Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: May 08, 2025

FILE NO.: DM 188042

Assessed Person(s): 2483486 Ontario Inc.

Appellant(s): 2483486 Ontario Inc.; John Vacca

Respondent(s): Municipal Property Assessment Corporation Region 19

Respondent(s): City of Hamilton

Property Location(s): 380 400 McNeilly Road

Municipality(ies): City of Hamilton

Roll Number(s): 2518-003-110-32600-0000

Appeal Number(s): 3524598 and 3535715

Taxation Year(s): 2024 and 2025

Hearing Event No.: 785765

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

Parties

Counsel/Representative

2483486 Ontario Inc.; John Vacca

Jeff Cowan

Municipal Property Assessment Corporation

Kashifa Aslam

City of Hamilton

John O’Kane

REQUEST FOR: Dismissal of Appeal(s)

HEARD: January 6, 2025 in writing

ADJUDICATOR(S): Dirk VanderBent, Vice-Chair

MOTION DECISION

OVERVIEW

12483486 Ontario Inc., (the “Appellant”) has filed an appeal with the Assessment Review Board (the “Board”) pursuant to s. 40 of the Assessment Act, S.O. 1990, c. A.31 (the “Act”) for the 2024 taxation year, in respect of the property located at 380-400 McNeilly Road in Hamilton (the “Subject Property”). The Appellant is the owner of the Subject Property and has filed the appeal on the basis that the current value of the Subject Property, as determined by the Municipal Property Assessment Corporation (“MPAC”), is incorrect. Pursuant to the deeming provision under s. 40(26) of the Act, the Appellant is deemed to have brought the same appeal for the 2025 taxation year (2024 and 2025 appeals together, “the Current Appeal Proceeding”). MPAC and the City of Hamilton (the “Municipality”) are parties to these appeals.

2The Appellant previously filed an appeal respecting the Subject Property for the 2023 taxation year on the basis that the current value was incorrect. MPAC issued omitted assessments for the 2022 and 2023 taxation years, which were then included in the appeal proceeding pursuant to the deeming provision under s. 40(26) of the Act (2022 and 2023 appeals together, (“the Prior Appeal Proceeding”). The parties resolved the Prior Appeal Proceeding resulting in a reduction of the current value of the Subject Property for the 2022 and 2023 taxation years. The Board issued decisions in accordance with this settlement (the “Board Decisions”).

3The Municipality has brought a motion requesting that the Board dismiss the Current Appeal Proceeding on the ground that the current value of the Subject Property was determined in the Prior Appeal Proceeding. The Municipality asserts that the legal doctrine of issue estoppel (“Issue Estoppel”) applies. In overview, Issue Estoppel prevents a party from raising an issue that has been previously litigated and adjudicated. Issue Estoppel may apply where:

1. the parties, or their privies, are the same;

2. the same question has been decided in the prior proceeding; and

3. the decision said to create the estoppel was final.

If these three preconditions are met, the adjudicator may order that a party cannot raise the issue in the current proceeding. However, the adjudicator also has discretion to decline to make that order if doing so would work an injustice.

4Accordingly, the Municipality requests that the Board order that the Appellant is estopped from raising the issue of current value in the Current Appeal Proceeding, and that the Board dismiss the Current Appeal Proceeding because there are no other issues to be addressed. MPAC supports the Municipality’s request.

5The Appellant argues that Issue Estoppel does not apply because the third requirement is not met; namely, the Appellant states that the Board Decision is not final because it did not consent to the settlement.

6The Appellant states that it retained a property tax consulting firm (“the Consulting Firm”) to review the value of the Subject Property for the 2022 taxation year. The Appellant and the Consulting Firm executed a written retainer agreement entitled “Property Tax Review Agreement” (“the Retainer Agreement”). Pursuant to the Retainer Agreement, a paralegal employed by the Consulting Firm (“the Paralegal Representative”) filed the appeal for the 2022 taxation year and acted as the Appellant’s legal representative in the Prior Appeal Proceeding.

7During the Prior Appeal Proceeding, MPAC determined that the assessed current value of $36,342,000 should be reduced to $32,507,000. The Municipality then made a settlement proposal (“Settlement Proposal”) to accept this reduced value. Subsequent events occurred in the following order:

1. Minutes of settlement were prepared for the Prior Appeal Proceeding (“Minutes of Settlement”) and sent to the Paralegal Representative.

