Cadillac Fairview Corporation Ltd. v. Municipal Property Assessment Corporation Region 21, 2025 CanLII 37638

Assessment Review Board

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

ISSUE DATE: April 23, 2025 FILE NO.: DM 187692

Assessed Person(s): CF/Realty Holdings Inc.; Ontrea Inc. Appellant(s): Cadillac Fairview Corporation Ltd. Respondent(s): Municipal Property Assessment Corporation Region 21 Respondent(s): City of Kitchener

Property Location(s): 2960 Kingsway Drive Municipality(ies): City of Kitchener Roll Number(s): 3012-040-002-08602-0000 Appeal Number(s): 3417099, 3447626, 3489838, 3513587, 3526141, and 3535819 Taxation Year(s): 2020, 2021, 2022, 2023, 2024, and 2025 Hearing Event No.: 786489

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

Parties	Counsel/Representative
CF/Realty Holdings Inc.; Ontrea Inc.	Richard Minster
Cadillac Fairview Corporation Ltd.	Richard Minster
Municipal Property Assessment Corporation	Donald G. Mitchell
City of Kitchener	John O'Kane

REQUEST FOR: An Order dismissing the appeals on the basis of issue estoppel and abuse of process HEARD: March 10, 2025 in writing ADJUDICATOR(S): Christopher Voutsinas, Vice-Chair

MOTION DECISION

OVERVIEW

The Parties and the Appeals

1Cadillac Fairview Corporation Ltd. (the “Appellant”) appealed the assessment of 2960 Kingsway Drive (the “Subject Property”) in the City of Kitchener for the 2020 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 were deemed for the 2021, 2022, 2023, 2024, and 2025 taxation years (together, the “Subject Appeals”) pursuant to s. 40(26) of the Act. The Subject Property is a shopping mall known as CF Fairview Park Mall.

2The Appellant argues, among other things, that the value stated on each of the assessments in the Subject Appeals is too high.

3The Municipal Property Assessment Corporation (“MPAC”) and the City of Kitchener (the “City”) are responding to the Subject Appeals. They disagree with the Appellants arguments.

4On February 13, 2025, the City brought a motion asking the Board to dismiss the Subject Appeals on the grounds of issue estoppel and abuse of process.

5The City’s motion is the subject of this Motion Decision.

6MPAC supports the City’s motion, and the Appellant opposes it.

7All parties filed motion submissions with the Board.

Result

8In this instance, the Board is not satisfied that it can accurately and fairly consider the motion for issue estoppel based on the evidence and submissions provided by the parties.

9As a result, the Board dismisses the City’s motion without prejudice to the City raising the matters of issue estoppel and abuse of process (with the exception of precondition 3 to issue estoppel where the Board has determined that the parties are the same and that this precondition has been met) at the hearing of the Subject Appeals, should the Subject Appeals not be prior resolved by the parties.

BACKGROUND

10To provide context to this matter, the Board will provide a brief overview.

HBC Appeals for 2017 and 2018

11Hudson’s Bay Company (“HBC”), a tenant at the Subject Property filed a s. 40 appeal of 2017 taxation year and an appeal was deemed by the Board for the 2018 taxation year (together, the “Tenant Appeals”). Per the Appellant’s evidence, these appeals were settled with MPAC negotiating a settlement with HBC resulting in a reduction in the assessed value of the Subject Property (to $249,782,000).

The Appellant Appeals for 2017 and 2018

12The Appellant filed its own appeal of the 2017 assessment of the Subject Property on the basis that the current value reflected on the assessment was too high and that an adjustment was required to make the assessment equitable to similar properties in the vicinity. An appeal was deemed by the Board for the 2018 taxation year (together, the “2017 and 2018 Appeals”).

13The Appellant, MPAC and the City, settled the 2017 and 2018 Appeals and executed minutes of settlement (“MOS”) in March 2019 (reducing the assessed values for each of these taxation years to $249,782,000). The parties filed the MOS with the Board and requested that the Board issue decisions. The MOS included the Tenant Appeals. On March 29, 2019, the Board issued decisions in relation to each of the 2017 and 2018 Appeals in accordance with the MOS.

