CF/Realty Holdings Inc. v. Municipal Property Assessment Corporation Region 19, 2025 CanLII 34497

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

ISSUE DATE: April 16, 2025

FILE NO.: DM 187842

Assessed Person(s): CF/Realty Holdings Inc.

Appellant(s): Cadillac Fairview Corp. Ltd

Respondent(s): Municipal Property Assessment Corporation Region 19

Respondent(s): City of Hamilton

Property Location(s): 999 Upper Wentworth Street

Municipality(ies): City of Hamilton

Roll Number(s): 2518-070-652-06010-0000

Appeal Number(s): 3417078, 3447133, 3489691, 3513427, 3525900 and 3535693

Taxation Year(s): 2020, 2021, 2022, 2023, 2024 and 2025

Hearing Event No.: 786364

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

Parties	Counsel/Representative
Cadillac Fairview Corp. Ltd; CF/Realty Holdings Inc.	Richard Minster, Dan Rosman
Municipal Property Assessment Corporation	Donald G. Mitchell
City of Hamilton	John L. O’Kane

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

HEARD: March 13, 2025 in writing

ADJUDICATOR(S): Carly Stringer, Vice-Chair

MOTION DECISION

OVERVIEW

1The City of Hamilton (the “City”) is asking the Assessment Review Board (the “Board”) to dismiss Cadillac Fairview Corp. Ltd.’s (the “Appellant”) appeals relating to the 2020 to 2025 property assessments of 999 Upper Wentworth Street, (the “Subject Appeals”) a shopping centre in the City known as the CF Lime Ridge (“Lime Ridge Mall”).

2The City is a responding party to the Subject Appeals and says they should be dismissed because: i) issue estoppel precludes the Appellant from litigating them; and ii) the Subject Appeals are an abuse of process.

3The Municipal Property Assessment Corporation (“MPAC”) is also responding to the Subject Appeals. MPAC agrees with the City that they should be dismissed.

4The Appellant opposes the City’s motion.

Result

5The Board finds that neither issue estoppel nor abuse of process applies and denies the City’s motion to dismiss.

BACKGROUND

6Some background information is necessary to provide context to the City’s motion.

The 2017 to 2019 Appeals

7The Appellant appealed the 2017 assessment of Lime Ridge Mall pursuant to s. 40 of the Assessment Act, R.S.O. 1990, c. A.31 (“Act”). 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 were also parties to the 2017 to 2019 Appeals, although the City did not submit pleadings and did not otherwise participate in the 2017 to 2019 Appeals.

8MPAC and the Appellant discussed the 2017 to 2019 Appeals and reached an agreement in September 2019: the Appellant would withdraw the 2017 to 2019 Appeals and MPAC would return the 2020 assessment reflecting a current value of $404,885,000.

9The Appellant withdrew the 2017 to 2019 Appeals on September 18, 2019. On November 15, 2019, MPAC returned the 2020 assessment at $404,884,000 (its system rounded down).

The Subject Appeals

10The Appellant subsequently appealed the 2020 assessment of Lime Ridge Mall pursuant to s. 40 of the Act. Pursuant to s. 40(26) of the Act, appeals were deemed for the 2021 to 2025 taxation year assessments. It is the 2020 appeal and the deemed 2021 to 2025 appeals that are the Subject Appeals that the City seeks to have dismissed.

11The Appellant also filed an appeal of the 2025 assessment, distinct from the deemed 2025 appeal outlined above. The appeal number for this filed 2025 assessment appeal is 3531747.

Summary of Assessments

12The following is a summary of the assessments at issue in this motion:

Taxation Year	Assessment Value	Appeal Status
2017	$406,557,000	Withdrawn
2018	$406,557,000	Withdrawn
2019	$406,557,000	Withdrawn
2020	$404,884,000	Under Appeal
2021	$404,884,000	Under Appeal (deemed)
2022	$404,884,000	Under Appeal (deemed)
2023	$404,884,000	Under Appeal (deemed)
2024	$404,884,000	Under Appeal (deemed)
2025	$404,884,000	Under Appeal (deemed)

ANALYSIS

Preliminary Matter – Does this motion apply to the 2025 appeal number 3531747?

Procedural Background

13As described in paragraphs 10 and 11 above, after this motion was heard on March 13, 2025, an appeal was deemed for the 2025 taxation year pursuant to s. 40(26) of the Act, and the Appellant filed a separate appeal for the 2025 taxation year (appeal number 3531747). Therefore, there are two distinct 2025 assessment appeals with the Board.

Submissions of the Parties

14The City and MPAC submit that this motion should apply to both 2025 assessment appeals, the deemed 2025 appeal and appeal number 3531747. The Appellant says this motion should not apply to either 2025 appeal.

Findings on Preliminary Matter

15The Board finds that this motion applies to the deemed 2025 appeal, as s. 40(26) of the Act states that an appellant “shall be deemed to have brought the same appeal” (emphasis added) for subsequent taxation years, where the appeal is not finally disposed of by March 31, 2025.