2. The Appellant states that it discussed the Settlement Proposal with its Paralegal Representative but maintains that it did not agree with the proposed value and that it did not instruct the Paralegal Representative to accept the Settlement Proposal or sign the Minutes of Settlement on the Appellant’s behalf.

3. The Paralegal Representative proceeded to sign the Minutes of Settlement and emailed them to the Municipality and MPAC on March 28, 2024. The same day, the Paralegal Representative advised the Appellant that she had accepted the Settlement Proposal.

4. The Appellant then retained a different paralegal representative who filed the Current Appeal Proceeding on April 2, 2024.

5. On April 23, 2024, the Municipality filed the executed Minutes of Settlement with the Board. On May 3, 2024, the Board issued the Board Decisions in accordance with the Minutes of Settlement.

8The Appellant has not challenged the Board Decisions on review or appeal.

9The Consulting Firm has instituted legal proceedings against the Appellant in the Superior Court of Ontario claiming damages for breach of contract because the Appellant has not paid the Consulting Firm’s fee for services. The Appellant is defending this action and has counter-claimed, seeking compensation including payment for the greater liability for property taxes resulting from the Consulting Firm’s action in accepting the Municipality’s Settlement Proposal and signing the Minutes of Settlement. These claims are still pending before the Court.

10In this Motion Hearing, the Appellant asserts that it is an express/implied term of the Retainer Agreement that the Paralegal Representative could not accept the Settlement Proposal without the Appellant’s prior authorization to do so.

RESULT

11The Board finds that the criteria to apply Issue Estoppel have been established, and that Issue Estoppel should apply in the circumstances of this case. Consequently, as there are no other issues to be addressed in the Current Appeal Proceeding, the Current Appeal Proceeding is dismissed.

ISSUES

12The issues to be addressed are:

1. Can Issue Estoppel apply to the Current Appeal Proceeding?

2. Are the Board Decisions final?

3. If the three preconditions to the operation of Issue Estoppel have been satisfied, should the Board exercise its discretion to decline to order that Issue Estoppel applies in this case?

4. If the Board declines to order that Issue Estoppel applies, should the Current Appeal Proceeding be dismissed on the ground that it is an abuse of process?

ANALYSIS

Issue 1 - Can Issue Estoppel apply to the Current Appeal Proceeding?

Submissions

13The Appellant states that the settlement in the Prior Appeal Proceeding covered the 2022 and 2023 taxation years, submitting that this settlement does not apply to the Current Appeal Proceeding for 2024 and 2025 appeals. The Appellant states that, at issue, is the appeal of the March 15, 2024 revised Notice of Assessment, noting that it is not a deemed appeal but a new one.

14The Municipality did not reply to the Appellant’s submission.

Findings on Issue 1

15The resolution of the Prior Appeal Proceeding was made in respect of the 2022 and 2023 taxation years. Notwithstanding the Board Decisions, the Appellant has an annual right to file an appeal pursuant to s. 40 of the Act, in this case, in respect of the 2024 taxation year. Neither the Municipality nor MPAC have suggested otherwise. Instead, the Municipality is asserting that the issue of the correct current value as of January 1, 2016 was finally determined by the Board Decisions, and, as such, the Appellant should be estopped from re-litigating this issue in the Current Appeal Proceeding. The Board finds that the Appellant has not established that the Municipality cannot raise the question of Issue Estoppel in the Current Appeal Proceeding.

Issue 2 - Are the Board Decisions final?

Submissions

MPAC’s Submissions

16MPAC states that the Board Decisions have not been appealed or reviewed. As such, MPAC submits, the Board Decisions are final.

Appellant’s Submissions

17The Appellant agrees that the first and second preconditions to Issue Estoppel are met on the facts of this case in that the parties and the issues are the same in the Prior Appeal Proceeding and the Current Appeal Proceeding. The Appellant argues that the third requirement – that the Board Decisions are final – is not met.

18The Appellant submits that, while a consent judgment or settlement may be the basis of Issue Estoppel, it is subject to exceptions in cases of fraud or mistake. In support of this submission, the Appellant relies on Ontario Sugar Co (Re), [1911] OJ No 76, 24 OLR 332, 19 OWR 764, [1911] OJ No 76 (“Ontario Sugar”) at paragraph 14. Although the Appellant concedes that the Municipality and MPAC had no reason to believe that the Paralegal Representative did not have the Appellant’s consent to accept the Municipality’s Settlement Proposal, the Appellant submits that the Paralegal Representative accepted the Settlement Proposal and signed the Minutes of Settlement without instructions from the Appellant.