Request for Reconsideration for 2019

14Given that the MOS did not include 2019 (as it had yet to be deemed at the time), a Request for Reconsideration (a “RfR”) was filed by the Appellant. In the RfR, the Appellant requested that MPAC amend the 2019 assessment to reflect the revised valuation per the agreed settlement. MPAC and the Appellant signed MOS in April 2019 in connection with the 2019 assessment, and MPAC amended the assessment accordingly.

The Subject Appeals

15The Appellant filed an appeal of the 2020 assessment of the Subject Property on the basis that the current value reflected on the assessment was too high. Appeals were deemed by the Board for the 2021 through 2025 taxation years. MPAC and the City are respondents to these Subject Appeals.

MPAC Changes Assessment

16In November 2020, MPAC issued a Property Assessment Notice (PAN) increasing the Subject Property’s assessed value as of January 1, 2016 for the 2021 taxation year to $250,972,000.

17In November 2022, MPAC issued a PAN decreasing the Subject Property’s assessed value as of January 1, 2016 for the 2023 taxation year to $230,069,000.

18The following table provides a summary of the foregoing:

Summary

Taxation Year	Assessment	Note
2017	$249,782,000	Per MOS; roll 08601
2018	$249,782,000	Per MOS; May 2018 - 0.77 acre sale/severance roll 08601
2019	$249,782,000	RfR to match MOS
2020	$249,792,000	Assessment appealed; roll 08602
2021	$250,972,000	Deemed appeal; MPAC increases value
2022	$250,972,000	Deemed appeal
2023	$230,069,000	Deemed appeal; MPAC decreases value
2024	$230,069,000	Deemed appeal; Nov 2024 - new owner
2025	$230,069,000	Deemed appeal

Change in Ownership

19The Subject Property was sold in November/December 2024 to a new owner (“New Owner”). On February 25, 2024, the Board received an email (and subsequently a letter) from the New Owner requesting that they be added as a party to any appeals currently outstanding with respect to the Subject Property.

20The Board’s Registrar confirmed that the New Owner has been added to the 2024 and 2025 taxation year appeals.

This Motion

21In the context of the foregoing events, the City filed its motion for dismissal of the Subject Appeals on the grounds of issue estoppel and abuse of process. The City argues, among other things, that the same arguments found in the Board’s decision in ARI STC GP Inc. v Toronto (City), 2023 CanLII 116834 (ON ARB), and upheld at Divisional Court on the leave to appeal motion in ARI STC GP INC. v. MPAC, 2024 ONSC 3663, apply here.

ANALYSIS

Issue 1 – Does Issue Estoppel Apply and, if it does, should the Board apply it?

Applicable Law

22The 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 in 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.

23In summary, 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.

24The 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.

25The parties presented arguments in connection with each of the foregoing three preconditions to issue estoppel. The Board has reviewed the submissions and evidence of the parties. The Board will address each of the three preconditions in turn.

Precondition 1 – has the same question been decided?

Submissions of the Parties

The City

26The City argues that the same question has already been decided. Namely, the question raised in the 2017 and 2018 Appeals (and the 2019 RfR) and decided in the 2017 and 2018 Decisions, being an incorrect current value assessment (“CVA”), is the same question in the Subject Appeals.

27The City also submits that the parties settled the 2019 assessment when they settled the Appellant’s 2019 RfR.

28The City argues that the Board has on multiple occasions considered the extension of the 2016 assessment cycle and the COVID-19 pandemic and associated government health and safety regulations. As a result, the parties should not be allowed to re-litigate the issue of the 2016 CVA.

29The City asserts that finality in litigation is an important principle, and that principle animates the doctrine of issue estoppel. The City takes the position that it should have the right to rely on the finality of the 2016 CVA as reflected in the 2017 and 2018 Decisions.

