World Exchange Plaza Holding v. Municipal Property Assessment Corporation Region 03, 2024 CanLII 47644

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

ISSUE DATE: May 29, 2024 FILE NO.: DM 186200A AMENDED MOTION DECISION ISSUED: June 4, 2024

Assessed Person(s): World Exchange Plaza Holding Appellant(s): World Exchange Plaza Holding Respondent(s): Municipal Property Assessment Corporation Region 03 Respondent(s): City of Ottawa

Property Location(s): 111 Albert Street Municipality(ies): City of Ottawa Roll Number(s): 0614-041-701-16500-0000 Appeal Number(s): 3503078, 3511592 and 3524740 Taxation Year(s): 2022, 2023 and 2024 Hearing Event No.: 783495

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

Parties	Counsel*/Representative
World Exchange Plaza Holding	Paul Grosman
Municipal Property Assessment Corporation	Makael Nur
City of Ottawa	Angela Severson*

REQUEST FOR: Motion to Dismiss HEARD: April 29, 2024 in writing ADJUDICATOR(S): Dirk VanderBent, Vice-Chair

AMENDED MOTION DECISION

AMENDED MOTION DECISION

In accordance with Rule 99 of the Assessment Review Board’s Rules of Practice and Procedure, effective April 1 2021, related to the correction of minor errors and in accordance with section 21.1 of the Statutory Powers and Procedure Act regarding the correction of errors, this Amended Motion Decision is issued to correct error(s) in the Motion Decision regarding the Appearances section on page 1. Chantelle MacMillan has been removed as the representative for World Exchange Plaza Holding. There are no other changes in this Amended Motion Decision.

OVERVIEW

1World Exchange Plaza Holdings Inc. (the “Appellant”) is the owner of the property located at 111 Albert Street, City of Ottawa (the “Subject Property”) and has filed an appeal with the Assessment Review Board (the “Board”) pursuant to s. 40 of the Assessment Act, S.O. 1990, c. A.31 (the “Act”) for the 2022 taxation year. The basis of this appeal is that the current value of the Subject Property is incorrect. Pursuant to the deeming provision under s. 40(26) of the Act, the Appellant is deemed to have brought the same appeal for the 2023 and 2024 taxation years (the “Current Appeal Proceeding”).

2The Appellant previously filed an appeal in respect 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”). The Prior Appeal Proceeding, including subsequent deemed appeals for the 2018 to 2020 taxation years, was resolved by the parties. They filed executed Minutes of Settlement with the Board, and the Board, in turn, issued a Decision for each taxation year in accordance with these Minutes of Settlement.

3Where the basis of an appeal is that a property’s current value is incorrect, the Act requires that the Board must first determine a property’s correct current value, which will be its assessed value, unless similar lands in the vicinity are assessed at a lower value than current value. If so, s. 44(3)(b) of the Act requires that the Board reduce the assessment of the property.

4In the Prior Appeal Proceeding, the parties agreed that the assessed value of the Subject Property for the 2017 to 2020 taxation years is $215,408,000. In the Current Appeal Proceeding, the Appellant does not dispute this assessed value, but asserts that it should be further reduced pursuant to s. 44 (3)(b) of the Act.

5The City of Ottawa has submitted a request to the Board for an order that the Current Appeal Proceeding be dismissed on the grounds of issue estoppel. The Municipal Property Assessment Corporation (“MPAC”) supports the City’s request. The Appellant opposes it.

RESULT

6The Motion is granted. The Current Appeal Proceeding is dismissed.

ISSUES

7The issues to be addressed in this Motion Decision are whether the doctrine of issue estoppel applies in the circumstances of this case, and, if so, whether the Board should exercise its discretion to apply issue estoppel and dismiss the appeals.

8The Board has reviewed all the parties’ submissions in detail. However, for the reasons described below, the Board has not provided a detailed summary of these submissions in this Motion Decision.

ANALYSIS

9The Board begins its analysis by pointing out that the circumstances of this case and the submissions of the parties are effectively the same as the circumstances and submissions before the Board in Manulife Ontario Property Portfolio Inc. v Municipal Property Assessment Corporation, 2023 CanLII 39085 (ON ARB), 2023 CanLII 13877 (ON ARB) (“Manulife”). Manulife was appealed to the Divisional Court, and the Divisional Court upheld the Board’s analyses and findings in Manulife Ontario Property Inc. v. MPAC and Ottawa (City), 2024 ONSC 1047 (“Manulife – Div. Ct.”). As of the issuance date of this Motion Decision, an application for leave to appeal Manulife – Div. Ct. is pending before the Court of Appeal.

10In Manulife, the Hearing Member found that the question of equitable reduction was an issue that was necessarily before the Board in the prior appeal proceeding, so all the requirements to establish issue estoppel were satisfied. The Hearing Member also found that no injustice would result from applying issue estoppel. As the Divisional Court has upheld the Hearing Member’s analyses and findings in Manulife, finding that the Board did not err in its application of the doctrine of issue estoppel to dismiss Manulife’s assessment appeals, the Board adopts and applies these analyses and findings in this case.

11Consequently, the Board finds that the doctrine of issue estoppel is established and that the Board should exercise its discretion to apply issue estoppel. In making these findings, the Board has also considered an additional submission raised by the Appellant that was not addressed in Manulife.