Municipality’s Submissions

19The Municipality did not make initial submissions on this issue, but states in reply that the Appellant has not provided a sufficiently complete evidentiary record to make findings of fraud or mistake. The Municipality submits that the Appellant has not established that the exception applies and therefore the Board Decisions are final.

Findings on Issue 2

20In Ontario Sugar, the Ontario Court of Appeal stated, at paragraph 14:

It is not now questioned that a judgment by consent may raise an estoppel inter partes. That it is as binding and conclusive between the parties and their privies as any other judgment (subject, perhaps to certain exceptions in cases of fraud or mistake), is well established …”

21In Ontario Sugar, the Ontario Court of Appeal focused on whether Issue Estoppel can apply to a consent judgment – it does not clearly delineate whether the exception for fraud or mistake would be a pre-condition to the operation of Issue Estoppel, or, alternatively, that there is discretion to decline to apply Issue Estoppel where fraud or mistake has occurred.

22This decision was issued in 1911, long before the decision of the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460 (Danyluk), which does not hold that factors of fraud or mistake are criteria to be considered in determining whether the preconditions to the operation of Issue Estoppel have been satisfied.

23In Danyluk, the Supreme Court of Canada held that there is discretion to decline to apply Issue Estoppel, stating at paragraph 62 that the discretion not to apply Issue Estoppel exists, although it must be very limited in application. At paragraph 67, the Court stated that, when deciding whether to exercise this discretion, the list of factors to be considered is open, and that the 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 a particular case. At paragraph 80, the Court described the most important factor, stating: “As a final and most important factor, the Court should stand back and, taking into account the entirety of the circumstances, consider whether application of issue estoppel in the particular case would work an injustice.”

24The Board finds that the test in Danyluk indicates that fraud or mistake are factors an adjudicator may consider when determining whether to exercise the discretion to decline to order Issue Estoppel. Therefore, the Appellant’s submissions will be addressed under Issue 2.

25A decision is final if it disposes of the legal proceeding – i.e. the proceeding does not continue after the decision is issued. In this case, the Board Decisions finally determined the Prior Appeal Proceeding. The Board Decisions were neither reviewed nor appealed.

26Accordingly, the Board finds that all three preconditions to the operation of Issue Estoppel have been satisfied.

Issue 3 – If the three preconditions to the operation of Issue Estoppel have been satisfied, should the Board exercise its discretion to decline to order that Issue Estoppel applies in this case?

Submissions

Municipality’s Submissions

27The Municipality submits there is no new evidence related to the current value of the Subject Property, there is no change to the state and condition of the Subject Property, there has been no change in the law, and there are no other circumstances that override the public interest in the finality of litigation.

28The Municipality points out that it is not disputed that the settlement reduced MPAC’s assessed value of the Subject Property by $3,835,000.

29The Municipality agrees that the issue of the Paralegal Representative’s authority to accept the settlement on the Appellant’s behalf can be considered when determining whether applying Issue Estoppel would work an injustice in this case. The Municipality submits, however, that applying Issue Estoppel would not work an injustice in this case, because: (i) the Paralegal Representative is licensed by the Law Society of Ontario; (ii) the correspondence between the Paralegal Representative and representatives for MPAC and the Municipality show no indication of any limits on the Paralegal Representative’s authority to settle the Prior Appeal Proceeding; and (iii) the wording of the Minutes of Settlement indicating that Board orders will be made in accordance with these Minutes.

30The Municipality submits that the authority to settle is an issue between the Appellant, the Paralegal Representative, and this Paralegal Representative’s professional errors and omissions insurer, noting that the Appellant has brought a claim in the Superior Court of Ontario claiming compensation for damages.

31The Municipality relies on Scherer v. Paletta, 1966 CanLII 286 (ON CA) (“Scherer”), where the Ontario Court of Appeal held that, when deciding whether to issue a decision in accordance with an agreement made by a solicitor, the Court does not embark upon any inquiry as to the limitation of authority imposed by the client upon the solicitor. The Municipality points out that more recent court decisions confirm the Scherer decision remains the law in Ontario: Dick v. McKinnon, 2014 ONCA 784 and Kimberley v. Riggi, 2024 ONSC 4162.

