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Forms - Irregular - Refused. Kostiuk v. Liu
In Kostiuk v. Liu (Div Court, 2024) the Divisional Court refused to accept a 'Notice of Appeal' where a 'Notice of Motion for Leave to Appeal' was the proper document, even though the irregular form specifically mentions that 'leave to appeal' was being sought.
The court granted the erring self-presenter 15 days to commence the appropriate motion:[8] The Order is an interlocutory order, and, accordingly, leave to appeal must be sought in accordance with s. 19(1) (b) of the Courts of Justice Act, R.S.O. 1990, c. C-43 and Rules 61.03 and 62.02 of the Rules of Civil Procedure. The Appellant seems aware of this, because her Notice of Appeal states that “The appellant deserves for leave to appeal” (sic). She has, however, filed the wrong court document for a motion for leave to appeal.
[9] The Notice of Appeal must be struck, and Ms. Liu must file a Notice of Motion for Leave to Appeal.
[10] Ms. Liu is therefore granted 15 days from today’s date to bring a motion for leave to appeal in accordance with Rules 61.03 and 62.02. The parties should also review the Consolidated Practice Direction for Divisional Court Proceedings, effective June 15, 2023, which is available on the Court’s website at:https://www.ontariocourts.ca/scj/practice/div-court-pd/ [11] Part E of that Direction deals with motions for leave to appeal to the Divisional Court and requires that all motions for leave to appeal are heard in writing and are to be filed in Toronto.
[12] Since the April 25, 2024 Order was made “for oral reasons given”, the proposed appellant must obtain the transcript of the Court’s reasons. The filing office can provide her with the website and email address if she needs assistance. . 2198806 Ontario Inc. v. The Corporation of the City of Windsor
In 2198806 Ontario Inc. v. The Corporation of the City of Windsor (Div Court, 2023) the Divisional Court considered (and dismissed) a JR against an appeal decision of the Assessment Review Board (ARB) which denied a challenge to a municipality's decision to not grant a property tax refund of the applicant's hotel property when it was shut down for construction to convert to residential rental use.
In these quotes the court upheld a finding by the ARB that it did not have jurisdiction over an 'appeal' where the applicant filed the wrong ARB 'complaint' form ["it filed an appeal using the vacant property form, but that it intended to file an appeal of the demolition decision"]:Did the Board err in failing to treat the document the Applicant filed as an appeal of the 2016 demolition decision?
[7] The Applicant submits the Board favoured form over substance when it found there was no appeal of the 2017 demolition decision. It says it filed an appeal using the vacant property form, but that it intended to file an appeal of the demolition decision. It relies on Toth Equity Limited v. Ottawa (City), 2015 CanLII 21998 (ON ARB), where the Board allowed a taxpayer to pursue an appeal when it had referenced the incorrect statutory provision on its appeal form and cover letter.
[8] I find the Board’s determination that there was no appeal to be reasonable. The Member highlighted the differences between the procedures to challenge the statutory provisions at issue. Both provisions are found in Part X of the Municipal Act, 2001, S.O. 2001, c. 25 (the Act). Subsection 364(1) addresses tax relief for vacant land. It permits a municipality to establish a program for tax rebates to “owners of property that has vacant portions.” Subsection 357(1)(d)(ii) authorizes a municipality to cancel, reduce, or refund all or part of taxes if a building on the land “was razed by fire, demolition or otherwise.”
[9] As the Member noted, the two provisions form part of different regimes in the Act. A decision under s. 357 is made by city council at a meeting at which the applicant may make representations. Under s. 357(7), the applicant may appeal the council’s decision to the Board within 35 days. The amount of the relief council may grant is discretionary and, pursuant to s. 357(17), the Board’s decision is final. Meanwhile, a decision under s. 364 may be mailed to the applicant by the municipality. Under s. 364(14), the applicant can challenge it by filing a complaint with the Board within 120 days. Municipalities are required to have vacant unit rebate programs in place and the amount of relief is legislated: see O. Reg. 325/01, s. 32. There is a right of appeal under the Assessment Act from the Board’s decision on the complaint.
[10] The form the Applicant filed, entitled “Municipal Act Complaint – Vacant Unit Rebate,” makes it clear it cannot be used to initiate an appeal. It contains a warning that it is to be used for vacant unit rebate complaints only, stating:Do not use this form for any other applications, appeals and/or complaints under the Municipal Act, 2001. Different forms are available to file the other applications, appeals and complaints. [11] On the form, the Applicant marked the box indicating it was making a complaint under s. 364(14). The available check box options relate only to s. 364. There is no mention in the form of s. 357.
[12] In these circumstances, it was reasonable for the Member to distinguish Toth. There, while the property owner marked the wrong provision on the form, the two statutory provisions at issue were, as the Member stated, “nearly identical.” They provided for almost the same relief. Both also required an appeal to the Board. Further, Toth was unusual in that the decision arose after a judicial review in this court and subsequent appeal to the Court of Appeal, which resulted in the matter being remitted to the Board. Both this court and the Court of Appeal considered the statutory provision the property owner had intended to rely on rather than the provision it had mistakenly named on the form.
[13] Overall, the Board’s analysis on this issue was transparent, intelligible, and justified: Vavilov at para. 86. It was reasonable for the Board to conclude it did not have authority over an appeal the Applicant had failed to initiate.
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