Tribunals Ontario

Assessment Review Board

ISSUE DATE: March 10, 2025 FILE NO.: DM 187492 Assessed Person(s): Ontrea Inc; CF Sherway Holdings II Rec I; CF Sherway Holdings I Rec In Appellant(s): Cadillac Fairview Respondent(s): Municipal Property Assessment Corporation Region 09 Respondent(s): City of Toronto Property Location(s): 25 The West Mall Municipality(ies): City of Toronto Roll Number(s): 1919-014-120-01500-0000 Appeal Number(s): 3417082, 3441967, 3487532, 3512127 and 3521156 Taxation Year(s): 2020, 2021, 2022, 2023 and 2024 Hearing Event No.: 785795 Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31

Parties	Counsel/Representative
Cadillac Fairview Corporation Ltd.; Ontrea Inc.; CF Sherway Holdings II Rec I; CF Sherway Holdings I Rec In	Richard Minster and Dan Rosman
Municipal Property Assessment Corporation	Donald G. Mitchell
City of Toronto	Submissions not received

REQUEST FOR: An order dismissing the appeals due to issue estoppel and abuse of process HEARD: January 28, 2025 in writing ADJUDICATOR(S): Carly Stringer, Vice-Chair

MOTION DECISION

OVERVIEW

The Parties and the Request

1The Municipal Property Assessment Corporation (“MPAC”) is asking the Assessment Review Board (the “Board”) to dismiss Cadillac Fairview Corporation Ltd.’s (the “Appellant”) appeals relating to the 2020 to 2024 property assessments of Sherway Gardens, a regional shopping centre in the City of Toronto (the “Subject Appeals”). The Appellant is a subsidiary of Ontrea Inc., owner of Sherway Gardens.

2MPAC says the Subject Appeals should be dismissed for two reasons: first, that issue estoppel precludes the Appellant from litigating the Subject Appeals; and second, that the Subject Appeals are an abuse of the Board’s process.

3The Appellant opposes MPAC’s motion.

4The City of Toronto is a statutory party but has not filed submissions in response to MPAC’s motion.

Result

5The Board will not adjudicate MPAC’s motion at this time. Instead, the Board directs that all disputes regarding the application of issue estoppel and abuse of process be addressed at the hearing of the Subject Appeals, if the Subject Appeals are not otherwise resolved by the parties.

BACKGROUND

6Some background information is necessary to provide context to MPAC’s request.

The 2017 to 2019 Appeals

7The Appellant appealed the 2017 assessment of Sherway Gardens pursuant to s. 40(1) of the Assessment Act R.S.O. 1990, c. A.31 (the “Act”), arguing that the current value reflected on the 2017 assessment was incorrect. Pursuant to s. 40(26) of the Act, assessment appeals were deemed for the 2018 and 2019 taxation years (together, the “2017 to 2019 Appeals”). MPAC and the City of Toronto were also parties to the 2017 to 2019 Appeals.

8The parties executed Minutes of Settlement resolving the 2017 to 2019 Appeals as follows:

Taxation Year	From	To
2017	$1,287,031,000	$1,181,374,000
2018	$1,313,474,000	$1,232,504,000
2019	$1,346,191,000	$1,261,852,000

9The parties filed these Minutes of Settlement with the Board and requested that the Board issue decisions. The Board issued decisions in relation to each of the 2017 to 2019 Appeals, reflecting the above-noted current values (together, the “2017 to 2019 Decisions”).

The 2020 Assessment

10There is some dispute between the parties surrounding the 2020 assessment appeal.

11MPAC returned the assessment for the 2020 taxation year reflecting a current value of $1,275,994,000, an increase from the values reflected in the 2017 to 2019 Decisions.

12The Appellant provided evidence that it filed an appeal of the 2020 assessment with the Board on March 30, 2020.

13The Appellant also filed a Request for Reconsideration (“RfR”) with MPAC in relation to this 2020 assessment. The Appellant provided affidavit evidence that it filed the RfR in June 2020, after it filed its appeal with the Board. MPAC provided documentary evidence showing that the Appellant filed its RfR on November 25, 2019, before it filed its 2020 assessment appeal with the Board.

14The parties agree that they settled the RfR in August 2020 at a current value of $1,271,403,000. The Appellant’s appeal of the 2020 assessment was not withdrawn or otherwise addressed between the parties and the Board following resolution of the RfR.