MPAC’s Submissions

32MPAC submits that Issue Estoppel should be applied because:

1. There is no new evidence. The valuation day for determining current value is the same for both the Current Appeal Proceeding and the Prior Appeal Proceeding, January 1, 2016.

2. The issue for the Current Appeal Proceeding is the same as the Prior Appeal Proceeding.

3. The Subject Property did not change for the 2024 taxation year.

4. There are no other special circumstance that would over-ride the public interest in the finality of litigation. There is no injustice to the Appellant, but there is injustice to other stakeholders – MPAC, municipalities, other rate payers, and the Board – if the Appellant is allowed an “encore” or a second “bite at the cherry”.

33In support of these submissions, MPAC cites several decisions:

• Wabi Iron & Steel Corp. v. Municipal Property Assessment Corp., Region No. 29, 2005 CanLii 3984 (ON SCDC), at paragraph 18;

• Paletta v. Paletta, 2003 CanLII 19580 (ON SC), at paragraphs 21 and 51;

• Spadacini-Kelava v. Kelava, 2020 ONSC 7907, at paragraphs 103-104;

• Canada Niagara Hotels Inc v Municipal Property Assessment Corporation, Region 18, 2022 CanLII 54916 (ON ARB) at paragraph 38

Appellant’s Submissions

34The Appellant summarizes the affidavit evidence it filed in response to the Municipality’s motion.:

1. The Consulting Firm induced the Appellant to enter into a contingency agreement based on misrepresentations, and then accepted, without negotiation, MPAC’s admission that the original assessment was incorrect, then falsely indicated to the Municipality and MPAC that the Appellant had consented to the settlement on February 7, 2024, one week before it even discussed the settlement with the Appellant.

2. When the Paralegal Representative was pressed to return the Minutes of Settlement that flowed from the February 7, 2024 email agreeing to an assessment of $32,307,000, the Consulting Firm attempted to get the Appellant’s approval again, based on the misrepresentation of the new taxes (to $2.66 per sq. ft. versus actual $5.63) and that there was a deadline of noon March 28, 2024 to accept, which was false. Despite not obtaining the consent that it sought or explaining to the Appellant that it had already sent the February 7, 2024 email confirming the Appellant’s consent, the Paralegal Representative again told MPAC and the Municipality that the Appellant had consented, which is false.

3. The Consulting Firm immediately invoiced the Appellant for its contingency fee. The Appellant states that the Consulting Firm acted in its own self-interest, without the consent of the Appellant, and to the detriment of the Appellant’s ability to obtain a lower correct and equitable assessment that is supported by the motion materials.

4. The Appellant refers to data respecting assessed values of three other properties, asserting that it provides the detailed basis for a much lower assessment than the Consulting Firm accepted.

35The Appellant submits that the Minutes of Settlement do not bind the Board to act in any particular way when determining whether to apply Issue Estoppel. The Appellant refers to Scherer, paragraph 7, where the Court noted that, in the case before it, there was no evidence that the settlement was unreasonable, collusive, or fraudulent. The Appellant submits that Scherer stands for the proposition that there are exceptions to the general rule that the Court will not enquire as to limitation of authority imposed by the client upon the solicitor. These exceptions include where a settlement is unreasonable, collusive or fraudulent. The Appellant submits that in this case, there is evidence that the Paralegal Representative’s resolution of the Prior Appeal Proceeding on behalf of the Appellant was unreasonable and fraudulent.

36The Appellant submits that the Board controls its own process, and dismissal of appeals is an extreme remedy that requires clear evidence before that relief is granted. The Appellant further submits that the Board is an adjudicative tribunal and it cannot abdicate its statutory duty to determine the current value of a property on an appeal.

37The Appellant acknowledges that a consent judgment or settlement may be the basis of Issue Estoppel, but points out that a consent decision is not a decision on the merits. As noted in the Appellant’s submissions under Issue 1, the Appellant submits there are exceptions in cases of fraud or mistake (citing Ontario Sugar).

Municipality’s Reply Submissions

38The Municipality submits that the affidavit evidence filed by the Appellant makes no assertion of either “fraud” or “mistake”. The Municipality further submits that the Appellant has not provided a sufficiently complete evidentiary record to make findings of fraud or mistake in relation to the Minutes of Settlement.

Findings on Issue 3

Relevance of Scherer

39In support of their positions, both the Municipality and the Appellant have cited the Court of Appeal decision in Scherer, where the question before the Court was whether the Court will consider a party to be bound by the actions of its solicitor in accepting a settlement offer, even though the solicitor’s client asserts that it did not agree to the settlement and did not authorize its solicitor to accept an offer on its behalf without the client’s express instruction to do so.

