TKS Holdings Inc. v. Municipal Property Assessment Corporation Region 03, 2023 CanLII 419

Tribunals Ontario / Tribunaux décisionnels Ontario

Assessment Review Board / Commission de révision de l’évaluation foncière

ISSUE DATE: January 05, 2023 FILE NO.: DM 182242 Assessed Person(s): TKS Holdings Inc. Appellant(s): TKS Holdings Inc Respondent(s): Municipal Property Assessment Corporation Region 03 Respondent(s): City of Ottawa Property Location(s): 151 Bay Street Municipality(ies): City of Ottawa Roll Number(s): 0614-062-901-16548-0000 Appeal Number(s): 3462208 and 3486307 Taxation Year(s): 2021 and 2022 Hearing Event No.: 777393 Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31

Parties	Representative
TKS Holdings Inc.	Glenn Lucas
Municipal Property Assessment Corporation	Laura Kelleher
City of Ottawa	Krista O'Brien

REQUEST FOR: An order for issue estoppel An order applying Board Decision No. 2826698 to appeals 3462208 and 3486307 An order that the value of the Subject Property for the 2021 and 2022 taxation years is $2,500,000 An order suspending the Schedule of Events

HEARD: November 21, 2022 in writing

ADJUDICATOR(S): Carly Stringer, Member

MOTION DECISION

OVERVIEW

1TKS Holdings Inc. (the “Appellant”) is appealing the 2021 property assessment of a parking garage at 151 Bay Street in the City of Ottawa (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 Assessment Review Board (the “Board”) has deemed an appeal for the 2022 taxation year.

2The Appellant previously appealed the assessment of the Subject Property for the 2019 taxation year, also pursuant to s. 40 of the Act, and the Board deemed an appeal for the 2020 taxation year, again pursuant to s. 40(26) of the Act. The Appellant, the Municipal Property Assessment Corporation (“MPAC”) and the City of Ottawa (the “City”) were parties to these 2019 and 2020 appeals (the Appellant, MPAC and the City together, the “Parties”). For these 2019 and 2020 appeals, the Parties entered into Minutes of Settlement, agreeing to a current value assessment of $2,500,000 for the January 1, 2016 statutory valuation date. The Parties advised the Board of their settlement, and the Board issued Decision No. 2826698, confirming the correct Current Value Assessment (“CVA”) of $2,500,000 as of January 1, 2016 for the 2019 and 2020 appeals.

3MPAC is a respondent in the 2021 and 2022 appeals. MPAC has brought this motion asking the Board to:

a. order that the Appellant is estopped from raising the CVA of the Subject Property as of January 1, 2016 for the 2021 and 2022 taxation years;

b. order that the Board apply Board Decision No. 2826698 to the Appellant’s appeals and confirm that the 2016 CVA for the Subject Property for the 2021 and 2022 taxation years is $2,500,000; and

c. suspend the Schedule of Events that applies to these proceedings.

4MPAC argues that the issue of current value for the 2021 and 2022 taxation years, which have the same valuation date of January 1, 2016, has been determined by the Board in Decision No. 2826698; that the Parties are the same; and that Decision No. 2826698 is final.

5The City is another respondent in the 2021 and 2022 appeals. The City supports MPAC’s motion. In addition, the City asks the Board to dismiss the appeals.

6The Appellant opposes the motion. The Appellant disagrees that issue estoppel applies and, alternatively, asks the Board to exercise its discretion not to apply it.

Result

7For the reasons that follow, the Board finds that issue estoppel applies.

ISSUES

8The issues to be determined on this motion are:

1. Can issue estoppel apply to these appeals?

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

ANALYSIS

Issue 1 – Can issue estoppel apply to these appeals?

Applicable Law

9Issue 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.

10The three criteria that must be met for issue estoppel to apply are well-settled, as articulated by the Board in Wabi Iron & Steel Corp. v. Municipal Property Assessment Corp., Region No. 29, [2002] O.A.R.B.D. No. 219 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) and confirmed in numerous subsequent decisions of this Board:

i. the same question has been decided;

ii. the judicial 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.

11Even if the above-noted criteria are met, the Board has discretion not to apply issue estoppel if it would be against the interest of justice to do so: see Municipal Property Assessment Corporation Region 25 v McMillan, 2015 CanLII 78769 (ON ARB) at paragraph 19.

The 2019 and 2020 Appeals

12Some background relating to the 2019 and 2020 appeals is necessary to contextualize the analysis.

13As noted above, the Appellant appealed the CVA as of January 1, 2016 for the Subject Property for the 2019 taxation year. The Appellant filed the 2019 appeal on January 2, 2019.

14Also in January 2019, the Appellant received a report from an engineer who had assessed the Subject Property. This report, dated January 4, 2019 and entitled “Structural Condition Assessment, 151 Bay Street Parking Garage”, recommended that a major remediation be performed within the next five years. The report estimated costs of remediation of roughly $4,000,000.

15The 2020 appeal was deemed on April 1, 2020.

