Tribunals Ontario
Tribunaux décisionnels Ontario
Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE: September 16, 2024
FILE NO.: DM 186797
Assessed Person(s): Ontari Holdings Ltd
Appellant(s): The Brick
Respondent(s): Municipal Property Assessment Corporation Region 15
Respondent(s): City of Mississauga
Property Location(s): 6765 Kennedy Road
Municipality(ies): City of Mississauga
Roll Number(s): 2105-040-117-02000-0000
Appeal Number(s): 3502765, 3513033 and 3525619
Taxation Year(s): 2022, 2023 and 2024
Hearing Event No.: 784573
Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31
| Parties | Counsel/Representative |
|---|---|
| The Brick | Paul Grosman |
| Ontari Holdings Ltd | Submissions not received |
| Municipal Property Assessment Corporation | Curtis Nielsen |
| City of Mississauga | Submissions not received |
REQUEST FOR: An order to dismiss the appeals based on issue estoppel
HEARD: August 6, 2024 in writing
ADJUDICATOR(S): Carly Stringer, Member
MOTION DECISION
OVERVIEW
1This Motion Decision relates to a request from the Municipal Property Assessment Corporation (“MPAC”) to dismiss The Brick’s (the “Appellant”) appeals based on issue estoppel.
The Parties and the Appeals
2The Appellant has appealed the assessment of 6765 Kennedy Road (the “Subject Property”) in the City of Mississauga, pursuant to s. 40 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act” or the “Assessment Act”), for the 2022 taxation year. Appeals were deemed for the 2023 and 2024 taxation years pursuant to s. 40(26) of the Act (the 2022, 2023 and 2024 appeals together, the “2022 to 2024 Appeals”). The Subject Property is leased by the Appellant, who uses it as a distribution centre.
3In the 2022 to 2024 Appeals, the Appellant argues that the value stated on each assessment is too high. Specifically, the Appellant argues that the value of $82,539,000 is incorrect and inequitable compared to the assessments of similar properties in the vicinity, and should be reduced to $68,278,000.
4MPAC and the City of Mississauga (the “City”) are responding to the 2022 to 2024 Appeals. MPAC disagrees that the returned value is too high.
The Appellant Appealed the Assessments for 2017 to 2021
5The 2022 to 2024 Appeals are not the first assessment appeals in relation to the Subject Property.
6The Appellant previously appealed the assessment for the Subject Property for 2017, and appeals were deemed for the 2018 to 2021 taxation years pursuant to s. 40(26) of the Assessment Act (the “2017 to 2021 Appeals”). In the 2017 to 2021 Appeals, the Appellant argued that the current value was too high. The parties to the 2017 to 2021 Appeals were the Appellant, the Assessed Owner Ontari Holdings Inc., MPAC and the City.
7The parties settled the 2017 to 2021 Appeals at $82,539,000. They executed Minutes of Settlement. The parties filed these Minutes of Settlement with the Board and requested that the Board issue decisions.
8On September 24, 2021, the Board issued decision number 2852727 in relation to the 2017 to 2021 Appeals, reflecting a value of $82,539,000 in accordance with the amounts in the Minutes of Settlement (the “2017 to 2021 Decision”).
The Appellant Appeals the Assessments for 2022 to 2024
9Pursuant to s. 36(1) of the Assessment Act, an annual assessment of the Subject Property was made for 2022. The current value on the 2022 assessment was $82,539,000, reflecting the value from the 2017 to 2021 Decision.
10The Appellant appealed this 2022 assessment, and appeals were deemed for 2023 and 2024 pursuant to s. 40(26) of the Assessment Act. These are the 2022 to 2024 Appeals that are the subject of this Motion Decision.
MPAC Brings a Motion for Issue Estoppel
11MPAC has brought this motion to dismiss the 2022 to 2024 Appeals based on issue estoppel and abuse of process. Namely, MPAC argues that the issue in dispute in the 2022 to 2024 Appeals is the current value assessment of the Subject Property as of January 1, 2016, which was already decided in the 2017 to 2021 Decision. MPAC argues that the Appellant should be estopped from relitigating this issue.
12The Appellant opposes MPAC’s motion. The City has not provided the Board with submissions.
13This Motion Decision reflects the Board’s consideration of MPAC’s request.
Result
14For the reasons that follow, the Board grants MPAC’s motion and dismisses the 2022 to 2024 Appeals.
PRELIMINARY MATTERS
Request for an Administrative Suspension
Appellant’s Submissions
15The Appellant has requested that the Board administratively suspend the 2022 to 2024 Appeals pending the outcome of two matters: first, a leave to appeal application before the Court of Appeal for Ontario relating to the Divisional Court decision in Manulife Ontario Property Inc. v. MPAC and Ottawa (City), 2024 ONSC 1047 (“Manulife”); and second, a Request for Review of the Board’s decision in World Exchange Plaza Holding v Municipal Property Assessment Corporation Region 03, 2024 CanLII 47644 (ON ARB) (“World Exchange Plaza”).
Findings
16The Board denies the Appellant’s request, finding it is moot because the Court of Appeal for Ontario dismissed the motion for leave to appeal in Manulife on September 6, 2024, and the Request for Review of World Exchange has been withdrawn.
ISSUES
17The following issues will be addressed on this motion:
Are the preconditions to issue estoppel met in this case?
If the preconditions to issue estoppel are met, ought the Board apply issue estoppel, as a matter of discretion?