40The circumstances and the question before the Court in Scherer are very similar to the circumstances and question before the Board in this Motion. In Scherer, a solicitor for a plaintiff in a motor vehicle accident claim communicated an offer to settle the plaintiff’s claim to the defendants’ solicitor, which was accepted. When the plaintiff was advised of the agreement, he repudiated the settlement. There was a dispute between the plaintiff and the plaintiff’s solicitor regarding the exact instructions given to the solicitor. The plaintiff asserted that he was not prepared to accept the settlement offer and that any increased offer was to be submitted to him for his approval or rejection. The solicitor denied any such qualification.

41There are other similar circumstances: (i) there was no dispute that the retainer existed, i.e. the solicitor had been retained by the plaintiff and this retainer was in force at the time of the settlement; (ii) there was no dispute as to the terms of the settlement; (iii) the issue of whether there was a qualified retainer was not before the Court for consideration.

42The main difference is that, in Scherer, the plaintiff objected to the settlement before the Court issued its final decision. In this case, the Appellant did not do so.

The Legal Test in Scherer

43The Court’s findings in Scherer are set out in paragraphs 9 to 11. In summary:

1. The relationship of a solicitor to his client is in general one of agent to principal.

2. The authority of a solicitor to compromise [i.e. accept a settlement offer] may be implied from a retainer to conduct litigation unless a limitation of authority is communicated to the opposite party.

3. Where a principal gives an agent general authority to conduct any business on his behalf, he is bound as regards third persons by every act done by the agent which is incidental to the ordinary course of such business or which falls within the apparent scope of the agent's authority.

4. A client, having retained a solicitor in a particular matter, holds that solicitor out as his agent to conduct the matter in which the solicitor is retained.

5. In general, the solicitor is the client's authorized agent in all matters that may reasonably be expected to arise for decision in the particular proceedings for which he has been retained. Where a principal gives an agent general authority to conduct any business on his behalf, he is bound as regards third persons by every act done by the agent which is incidental to the ordinary course of such business or which falls within the apparent scope of the agent's authority.

6. As between principal and agent, the authority may be limited by agreement or special instructions but as regards third parties the authority which the agent has is that which he is reasonably believed to have, having regard to all the circumstances, and which is reasonably to be gathered from the nature of his employment and duties. The scope of authority is, therefore, largely governed by the class of agent employed provided that the agent acts within the limit of his/her ordinary avocation or by relation of the agent to the principal.

7. A solicitor whose retainer is established in the particular proceedings may bind his client by a compromise of these proceedings unless his client has limited his authority and the opposing side has knowledge of the limitation, subject always to the discretionary power of the Court, if its intervention by the making of an order is required, to inquire into the circumstances and grant or withhold its intervention if it sees fit; and, subject also to the disability of the client.

8. It follows accordingly, that while a solicitor or counsel may have apparent authority to bind and contract his client to a particular compromise, neither solicitor nor counsel have power to bind the Court to act in a particular way, so that, if the compromise is one that involves the Court in making an order, the want of authority may be brought to the notice of the Court at any time before an order is issued by the Court.

9. However, if the parties are of full age and capacity, there is no dispute as to the fact that a retainer exists or the terms agreed upon between the solicitors, the Court, in practice, does not embark upon any inquiry as to the limitation of authority imposed by the client upon the solicitor.

44The Appellant relies on paragraph 7, which states:

In the present case, the fact of the retainer is not in issue but there is a dispute as to whether it was a qualified retainer. It is admitted that negotiations for settlement were concluded on the terms agreed to by both counsel and there is no evidence that the settlement is unreasonable, collusive or fraudulent. [Emphasis Added]

The Appellant emphasizes that the above ruling indicates that these are exceptions to the general rule that the Court will not enquire as to limitation of authority imposed by the client upon the solicitor.

Does the Test in Scherer Apply to Issue Estoppel

45In Scherer, the Court did not address Issue Estoppel. As the Board has pointed out, the Court addressed an objection to the settlement before a final order was issued. This raises the question whether the findings in Scherer apply to the exercise of discretion not to apply Issue Estoppel.

