Canuck Properties Ltd. v. Municipal Property Assessment Corporation Region 14, 2024 CanLII 124426

Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: December 11, 2024

FILE NO.: DM 187155

Assessed Person(s): Canuck Properties Ltd.

Appellant(s): Canuck Properties Ltd.

Respondent(s): Municipal Property Assessment Corporation Region 14

Respondent(s): City of Vaughan

Property Location(s): 8094 - 8214 Kipling Avenue

Municipality(ies): City of Vaughan

Roll Number(s): 1928-000-421-70301-00000

Appeal Number(s): 3503301, 3512745 and 3525402

Taxation Year(s): 2022, 2023 and 2024

Hearing Event No.: 784684

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

Parties

Counsel/Representative

Canuck Properties Ltd.

Paul Grosman

Municipal Property Assessment Corporation

Teresa Bufardeci

City of Vaughan

Aaron Zamler

HEARD: October 15, 2024 in writing

ADJUDICATOR(S): Dirk VanderBent, Vice-Chair Anita Lovrich, Member

MOTION DECISION

OVERVIEW

1This Motion Decision relates to a request from the City of Vaughan (the “City”) to dismiss Canuck Properties Ltd.’s (“Canuck”) appeals.

Current Appeal Proceeding

2Canuck is the landlord and assessed owner of the Subject Property.

3Canuck filed an appeal with the Assessment Review Board (the “Board”) pursuant to 40 the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”) challenging the assessment of 8094 - 8214 Kipling Avenue, in the City of Vaughan (the “Subject Property”) for the 2022 taxation year. Pursuant to the deeming provision under s. 40(26) of the Act, Canuck is deemed to have brought the same appeals for the 2023 and 2024 taxation years (the 2022, 2023 and 2024 appeals, together, the “Current Appeal Proceeding”).

4The Municipal Property Assessment Corporation (“MPAC”) had returned an assessment of $13,467,000 for the Subject Property for the 2022 to 2024 taxation years.

5In the Current Appeal Proceeding, Canuck states that for each taxation year under appeal, the assessment of the Subject Property is too high and that an equitable adjustment is necessary in order to attain equity with similar properties. Canuck argues that the current value, adjusted for equity, should be $8,202,000. Canuck also raises the issue of property classification, arguing that the correct classification for unimproved lands zoned as OS1 should be revised from Industrial to Commercial Vacant Land.

6MPAC and the City are the responding parties to the Current Appeal Proceeding.

Prior Appeal Proceeding

7Woodbridge Foam Corporation (“Woodbridge Foam”) is the sole tenant that fully occupies the Subject Property, and it is responsible for paying all property taxes levied on it, pursuant to its lease.

8Woodbridge Foam previously appealed an assessment of the Subject Property for the 2017 taxation year, on the basis that the current value of the Subject Property was incorrect (the “Prior Appeal Proceeding”). Canuck, as owner of the Subject Property, was a statutory party to the Prior Appeal Proceeding. Canuck was served a notice of appeal in accordance with s. 40 (9) of the Act but was not served with the Statement of Issues in the Prior Appeal Proceeding.

9The Prior Appeal Proceeding was resolved by Woodbridge Foam, the City, and MPAC. The parties agreed that the assessed value of the Subject Property for the 2017 to 2020 taxation years is $13,467,000 and filed executed Minutes of Settlement with the Board. As requested by the parties, the Board issued a decision for each taxation year under appeal, in accordance with the written Minutes of Settlement that were filed with the Board (“2017 to 2020 Decisions”).

The City’s Issue Estoppel Motion

10The City is responding to the Current Appeal Proceeding. The City’s position is that the same issue has been decided by the Board in the Prior Appeal Proceeding. The City has brought this Motion asking the Board for an order that the Current Appeal Proceeding be dismissed on the ground of issue estoppel. MPAC supports the City’s request. Their position is that all the requirements to establish issue estoppel have been met and that Canuck was aware of the Prior Appeal Proceeding but chose not to participate.

11Canuck opposes this Issue Estoppel Motion, stating that it was not involved with the settlement of the Prior Appeal Proceeding because it was not provided with a Notice of Appeal or a copy of the Statement of Issues or Statements of Response from the respondents. As such, it argues, the Prior Appeal Proceeding is “invalid”, and the motion should be dismissed.

