Tribunals Ontario

Assessment Review Board

ISSUE DATE: March 30, 2023

FILE NO.: DM 183446

Assessed Person(s): Liling Zhang; Duncan MacAlasdair

Appellant(s): Duncan MacAlasdair

Respondent(s): Municipal Property Assessment Corporation Region 09

Respondent(s): City of Toronto

Property Location(s): 88 Scott Street, Suite 809

Municipality(ies): City of Toronto

Roll Number(s): 1904-064-220-00563-0000

Appeal Number(s): 3503770

Taxation Year(s): 2022

Hearing Event No.: 778694

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

Parties	Representative
Duncan S. MacAlasdair	Self-represented
Municipal Property Assessment Corporation	Aidan Mailer
City of Toronto	Submissions not received

REQUEST FOR:

An order for issue estoppel or abuse of process

An order that the value of the Subject Property for the 2022 taxation year is $810,000

An order dismissing the appeal

HEARD: March 7, 2023 in writing

ADJUDICATOR(S): Carly Stringer, Member

MOTION DECISION

OVERVIEW

1Duncan MacAlasdair (the “Appellant”) filed an appeal of the 2022 property assessment of a residential condominium located at 88 Scott Street, Suite 809 in the City of Toronto (the “Subject Property”) to the Assessment Review Board (the “Board”). The Appellant argues that the assessment is too high.

2The Appellant previously appealed the assessment of the Subject Property for the 2019 taxation year pursuant to s. 40 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”), and the Board deemed an appeal for the 2020 taxation year pursuant to s. 40(26) of the Act (the “2019 and 2020 Appeals”). The Appellant, Liling Zhang, the Municipal Property Assessment Corporation (“MPAC”) and the City of Toronto were parties to these 2019 and 2020 Appeals (the Appellant, MPAC and the City of Toronto together, the “Parties”).

3The 2019 and 2020 Appeals were heard by the Board on December 2, 2020. The Board issued its decision on February 24, 2021, Zhang v Municipal Property Assessment Corporation, Region 09, 2021 CanLII 15225 (ON ARB) (the “Decision”). In the Decision, the Board found that the correct current value of the Subject Property as of the valuation day of January 1, 2016 is $1,026,000, and that no equitable adjustment is required. Since MPAC did not seek an increase to the returned assessment, the Board confirmed the returned assessment value of $810,000 for the 2019 and 2020 taxation years.

4No party sought a review of, or appeal from, the Decision.

5MPAC is responding to the Subject Appeal. MPAC has brought this motion asking the Board to:

a. order that the Appellant is estopped from raising the current value assessment (“CVA”) of the Subject Property as of the January 1, 2016 valuation day because this was finally determined by the Board to be $810,000 in the Decision; or, in the alternative, an order that relitigating the 2016 CVA in the absence of a change in the Subject Property constitutes an abuse of process; and

b. confirm that the CVA for the Subject Property for the 2022 taxation year is $810,000; and

c. dismiss the Subject Appeal.

6MPAC argues that the issue of the current value of the Subject Property for the 2022 taxation year, which has the same valuation date of January 1, 2016, was determined by the Board in the Decision; that the Parties are the same; and that the Decision is final. Therefore, MPAC submits, the Appellant should be estopped from arguing the 2016 CVA.

7The City of Toronto has not made submissions on this motion.

8As will be described in more detail below, the Appellant opposes the motion.

Result

9For the reasons that follow, the Board finds that issue estoppel applies and that the 2016 CVA is $810,000.

ISSUES

10The issues to be determined on this motion are:

a. Does issue estoppel apply?

b. Should the Board exercise its discretion and decline to apply issue estoppel?

c. Does abuse of process apply and, if it does, should the Board apply it?

ANALYSIS

Issue 1 – Does issue estoppel apply?

Applicable Law

11Issue estoppel prevents re-litigating issues that have already been judicially decided: see Smith v Municipal Property Assessment Corporation, Region No. 23, 2018 CanLII 35052 (ON ARB) at paragraph 16. In essence, issue estoppel “prevent[s] the waste of time and money and the frustration of having to re-litigate an issue which has already been decided by a court or tribunal of competent jurisdiction”: Hyde v Municipal Property Assessment Corp, Region No 7, [2013] OARBD No 7 at paragraph 18.