MPAC

30MPAC submits that the Appellant should not be allowed to re-litigate the correctness of the CVA in the Subject Appeals as that question was already decided in the 2017 and 2018 Appeals (and the 2019 RfR). Namely, the legislated valuation day for the 2017 and 2018 Appeals and the Subject Appeals is the same, January 1, 2016.

31Further MPAC argues that there has been no material change to the Subject Property since the 2017 and 2018 Appeals (and the 2019 RfR) were settled, and that the Appellant seeks a reduction in CVA based solely on the impact of the COVID-19 pandemic.

32MPAC takes the position that internal tenant reconfigurations and related changes at the Subject Property due to, among other things, the COVID-19 pandemic resulted in a de minimis increase (less than one-half of one percent) in assessed value in the 2021 and 2022 taxation years, and that the gross leasable area of the Subject Property in 2023 and 2024 remained virtually unchanged from the gross leasable area in 2017 to 2019.

33MPAC asserts that the 2016 CVA of the Subject Property cannot be influenced by the COVID-19 pandemic as the pandemic began more than four years after the legislated valuation day. More broadly, MPAC asserts that for the 2017 through 2024 taxation years, the market conditions relevant to the Subject Property’s current value are “fixed” as of January 1, 2016.

34Further, MPAC takes the position that the COVID-19 pandemic is not a characteristic of the property rather any loss or perceived loss in value due to the COVID-19 pandemic relates to changes in the market well after the January 1, 2016 valuation day.

The Appellant

35The Appellant argues that the question in the Subject Appeals is not the same question as in the 2017 and 2018 Appeals. For issue estoppel to apply the Subject Property must be unchanged – which it asserts is not the case here.

36The Appellant argues that there have been significant and material changes to the property, and that MPAC changed the assessment twice since 2019. As a result, it argues that the issues have changed over the assessment cycle.

37Since 2016, the Appellant submits that over 50% of the tenants have changed, and since 2019 about one-third of the tenant changes included significant unit area reconfiguration and construction including the consolidation of smaller units, physical changes to the Subject Property in connection with efforts to lease the vacant Sears space, construction of new walls, associated electrical and other work, and some exterior reconfiguration.

38The Appellant argues that the significant changes in unit configuration and unit size impacts both rents and value.

39The Appellant also points to the change in the Subject Property’s roll number in 2020 due to an expropriation by the Region of Waterloo.

40The Appellant argues that the above changes warranted s. 34 appeals by MPAC.

41Further, the Appellant argues that it does not accept MPAC’s position that the physical changes to the property are de minimis and notes that there is no threshold requirement in the Act.

Finding on Precondition 1

42In reviewing the submissions of the parties, the Board notes that MPAC’s submissions do not address the statutory basis for the changes in value in the 2021 (applied to 2022) and to 2023 (applied to 2024). The evidence shows that MPAC increased the assessment in 2021 compared to that in the 2017 and 2018 Decisions (and the 2019 RfR), and that MPAC subsequently reduced the assessment in 2023 compared to 2022.

43MPAC’s statutory basis for these changes in assessed value is relevant as it is possible that the valuation day could be different. See General Motors of Canada Company v Municipal Property Assessment Corporation Region 23, 2024 CanLII 55068 (ON ARB) at paragraphs 55-67.

44Without MPAC providing evidence or submissions relating to the statutory basis for the increase in 2021, it is possible that s. 34 of the Act governs and there could be a different valuation day than the January 1, 2016 day. Further, without knowing the statutory basis for MPAC’s reduction in 2023, the Board cannot determine whether the values reflected in the 2023 to 2024 assessments are consistent with MPAC’s submissions that the 2017 and 2018 Decisions (and the 2019 RfR) determine the CVA in the Subject Appeals.

45The Board is left with questions that the evidence and submissions on this motion do not sufficiently address.

46As a result, the Board is unable to determine whether this precondition is met.