RESULT

12The Board finds that the requirements to establish issue estoppel are met. However, the Board finds that it would not be fair to apply the doctrine in this case. As such, the Board applies its discretion to order that issue estoppel does not apply.

13The City’s Motion is dismissed.

ISSUES

14The issues to be addressed are:

1. Have the requirements to establish issue estoppel been met?

2. If the requirements to establish issue estoppel are met, should the Board exercise its discretion to order that issue estoppel applies?

3. If estoppel does not apply, should the Board dismiss the Current Appeal Proceeding on the ground that it is an abuse of process?

ANALYSIS

Issue 1 - Have the requirements to establish issue estoppel been met?

Applicable Law

15The Board has comprehensively outlined the law that applies to issue estoppel in many recent decisions: see for example, Manulife Ontario Property Portfolio Inc. v Municipal Property Assessment Corporation, 2023 CanLII 39085 (ON ARB), 2023 CanLII 13877 (ON ARB) (“Manulife”) at paragraphs 13 to 14, upheld by Divisional Court in Manulife Ontario Property Inc. v. MPAC and Ottawa (City), 2024 ONSC 1047 at paragraphs 17 to 39 (“Manulife Divisional Court”), leave to appeal Manulife Divisional Court to the Court of Appeal for Ontario denied in Manulife Ontario Property Portfolio Inc. v. Municipal Property Assessment Corporation (6 September 2024), Court of Appeal File No. COA-24-OM-0071 (Ont. C.A.). The Board adopts and relies on that law in this Motion Decision.

16To summarize, the requirements that must be satisfied to apply issue estoppel are:

i. the same question has been decided;

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

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

Evidence and Submissions of the Parties

(a) Same issue decided

17The City and MPAC submit that the same issues that were in question in the Prior Appeal Proceeding are in question in the Current Appeal Proceeding, namely, the correct current value of the Subject Property as of January 1, 2016, whether an equitable adjustment is warranted, and the correct classification of the Subject Property. Canuck states that the classification correction to Commercial Vacant Land (CX) for part of the Subject Property was not addressed in the Prior Appeal Proceeding.

(b) Decision is final

18MPAC and the City submit that the Board’s 2017 to 2020 Decisions are final. They state that none of the parties sought an appeal or review, and the decided value (based on the executed Minutes of Settlement between the parties) has been returned by MPAC for the 2022 to 2024 taxation years. Therefore, they submit that the 2017 to 2020 Decisions are final.

19Canuck did not address whether the 2017 to 2020 Decisions are final. Canuck argues that it has never before appealed its assessment for either the 2022, 2023 or the 2024 taxation years and that the order that the City is seeking from the Board is “contrary to a taxpayer’s annual right to appeal the assessment of its property, contrary to the provisions of the Act, and contrary to MPAC’s own practices as they relate to the annual assessment of property in Ontario.” Further, Canuck argues that the Board did not hear any evidence with respect to the Prior Appeal Proceeding.

(c) Same parties

20The City and MPAC submit that Canuck, MPAC, and the City were parties to the Prior Appeal Proceeding, Canuck being a statutory party in the Prior Appeal Proceeding. They state that the parties to the Prior Appeal Proceeding are the same as the parties to the Current Appeal Proceeding.

21Canuck argues that it, as the assessed person, was not in any way involved with the settlement of the Prior Appeal Proceeding. Canuck submits that it was not served with a “notice of appeal”, which is required under Section 40(9) of the Act nor a copy of the Statement of Issues or Statement of Responses from the City of Vaughan or MPAC, pertaining to the Prior Appeal Proceeding.

Findings on Issue 1

i. Was the same question decided?

22The Board finds that the question in the Prior Appeal Proceeding included (i) a determination of the current value and (ii) a determination of whether the current value was inequitable as compared to the assessments of similar properties in the vicinity and (iii) a dispute as to the classification of the Subject Property.

23The Board notes that the issue of the classification of the Subject Property was raised as an issue in the Prior Appeal Proceeding such that a determination of the classification of the entire property of necessity would have had to be made.