12The three criteria that must be met for issue estoppel to apply are well-established, as articulated by the Board in Wabi Iron & Steel Corp. v. Municipal Property Assessment Corp., Region No. 29, [2002] O.A.R.B.D. No. 219 at paragraph 26, upheld at the Divisional Court in Wabi Iron & Steel Corp. v. Municipal Property Assessment Corp., Region No. 29, 2005 CanLII 3984 (ON SCDC) (“Wabi Iron”), and confirmed in numerous subsequent decisions of this Board:

i. the same question has been decided;

ii. the decision said to create the estoppel was final; and

iii. the parties to the decision were the same parties as those to the proceedings in which the estoppel is raised.

Submissions of the Parties

13MPAC submits that the three requirements of issue estoppel are met in this case.

14The Appellant submits that the Board should not grant MPAC’s motion. While the Appellant did not divide their submissions by issue and the Board will not provide an exhaustive summary, the Appellant’s submissions include:

a. In the Decision, the Board “completely deferred” to the staff of MPAC and used the value that MPAC determined. The hearing on December 2, 2020 was unsatisfactory from the Appellant’s perspective.

b. Until the Appellant’s questions regarding the assessment are addressed by MPAC, it is premature for the Board to dismiss the Subject Appeal.

c. The Appellant was not aware that they could seek a review or appeal of the Decision.

d. MPAC has not addressed the evidence that the Appellant provided which supports their case.

Findings on Issue 1

15With respect to (a), (b) and (d) of the Appellant’s submissions above, the Board will address them more comprehensively in the analysis relating to Issue 2 and the Board’s discretion, as they are not germane to whether the three requirements of issue estoppel are satisfied. The Board will address the Appellant’s submission (c) regarding the finality of the Decision at paragraph 24 below.

16The Board finds that the three requirements of issue estoppel are met in this case, for the following reasons:

i. The same question was decided

17The Board finds that the question decided in the 2019 and 2020 Appeals is the value at which the Subject Property shall be assessed, as of the valuation date of January 1, 2016: see the Decision at paragraphs 2, 3, 5, 28 and 29.

18Section 44(3) of the Assessment Act provides that:

44.(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.

19Therefore, in determining the assessed value of the Subject Property as of January 1, 2016, the Board was tasked with i) determining the current value of the land, and ii) having reference to the value at which similar lands in the vicinity are assessed, and adjusting 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: see the Decision at paragraph 28.

20In the Subject Appeals, the Appellant disputes the value of the Subject Property as of the valuation date of January 1, 2016. The Appellant has not stated a specific current value in their Statement of Issues; however, they compare their suite to Suite 909 in the same building and state that “it defies common sense for MPAC to have established a lower CVA for Suite 909 than its CVA for Suite 809, and then attempt to defend its number for Suite 809 using erroneous data and omitting pertinent facts.”

21The value at which the Subject Property shall be assessed, as of the valuation date of January 1, 2016, is the same issue the Appellant put forward in the 2019 and 2020 Appeals. The Appellant has not provided evidence or submissions regarding a change to the Subject Property since the Decision.

22For this reason, the Board finds that the question to be decided in the Subject Appeal has already been decided.

23The Board finds that the first requirement of the test for issue estoppel is satisfied.

ii. The decision was final

24While the Appellant states that they were not aware they could seek a review of or appeal from the Decision, the Board finds that is not determinative of the finality of the Decision. The Board finds that the Decision was not reviewed or appealed.

25Accordingly, the Board finds that the Decision is final.

26The Board finds that the second requirement of the test for issue estoppel is satisfied.

iii. The parties are the same

27The Board finds that MPAC, the Appellant, Liling Zhang and the City were parties to the 2019 and 2020 Appeals. The Board also finds that MPAC, the Appellant, Liling Zhang and the City are parties to the Subject Appeal.

28The Board finds that the third requirement of the test for issue estoppel is satisfied.

iv. Conclusion

29The Board finds that the three requirements of issue estoppel are satisfied.

Issue 2 – Should the Board exercise its discretion and decline to apply issue estoppel?

