Mayfield Commercial Centre Ltd v. Municipal Property Assessment Corporation Region 15, 2025 CanLII 27398

Tribunals Ontario Tribunaux décisionnels Ontario

Assessment Review Board Commission de révision de l’évaluation foncière

ISSUE DATE: March 27, 2025

FILE NO.: DM 187695

Assessed Person(s): Mayfield Commercial Centre Ltd

Appellant(s): Mayfield Commercial Centre Ltd

Respondent(s): Municipal Property Assessment Corporation Region 15

Respondent(s): City of Brampton

Property Location(s): Airport Road

Municipality(ies): City of Brampton

Roll Number(s): 2110-120-002-19100-0000

Appeal Number(s): 3527796

Taxation Year(s): 2024

Hearing Event No.: 786500

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

Parties	Counsel/Representative
Mayfield Commercial Centre Ltd	Paul Grosman
Municipal Property Assessment Corporation	Makael Nur
City of Brampton	Kumar Sapkota, Daryll Ramos

REQUEST FOR: An order dismissing the appeal due to issue estoppel

HEARD: March 17, 2025 in writing

ADJUDICATOR(S): Christopher Voutsinas, Vice-Chair

MOTION DECISION

OVERVIEW

1Mayfield Commercial Centre Ltd (the “Appellant”) appealed the assessment of the property located at the intersection of Airport Road and Mayfield Road consisting of three property roll numbers which form a consolidated site called Mayfield Commercial Centre (the “Subject Property”) in the City of Brampton (the “City”) for the 2024 taxation year (“Subject Appeal”) to the Assessment Review Board (the “Board”) pursuant to s. 40 of the Assessment Act, R.S.O. 1990, c. A.31 (“Act” or the “Assessment Act”). The Subject Property constitutes a vacant land lot.

2The Appellant argues, among other things, that the land rate, classification and value stated on the assessment for the 2024 taxation year is incorrect.

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

4MPAC brought a motion asking the Board to dismiss the Subject Appeal 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 finds that the three preconditions to issue estoppel are met and the Board exercises its discretion to apply issue estoppel in this case.

BACKGROUND

7To provide context to this matter, the Board will provide a brief overview.

City’s Appeal – 2023 taxation year

8The City filed an appeal disputing the 2016 current value assessment (“CVA”) of the Subject Property for the 2023 taxation year (“2023 Appeal”).

9The City and MPAC settled the 2023 Appeal via Minutes of Settlement (“MOS”). In December 2023, these MOS were filed with the Board.

10The City also submitted a “Notice of Written Hearing – Third Party Appeal Proceeding ONLY Request”, seeking to apply the MOS.

11The Board accepted the City’s request to apply the MOS and on February 2, 2024 the Board issued its decision (“2023 Decision”) based on the MOS.

Appellant’s appeal – 2024 taxation year

12The Appellant filed the Subject Appeal disputing the correctness of the 2016 CVA for the 2024 taxation year (which was returned at the current value reflected in the MOS and the corresponding Decision).

MPAC’s Motion – Issue Estoppel

13MPAC argues that the question on appeal in the Subject Appeal is the same as in the 2023 Appeal - namely, the correctness of the 2016 CVA, and that the question has already been decided.

14As such, MPAC brought this motion based on issue estoppel arguing the Appellant should not be permitted to re-litigate the issue.

15MPAC relies on the decision of the Board in Manulife Ontario Property Portfolio Inc. v Municipal Property Assessment Corporation, 2023 CanLII 39085 (ON ARB), 2023 CanLII 13877 (ON ARB) (“Manulife”) which held, in that matter, that the appellant was estopped from raising the issue of the subject property’s 2016 CVA and dismissed the appeals. An appeal was heard by the Divisional Court and was also dismissed.

16MPAC submits that the facts in Manulife are substantially similar to the facts in this case.

Applicable Law

17Issue 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[s] 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”: Hyde v. Municipal Property Assessment Corp., Region No. 7, [2013] O.A.R.B.D. No. 7 at paragraph 18.