24The Current Appeal Proceeding raises the issues of (i) a determination of the current value and (ii) a determination of whether the current value was inequitable as compared to the assessments of similar properties in the vicinity and (iii) a dispute as to the classification of the Subject Property. Therefore, the Board finds that the first requirement for the application of issue estoppel is satisfied.

ii. Was the decision final?

25The Board finds that the 2017 to 2020 Decisions were issued following Minutes of Settlement executed by all parties. The 2017 to 2020 Decisions have not been reviewed or appealed. The Board notes that the Superior Court has confirmed that issue estoppel applies with equal effect to consent judgments. Accordingly, the Board finds that the 2017 to 2020 Decisions are final and the second requirement of the test for issue estoppel is satisfied.

iii. Are the parties the same?

26Although Canuck asserts that it was not involved as a party in the Prior Appeal Proceeding, the Board observes that Canuck was a statutory party in the Prior Appeal Proceeding. Furthermore, based on the uncontradicted evidence adduced, the Board accepts that the Notice of Appeal for the Prior Appeal Proceeding was served on Canuck in compliance with s. 40(9) of the Act.

27The Board observes that Canuck, MPAC and the City were parties to the Prior Appeal Proceeding. The Board further observes that they are parties to the Current Appeal Proceeding. Accordingly, the Board finds that the third requirement of the test for issue estoppel is satisfied.

Summary

28In summary, the Board finds that the three requirements of issue estoppel are met in this case.

Issue 2 - Should the Board exercise its discretion to order that Issue Estoppel Applies?

Applicable Law

29The 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 the decision of the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460 (“Danyluk”) 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.

30The 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.

Evidence

31The City provided proof of service for the Notice of Appeal for the Prior Appeal Proceeding, showing that it was served on Canuck in compliance with s. 40(9) of the Act.

32With respect to the service of the Statement of Issues in the Prior Appeal Proceeding, the City’s affidavit evidence states that Canuck “was aware of the 2017-2020 appeals but expressed no intention to participate in or oppose the proceedings” and based on this, Woodbridge Foam did not serve its Statement of Issues on Canuck.

33MPAC and the City state that there have been no physical changes to the Subject Property since the resolution of the Prior Appeal Proceeding that would require the Board to exercise its discretion to allow the Property Owner to relitigate the same issues in the Current Appeal Proceeding. Canuck did not provide evidence indicating there have been such changes.

The Parties’ Submissions

MPAC

34MPAC argues that Canuck was aware of the Prior Appeal Proceeding but chose not to participate in it and is now attempting to relitigate the same issues as were decided in that proceeding. It alleges that the City and the Appellant, as parties that did not serve and file pleadings in the Prior Appeal Proceeding, were deemed not to oppose the settlement that was made between the Tenant and MPAC, pursuant to Rule 39 of the Board’s former Rules of Practice and Procedure (the “Rules”) effective April 1, 2017, amended May 2019 and Rule 60 of the Board’s current Rules effective April 1, 2021.

35MPAC alleges that applying issue estoppel will not result in any injustice as no new issues or compelling reasons have been presented that would warrant reconsideration of the previously settled issues.

36MPAC submits that the purpose of providing courts and tribunals with discretion not to apply 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,” citing Danyluk at paragraph 33.

37MPAC further argues that applying issue estoppel would also achieve all the underlying policy objectives of the doctrine as described by the Supreme Court of Canada in Danyluk supra and the Court of Appeal in Rasanen v. Rosemount Instruments Ltd., 1994 CanLII 608 (ON CA) (“Rasanen”) including avoiding: duplicative litigation, potentially inconsistent results, undue costs, and inconclusive proceedings.

City

38The City submits that Canuck was provided with the Schedule of Events by the Board in relation to the Prior Appeal Proceeding, so it was fully aware of the timelines outlined by the Schedule of Events, and it was, thereby, adequately informed of the proceedings. The City asserts that Canuck “could have easily participated in the 2017-2020 section 40 appeals.” The City’s position is that nothing prevented the Appellant from raising the issues it raises in the Current Appeal Proceeding at the time of the Prior Appeal Proceeding.

