc.

Findings on Issue 3

159The Appellant’s position is premised on an incorrect assertion that the issues were never previously presented to the Board. The Board has already found that the same question regarding current value in the Current Appeal Proceeding has been determined in the Prior Appeal Proceeding. Therefore, the Board does not accept this submission.

160Although the Appellant has provided no persuasive reason why the Board should exercise its discretion not to apply issue estoppel, the Board must, nonetheless, consider whether the application of issue estoppel would work an injustice in this case. In this regard, the Board observes that the circumstances in the Current Appeal Proceeding are essentially the same as the circumstances in First Capital and Canadian Niagara Hotels Inc. In these two proceedings, the Board received detailed submissions and made detailed findings respecting the exercise of discretion, which the Board finds apply equally in this case. For this reason, the Board adopts these findings in this Motion Hearing.

161In overview, the analysis in these two decisions concludes that, even if the Appellant were permitted to continue to litigate the issue of correct current value, the COVID-19 Change In Circumstances are not relevant to a determination of Defined Current Value based on the applicable January 1, 2016 valuation day. Accordingly, the outcome of the hearing would be the same even if the Appellant is allowed to raise the issue in a hearing – this ground of appeal would be dismissed. For this reason, the Board finds that applying issue estoppel will not work any injustice in this case. While the Appellant may consider this to be unfair, this result is not due to the application of issue estoppel. As described in detail above, and in National Car, it is the result of the legislative regime imposed by the Act. In this regard, the Board adopts the Hearing Member’s findings in National Car, at paragraphs 226 to 228.

Conclusion

162Based on the above analysis and findings, the Board exercises its discretion to order that the Appellant is estopped from raising the question of correct current value in the Current Appeal Proceeding.

Issue 4: If the valuation day is January 1, 2016, does issue estoppel apply to the question respecting Equitable Adjustment of the correct current value of the Subject Property?

MPAC's Submissions

163MPAC relies on s.44(3) of the Act, which requires that the Board determine current value, and make an Equitable Adjustment to the assessment where required. MPAC points out that the Appellant’s Statement of Issues, which was served in the Prior Appeal Proceeding, did assert that the current value of the Subject Property was incorrect and that it may be inequitable.

Appellant’s Submissions

164The Appellant states that, in the Current Appeal Proceeding, the Appellant has raised the issue as to whether the 2021, 2022, or 2023 assessments are equitable with the assessments of similar property in the vicinity. The Appellant submits that this issue was not, and could not, have been adjudicated in the Prior Appeal Proceeding, as this determination could not be made until MPAC returned the assessments for these taxation years.

165The Appellant cites General Motors of Canada Company v MPAC, Region 23, 2021 CanLII 77584 (ON ARB), at paragraphs 44 and 48, which found that the Board must perform the s. 44(3) inquiry regardless of whether or not the parties have raised it as an issue in dispute.

Findings on Issue 4

166The Board first observes that the Appellant does not dispute that the issue of Equitable Adjustment was addressed in the Prior Appeal Proceeding. However, as noted above, the Appellant argues that the question of Equitable Adjustment that has been raised in the Current Appeal Proceeding could not have been adjudicated in the Prior Appeal Proceeding. In addressing this submission, the Board must interpret the scope of s.44(3)(b) of the Act.

The requirements of s. 44(3) of the Act

167Section 44(3) of the Act states:

Same, 2009 and subsequent years

(3) For 2009 and subsequent taxation years, in determining the value at which any land shall be assessed, the Board shall,

(a) determine the current value of the land; and

(b) have reference to the value at which similar lands in the vicinity are assessed and adjust the assessment of the land to make it equitable with that of similar lands in the vicinity if such an adjustment would result in a reduction of the assessment of the land.

[Emphasis added.]

168In addressing these statutory provisions, the Board first observes that, because the assessment of land is based on its current value, the provision in s. 44(3), “in determining the value at which any land shall be assessed”, perforce refers to a determination of current value.

169The Board further observes that, under s. 44(3), it is mandatory that the Board make the determination of current value in accordance with subsections (a) and (b), because it states that “the Board shall …”, not may (emphasis added).

170Furthermore, both determinations required under subsections (a) and (b) must be made, as s. 44(3) uses the conjunction “and”, not “or” between these two subsections. Consequently, in determining the current value, the Board must first determine the current value of the land, and then the Board must apply any required adjustment to this value, in accordance with the direction set out in subsection (b). Consequently, a Board decision determining the quantum of the current value of the land must, per force, include a determination of whether an Equitable Adjustment is required.

171Furthermore, the above analysis confirms that making a determination of current value under s. 44(3)(a) is pre-requisite to determining whether an Equitable Adjustment under s. 44(3) (b) is required. Therefore, an important corollary is that, if the Board is not required to determine current value in an appeal proceeding, then the Board does not have jurisdiction to determine whether an Equitable Adjustment is required. In further support of this conclusion, the Board observes that a claim for an Equitable Adjustment is not a separate ground of appeal under s. 40(1) of the Act.

