Tribunals Ontario
Tribunaux décisionnels Ontario
Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE: February 23, 2023
Assessed Person(s): Michael Stephen Purcell, Catherine Nye Purcell
Appellant(s): Michael Purcell, Catherine Purcell
Respondent(s): Municipal Property Assessment Corporation Region 05
Respondent(s): City of Kingston
Property Location(s): 300 Wellington Street
Municipality(ies): City of Kingston
Roll Number(s): 1011-030-110-07730-0000
Appeal Number(s): 3384982, 3397787 and 3440068
Taxation Year(s): 2019, 2020 and 2021
Legislative Authority: Rules 101-103 of the Assessment Review Board’s Rules of Practice and Procedure
Parties
Representative
Michael Purcell
Self-represented
Municipal Property Assessment Corporation
Submissions not received
City of Kingston
Submissions not received
REQUEST FOR: A review of the Board’s Decision DM 170442 issued on May 13, 2021.
HEARD: In writing
ADJUDICATOR(S): Carly Stringer, Member
DECISION
OVERVIEW
1Michael Purcell (the “Requestor”) requests a review of the Assessment Review Board’s (the “Board”) decision in DM 170442 issued on May 13, 2021 (the “2021 Motion Decision”).
Background
The 2019 to 2021 Appeals
2The Requestor is an assessed owner of 300 Wellington Street in the City of Kingston.
3The Requestor appealed the 2019 assessment of the Subject Property pursuant to s. 40 of the Assessment Act, R.S.O. 1990, c. A. 31 (the “Act”). Pursuant to s. 40(26) of the Act, the Board deemed appeals for the 2020 and 2021 taxation years (all appeals together, the “2019 to 2021 Appeals”).
4The Municipal Property Assessment Corporation (“MPAC”) was a responding party to the 2019 to 2021 Appeals. MPAC brought a motion to dismiss these appeals based on issue estoppel. It is this motion that was decided in the 2021 Motion Decision.
5On the motion, MPAC argued that the issues of current value and equitable value for the 2017 through to 2021 taxation years, which all have the same valuation date of January 1, 2016, had already been determined by the Board in Purcell v Municipal Property Assessment Corporation, Region 05, 2018 CanLII 67787 (the “2018 Decision”).
The 2018 Decision
6In the 2018 Decision, the Board determined a current value assessment of $483,000 for the Subject Property for the 2017 and 2018 taxation years. In a subsequent review decision issued November 30, 2018, the Board confirmed the 2018 Decision. The review decision was amended on December 21, 2018 to correct a clerical error: Purcell v Municipal Property Assessment Corporation Region 05, 2018 CanLII 123933 (“2018 Review Decision”).
The 2021 Motion Decision
7In response to MPAC’s motion to dismiss the 2019 to 2021 Appeals, the Requestor argued that MPAC’s motion to dismiss should be denied.
8The Requestor also brought a motion to dismiss MPAC’s motion on the basis that MPAC failed to give notice that it was raising issue estoppel within the time required by the Board’s Rules of Practice and Procedure effective April 1, 2017 and amended May 2019.1 Former Rule 40 provided that a party must provide notice of its intent to raise issue estoppel within 30 days of the Commencement Date outlined in the Schedule of Events.
9In the 2021 Motion Decision, the Board:
a. Denied the Requestor’s motion to dismiss MPAC’s motion for non-compliance with the deadline in Former Rule 40. The Board noted that while MPAC did not satisfy the 30-day notice period, the purpose of the timeline was to provide opposing parties an opportunity to consider and respond to the doctrine of issue estoppel. The Board found there would be no prejudice from the Board considering issue estoppel despite MPAC’s late notice because the Requestor had an adequate opportunity to consider and respond. In addition, the Board would have sought submissions on issue estoppel on its own initiative.
b. Granted MPAC’s motion, finding that issue estoppel applied to the 2019 to 2021 Appeals to preclude the Requestor from arguing the issue of the Subject Property’s current and equitable value as of the January 1, 2016 valuation date.
10The Requestor subsequently brought this Request for Review of the 2021 Motion Decision.