46In addressing this question, the Board observes that the rationale for declining to issue a final order in a proceeding, and the rationale for declining to apply Issue Estoppel in a subsequent proceeding are, effectively, the same. It is to avoid an unjust result in a specific case. For this reason, the Board accepts that the Board should not automatically order that Issue Estoppel applies, based solely on the general practice that the Board need not embark upon any inquiry as to the limitation of authority imposed by the client upon the solicitor.

Relevant Considerations Regarding the Enforcement of a Settlement Agreement

47In Morant v Sun Life Assurance Company of Canada, 2014 ONSC 2876 (“Morant”), the Superior Court of Ontario stated as follows at paragraph 34:

As a general rule parties are to be held to their bargains and to settlements which they negotiate and conclude. The court may exercise its discretion not to enforce the terms of a settlement where there is evidence that:

a. the resulting agreement and settlement was unconscionable, fraudulent or based on a party’s misapprehension of a material fact which was known to the opposite party;

b. the solicitor representing the party was not retained or did not have authority to settle the action and this limitation was known to the opposite party; and

c. the party lacked the legal or mental capacity to enter into the settlement agreement at the material time.

[See Milos v. Zagas (1998) 1998 CanLII 7119 (ON CA), 38 O.R. (3d) 218; Sher v. Paletta, 1996 CanLII 286 (ON CA); Vanderkop v Manufacturers Life Insurance Company, 2005 CanLII 39686 (ON SC)]

48The Board refers to these three factors as the Morant factors and accepts that these are relevant considerations when deciding whether to exercise discretion and decline to apply Issue Estoppel in this case.

Analysis of the Relevant Factors in this Case

49The Board begins with the Morant factors. The Board finds that factors (b) and (c) do not apply in the circumstances of this because the Paralegal Representative was retained and any purported limitation on this Representative’s authority to accept a settlement was not known to MPAC or the Municipality; and there is no suggestion that the Appellant lacked a legal or mental capacity to enter into an agreement.

50This leaves factor (a) which poses three conditions for rejecting a settlement: (i) it was unconscionable; (ii) it was fraudulent; or (iii) it was based on a party’s misapprehension of a material fact which was known to the opposite party. The Board will address each condition in turn.

51Regarding factor (i), the term ‘unconscionable’ is typically used in contract law, and one of its elements is that the terms of the contract are so severely unfair or one-sided that no reasonable person would enter into the contract. In Cain v. Clarica Life Insurance Company, 2005 ABCA 437, the Alberta Court of Appeal, at paragraph 32 described it as “a grossly unfair and improvident transaction”.

52In this case, the Appellant’s evidence regarding the inadequacy of the settlement is summarized at paragraph 15 of its affidavit evidence:

[The Paralegal Representative] indicated that the proposed subject property CVA would be $135.71 per square foot. The actual rents of the three properties used by MPAC to support a fair market rent of $9.20 were not obtained by her, who advised a motion would be needed. She noted for those properties the CVA would be $70.68 for 144,501 sq. ft. (the most comparable in size to the subject buildings), and $148.17 and $101.95 per sq. ft. for significantly smaller buildings of 12,000 and 30,171 square feet.

Exhibit 8 is an email exchange between the Appellant and the Paralegal Representative where the Appellant pointed out that it was not currently achieving the fair market rent ($9.20) in its lease rates. The Paralegal Representative responded stating that: “What is being achieved in 1 building alone does not determine the complete market value of the property”. At paragraph 16 of the Appellant’s submissions, the Appellant also adopted the approach of considering the amount of tax payable per square foot, asserting that there was a misrepresentation of what the new taxes would be.

53In addressing this evidence, the Board first observes that its jurisdiction in both the Prior and Current Appeal Proceedings is to determine the current value of the Subject Property. While the Board understands the Appellant’s interest in the amount of tax ultimately payable, it is not a relevant consideration for the Board. The Board also notes that current value cannot be determined with scientific precision. The Act confirms that current value is an opinion of value (see s.32(1.1) of the Act). Therefore, while the Appellant’s view is that current value is lower than the settlement value, this does not mean that the settlement value is unconscionable. In this regard, the Board notes that the settlement value was determined by MPAC based on its appraisal of the value of the Subject Property. There is nothing in the Appellant’s evidence to suggest that MPAC’s appraisal of the Subject Property’s value was deficient or misinformed. Furthermore, although actual rents may have some relevance, the value of an income-generating property is based on fair market rent (see BCE Place Limited v. Municipal Property Assessment Corporation, 2010 ONCA 672). For these reasons, the Board finds that the Appellant’s evidence falls far short of establishing that the settlement is unconscionable.