39The City asserts that Canuck as the landlord, and Woodbridge Foam, as the tenant, had a cooperative relationship and a history of collaboration on property tax matters, including a mutual understanding and coordinated approach to the Prior Appeal Proceeding. It states that Canuck was fully informed and actively engaged in discussions with Woodbridge Foam regarding the Prior Appeal Proceeding. It states that Woodbridge Foam did not serve its Statement of Issues on Canuck because Woodbridge Foam was aware that Canuck did not wish to participate in or oppose the Prior Appeal Proceeding. It submits that if Canuck wished to participate in the Prior Appeal Proceeding, it could have requested a copy of the Statement of Issues from Woodbridge Foam or furnished its email address to the Board and other parties. Therefore, Canuck had ample opportunity to participate and request documents.

40The City submits that even if Canuck had received Woodbridge Foam’s Statement of Issues and been included in communications with the Board during the Prior Appeal Proceeding, its active participation in the appeals would not have occurred, the resolution of the Prior Appeal Proceeding would have remained unchanged.

41The City asserts that the reason Canuck initiated the Current Appeal Proceeding was not due to any perceived unfairness or injustice resulting from the Prior Appeal Proceeding, arguing, instead, that it is because Canuck engaged a new property tax consultant and is aiming to secure a more favourable outcome.

42The City states that Woodbridge Foam did not conceal the Prior Appeal Proceeding appeals from Canuck, and had there been a genuine breach of natural justice or fairness in the Prior Appeal Proceeding, Canuck would have sought to review the 2017 to 2020 Decisions. The City submits that the fact that Canuck did not do so indicates its acceptance of the appeals' outcome.

43The City submits that the Board should not exercise its discretion to decline to apply issue estoppel in the Current Appeal Proceeding.

Canuck

44Canuck submits that, if the Board determines issue estoppel does apply, the Board should not apply this discretionary doctrine to dismiss the appeals as that would create an injustice in the present case, given the circumstances.

45Canuck alleges that the City is effectively asking the Board to dismiss the Current Appeal Proceeding, even though Canuck has never appealed its assessment for either the 2022, 2023 or the 2024 taxation years”. Canuck further alleges that the City is also requesting this dismissal despite the Board not having considered any evidence related to the new issues raised in the Current Appeal Proceeding.

46Canuck asserts that it is not attempting to relitigate, reopen, or readdress the Prior Appeal Proceeding as it did not initiate those appeals, was not served with a notice of appeal as required under s. 40 (9) of the Act nor any of the pleadings that were served and filed in the Prior Appeal Proceeding, including the Statement of Appeal. As a result, the Prior Appeal Proceeding was invalid.

Findings on Issue 2

47The Board has earlier found that the Notice of Appeal for the Prior Appeal Proceeding was served on Canuck in compliance with s. 40(9) of the Act. However, it is not disputed that the Statement of Issues in the Prior Appeal Proceeding was not served on Canuck.

48The Board’s Rules provide that appeals heard by general proceeding must be conducted in accordance with the prescribed Schedule of Events, which, in turn, requires that an appellant must serve a Statement of Issues on all other parties.

49The Board finds that Woodbridge Foam’s failure to serve its Statement of Issues on Canuck in the Prior Appeal Proceeding is an incurable procedural deficiency. In support of this conclusion, the Board first observes that such failure to serve directly contradicts the requirement set out in the Board’s Rules. Furthermore, to hold otherwise, would mean that statutory responding parties may or may not be informed of the issues to be raised in an appeal proceeding. Providing notice of these issues to all other parties is fundamental to ensuring procedural fairness.

50Support for this conclusion is found in the decision of the Ontario Court of Appeal in Rasanen cited with approval by the Supreme Court of Canada in Danyluk, at paragraph 44 as follows:

As long as the hearing process in the tribunal provides parties with an opportunity to know and meet the case against them, and so long as the decision is within the tribunal’s jurisdiction, then regardless of how closely the process mirrors a trial or its procedural antecedents, I can see no principled basis for exempting issues adjudicated by tribunals from the operation of issue estoppel in a subsequent action. [Emphasis added.]