Applicable Rules
11Rule 101 of the Board’s Rules of Practice and Procedure effective April 2021 (the “Rules”) provides that a party may request a review of any final decision or order of the Board. Rule 102 provides that a request for review will not be granted unless the Board is satisfied that:
the Board acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
the Board made a significant error of law or fact such that the Board would likely have reached a different decision;
the Board heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or
there is new evidence that could not have reasonably been obtained earlier and have affected the result.
Issues for Review
12The Requestor gave two reasons that the 2021 Motion Decision should be reviewed:
a. the Board violated the rules of natural justice or procedural fairness, including allegations of bias; and
b. the Board made an error in law or fact such that the Board would likely have reached a different decision.
13Specifically, the Requestor submits that:
a. In denying the Requestor’s motion to dismiss MPAC’s motion for non-compliance with the timeline prescribed in Former Rule 40, the Board erred by ignoring Former Rule 82 which provided that “[a]fter the day set in [Former] Rule 33 as the start of a proceeding the Board will not alter any timeline set out in the schedule of events, other than in exceptional circumstances.”
b. The Board erred by stating the Requestor took a position on prejudice in relation to the timeline for raising issue estoppel pursuant to Former Rule 40. In fact, the Requestor had said they were prejudiced by MPAC’s failure to provide or perform a vertical equity analysis as part of the reconsideration process pursuant to s. 39.1(5) of the Act.
c. That the question of vertical equity was not resolved by or included in the 2018 Decision.
Result
14This Request for Review is dismissed.
ANALYSIS
Issue 1 – Exceptional Circumstances
Submissions
15The Requestor submits that in denying the Requestor’s motion to dismiss MPAC’s motion for non-compliance with the timeline to provide notice of raising issue estoppel prescribed by Former Rule 40, the Board relied on Former Rule 17 which provided the Board with the power to alter any time period set out in the Rules. However, the Requestor submits, the Board ignored Former Rule 82 which provided that “[a]fter the day set in [Former] Rule 33 as the start of a proceeding the Board will not alter any timeline set out in the schedule of events, other than in exceptional circumstances.” The Requestor submits that MPAC failed to provide any reason, let alone exceptional circumstances, for its failure to meet the 30-day notice deadline. The Requestor submits that the Board erred by considering prejudice to the parties rather than considering whether MPAC provided evidence of exceptional circumstances.
Findings on Issue 1
16The Board is not satisfied that the 2021 Motion Decision discloses any violation of the rules of natural justice or procedural fairness, nor does it disclose an error in fact or law, as it relates to Former Rules 17 and 82 and exceptional circumstances.
17The Board does not accept the Requestor’s submission that the Board erred in the 2021 Motion Decision by ignoring Former Rule 82. The Board finds that Former Rule 82 did not apply to the circumstances before the Board in the 2021 Motion Decision.
18Former Rule 82 spoke to alteration of the timelines in the schedules of events. The deadline in Former Rule 40 was not part of the schedule of events. Former Rule 40 contained a separate notice provision within the Former Rules, not the schedule of events. Therefore, the timeline in the schedule of events and Former Rule 82 were not engaged. Instead, the Board was tasked with considering the 30-day notice period prescribed by Former Rule 40, and whether it should be altered pursuant to Former Rule 17.
19Former Rule 17 stated simply that “[a]ny time period set out in these Rules can be altered by the Board.” Former Rule 17 did not require exceptional circumstances as a prerequisite for the Board exercising its discretion to alter a time period set out in the Rules.
20Accordingly, the Board did not err when it did not apply Former Rule 82, nor did it err by failing to consider whether MPAC could prove exceptional circumstances because exceptional circumstances was not a requirement of Former Rule 17.
21This ground of review fails.
Issue 2 – Prejudice
Submissions
22The Requestor submits that the Board stated in the 2021 Motion Decision that they took a position on prejudice in relation to the timeline for raising issue estoppel pursuant to Former Rule 40. In fact, the Requestor had said they were prejudiced by MPAC’s failure to provide or perform a vertical equity analysis as part of the reconsideration process pursuant to s. 39.1(5) of the Act. The Requestor submits that allowing the motion for estoppel would deprive them of a route to natural justice or procedural fairness as there is no other procedure to address MPAC’s failure to fulfil the requirements of the Act.