54Regarding condition (ii), the legal definition of fraud is varies based on the circumstances. For various definitions- see Black’s Law Dictionary,10th ed. (Thompson Reuters, 2015), which includes a general definition: “A knowing misrepresentation or knowing concealment of a material fact made to induce another to his or her detriment….”. In reviewing these various definitions, it appears that, for civil law, the key elements to establish fraud can be summarized as: (a) an intention to deprive another person of something of value; (b) dishonest conduct (misleading or deceptive actions); and (c) the dishonest conduct results in actual deprivation. It is not sufficient to establish only that any of these three components may exist.

55Although the Appellant asserts its opinion that the settlement value is incorrect and should be lower, the Board finds that the Appellant has not established in evidence that the settlement value is incorrect. In this regard, the Appellant’s evidence includes a copy of the Consulting Firm’s Statement of Claim in its Superior Court proceeding, which alleges information to support its claim that the settlement value is an optimal value for the Appellant. As such, the Appellant has not established that there is an actual deprivation of value.

56Further, the only persons who the Appellant alleges had an intent to defraud are the Consulting Firm and Paralegal Representative. The evidence before the Board is that the Retainer Agreement provided for a contingency fee for service – the Consulting Firm would be paid a percentage of any tax savings if the assessment value of the Subject Property was reduced. The Appellant asserts that the Consulting Firm accepted the Settlement Proposal so that it could proceed to collect its contingency fee. While that is one inference, there are others. The Consulting Firm’s financial interest was the same as the Appellant, namely, to obtain the lowest current value possible, as this would result in the highest possible value for the reduction in taxes payable on which contingency fee is based. This suggests that the Consulting Firm would not have accepted the settlement, had the Consulting Firm believed that the proposed settlement value was too high. Another inference is that it could equally be said that the Consulting Firm’s intention in accepting the settlement offer was not to deprive the Appellant of something of value, but to ensure that the Appellant received maximum value. Therefore, there is evident ambiguity respecting the intent underlying the decision to accept the Settlement Proposal.

57Respecting dishonest conduct, the Appellant asserts that the Paralegal Representative had no authority to agree to the Settlement Proposal and execute the Minutes of Settlement without the Appellant’s prior approval, describing this as the Paralegal Representative’s dishonesty. However, neither the Appellant’s submissions nor its affidavit evidence speak directly to the scope of the Paralegal Representative’s authority to accept a settlement offer. The affidavit includes a copy of the Appellant’s Statement of Defense and Counterclaim in the Superior Court proceeding, where at paragraph 11 the Appellant pleads that “It was an implied and/or express term and further understood by [the Appellant] that [the Consulting Firm] would act only upon [the Appellant’s] instructions to do so”. As noted earlier in this Motion Decision, the proceeding before the Superior Court of Ontario is still pending, so no judicial findings have been made respecting these matters.

58The only other evidence before the Board is a copy of the Retainer Agreement which is attached to the Appellant’s affidavit evidence. In this Agreement, there is only one reference respecting the appeal process, at paragraph 8, which states:

f) If the Client's request for a review is denied or if the Client decided to decline a review agreement, managing the appeal process on behalf of the Client, at the Client's expense; [Emphasis Added]

The Board observes that “managing the appeal process” relates to the scope of the Paralegal’s authority to conduct the litigation. However, it is a broadly worded provision. As such, the Retainer Agreement does not definitively address the scope of the Paralegal Representative’s authority to accept a settlement offer. Consequently, the Board finds that the evidence adduced by the Appellant falls short of clearly establishing that the Paralegal Representative’s conduct was dishonest.

59Based on the above analysis and findings, the Board finds that the evidence adduced by the Appellant is insufficient to establish that the settlement is fraudulent.

60Regarding condition (iii) – the settlement was based a party’s misapprehension of a material fact which was known to the opposite party, the only material fact alleged by the Appellant is that the Paralegal Representative accepted the settlement without the Appellant’s express authorization to do so. In this case, it is not disputed that MPAC and the Municipality were unaware that there was an issue respecting the Paralegal Representative’s authority to settle.

61In summary, the Appellant has not established that any of the three Morant factors apply. Furthermore, there is no dispute as to the fact that a retainer agreement existed between the Appellant and the Consulting Firm, and no dispute as to the settlement terms agreed upon between the legal representatives of the parties in this case. As such, per the Court of Appeal’s finding in Scherer, the Board need not embark upon any inquiry as to the limitation of authority imposed by the Appellant upon the Paralegal Representative.