The Subject Appeals

15Since the Appellant’s 2020 assessment appeal remained active with the Board, appeals were deemed in accordance with s. 40(26) of the Act, creating appeals for 2021 to 2024. It is the 2020 to 2024 appeals that are the Subject Appeals that MPAC seeks to have dismissed.

16The following is a summary of the assessments at issue in this motion:

Taxation Year	From	To
2017	$1,287,031,000	$1,181,374,000 in 2017 Decision
2018	$1,313,474,000	$1,232,504,000 in 2018 Decision
2019	$1,346,191,000	$1,261,852,000 in 2019 Decision
2020	$1,275,994,000	$1,271,403,000 per RfR
2021	$1,269,555,000
2022	$1,269,555,000
2023	$1,269,555,000
2024	$1,265,212,000

ANALYSIS

Issue 1 - Does issue estoppel apply and, if it does, ought the Board to apply it?

Applicable Law

17The Board has considered and reviewed the law relating to issue estoppel in many recent decisions: see ARI STC GP Inc. v Toronto (City), 2023 CanLII 116834 (ON ARB) (“ARI STC”) at paragraphs 43 to 51, leave to appeal to Divisional Court denied ARI STC GP INC. v. MPAC, 2024 ONSC 3663; Canuck Properties Ltd. v Municipal Property Assessment Corporation Region 14, 2024 CanLII 124426 (ON ARB); First Capital Holdings (Ontario) Corporation v Municipal Property Assessment Corporation, Region 09, 2022 CanLII 58354 (ON ARB) at paragraph 27; Canadian Niagara Hotels Inc. v Municipal Property Assessment Corporation, Region 18, 2022 CanLII 54916 (ON ARB) at paragraph 23.

18To put it simply, issue 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.

19The three criteria that must be met for issue estoppel to apply are well-settled: see Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460 at paragraphs 54 to 59. The preconditions that must be satisfied are that:

a. the same question has been decided;

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

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

Evidence and Submissions of the Parties

20MPAC argues that the Appellant raises the same issue in the Subject Appeals that was raised in the 2017 to 2019 Appeals and decided in the 2017 to 2019 Decisions: what is the correct 2016 current value assessment for Sherway Gardens? MPAC further submits that the 2017 to 2019 Decisions were final, and the parties were the same. For these reasons, says MPAC, the three preconditions to issue estoppel are satisfied.

21MPAC also submits that the parties settled the 2020 assessment appeal when they settled the Appellant’s RfR in August 2020.

22The Appellant argues that the same question has not been decided, and the parties are not the same. The Appellant submits there have been fundamental changes to the Subject Property since 2019. The Appellant says there have been physical alterations and reconfigurations resulting in over 50% of unit areas changing since 2019, and the loss of an anchor tenant in 2023. The Appellant says these are changes pursuant to s. 34(1)(a) of the Act, which provides that:

34 (1) If, after notices of assessment have been given under section 31 and before the last day of the taxation year for which taxes are levied on the assessment referred to in the notices,

(a) an increase in value occurs which results from the erection, alteration, enlargement or improvement of any building, structure, machinery, equipment or fixture or any portion thereof that commences to be used for any purpose;

the assessor may make the further assessment that may be necessary to reflect the change (...)

23The Appellant submits that there is a different question engaged, because s. 34(1)(a) of the Act has a different valuation day than the valuation day of January 1, 2016 that applied in the 2017 to 2019 Decisions: see General Motors of Canada Company v Municipal Property Assessment Corporation Region 23, 2024 CanLII 55068 (ON ARB) (“CAMI”) at paragraphs 55-67.

24MPAC replies by saying that the Appellant’s position regarding s. 34 is at odds with the Appellant’s position that the 2016 current value assessment should be reduced, as a s. 34 supplementary assessment can only be made if an increase in value occurs after the roll return.

Findings on Issue 1

25The Board finds that it is premature for the Board to determine whether issue estoppel applies in this case and, if it does, whether the Board ought to apply it.

26In making this finding, the Board has considered the Appellant’s argument that the “same question” has not been decided because s. 34 of the Act applies to MPAC’s assessment of Sherway Gardens for the applicable taxation years, and that s. 34 has a different valuation day than January 1, 2016. MPAC disagrees, primarily on the basis that the Appellant is requesting a reduction in the current value such that s. 34 does not apply and that the “minor changes” to Sherway Gardens’ assessed values in post-2019 tax years are “due to tenant reconfigurations” which is similar to what occurred in ARI STC, supra, where the Board found that issue estoppel applied and dismissed the appeals.