Findings on Issue 2
23The Board is not satisfied that the 2021 Motion Decision discloses any violation of the rules of natural justice or procedural fairness, nor does is disclose an error in fact or law such that the Board would likely have reached a different decision, as it relates to this ground of review.
24If the Requestor is correct that their prejudice submissions related to MPAC’s failure to provide or perform an equity analysis as part of the reconsideration process pursuant to s. 39.1(5) of the Act, the Board finds this fact would not have led the Board to reach a different decision on the motion to dismiss MPAC’s issue estoppel motion. This fact is not germane to the weighing of relative prejudice to the parties in allowing MPAC to bring its issue estoppel motion outside the 30-day timeline. The Board reasonably found that the Requestor would not be prejudiced by MPAC’s late notice because it had adequate opportunity to consider and respond.
25Further, the Board finds this fact would not have led the Board to reach a different decision on MPAC’s motion for issue estoppel, particularly whether it would be unfair for issue estoppel to apply. The Board found that the reasons in the 2018 Decision were clearly and wholly articulated, and the Requestor’s evidence and arguments were properly considered and adjudicated. There is no error here that would have led the Board to a different conclusion.
26This ground of review fails.
Issue 3 – Vertical Equity
Submissions
27The Requestor submits that the question of vertical equity was not resolved by or included in the 2018 Decision. The Requestor submits that the 2018 Decision uses the generic term “equity” and MPAC’s submissions did not include any vertical equity report or analysis. The Requestor submits that MPAC has the burden of proof, and since MPAC did not provide evidence on vertical equity, the issue was not decided in the 2018 Decision.
Findings on Issue 3
28The Board is not satisfied that the 2021 Motion Decision discloses any violation of the rules of natural justice or procedural fairness, nor does is disclose an error in fact or law as it relates to the issue of vertical equity.
29The first requirement of issue estoppel is whether the same question has been decided: Rasanen v. Rosemount Instruments Ltd., 1994 CanLII 608 (ON CA), articulated by the Board in Wabi Iron & Steel Corp. v. Municipal Property Assessment Corp., Region No. 29, O.A.R.B.D. No. 219 and confirmed in numerous subsequent decisions of this Board.
30In the 2021 Motion Decision, the Board properly stated that the question before the Board in the 2018 Decision was the correct current and equitable value of the Subject Property as of January 1, 2016. The Board properly found that this is the same question to be determined in the 2019 to 2021 Appeals. The Board does not accept the Requestor’s submission that the issue before the Board related to vertical equity – while vertical equity may have formed part of the Requestor’s evidence or submissions, that is not the issue that was before the Board in the 2018 Decision and the 2019 to 2021 Appeals. Further, both the 2018 Decision and the 2018 Review Decision addressed equitable adjustment, and confirmed that the Board preferred MPAC’s evidence over the Requestor’s evidence. In this regard, the Requestor is essentially asking for a rehearing on their submissions relating to vertical equity, which does not satisfy the requirements of granting a Request for Review pursuant to Rule 102.
31This ground of review fails.
CONCLUSION
32None of the complaints brought by the Requestor against the 2021 Motion Decision are valid. The Board is not satisfied there was a violation of the rules of natural justice or procedural fairness, nor is it satisfied that the 2021 Motion Decision contains any significant error of law or fact such that it would likely have reached a different decision pursuant to Rule 102 (a) and (b).
ORDER
33The Board orders that this Request for Review is dismissed.
"Carly Stringer"
CARLY STRINGER
MEMBER
Assessment Review Board
Website: www.tribunalsontario.ca/arb
Footnotes
- The Rules of Practice and Procedure effective April 1, 2017 and amended May 2019 were in effect during the relevant timeframe. The Board’s procedural rules have since been amended, reflected in the Rules of Practice and Procedure effective April 1, 2021, which apply to this Request for Review. Where necessary throughout this decision, the Board will refer to the Rules of Practice and Procedure effective April 1, 2018 and amended May 2019 as the “Former Rules”.