51In further support of this conclusion, the Board also notes that the Notice of Appeal only sets out the bases for the appeal (often described as the grounds for appeal), not the specific issues to be raised by the appellant respecting each ground of appeal. A responding party cannot respond to issues until it is served with a statement of the issues that the appellant intends to raise at the hearing. In this regard, the Board also notes that, in some cases, an appellant, having filed an appeal with the Board, may decide not to proceed with its appeal, and, consequently, does not serve a Statement of Issues. Therefore, it cannot be assumed that filing an appeal, in and of itself, indicates that the appeal proceeding will continue.

52The thrust of the submission made by MPAC and the City is that, having been served with the appeal, it was incumbent on Canuck to decide whether it would participate. However, absent receiving Woodbridge Foam’s Statement of Issues, Canuck would not be in position to make an informed decision as to whether it would participate in the Prior Appeal Proceeding as a responding party. Therefore, the Board cannot infer that Canuck’s failure to participate in the Prior Appeal Proceeding confirms that Canuck would not have participated, had it been served with Woodbridge Foam’s Statement of Issues.

53MPAC and the City assert that Canuck must have been aware of the issues raised in the Prior Appeal Proceeding given the nature of its landlord/tenant relationship with Woodbridge Foam. In response to a question posed by the Board, the City filed an affidavit, which states:

5. Canuck Properties Ltd was aware of the 2017-2020 appeals but expressed no intention to participate in or oppose the proceedings. Based on this, Woodbridge Foam Corporation did not serve its Preliminary Statement of Issues on Canuck Properties Ltd.

54In response, Canuck submits that the affiant is speculating, as he does not have first-hand knowledge of the facts.

55In addressing this evidence, the Board notes that the affiant makes an assertion that is not supported by any factual evidence. The only factual evidence is that Woodbridge Foam did not serve its Statement of Issues on Canuck. For this reason, the Board finds that there is no clear evidence to support a conclusion that Canuck was aware of the issues being raised by Woodbridge Foam. As such, the Board finds that this assertion is speculative. In any event, the Board has already found that the mandatory requirement to be served with a Statement of Issues is a fundamental right of procedure fairness.

56The Board now turns to the fact that Canuck, having been provided by the Board with the issued 2017 to 2020 Decisions in the Prior Appeal Proceeding, chose not to appeal to a court or seek a Board review of these Decisions. The tenor of the argument made by MPAC and the City is that such acquiescence indicates Canuck made a decision not to participate in the Prior Appeal Proceeding, and, therefore, there will be no injustice if issue estoppel is applied in the Current Appeal Proceeding. For the following reasons, the Board does not find this argument to be persuasive. First, in making this argument, the Board is being asked to infer Canuck’s motive in not seeking an appeal or a request for review. There is no clear evidence to confirm Canuck’s motive one way or the other.

57More importantly, the fact that Canuck did not seek redress respecting the incurable procedural deficiency, does not alter the fact there has been an incurable procedural deficiency. While Canuck appears willing to accept the end result of the Prior Appeal Proceeding, i.e. the prior Decisions for the 2017 to 2020 taxation years, Canuck has made it clear that it does not accept that this result should be binding on Canuck for the Current Appeal Proceeding.

58The Board now turns to Canuck’s argument that issue estoppel should not be applied because it has an annual right of appeal. The Board does not find this to be a probative consideration. It is, of course, clear that the Act provides for an annual right of appeal, so Canuck has the right to appeal for the 2022 and subsequent deemed taxation years. However, that is not the issue in this Motion Hearing. In this Motion, the question is whether Canuck, having filed the appeal, should be estopped from raising certain issues in the Current Appeal Proceeding.

59In reaching its final conclusion, the Board first reiterates that the question is whether applying issue estoppel would result in a real injustice in the circumstances of this case. Based on the totality of the evidence and the above findings, it is clear that there is no degree of certainty that Canuck was made fully aware of the issues being raised in the Prior Appeal Proceeding.

60Based on the above analysis and findings, the Board concludes that there would be a real injustice if Canuck is found to be bound by the 2017 to 2020 Decisions in the Prior Appeal Proceeding. In other words, there would be a real injustice if issue estoppel is applied in the Current Appeal Proceeding. Accordingly, the Board will apply its discretion not to apply issue estoppel in this case.