18The 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 (“Danyluk”) at paragraphs 54 to 59 and 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

19The 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

MPAC

20MPAC argues that the three requirements of issue estoppel are met.

21MPAC submits the following.

1. The valuation day for the Subject Appeal is the same as for the 2023 Appeal – namely, the January 1, 2016 statutory valuation day per the Act. For the 2023 and 2024 taxation years, the market conditions relevant to the Subject Property’s current value are fixed as of that day.

MPAC and the City agreed, and the Board decided, the current value assessment of the Subject Property for the 2023 taxation year.

MPAC submits that MPAC and the City agree that the Appellant did not participate in those proceedings even though it was provided all documentation by both.

MPAC returned the 2024 taxation year assessment at the same value as the decided value reflected in the MOS and the 2023 Decision.

Further, MPAC argues that the Appellant does not assert that there were changes to the Subject Property.

2. The 2023 Decision issued by the Board is final and that it has not been appealed or reviewed.

3. The parties to the 2023 Appeal and the 2023 Decision are the same as the parties to the Subject Appeal: the City, MPAC and the Appellant were parties in the 2023 Appeal; the City, MPAC and the Appellant are parties in the Subject Appeal.

MPAC submits that it sent its SOR dated July 18, 2023 to the Appellant at their “current mailing address”. Similarly, on October 6, 2023, MPAC sent a letter to the Appellant with the MOS attached. MPAC submits that it did not receive correspondence from the Appellant.

While the Appellant was given an opportunity to participate in the 2023 Appeal proceedings, it did not.

The City

22The City supports MPAC’s motion.

23The City submits that, the City, in connection with the 2023 Appeal proceedings, sent the following documentation to the Appellant via registered mail to the mailing address used for the municipal tax bill: Notice of Appeal (30/03/2023); the City’s Statement of Issues (04/07/2023); and a package containing the minutes of settlement, the Third Party MOS form, City’s affidavit, and a cover letter (30/11/2023).

24The City submits that the Appellant did not respond to the City or MPAC and did not participate in the 2023 Appeal proceeding.

The Appellant

25The Appellant opposes MPAC’s motion.

26The Appellant submits that:

1. MPAC’s motion engages and is contrary to the right of a taxpayer to annually appeal a property assessment each year per the Act.

2. The Appellant did not file an appeal for the 2023 taxation year and that it was not the appellant in the 2023 Appeal proceeding.

3. The Appellant, the assessed person in the 2023 Appeal proceeding, was not involved in the settlement of that appeal, and that it was not involved in any discussions and did not receive a copy of any pleadings or correspondence in connection with the 2023 Appeal proceeding including the MOS between the City and MPAC.

4. As a result of the foregoing, it was not a party to the previous appeal and as such, did not sign the MOS in the 2023 Appeal.

Findings on Issue 1

27The Board considers each of the preconditions of issue estoppel as follows.

1. the same question has been decided?

28The Appellant does not argue whether the question in the Subject Appeal has been decided in the 2023 Appeal.

29Further, the Board has previously considered – and rejected – the same argument advanced by the Appellant with respect to the first precondition to issue estoppel. In particular, the argument that an annual right to appeal precludes a finding that issue estoppel may apply. See ARI STC GP Inc. v Toronto (City), 2023 CanLII 116834 (ON ARB) at paragraphs 53 – 57 and as more broadly addressed in National Car Rental (Canada) Inc. v Municipal Property Assessment Corporation, Region 15, 2022 CanLII 53352 (ON ARB) at paragraphs 72-87.

30Based on the submissions and the evidence of the parties, the Board finds that the question in the Subject Appeal is the same as the question decided in the 2023 Appeal – namely the correctness of the 2016 CVA as of the statutory valuation day.

31The Board finds that precondition 1 is met.

2. the decision said to create the estoppel was final?

32MPAC submits that the Board’s Decision is final and that it has not been appealed or reviewed.