Application of s. 44(3) to the Current Appeal Proceeding

172As the Board has decided that the Appellant is estopped from raising the issue of current value in the Current Appeal Proceeding, the Board would not be required to determine current value in this proceeding. As such, the Board does not have the jurisdiction to address the question of Equitable Adjustment in this case. Consequently, it is unnecessary for the Board to address whether issue estoppel applies to this question.

Issue 5: If the answer to Issue 4 is yes, should the Board exercise its discretion to order that the Appellant is estopped from raising the question of Equitable Adjustment in the Current Appeal Proceeding?

173As the Board has found that it is unnecessary to determine whether issue estoppel applies to this question of Equitable Adjustment, it follows that it is unnecessary for the Board to address Issue 5.

Issue 6: If the valuation day is January 1, 2016, does issue estoppel apply to the question respecting Eligible Change of the correct current value of the Subject Property?

Submissions

174The Appellant’s submissions respecting Eligible Change have been described in earlier submissions. The parties’ submissions regarding the application of issue estoppel, as they relate to the questions of correct current value and Equitable Adjustment, embrace the question of Eligible Change as well. In light of the Board’s findings below, it is unnecessary to reiterate these submissions here.

Findings on Issue 6

175To address this issue, the Board will consider two scenarios: (i) where the valuation day for determining the Subject’s Defined Current Value is January 1, 2016; and, alternatively, (ii) where it is hypothetically assumed that a subsequent redetermination of Defined Current Value has occurred, based on a subsequent Annual Valuation Day.

Scenario 1

176Regarding the first scenario, as the Board has found that the valuation day remains January 1, 2016, s. 19.1(1), (2) and (3) will apply to the 2017 to 2019 taxation years, i.e. there is a phase-in of an eligible increase after the general reassessment. However, as these provisions, in effect, only apply an adjustment for the first three taxation years of the cycle, no additional adjustment is required for the 2021 to 2023 taxations years. The Board further observes that the Appellant has not challenged the accuracy of the calculation of the quantum of the adjustments made in the Prior Appeal Proceeding. Therefore, there can be no issue respecting eligible increases in the Current Appeal Proceeding.

Scenario 2

177Regarding the second scenario, this hypothetical circumstance requires consideration of sections 19.1(5) to (8), which state:

Assessment corporation to make adjustment

(5) If a change is made to the current value of land other than a change resulting from a general reassessment, the assessment corporation shall make any adjustments required under this section.

Adjustment for arithmetical error

(6) If, at any time during a taxation year, the assessment corporation determines that there has been an arithmetical error in an adjustment under this section for the year or a subsequent taxation year, the corporation shall make an adjustment to correct the error.

Notice of adjustment

(7) If an adjustment is made under subsection (5) or (6) and no notice showing the adjustment is otherwise given under this Act, the assessment corporation shall notify the person against whom the land is assessed and the municipality within 90 days of making the adjustment.

Exception

(8) Sections 39.1 and 40 do not apply to a notice given under subsection (7).

[Emphasis added.]

178Section 19.1(8) expressly provides that the property owner cannot appeal a further adjustment triggered by a change made to current value other than a change resulting from the general reassessment. Consequently, even if there had been a further adjustment required because of an eligible change under s.19.5(4), any issue respecting this further adjustment could not be raised in a s. 40 appeal proceeding.

Conclusion

179Based on the above analysis, the Board finds that the question of an Eligible Change is not an issue that can be raised in the Current Appeal Proceeding. Therefore, it follows that it is unnecessary for the Board to address Issue 6.

Issue 7: If the answer to Issue 6 is yes, should the Board exercise its discretion to order that the Appellant is estopped from raising the question of Eligible Change in the Current Appeal Proceeding?

180As the Board has found that it is unnecessary to determine whether issue estoppel applies to the question of Eligible Change, it follows that it is unnecessary for the Board to address Issue 7.

Issue 8: If the Appellant cannot raise the issues of correctness of current value, Equitable Adjustment, and Eligible Change, should the Current Appeal Proceeding be dismissed?

181In light of the above findings, in the Current Appeal Proceeding, the Appellant cannot raise the issues of correctness of current value, Equitable Adjustment, and Eligible Change. The Appellant has not argued that there are any other issues to be raised in the Current Appeal Proceeding. Consequently, there is no issue to be addressed in the Current Appeal Proceeding.

182In Canadian Niagara Hotels Inc. the Board addressed this same issue in essentially the same circumstances. The Board adopts the reasons of the Hearing Member as set out in paragraph 45 of that decision. In summary, the test to be applied in deciding whether to dismiss an appeal proceeding without a hearing, is set out in Rule 24 of the Board’s Rules of Practice and Procedure. This Rule provides that a proceeding may be dismissed if the Board is of the opinion that the proceeding is frivolous. In this case, as there is no issue to be addressed in the Current Appeal Proceeding, the Board finds that it would be frivolous for the proceeding to continue.

ORDER

183The Board orders that the Appellant is estopped from raising the issue that the current value of the Subject Property for the 2021 to 2023 taxation years is incorrect.

184The Board dismisses the Appellant’s appeals in respect of the Subject Property for the 2021 to 2023 taxation years.