Precondition 2 - Were the 2017 and 2018 Decisions that are said to create the estoppel final?

The City

47The City submits that the Board issued decisions in the 2017 and 2018 Appeals and that the Board’s decisions are final.

MPAC

48MPAC submits that the 2017 and 2018 Decisions are final and that those decisions have not been appealed or reviewed.

The Appellant

49The Appellant takes the position that MPAC increased the 2021 and 2022 assessments, and decreased the 2023 to 2024 assessments, and that none of those taxation years were subject to a settlement or a hearing. As such, there are no final decisions for those years and no final decision to apply to those years.

50The Appellant asserts that the Subject Property has undergone significant changes since 2020, and while MPAC made changes to the assessment in 2021 and 2023, it has not issued any s. 34 assessments per the Act.

Finding of Precondition 2

51The Board finds that the 2017 and 2018 Decisions are relevant in this motion.

52Given that the 2019 assessment was settled via RfR (in reference to the prior year’s assessment per the 2017 and 2018 Decisions), there is no Board decision in connection with 2019.

53The issue addressed above (precondition 1) and by the Appellant in connection with MPAC’s changes to the assessment in 2021 and 2023 is relevant in that the changes may or may not give rise for a change in the respective valuation date which impacts both: i) whether the same question is being raised and ii) whether the 2017 and 2018 Decisions apply.

54The Board is left with questions that the evidence and submissions on this motion do not sufficiently address.

55As a result, like precondition 1, the Board is unable to determine whether precondition 2 has been met.

Precondition 3 - Are the parties to the 2017 and 2018 Decisions the same as in the proceedings in which issue estoppel is raised?

The City

56The City argues that the same parties/privies to the 2017 and 2018 Appeals (and the 2019 RfR) and the Subject Appeals are Cadillac Fairview Corporation Ltd., MPAC, and the City.

57The City notes that the City and MPAC provided a Statement of Response to the Appellant’s Statement of Issues in the Subject Appeals.

58The City submits that per s. 40(11) of the Act, that it is a statutory party to every appeal.

59Further, the City submits that all three parties signed the MOS as reflected in the 2017 and 2018 Decisions.

60Lastly, the City argues that the change in ownership of the Subject Property does not give the new owner a “seat at the table” or any say in the Subject Appeals, and that Rule 16 of the Board’s Rules of Practice and Procedure, “Adding Parties and Participants”, has not been complied with.

MPAC

61MPAC argues that the parties or their privies are the same. Namely, that the Appellant, MPAC and the City were parties to the 2017 and 2018 Appeals and that the Appellant, MPAC and the City are the same parties to the Subject Appeals.

The Appellant

62The Appellant submits that the parties are not the same.

63First, the Appellant argues that in the 2017 and 2018 Appeals, HBC was a party that prosecuted and settled its own appeals.

64Second, the Appellant argues that the City was not an active participant in the 2017 and 2018 Appeals, and points to the City’s statement of response in those appeals that states it will not actively participate in upcoming inspections or file a detailed response.

65Third, the Appellant argues that while the MOS included HBC’s settlement, and as 2019 had yet to be deemed, a subsequent RfR was filed with MPAC - and that only the Appellant and MPAC signed MOS in April 2019 resolving the RfR – the City did not sign.

66Fourth, the Appellant submits that in the Subject Appeals there is a New Owner of the Subject Property as it sold in November/December 2024, and that the New Owner notified the Board requesting to be added as a party to the appeals.

Finding on Precondition 3

67The parties do not dispute that the Appellant, MPAC and the City were parties to the 2017 and 2018 Appeals and are the same parties to the Subject Appeals.

68However, the Board does not accept the relevance of the Appellant’s argument that the City was not an “active participant” - as there is no such condition in the Act qualifying whether a municipality is a party to an appeal.

69The Board notes that in its Municipal Statement of Response dated October 31, 2018, the City states that it “…will not participate in the November 2018 inspection…nor will the City be filing a detailed response to the appeal(s) at this time” (emphasis added).

