CITATION: ARI STC GP INC. v. MPAC, 2024 ONSC 3663

DIVISIONAL COURT FILE NO.: 31/24

DATE: 20240625

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

B E T W E E N:

ARI STC GP INC., Applicant

-and-

MUNICIPAL PROPERTY ASSESSMENT CORPORATION and THE CITY OF TORONTO, Respondents

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

DIVISIONAL COURT FILE NO.: 1449/24

B E T W E E N:

IVANHOE CAMBRIDGE INC. Applicant

-and-

MUNICIPAL PROPERTY ASSESSMENT CORPORATION and THE CITY OF OSHAWA, Respondents

BEFORE: FL Myers J

COUNSEL: Eric Sherkin, Tara Piurko, and Noah Gordon, for the Applicants Donald G. Mitchell and Karey Lunau, for MPAC Cynthia Kuehl, for the City of Oshawa Angus MacKay, for the City of Toronto

HEARD at Toronto (by videoconference): June 25, 2024

ENDORSEMENT

[1] ARI STC GP Inc. seeks leave to appeal the decision of the Assessment Review Board dated December 12, 2023, bearing board file no. DM 185342 and hearing event no. 782064.

[2] Ivanhoe Cambridge Inc. seeks leave to appeal the decision of the Assessment Review Board also dated December 12, 2023, bearing board file no. 185595 and hearing event no. 782164.

[3] Both decisions applied the doctrine of issue estoppel to dismiss the applicants’ appeals of their property tax assessments based on settlements of prior years’ assessments in the same tax cycle.

[4] Consistent with the usual practice in this court, there are no reasons for this decision: Westhaver Boutique Residences Inc. v. Toronto, 2020 ONSC 3949 (Div. Ct.); County of Wellington v. Municipal Property Assessment Corporation Region No. 22, 2022 ONSC 1458 (Div. Ct.).

[5] I do however feel the need to say this much: There may come a time when there should be a consideration of the board’s move away from the “state and condition” paradigm. It is a phrase used both in decisions of this court and in the relevant regulation.

[6] But, in these proposed appeals the applicants are trying to re-open the 2016 valuation of their land based on the pandemic. The applicants below did not raise changes to the “state and condition” of their land no matter how that term is defined. Despite efforts to plead into the “state and condition” case law, the change relied upon by both applicants is essentially to their profitability. The law is clear that subsequent market changes to business results is not a basis to re-open an assessment. Sun Life v. City of Montreal, 1950 29 (SCC), [1950] SCR 220 at p. 224; aff'd 1951 307 (UK JCPC).

[7] In the Ivanhoe Cambridge decision, the board said explicitly:

…even if the Appellant were permitted to continue to litigate the issue of correct current value, the COVID-19 Change In Circumstances are not relevant to a determination of Defined Current Value based on the applicable January 1, 2016 valuation day.

[8] Whether one considers the “state and condition” of the premises after 2020 (under the prevailing paradigm) or looks only for grounds expressly set out in ss. 32 to 34 of the Assessment Act, RSO 990, c A.31, (under the newer interpretation being advanced by some members of the board) a change in profitability of the landowner due to the pandemic (or pandemic emergency legislation) will not amount to a basis to alter the agreed values of the land as at the 2016 valuation date.

[9] So, while counsel for the applicants has ingeniously sought to identify questions of law for an appeal, none of the questions arise on the facts of these appeals. That does not mean that I disagree with the applicants’ submission of law. They are just not yet ripe for decision.

[10] The motions are dismissed. As agreed among counsel, each applicant shall pay $2,500 to each of the respondents to their own motion.

FL Myers J

Date: June 25, 2024```