27MPAC’s submissions do not address the statutory basis for the changes in value reflected in the assessments for 2020 to 2024. Namely, the evidence shows that MPAC increased the value on the assessment in 2020 compared to the value reflected in the 2017 to 2019 Decisions. Then, MPAC reduced the value reflected on the 2021 to 2023 assessments compared to 2020. MPAC reduced the value again on the 2024 assessment compared to the 2020 to 2023 assessments.

28MPAC’s statutory basis for these changes in value is relevant because it is possible that the valuation day could be different: see CAMI. Without MPAC providing evidence or submissions relating to the statutory basis for the increase in the 2020 assessment beyond the value in the 2017-2019 Decisions, it is possible that s. 34 governed and there could be a different valuation day than January 1, 2016. Further, without knowing the statutory basis for MPAC’s reduction in value on the 2021 to 2024 assessments, the Board is left wondering whether the values reflected on the 2021 to 2024 assessments are consistent with MPAC’s submissions that the 2017 to 2019 Decisions determined current value for the Subject Appeals. MPAC’s submission that it adjusted the 2020 to 2024 assessments due to “tenant reconfigurations” does not permit the Board to determine which section of the Act applies.

29With respect to MPAC’s reliance on ARI STC, the Board has reviewed the decision and it does not appear that the parties advanced arguments that the “same question” was not satisfied because a different provision of the Act applied that could permit reassessment or affect the applicable valuation day. Moreover, ARI STC indicates at paragraph 25 that the current value reflected on the appealed 2021 assessment reflected the current value from the 2019 decision that was the basis for the estoppel request. Accordingly, the Board is not persuaded by MPAC’s submissions that the circumstances are the same such that the Board should decide the motion at this time because it did so in ARI STC.

30With respect to MPAC’s submission that the parties settled the entire assessment for the 2020 taxation year through the RfR resolution in August 2020, this further complicates the analysis outlined above beyond what the Board is prepared to undertake at this interim stage. There are facts in dispute between the parties regarding the 2020 assessment, and evidentiary findings may be required.

31Ultimately, the Board is left with many questions that the evidence and submissions on this motion do not address.

32The Board has adjudicated issue estoppel motions at the interim stage of the appeal proceeding in many recent cases on the basis that it would be dispositive of whether there would be any issue that could proceed to a hearing: see Glen Corr Management Inc. v London (City), 2024 CanLII 80292 (ON ARB) at paragraph 27. In this instance, however, the Board is not satisfied that it can accurately and fairly adjudicate the motion for issue estoppel based on the evidence and submissions provided by the parties at this interim stage in the proceeding.

Issue 2 – Does abuse of process apply?

Applicable Law

33Section 23(1) of the Statutory Powers Procedure Act provides the Board with broad powers to prevent an abuse of its procedure.

34The Supreme Court of Canada has confirmed that abuse of process can apply to preclude relitigation where the strict requirements of issue estoppel are not met, but allowing the litigation to proceed would offend judicial economy, consistency, finality, and the integrity of the administration of justice: see Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 [2003] 3 SCR 77 at paragraph 37.

Evidence and Submissions of the Parties

35MPAC argues that it would be an abuse of the Board’s process to allow the Subject Appeals to continue. MPAC argues that the Appellant should not be allowed to relitigate issues already settled by the parties and decided by the Board in the 2017 to 2019 Decisions. MPAC submits that it is an abuse of process to allow the Appellant to relitigate the entirety of the value due to minor changes in tenant reconfiguration resulting in value changes of less than one percent where the adjustments were made using the same parameters as the settlement.

36The Appellant submits that it would be unjust and inequitable to apply abuse of process. The Appellant submits that the changes to Sherway Gardens are not “minor” and MPAC cannot avoid its duty to return the correct assessment by arguing that changes to the property ought to be ignored.

Findings on Issue 2

37The Board repeats and relies on its findings in relation to Issue 1. Ultimately, the Board is not prepared to decide this issue on an interim motion based on the evidence and submissions provided by the parties.

ORDER

38The Board orders that MPAC’s motion is dismissed without prejudice to MPAC raising these issues at the hearing of the Subject Appeals.