Issue 3 - If estoppel does not apply, should the Board dismiss the Current Appeal Proceeding on the ground that it is an abuse of process?

Applicable Law

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

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

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

63The primary focus of abuse of process is the integrity of the courts’ adjudicative functions: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 [2003] 3 SCR 77 (“CUPE”) at paragraph 40. In this decision, the Supreme Court of Canada has stated:

a. “… courts have applied the doctrine of abuse of process … where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality, and the integrity of the administration of justice.” (paragraph 37).

b. “The policy grounds supporting abuse of process by relitigation are the same as the essential policy grounds supporting issue estoppel” (paragraph 38).

c. “The attraction of the doctrine of abuse of process is that it is unencumbered by the specific requirements of res judicata while offering the discretion to prevent relitigation, essentially for the purpose of preserving the integrity of the court’s process.” (paragraph 42).

d. “… the primary focus of the doctrine of abuse of process is the integrity of the adjudicative functions of courts … the focus is less on the interest of parties and more on the integrity of judicial decision making as a branch of the administration of justice … it is that concern that compels a bar against relitigation, more than any sense of unfairness to a party being called twice to put its case forward, for example.” (see paragraph 43).

Submissions of the Parties

MPAC

64MPAC submits that, even if the Board determines that issue estoppel does not apply, the Current Appeal Proceeding constitutes an abuse of process and the Appellant should not be permitted to relitigate issues that have already been finally decided.

65It argues that section 23(1) of the Statutory Powers Procedure Act gives the Board the power to “… make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes”, and the Board should apply the 2017 to 2020 Decisions to the Current Appeal Proceeding on that basis.

66MPAC states that the abuse of process doctrine is characterized by its flexibility, but Courts have consistently applied the doctrine where an action seeks in its essence, to relitigate a matter which has already been decided and where the strict requirements of issue estoppel are not met.

67MPAC argues that relitigating issues that have already been decided due to a statutory party's decision not to participate in the previous proceedings would be prejudicial to both MPAC and the City.

City

68The City argues that, if the Board determines that issue estoppel does not apply, that the Current Appeal Proceeding be dismissed due to abuse of process.

69It argues that in CUPE at paragraph 37, the Supreme Court of Canada stated that the doctrine of abuse of process is appropriately used to preclude relitigation in circumstances where the strict requirements of issue estoppel have not been met, but where allowing the litigation to proceed would nonetheless violate principles such as judicial economy, consistency, finality and the integrity of the administration of justice.

70It argues that relitigating issues that have already been decided in a previous legal proceeding is considered an abuse of process because it wastes judicial resources and undermines the finality of legal proceedings.

71The City argues that a subsequent legal action may be dismissed for abuse of process if an individual, despite not being formally considered a party or privy to the initial proceeding, was aware of it and had the chance to participate but failed to raise the issue then: see Guay v. Dennehy, 1994 CarswellMan 124 (“Guay”) at paragraphs 40-43.

72The City argues that the Appellant failed to raise the issues it is now presenting in the Prior Appeal Proceeding, despite receiving notice of the prior appeals and choosing not to participate. The Appellant’s attempt to raise issues that were already determined in the Prior Appeal Proceeding in the Current Appeal Proceeding is abuse of process and wastes judicial resources.

73The City submits that the Current Appeal Proceeding should be dismissed for abuse of process, as the Appellant failed to raise the issues it is now raising in the Prior Appeal Proceeding, despite receiving notice of the prior appeals and choosing not to participate in them.

Canuck

74Canuck did not make submissions as to whether the Board should dismiss the Current Appeal Proceeding on the ground that it is an abuse of process.

Findings on Issue 3

75As the Court found in CUPE, the policy grounds supporting abuse of process by relitigation are the same as the essential policy grounds supporting issue estoppel. This finding indicates that the legal test for exercising discretion not to apply issue estoppel is, effectively, the same as the legal test for determining whether the Board will preclude relitigation because it would be an abuse of the Board’s process. As noted above, these essential policy grounds are economy, consistency, finality, and the integrity of the administration of justice. There is, perhaps, only one potential difference between the two. Respecting abuse of process, as stated in CUPE, ‘integrity of the administration of justice’ compels a bar against relitigation, “… more than any sense of unfairness to a party being called twice to put its case forward.” (emphasis added): (see paragraph 43).