12In addition to Manulife, the Appellant refers to the Board decisions in Ivanhoe Cambridge Inc v Oshawa (City), 2023 CanLII 116832 (ON ARB) (“Ivanhoe”) and ARI STC GP Inc. v Toronto (City), 2023 CanLII 116834 (ON ARB) (“ARI STC”), noting that leave to appeal to the Divisional Court has been requested respecting each of these decisions. As of the issuance date of this Motion Decision, decisions on these two leave requests remain pending. The Appellant asserts that the issue of equity of assessment was squarely before the Board in Ivanhoe and ARI STC. The Appellant submits, therefore, that the Board should not proceed to adjudicate the City’s dismissal motion in the Current Appeal Proceeding, until such time as the appeal proceedings in Manulife, Ivanhoe and ARI STC are completed. The Appellant asserts that the net effect of these matters and respective issues being before the courts, is that the final outcome of those matters will almost certainly be dispositive of the City’s dismissal motion in this case. Consequently, the Appellant submits that it would be inappropriate and an unnecessary use of limited time, resources, and expense to proceed with the City’s motion, when the Board’s stance on substantially the same issues is known, and when determinations as to the correctness of that stance is pending before both the Divisional Court and Court of Appeal.

13In addressing this submission, the Board first observes that, in the Current Appeal Proceeding, the Appellant agrees that the applicable valuation day for determining current value is the general reassessment valuation day. Accordingly, the Board is not required to determine the correct valuation day for determining the current value of the Subject Property. This was not the case in Ivanhoe and ARI STC, where the appellants in those appeal proceedings argued that the effective valuation day for determining current value is not the general reassessment valuation day. Instead, they argued that the correct valuation day is the date for returning the assessment roll. Consequently, if their arguments are accepted, the current value of their properties would have to be redetermined, which, in turn, would require a determination whether an equitable adjustment under s. 44(3)(b) is necessary. In comparison, the Board reiterates that the Appellant in this case does not assert that the valuation day for determining current value in the Current Appeal Proceeding is different from the general reassessment valuation day applied in the Prior Appeal Proceeding. For this reason, the Board does not accept that the issue respecting equitable adjustment in this case is the same issue as set out in Ivanhoe and ARI STC.

14As for Manulife, the Board has already found that the issue respecting equitable adjustment is the same. So, the question becomes whether the Board should suspend the City’s dismissal motion pending the outcome of the Manulife – Div. Ct. appeal proceeding currently before the Court of Appeal.

15The Board considered a very similar question in 2070649 Ontario Inc. (Sheppard Bogert Developments Limited) v Municipal Property Assessment Corporation Region 09, 2023 CanLII 121514 (ON ARB) (“Sheppard Bogert”)). Specifically, after leave to appeal the Manulife decision was granted at the Divisional Court, but before Manulife – Div. Ct. was issued, the Board received a request to suspend a motion to dismiss, making a similar argument that the motion should be suspended pending completion of the appeal proceeding before the Divisional Court: leave to appeal to Divisional Court was granted in Manulife v. Municipal Property Assessment Corporation et al, 2023 ONSC 4705 (“Manulife – Leave Decision”). The Board denied the request in Sheppard Bogert. The Board found that, when deciding whether to grant the request to suspend the motion to dismiss, the Board had to consider the likelihood that the Manulife - Leave Decision could impact the Board’s hearing of the dismissal motion. For the reasons set out in Sheppard Bogert, the Board found that it was unlikely.

16The Divisional Court’s dismissal of the Manulife appeal, which was issued after the Board’s decision in Sheppard Bogert, obviously reinforces the Board’s conclusion in Sheppard Bogert. In Manulife – Div. Ct., the Divisional Court unequivocally found that the Board correctly identified the law of issue estoppel and correctly applied the doctrine to the facts before it. The Court further stated that it was satisfied that the Board properly considered whether to exercise its discretion to apply the doctrine and properly directed itself to the nature of this discretion (see paragraph 39). Consequently, the Board finds that it is unlikely that the current request to the Ontario Court of Appeal for leave to appeal could impact the Board’s hearing of the City’s dismissal motion in this Current Appeal Proceeding.

17In further support of the above conclusion, the Hearing Panel in Sheppard Bogert provided an additional interpretative analysis of s. 44(3)(b) which supports the finding in Manulife (see paragraphs 45 to 59). This analysis was not addressed in the Manulife – Div. Ct. decision, but may be considered in the pending Manulife – Div. Ct. appeal proceeding before the Court of Appeal.

Summary

18The Board finds that it should not suspend the hearing of the City’s motion. The Board has further found that the requirements for issue estoppel are satisfied and that the Board should exercise its discretion to apply issue estoppel. Accordingly, the Appellant is estopped from raising the issue of equitable adjustment of current value, which is the only issue raised in the Current Appeal Proceeding. As there is no other issue to address in this Current Appeal Proceeding, it should be dismissed.

ORDER

19The Board orders that the Appellant is estopped from raising the issue that the current value of the Subject Property for the 2022 to 2024 taxation years is incorrect.

20The Board grants the City’s motion and dismisses the Appellant’s appeals in respect of the Subject Property for the 2022 to 2024 taxation years.