62In reaching this conclusion, the Board understands the Appellant’s concern that its dispute respecting the authority to settle is not being addressed by the Board. However, the Board observes that the genesis of the Appellant’s problem is not due to the Board’s appeal process. Rule 12 of the Board's Rules of Practice and Procedure (“Rules”) provides that a party may appear in person or by a representative, so there is no question that MPAC and the Municipality could rely on the representations made by the Paralegal Representative. The genesis of the Appellant’s problem is its contractual agreement with the Consulting Firm.

Other Relevant Factors

63The Board now addresses any other factors relevant to whether the Board should decline to apply Issue Estoppel in this case.

64The Appellant’s alternate recourse for compensation in the Superior Court is a relevant consideration, as the availability of an alternative remedy indicates that the applying Issue Estoppel would not result in injustice in this case.

65The Board further notes that the test, as stated in Danyluk at paragraph 62, is that its exercise of the discretion must be very limited in its application. The operation of Issue Estoppel is to promote the orderly administration of justice, which includes finality of the adjudicative process. Therefore, the exercise of discretion must be made in this context. The Board must consider: (i) whether there will be an injustice if Issue Estoppel is applied; and (ii) whether there will be a negative impact on the orderly administration of justice if Issue Estoppel is not applied.

66In this regard, the Board notes that communications between a party and its representative are privileged. Other parties to an appeal cannot demand disclosure of the party’s retainer. They are required to rely on the representations made a party’s representative, as Rule 12 permits a party to appear by its representative. If a party can repudiate its representative’s actions in settling an appeal (where the Morant conditions do not apply), then this hinders finality of the Board’s process and would discourage parties from pursuing negotiated settlements.

67Although it is not a determinative factor, it is relevant that the Appellant did not challenge the issuance of the Board Decisions, or requested a review of these Decisions after they were issued, although it was aware of the Paralegal Representative’s resolution, and could have done so. The Board notes the following undisputed chronology of events:

1. The Appellant received notice that the Paralegal Representative signed Minutes of Settlement on March 28, 2024;

2. The Appellant retained a new paralegal representative on April 1, 2024, who commenced the Current Appeal Proceeding on the Appellant’s behalf on April 2, 2024;

3. The executed Minutes of Settlement for the Prior Appeal Proceeding were filed with the Board on April 23, 2024; and

4. The Board Decisions were issued on May 3, 2024.

In summary, the Appellant had four weeks to challenge the validity of the Minutes of Settlement prior to issuance of the Board Decisions. Furthermore, the Appellant did not request a review of the Board Decisions pursuant to Rule 101 of the Board’s Rules and the Appellant has not subsequently instituted any other legal proceedings challenging the Board Decisions.

68Consequently, the Board accepts MPAC’s submission that the Appellant accepted the finality of the Board Decisions in the Prior Appeal Proceeding, but now challenges that finality in the Current Appeal Proceeding.

69In summary, the major considerations are: (i) in this case, the law stipulates that the Board will not enquire whether there is a question respecting the Paralegal Representative’s scope of authority to accept the settlement - the settlement is binding on the Appellant; (ii) assuming the Paralegal Representative acted outside the scope of her authority to settle, the Appellant has alternate remedies to address any resulting injustice; and (iii) the concern that allowing a party to re-litigate an issue due to a retainer dispute will negatively impact the administration of justice. Based on these considerations, the Board concludes that Issue Estoppel should apply in this case.

70As the Board has found that the Appellant is estopped from raising the issue of the current value of the Subject Property, and as there are no other issues raised the Current Appeal Proceeding, the appeals for the 2024 and 2025 taxation years are dismissed.

Issue 4 – If the Board declines to order that Issue Estoppel applies, should the Current Appeal Proceeding be dismissed on the ground that it is an abuse of process?

71As the Board has found that Issue Estoppel applies in this case, it is unnecessary to address the parties’ submission the Current Appeal Proceeding should be dismissed on the ground that it is an abuse of process.

ORDER

72The Board orders that the Appellant is estopped from raising the issue of the correct current value of the Subject Property in the Current Appeal Proceeding.

73As there are no other bases of appeal raised in the Current Appeal Proceeding, the appeals for the 2024 and 2025 taxation year are dismissed.