33The City supports MPAC’s motion and its submissions in this regard.

34The Appellant references Canuck Properties Ltd. v Municipal Property Assessment Corporation Region 14, 2024 CanLII 124426 (ON ARB) (“Canuck”) and Johnston v. McLean, 2024 ONCA 791 (“Johnston”) in its submissions. The Board determines that neither of these decisions apply to the facts and circumstances of the Subject Appeal.

35In Canuck, the Appellant refers to the occurrence of a “procedural deficiency” where the statement of issues was not served on all the parties. That is not the case here.

36The Appellant submits that in Johnston the decision provides that consent orders are not a judicial determination and are simply an agreement/contract that is elevated to an Order. That is not the question here – the question here is whether the Decision was final.

37In Johnston, the question is not whether a consent judgment is a final judgment for the purposes of issue estoppel, rather how to interpret a consent judgment.

38The test for issue estoppel is whether the decision was final - a consent order is a final order, and per the Board’s Rules of Practice and Procedure (“Rules”) – whether administrative or adjudicative – a decision is binding on the parties and is a final decision of the Board. The Court of Appeal was not speaking to this issue in Johnston.

39The Ontario Court of Appeal (“ONCA”) has stated that “issue estoppel applies with equal effect to consent judgments”. See Spadacini-Kelava v. Kelava, 2020 ONSC 7907 at paragraph 106.

40The Board finds that the Decision was final. As a result, the Board finds that precondition 2 is met.

3. the parties to the 2023 Decision were the same as the proceedings in which the estoppel is raised (i.e. the Subject Appeal)?

41While the Appellant argues that it did not participate in the 2023 Appeal proceeding, was not involved in discussions and negotiations, and that it did not sign the MOS, it does not dispute that it is a statutory party to the appeal pursuant to s. 40(11) of the Act.

42Based on the submissions and the evidence of the parties, the Board finds that the parties to the 2023 Decision are the same as the parties in the Subject Appeal.

43The Board finds that precondition 3 is met.

44As a result of the foregoing, the Board finds that the three pre-conditions to issue estoppel apply in this matter. Namely, the parties to the 2023 Appeal are the same as the Subject Appeal, the 2023 Decision was final, 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?

45The 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 at paragraph 33.

46Therefore, even where the requirements to apply issue estoppel are met, the Board must consider, as a matter of discretion, whether issue estoppel ought to be applied: Danyluk at paragraph 33.

47The 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 at paragraph 67.

48MPAC submits that there is no reason for the Board to exercise its discretion in this case to refuse to apply issue estoppel as: there is no new evidence - the relevant market circumstances impacting the Subject Property are fixed at January 1, 2016; the issue for the Subject Appeal is the same as the issue decided for the 2023 Appeal; the Subject Property did not change; no special circumstance exists that would over-ride the public interest in the finality of litigation; and there is no injustice to the Appellant, but there is injustice to the other stakeholders.

49The City did not specifically address abuse of process in its submissions.

50The Appellant submits that If the Board finds that the requirements to establish issue estoppel are met, that the Board exercise its discretion, for the following reasons:

1. the taxpayer did not participate in the 2023 Appeal proceedings where the City was the Appellant, was not aware of the 2023 Appeal until receipt of the retroactive property tax bill in April 2024, and applying the issue estoppel in this case would result in real injustice;
2. it would not result in an abuse of the Board’s process but simply allow the Appellant to continue to engage MPAC and the City for the Subject Appeal where Statement of Issues and Statement of Responses have already been exchanged and the Mandatory Settlement Meeting has occurred.

51The Appellant provides affidavit evidence that it did not receive any of the communications and that it had “no contact of any kind, either by email, phone, or regular mail, with MPAC or the City in connection with the 2023 assessment appeals.”