16The Board finds that this motion does not apply to appeal number 3531747, which was filed separately by the Appellant. Appeal number 3531747 is a new appeal and the Appellant is not “deemed to have brought the same appeal” in relation to it such that it would be covered by this motion.

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; Cadillac Fairview v Municipal Property Assessment Corporation Region 09, 2025 CanLII 21696 (ON ARB).

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:

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.

Evidence and Submissions of the Parties

20The City submits that the three conditions for issue estoppel are met in this case:

1. The City submits that the Appellant raises the same issues in the Subject Appeals that were raised in the 2017 to 2019 Appeals: that the current value assessment is incorrect, and an equity adjustment is required.
2. The City submits there was a final decision between the parties about the correct current value that caused i) the Appellant to withdraw the 2017 to 2019 Appeals, and ii) MPAC to reduce the assessment value for the 2020 and subsequent taxation years.
3. The City submits that the parties to the 2017 to 2019 Appeals are the same as the Subject Appeals.

21MPAC did not provide submissions relating to issue estoppel.

22The Appellant submits that issue estoppel does not apply because the Lime Ridge Mall has undergone multiple changes since 2020; the parties are not the same because the City did not participate in the 2017 to 2019 Appeals; and there was no final decision in relation to the 2017 to 2019 Appeals.

Findings on Issue 1

23The Board finds that the three preconditions to issue estoppel are not met, and therefore issue estoppel does not apply.

24Namely, the Board finds there was no final decision in the 2017 to 2019 Appeals. The Board finds that the Appellant withdrew the 2017 to 2019 Appeals, and therefore there was no final decision of the Board that would create an estoppel in relation to the Subject Appeals.

Issue 2 – Does abuse of process apply and, if it does, ought the Board to apply it?

Applicable Law

25Section 23(1) of the Statutory Powers Procedure Act provides the Board with broad powers to prevent an abuse of its processes.

26The 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

27The City submits that allowing the Subject Appeals to continue would violate the principles of judicial economy, consistency, finality, and the integrity of the administration of justice.

28MPAC submits that the Subject Appeals are an abuse of the Board’s processes. MPAC submits that allowing the Subject Appeals to proceed permits duplicative litigation and needless expense to the parties and the Board; and allowing parties to ignore their agreements and appeal subsequent years in the same cycle may discourage settlements, causing strain on the Board’s resources. MPAC further submits that the Appellant’s sole issue in the Subject Appeals is that an adjustment is required due to the impact of the COVID-19 pandemic, and the Board has held that the pandemic is not relevant to the determination of the 2016 current value assessment.

29The Appellant submits that there is no abuse of process where issue estoppel does not apply on a principled basis. The Appellant submits that the Subject Appeals ought to be heard because the issues are different than the 2017 to 2019 Appeals – namely, the Lime Ridge Mall has undergone physical and functional changes including tenant reconfiguration. The Appellant argues that it would be an injustice and would compromise the integrity of the administration of justice not to permit this matter to proceed.

Findings on Issue 2

30The abuse of process doctrine is a broad and flexible concept concerned with fairness and the administration of justice – there is less focus on the interests of the parties, and more on the integrity of the adjudicative function: see Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, [2022] 2 SCR 220 (“Abrametz”) at paragraphs 34 to 36.

31The Board does not accept the Appellant’s submission that abuse of process does not apply because the preconditions to issue estoppel are not met – abuse of process is meant to be unencumbered by the specific requirements of issue estoppel: see Abrametz, supra at paragraph 35.

32That said, the Board does not accept the City and MPAC submissions that the Appellant’s conduct in bringing the Subject Appeals constitutes an abuse of process. The Appellant is not attempting to relitigate a claim for which the Board has rendered a final decision. The Board finds that allowing the Subject Appeals to proceed does not violate principle of judicial economy or finality, given that there was no final Board decision respecting the 2017 to 2019 Appeals. For the same reason, it does not risk inconsistent results in Board decisions, nor does it undermine the credibility of the Board’s process. The Board was not engaged in effecting the resolution between the parties – the Appellant simply withdrew the 2017 to 2019 Appeals. This is not an instance that is manifestly unfair to either the City or MPAC – the parties could have filed Minutes of Settlement with the Board to receive a final decision in relation to the 2017 to 2019 Appeals, in accordance with the Board’s processes. Instead, both MPAC and the Appellant – sophisticated parties – agreed that a withdrawal of the 2017 to 2019 Appeals, without a Board decision, was sufficient.

CONCLUSION

33The Board finds that neither issue estoppel nor abuse of process apply in the circumstances of this case.

ORDER

34The Board orders that this motion is denied.

35The Board orders that the Schedule of Events applicable to these appeals is resumed, extending the deadline for the Appellant to serve on all other parties any expert reports on which the Appellant intends to rely at the hearing, as well as any amendment to the Appellant’s Statement of Issues to address any additional evidence or issues raised in an expert’s report, to July 24, 2025. All subsequent deadlines will be amended accordingly.