Applicable Law

30The Supreme Court of Canada has confirmed that “[t]he rules governing issue estoppel should not be mechanically applied. The underlying purpose is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of a particular case”: see Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460 (“Danyluk, supra”) at paragraph 33. Therefore, even where the requirements to apply issue estoppel are met, the Board must ask itself, as a matter of discretion, whether issue estoppel ought to be applied: Danyluk, supra at paragraph 33. See also Municipal Property Assessment Corporation, Region No. 9 v Pussar, 2017 CanLII 72907 (ON ARB) at paragraph 9; Municipal Property Assessment Corporation Region 25 v McMillan, 2015 CanLII 78769 (ON ARB) at paragraph 19.

31The list of factors that the Board may take into account when deciding whether and how to exercise its discretion is open, and “[t]he objective is to ensure that the operation of issue estoppel promotes the orderly administration of justice but not at the cost of real injustice in the particular case”: Danyluk, supra at paragraph 67. See also Canadian Niagara Hotels Inc. v Municipal Property Assessment Corporation, Region 18, 2022 CanLII 54916 (ON ARB) at paragraph 23.

Submissions of the Parties

32The Appellant’s submissions summarized at paragraph 14 above also apply to the question of whether the Board should exercise its discretion and decline to apply issue estoppel. Further, the Appellant submits:

a. that if the Board were to grant MPAC’s motion, it would be a real injustice as it would amount to a cover up of what happened in the 2019 and 2020 Appeals;

b. getting the truth disclosed should be an important objective for the Board; and

c. that justice was not done in the 2019 and 2020 Appeals.

33The Appellant provided additional submissions relating to the calculation of the current value assessment of the Subject Property, including references to the difference in assessments between its Suite 809 and Suite 909.

34MPAC submits that:

a. It is in the interest of justice to apply issue estoppel to the Subject Appeal. It would achieve underlying policy objectives including avoiding duplicative litigation, potentially inconsistent results, undue costs, and inconclusive proceedings.

b. There is no reason why the Board should exercise its discretion to prevent the application of issue estoppel.

c. Public interest in the finality of the assessment roll favours applying issue estoppel in this case.

d. The Appellant has already presented and argued the issues at a full hearing. The Appellant is requiring the parties to re-litigate issues that have already been determined by the Board.

Findings on Issue 2

35The Board finds that no injustice would result from applying issue estoppel in the circumstances of this case.

36The Appellant’s primary argument is that they disagree with the Decision, and that they are of the view that the Board simply accepted MPAC’s position at the hearing without question.

37The Board does not accept this submission. The Board has reviewed the Decision carefully, and finds that there was no impropriety, unfairness, or failure of natural justice. The Appellant presented and argued the issues and their evidence at a full hearing. The Decision reflects that the Board heard and considered the Appellant’s evidence before ultimately rejecting it, for the reasons enumerated in the Decision. The Appellant has raised seemingly identical evidence in their materials on this motion and in the Subject Appeal. The Board finds that the Appellant is attempting to re-litigate the same issues and evidence in the Subject Appeal that was considered and rejected in the Decision, which defies the public interest in the finality of litigation. If the Board were to reconsider these issues and the same evidence as was advanced in the 2019 and 2020 Appeals without a change in the Subject Property, it would lead to duplicative proceedings, potentially inconsistent results, and increased costs.

38The underlying purpose of issue estoppel is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of a particular case. There is no injustice in this case, and the public interest in the finality of litigation is significantly engaged. Therefore, the Board concludes that it should not exercise its discretion to decline to apply issue estoppel.

CONCLUSION

39The Board finds that issue estoppel applies and will not exercise its discretion to decline to apply it in the circumstances of this case. Consequently, the Appellant is estopped from raising the issue of value at which the Subject Property shall be assessed, as of the valuation date of January 1, 2016, in the Subject Appeal.

40Given the Board’s findings in relation to the equitable doctrine of estoppel, it is unnecessary to consider the Parties’ submissions in relation to abuse of process.

ORDER

41Since the value at which the Subject Property shall be assessed, as of January 1, 2016, is the only issue in the Subject Appeal, the Board orders that the Decision applies to the Subject Appeal. The Board orders that the current value of $810,000 be confirmed for the Subject Appeal.