70In any case, the Board refers to s. 40(11) of the Act which states:

The following persons are parties to an appeal:

1. The assessment corporation.
2. All persons appealing and all persons whose assessment is the subject of the appeal.
3. The municipality in which the land is located.

71With regard to the Appellant’s argument that there is a New Owner and as such, the parties to the appeals are not the same, the Board notes that at this time, the New Owner is a party in the 2024 and 2025 appeals only consistent with s. 40(28) of the Act, “Change of Ownership” which states:

…if an appeal is brought in respect of a property, the appellant is the owner of the property and there is a change of ownership before the appeal for the year is finally disposed of, the reference to the appellant in the subsection shall be deemed to be a reference to the owner of the property at the relevant time.

72Under the circumstances, the New Owner does not need to be added as a party necessitating compliance with the Board’s Rule 16.

73Lastly, the Board notes that Danyluk at paragraph 58 states that one of the preconditions to issue estoppel requires: “That the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies”(emphasis added).

74In this instance, the New Owner and the Appellant share privity and such are “privies”.

75Based on the submissions and evidence of the parties, and as a result of the foregoing analysis, the Board finds that precondition 3 is satisfied.

Findings on Issue 1

76Based on the above analysis of the submissions and evidence of the parties, the Board does not have sufficient information to determine whether or not preconditions 1 and 2 to issue estoppel are met. The Board notes that precondition 3 is met.

77The 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.

78The Board is not prepared to decide this issue based on the evidence and submissions provided by the parties.

Issue 2 – Does abuse of process apply?

Applicable Law

79Section 23(1) of the Statutory Powers Procedure Act provides the Board with broad powers to prevent an abuse of its procedure.

80The Supreme Court of Canada has confirmed that abuse of process can apply to preclude re-litigation 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

81The City submits that allowing the Subject Appeals to continue would violate the principles of judicial economy, consistency, finality, the integrity of the administration of justice.

82MPAC asserts that allowing the Subject Appeals to proceed permits duplicative litigation and needless expense defeating the Board’s goal (per the Board’s Rule 3 and 4) to ensure the just, most expeditious, and least expensive determination of every proceeding within the assessment cycle.

83MPAC submits that the Appellant’s sole issue in the Subject Appeals is an adjustment to the agreed 2016 CVA due to the impact of the COVID--19 pandemic, and that the Board has held that the changes in circumstances caused by the COVID-19 pandemic are not relevant to the determination of the 2016 CVA. See, Ivanhoe Cambridge Inc v Oshawa (City), 2023 CanLII 116832 (ON ARB) at paragraph 161.

84MPAC takes the position that given there have been no material changes to the property and the sole basis for challenging the current value in the Subject Appeals has been deemed irrelevant by the Board, the Appellant’s persistence in pursuing the appeals is an abuse of process.

85The Appellant submits that it would be unjust and inequitable to apply abuse of process. The Appellant submits that the changes to the Subject Property are not “insignificant” or “not material and that the Subject Property is both physically and functionally different than in 2017 to 2019.

86The Appellant further submits that MPAC changed the assessment of the Subject Property twice in the Subject Appeals; that the relevant valuation dates may be different; and given the changes at the Subject Property, the issues are not the same.

87The Appellant asserts that MPAC cannot make changes when it deems necessary, which it did in 2021 and 2023 and then argue that the taxpayer’s request to have its appeals heard is abusing the process.

Findings on Issue 2

88The Board repeats and relies on its findings in relation to Issue 1. The Board is not prepared to decide this issue based on the evidence and submissions provided by the parties.

ORDER

89The Board orders the City’s motion is dismissed without prejudice to the City raising the matters of issue estoppel and abuse of process (with the exception of precondition 3 where the Board has determined that the parties are the same and that this precondition has been met) at the hearing of the Subject Appeals, should the Subject Appeals not be prior resolved by the parties.