SmartCentres v. Municipal Property Assessment Corporation Region 09, 2025 CanLII 24776

Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE:

March 20, 2025

FILE NO.:

DM 187693

Assessed Person(s):

Calloway Reit (Etobicoke-Ind)

Appellant(s):

SmartCentres; Otilia Carpinisan

Respondent(s):

Municipal Property Assessment Corporation Region 09

Respondent(s):

City of Toronto

Property Location(s):

158 North Queen Street

Municipality(ies):

City of Toronto

Roll Number(s):

1919-014-180-00301-0000

Appeal Number(s):

3470168, 3487378, 3512262 and 3525114

Taxation Year(s):

2021, 2022, 2023 and 2024

Hearing Event No.:

786470

Legislative Authority:

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

Parties

Counsel/Representative

Calloway Reit (Etobicoke-Ind); SmartCentres; Otilia Carpinisan

Otilia Carpinisan

Municipal Property Assessment Corporation

Teresa Bufardeci

City of Toronto

Barry Henaut

REQUEST FOR:

An order dismissing the appeals due to issue estoppel and abuse of process

HEARD:

March 13, 2025 in writing

ADJUDICATOR(S):

Christopher Voutsinas, Vice-Chair

MOTION DECISION

OVERVIEW

1SmartCentres (the “Appellant”) appealed the assessment of 158 North Queen Street (the “Subject Property”) in the City of Toronto (the “City”) for the 2021 taxation year to the Assessment Review Board (the “Board”) pursuant to s. 40 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act” or the “Assessment Act”). Further, appeals for the 2022, 2023 and 2024 taxation years were deemed pursuant to s.40(26) of the Act (together the “Subject Appeals”). The Subject Property is a small box shopping centre.

2The Appellant argues, among other things, that the value stated on each assessment is incorrect and too high.

3The Municipal Property Assessment Corporation (“MPAC”) and the City are responding to the Subject Appeals.

4MPAC brought a motion asking the Board to dismiss the Subject Appeals based on issue estoppel. MPAC’s motion is the subject of this motion decision.

5The City supports MPAC’s motion request and the Appellant opposes it.

Result

6For the reasons that follow, the Board grants MPAC’s motion.

BACKGROUND

7The Appellant filed an appeal of the Subject Property for the 2017 taxation year. The 2018 and 2019 taxation year appeals were deemed (together, the “2017-2019 Appeals”).

8The parties agreed to settle the 2017-2019 Appeals and signed minutes of settlement (“MOS”).

9On June 21, 2019, the Board issued decisions for each of the 2017–2019 Appeals (“Decisions”) consistent with the MOS.

10MPAC argues that the question on appeal in the Subject Appeals is the same as in the 2017-2019 Appeals namely, the correctness of the 2016 current value assessment (“CVA”), and that question has already been decided. As such, MPAC brought this motion based on issue estoppel arguing the Appellant should not be permitted to re-litigate the issue.

Applicable Law

11Issue 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. In essence, issue estoppel “..prevent the waste of time and money and the frustration of having to re-litigate an issue which has already been decided by a court or tribunal of competent jurisdiction” see Hyde v. Municipal Property Assessment Corp., Region No. 7, [2013] O.A.R.B.D. No. 7 at paragraph 18.

12The 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; First Capital Holdings (Ontario) Corporation v Municipal Property Assessment Corporation, Region 09, 2022 CanLII 58354 (ON ARB) at paragraph 27. The preconditions that must be satisfied are that:

1. the same question has been decided;

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

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

ISSUES

13The following issues will be addressed on this motion:

1. Are the preconditions to issue estoppel met in this case?

2. If the preconditions to issue estoppel are met, should the Board apply issue estoppel, as a matter of discretion?

3. Does abuse of process apply and, if it does, should the Board apply it?

Issue 1 - Are the preconditions to issue estoppel met in this case?

Submissions of the Parties

14MPAC argues that the three requirements of issue estoppel are met. MPAC submits the following.

1. The same issue has been decided by a competent tribunal in a previous proceeding. Specifically, the issue in the Subject Appeals is the same as what was decided in the Decisions i.e., the correctness of the 2016 CVA. Further, MPAC submits that there have been no changes to the Subject Property since the Decisions.

2. The Decisions are final and no party sought a review or appealed the same.

3. The parties to the Subject Appeals are the same as the parties to the 2017-2019 Appeals.

15The Appellant submits that the matters in this motion are similar to two other examples as follow:

• Example 1 - Roll No. 1906-043-050-00101

Appeals were filed challenging the assessed value of the property. MOS were signed for the 2017-2019 tax years and decisions were issued by the Board. A new 2020 tax year appeal was filed challenging the assessed value of the property and a new settlement was reached.

• Example 2 - Roll No. 1919-014-120-00901

Appeals were filed challenging the assessed value of the property. MOS were signed for the 2017-2020 tax years and decisions were issued by the Board. A new 2021 appeal was filed challenging the assessed value and a new settlement was signed reducing the value further.

16No further discussion or arguments are provided by the Appellant in the context of the two examples.

17In addition, the Appellant asserts that during the 2020 taxation year, several tenants terminated or chose not to renew their leases and vacated their premises. As a result, approximately 55% of the space at the Subject Property became vacant and that this significant vacancy caused the Appellant to file a new appeal in 2021.

18MPAC takes the position that the two examples referenced above by the Appellant had a settlement towards the beginning of the assessment cycle and a subsequent settlement in a later taxation year within the same assessment cycle and in both examples, issue estoppel did not apply as only two of the three requirements were met. This is not the case here.

Findings on Issue 1

19In its submissions, the Appellant does not argue or dispute that the Decisions are not final, that the parties are not the same, or that the same question has been decided. The Board finds that the Appellant’s submissions and evidence on its’ two examples are insufficient and inconclusive.

20While the Appellant asserts that since the Decisions were issued, there have been significant changes in vacancy at the Subject Property, the Board takes the position that this change is not relevant to the question of the Subject Property’s current value as of the January 1, 2016 statutory valuation date.

21The Board accepts MPAC’s submissions and evidence with respect to issue estoppel. In this regard, the Board finds that the three pre-conditions to issue estoppel apply in this mater. Namely, the Decisions were final, the parties to the 2017-2019 Appeals are the same as the Subject Appeals, and that the same question has been decided.

Issue 2 - If the preconditions to Issue estoppel are met, should the Board apply issue estoppel as a matter of discretion?

22Based 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.

23There is no evidence or suggestion that the previous proceeding was improper, unfair, or suffered any failure of natural justice. Conversely, there is a significant public interest in the finality of assessment to achieve a stable and reliable tax base, the finality of settlement agreements, and avoiding duplicative litigation.

24For 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, should the Board apply it?

25Having decided to apply issue estoppel in this case, the Board need not consider the arguments relating to abuse of process.

CONCLUSION

26The Board finds that the three preconditions to issue estoppel are met and exercises its discretion to apply issue estoppel in this case.

ORDER

27The Board grants MPAC’s motion and orders the Subject Appeals be dismissed.