Does abuse of process apply and, if it does, ought the Board apply it?
Issue 1 - Are the preconditions to issue estoppel met in this case?
Applicable Law
18The Board has comprehensively outlined the law that applies to issue estoppel in many recent decisions: see for example ARI STC GP Inc. v Toronto (City), 2023 CanLII 116834 (ON ARB) at paragraphs 31 to 32 (“ARI STC”) and Ivanhoe Cambridge Inc v Oshawa (City), 2023 CanLII 116832 (ON ARB), leave to appeal to Divisional Court denied ARI STC GP INC. v. MPAC, 2024 ONSC 3663; Manulife Ontario Property Portfolio Inc. v Municipal Property Assessment Corporation, 2023 CanLII 39085 (ON ARB), 2023 CanLII 13877 (ON ARB) 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.).
19The Board adopts and relies on that law in this Motion Decision.
20To summarize, the three criteria that must be met for issue estoppel to apply are:
The same question has been decided
The decision said to create the estoppel was final; and
The parties to the decision were the same parties as those to the proceedings in which the estoppel is raised.
Evidence and Submissions of the Parties
21MPAC argues that the requirements for issue estoppel are met. MPAC submits:
That the question in the 2022 to 2024 Appeals is the same question that was decided in the 2017 to 2021 Appeals, namely, what is the 2016 current value assessment for the Subject Property?;
That the 2017 to 2021 Decision was final; and
That the parties to the 2017 to 2021 Appeals were the same as the 2022 to 2024 Appeals, including the Appellant, MPAC and the City of Ottawa.
22The Appellant has not provided submissions disputing that the 2017 to 2021 Decision was final, and that the parties are the same. Rather, the Appellant focuses its argument on the first requirement for issue estoppel. The Appellant submits that the 2017 to 2021 Appeals had completely different issues than the 2022 to 2024 Appeals. The Appellant submits that the 2022 to 2024 Appeals raise new and novel issues that were not in dispute in the 2017 to 2021 Appeals – namely, the use of a sales comparison approach to determine the current value of the Subject Property and the equity of that value using an Assessment to Sales Ratio study in respect of the 2022 to 2024 assessments.
Findings on Issue 1
23With respect to whether the same question has been decided, the Board does not accept the Appellant’s submissions that the 2022 to 2024 Appeals present new and novel issues that were not raised in the 2017 to 2021 Appeals and decided in the 2017 to 2021 Decision. The Board does not accept the Appellant’s characterization of the issues in the 2022 to 2024 Appeals – the Appellant has described the evidence it would seek to tender in the 2022 to 2024 Appeals, not the questions to be determined by the Board. The Board finds that the question that was decided in the 2017 to 2021 Appeals was the current value assessment of the Subject Property as of January 1, 2016. As confirmed in Manulife Divisional Court, this necessarily included a determination of the current value of the land and an adjustment to the assessment of the land for equity, in accordance with s. 44(3) of the Assessment Act: see Manulife Divisional Court at paragraphs 28 to 30. The Board finds this is the same question that will be decided in the 2022 to 2024 Appeals, thus satisfying the first precondition to issue estoppel.
24The Board accepts MPAC’s undisputed submissions and evidence with respect to the remaining two requirements for issue estoppel. In this regard, the Board finds that the 2017 to 2021 Decision was final, and that the parties to the 2017 to 2021 Appeals are the same as the 2022 to 2024 Appeals.
25Accordingly, the Board finds that the three preconditions to issue estoppel are met.
Issue 2 - If the preconditions to issue estoppel are met, ought the Board apply issue estoppel, as a matter of discretion?
Evidence and Submissions of the Parties
26The Appellant has not made specific submissions regarding the Board’s exercise of discretion, other than to state that applying the doctrine of issue estoppel would create an injustice in the present case. The Appellant has not particularized that injustice. The Appellant generally repeats and relies on arguments that have been made and rejected in other recent issue estoppel motions like Manulife and ARI STC, including:
that applying issue estoppel is contrary to a taxpayer’s annual right to appeal the assessment of its property;
that the Board has not heard any evidence relating to the issues raised by the Appellant in either the 2017 to 2021 Appeals or the 2022 to 2024 Appeals.
27MPAC submits that there is no reason for the Board to decline to apply issue estoppel in this case. MPAC submits that it is in the interest of justice to apply issue estoppel to the 2022 to 2024 Appeals, and to do otherwise would undermine the public interest in the finality of assessment appeals.
Findings on Issue 2
28Based on the evidence and submissions provided by the parties, the Board is satisfied that no injustice would result from applying issue estoppel in these circumstances. There is no evidence or suggestion that the previous proceeding was improper, unfair, or suffered any failure of natural justice. Conversely, the Board finds there is a significant public interest in the finality of assessment to achieve a stable and reliable tax base; ensure the finality of settlement agreements; and avoid duplicative litigation. For these reasons, the Board concludes that it will apply issue estoppel to this case.
Issue 3 - Does abuse of process apply and, if it does, ought the Board apply it?
29Having decided to apply issue estoppel in this case, the Board will not consider MPAC’s arguments relating to abuse of process.
CONCLUSION
30The Board finds that the three preconditions to issue estoppel are met, and exercises its discretion to apply issue estoppel in this case.
ORDER
31The Board orders that the 2022 to 2024 Appeals are dismissed.