16On or about June 29, 2020, the Appellant filed its Reply pleading for the 2019 and 2020 appeals. The Appellant included the engineer’s report as part of its filing.

17On October 6, 2020, the Parties resolved the 2019 and 2020 appeals pursuant to Minutes of Settlement, agreeing to a CVA of $2,500,000.

18On November 13, 2020, the Board issued Decision No. 2826698 based on the Parties’ Minutes of Settlement, confirming a CVA of $2,500,000.

The 2021 and 2022 Appeals

19MPAC returned an assessment of $2,500,000 for the Subject Property for the 2021 taxation year, on the basis of Decision No. 2826698.

20In July 2021, the Appellant filed the 2021 appeal, challenging the CVA of $2,500,000 as of January 1, 2016.

21The 2022 appeal was deemed on April 1, 2022.

22In the 2021 and 2022 appeals, the Appellant seeks a CVA of $1.00 relying on the engineer’s report to reflect the Subject Property’s physical deterioration and repair costs.

Findings on Issue 1

i. Has the same question been decided?

23The Appellant submits that the Parties did not consider the engineering report and the significant costs to remediate the Subject Property, which constitutes new evidence that was not considered in the 2019 and 2020 appeals. The Appellant submits that the issues in the 2021 and 2022 appeals are therefore not identical to the issues in the 2019 and 2020 appeals.

24The Board does not accept this characterization of the issues. The Board finds that the question decided by the Board in Decision No. 2826698 was the current value of the Subject Property on January 1, 2016. This is the very same question raised in the Subject Appeals. The 2021 and 2022 taxation years both use the January 1, 2016 valuation date, pursuant to s. 19.2 of the Act and s. 48.6 of O. Reg. 282/98.

25In its materials on this motion, the Appellant has not identified any new or different questions to be determined in the Subject Appeals, nor has it identified a change in the facts underlying the dispute from the 2019 and 2020 appeals. Instead, the Appellant points to the engineer’s report - evidence that was known to and raised by the Appellant before it elected to resolve the 2019 and 2020 appeals. The Board finds that this is not new evidence or a change in the facts relating to the Subject Property.

26The Board finds that the question to be decided in the Subject Appeals has already been decided in Decision No. 2826698 - namely, the current value of the Subject Property on January 1, 2016. The Board finds that the first prong of the test for issue estoppel is satisfied.

ii. Was the decision final?

27Decision No. 2826698 was issued following Minutes of Settlement of the Parties. Decision No. 2826698 has not been reviewed or appealed. Accordingly, Decision No. 2826698 is final.

28The Board finds that the second prong of the test for issue estoppel is satisfied.

iii. Are the parties the same?

29The Board finds that MPAC, the Appellant and the City were parties to the 2019 and 2020 appeals. The Board also finds that MPAC, the Appellant and the City are parties to the Subject Appeals.

30The Board finds that the third prong of the test for issue estoppel is satisfied.

Conclusion on Issue 1

31The Board finds that the three elements of the test for issue estoppel are satisfied and, therefore, issue estoppel can apply.

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

Applicable Law

32Even where the elements of issue estoppel are met, the Board may exercise discretion and decline to apply it where it would be in the interests of justice to do so: Danyluk v Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460 at paragraph 33; Municipal Property Assessment Corporation, Region No. 9 v Pussar, 2017 CanLII 72907 (ON ARB) (“Pussar”) at paragraph 9.

Findings on Issue 2

33The Board will not exercise its discretion to decline to apply issue estoppel. The Board finds that no injustice will flow from the application of issue estoppel in the circumstances of this case.

34As noted in Pussar, supra at paragraph 10, “The Act has created a four-year period in which the same issues are in dispute each taxation year. Unless the facts underlying the dispute change, a decision of the Board will usually apply to all four years in the assessment cycle.” In this instance, there is no evidence that the facts underlying the dispute have changed - in fact, the Appellant has admitted that it had evidence regarding the poor structural condition of the Subject Property; that it presented this evidence to MPAC; that MPAC “refused to consider the engineering evidence”; and that the Appellant nevertheless elected to settle the 2019 and 2020 appeals. While the Appellant may have settled with the intention to appeal subsequent taxation years, the Board finds this does not create an injustice nor is it a special circumstance that would make it unjust to apply issue estoppel. The Board finds there is no additional evidence that satisfies the Board that it would be unfair or unjust to apply issue estoppel in this instance.

35On the facts of this case, the Board will not exercise its discretion to decline to apply issue estoppel.

CONCLUSION

36The 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 the Subject Property’s current value as of January 1, 2016 in the 2021 and 2022 appeals.

ORDER

37The Board orders that Decision No. 2826698 applies to the Appellant’s appeals. The Board orders that the current value of $2,500,000 be confirmed for the 2021 and 2022 taxation year appeals.

"Carly Stringer"

CARLY STRINGER MEMBER Assessment Review Board Website: www.tribunalsontario.ca/arb