76Thus, it appears that these two tests can be colloquially described as two faces of the same coin. Where issue estoppel applies, the question is whether preventing an opportunity to relitigate would cause a real injustice, whereas, for abuse of process, the question is whether allowing an opportunity to relitigate would compromise the integrity of the administration of justice. In this regard, the Board observes that there is bound to be considerable conceptual overlap in the application of these two legal tests.

77Accordingly, in this case, the Board finds that its analysis and findings regarding the question of exercising discretion not to order issue estoppel, are equally relevant and probative to the Board’s determination of whether allowing relitigation would compromise the integrity of the administration of justice.

78More particularly, the Board observes that, if Canuck is prevented from proceeding with its issues on the ground that it would be an abuse of process, this would effectively ignore the incurable procedural deficiency of failing to serve the Statement of Issues in the Prior Appeal Proceeding. The net result would be to condone this breach of procedural fairness. The Board finds that condoning this breach would clearly compromise the integrity of the administration of its process. Accordingly, although the City and MPAC argue that allowing relitigation would result in an abuse of the Board’s process, the opposite is true. There will be an abuse of the Board’s process if Canuck is not allowed to proceed with Current Appeal Proceeding.

79In arriving at this conclusion, the Board has considered and rejects the City’s submission regarding the Guay decision.

80The Board begins by noting that the City’s submission is that a subsequent legal action may be dismissed for abuse of process if an individual, despite not being formally considered a party or privy to the initial proceeding, was aware of it and had the chance to participate but failed to raise the issue. In addressing this submission, the Board first notes that, in this case, Canuck was formally considered a party in the Prior Appeal Proceeding because it is made a statutory party under the Act. Furthermore, Canuck was a responding party. As such, Canuck was not required to raise an issue, only to respond to the issues raised by Woodbridge Foam.

81Furthermore, although the Court found that the requirements to apply issue estoppel had been met, the Court did not address the question of the exercise of its discretion not to apply issue estoppel. This, perhaps, is not surprising as this decision was issued in 1994, whereas it appears that the requirement to exercise discretion only crystallized in subsequent decisions ultimately leading to the decision of the Supreme Court of Canda decision in Danyluk. However, it is clear that the Court’s decision in Guay is that issue estoppel was to be applied. Consequently, at paragraph 40, the Court expressly described its findings respecting abuse of process as alternative to its main finding on issue estoppel.

82Regarding the application of the abuse of process doctrine, the Board observes that the application of either the issue estoppel or abuse of process doctrines is case specific. In Guay, the Court, at paragraph 44, expressly found that the prior litigation addressed a matter of the law of trusts. More specifically, the Court noted that “it was not a proceeding between two parties, but rather a proceeding to determine who, as between all potential claimants, was entitled to certain money”. Given the broader scope of the prior litigation, the Court found that it would be an abuse of process to relitigate this issue. This determination formed the basis for the Court’s conclusion that the abuse of process doctrine should be applied in these case specific circumstances. However, the Board notes that these circumstances in no way mirror the circumstances of the case before the Board in this Motion Hearing.

83For these reasons, the Board does not accept that the decision in Guay supports the City’s submission.

84Based on the above analysis and findings, the Board finds that the City and MPAC have not established that allowing the Current Appeal Proceeding to continue would result in an abuse of the Board’s process. Therefore, the Board denies the request to dismiss the Current Appeal Proceeding on this ground.

CONCLUSION

85The Board finds that the requirements to establish issue estoppel are met. However, the Board finds that, given the incurable procedural deficiency present in the Prior Appeal Proceeding, applying the doctrine in this case would result in real injustice. As such, the Board applies its discretion to order that issue estoppel does not apply. The Board further finds that that allowing the Current Appeal Proceeding to continue would not result in an abuse of the Board’s process.

86The City’s Motion is dismissed.

ORDER

87The Board orders that the Motion be dismissed, and the Schedule of Events be amended, such that the due date for filing pleadings, all documents to be relied on at the hearing, and settlement conference briefs is six (6) weeks from the date this Motion Decision is issued.