52The City provided proof of service via Canada Post Registered Mail postmark that the following was sent to the Appellant: dated 07-04-2023 the City’s statement of issues; dated 11-30-2023 the Completed Third Party Form, Affidavit, Registered Mail postmark that statement of issue was sent to assessed person, Registered Mail postmark that Notice of Appeal was sent to the assessed person, MOS; and dated 03-30-2023, Notice of Appeal. The foregoing is supported via the City’s submissions, affidavit, and documentary evidence.

53MPAC also submits that it sent its’ statement of response dated July 18, 2023 to the Appellant at their “current mailing address”.

54Further, the Board confirms that it sent the 2023 Decision via Canada Post (using CTS Print, a government printing service) to the Appellant at its address on record.

55The parties do not dispute the accuracy of the Appellant’s address.

56The Board does take notice that Canada’s postal service is reliable, otherwise tribunals and courts would not provide that delivery by mail can be substituted for personal service: see 10198447 Canada Inc. v Municipal Property Assessment Corporation, Region 03, 2022 CanLII 3379 (ON ARB). It is expected, therefore, that the failure to deliver mailed correspondence is an infrequent exception rather than the rule. It is also expected that, if mailed correspondence cannot be delivered, that it will be returned to the sender provided that a return address is provided. There is no evidence before the Board that any of the mailed documents were returned to either the City, MPAC, or the Board.

57The submissions and the evidence of the parties in this matter, show that on several occasions relevant correspondence concerning the Subject Appeal was sent to the Appellant at its correct mailing address. This includes the Notice of Appeal, the 2023 MOS, the Third Part MOS Form, and the Board’s 2023 Decision.

58In its affidavit evidence, where the Appellant states that it was not aware, had no contact of any kind (email, phone, or regular mail), and did not receive any correspondence or documents from the City, MPAC or the Board, in connection with the 2023 Appeal proceeding, it also confirms that the mailing address on the assessment roll is correct.

59Given multiple mailings using Canada Post – via both ordinary and registered mail – from the City, MPAC, and the Board – to the Appellant’s correct address – and no submissions or evidence from the Appellant supporting its statement that it received none of multiple mailings, the Board turns to its Rules.

60The Board notes that in its affidavit the Appellant’s Controller states in paragraph 7 that “It is my responsibility for reviewing all the regular Canada Post mail …” and in paragraph 8 “I confirm that I had no contact of any kind either by email, phone or regular mail….” (emphasis added). It is unclear whether this distinction is between email and ordinary mail, or ordinary mail and registered mail.

61Nonetheless, the Board considers the relevance and applicability of Rule 33 in this matter which states that: “ A party is deemed to receive any notice that is sent by the Board to the most recent mail or email address which has been provided to the Board for either the party or the party’s representative”. On February 2, 2024, the Board mailed via Canada Post to the Appellant at its correct address, the Board’s 2023 Decision.

62Rule 34 provides the deemed receipt exception to the foregoing as follows: “Rule 33 does not apply if the person for whom the document was intended establishes, by filing affidavit evidence, that through absence, accident, illness, or other cause beyond that person’s control, the document was not received until a later date or not at all”.

63The Appellant has not provided affidavit evidence per Rule 34 that one of the conditions of “absence, accident, illness, or other cause beyond that person’s control” is met.

64Further, the Appellant provides no reason, explanation, or support for why it did not receive correspondence in connection with the 2023 Appeal proceeding.

65While the Appellant states that it did not receive any of the correspondence mailed to it, the Appellant does not dispute that documents were sent to it via mail. Further, the Board finds nothing in the evidence to suggest otherwise.

66Consequently, the Board finds that the City and MPAC did mail the documents as stated in their submissions.

Findings on Issue 2

67There 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.

68Under the facts and circumstances and based on the parties submissions and evidence, the Board exercises its discretion to apply issue estoppel.

CONCLUSION

69The Board finds that the three preconditions to issue estoppel are met and the Board exercises its discretion to apply issue estoppel in this case.

ORDER

70The Board grants MPAC’s motion on issue estoppel and the Subject Appeal is ordered dismissed.