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Ontario Tax - Assessment Act - Appeals. Municipal Property Assessment Corporation v. Claireville Holdings Limited
In Municipal Property Assessment Corporation v. Claireville Holdings Limited (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal (of a Divisional Court appeal) from the Assessment Review Board:(1) Jurisdiction and the standard of review
[30] Subsection 43.1(1) of the Assessment Act provides that “an appeal lies from the [Board] to the Divisional Court, with leave of the Divisional Court, on a question of law”.
[31] On an appeal from the Divisional Court to this court, the court is to step into the shoes of the Divisional Court: Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477, 132 O.R (3d) 295, at para. 27.
[32] The appellate standard of review applies to a statutory appeal from an administrative tribunal: Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at para. 37; Housen v. Nikolaisen, 2002 SCC 3, [2002] 1 S.C.R. 84. Only legal errors or errors of mixed fact and law involving extricable questions of law can be appealed from the Board to the Divisional Court. The court cannot interfere if the Board made an error of fact or mixed fact and law that does not involve an extricable question of law. If the Board made a legal error, the standard of review is correctness: Municipal Property Assessment Corporation v. Zarichansky, 2020 ONSC 1124 (Div. Ct.), at para. 26 and 28. . Municipal Property Assessment Corp. v. Bell Canada
In Municipal Property Assessment Corp. v. Bell Canada (Div Court, 2024) the Divisional Court dismissed an MPAC appeal against an Assessment Review Board ruling, here that related "to MPAC’s assessment of a telecommunications switching station in downtown Toronto owned by the respondent Bell Canada".
Here the court sets out the Assessment Act appeal SOR:[26] In Drewlo Holdings Inc. v. Municipal Property Assessment Corp., 2024 ONSC 786, 169 O.R. (3d) 780 (Div. Ct.), at paras. 6-7, on appeal from a Board decision under the Assessment Act, the Divisional Court summarized the standard of review as follows:Appeals are only allowed to this court from the board on questions of law, pursuant to s. 43.1 of the Act. Questions of law examine what the correct legal test is, and questions of fact examine what took place between the parties; questions of mixed fact and law involve whether facts satisfy the legal test…. The application of a legal test to the facts, and the board’s factual findings are not subject to appellate review absent an extricable error of law ... .
On this statutory appeal from the decision of a tribunal, the standard of review is correctness. Accordingly, this court is free to substitute its opinion for that of the administrative decision maker…. [Citations omitted.] [27] When the decision under appeal is fact-intensive or involves the exercise of discretion, care must be taken in identifying extricable errors of law since the process of severing out legal issues can undermine the standard of review analysis. An arguably unreasonable exercise of discretion is not an error of law or jurisdiction: Wood Buffalo (Regional Municipality) v. Alberta (Energy and Utilities Board), 2007 ABCA 192, 80 Alta. L.R. (4th) 229, at para. 8; Natural Resource Gas Limited v. Ontario (Energy Board), 2012 ONSC 3520 (Div. Ct.), at para. 8; Conserve Our Rural Environment v. Dufferin Wind Power Inc., 2013 ONSC 7307 (Div. Ct.), at para. 13.
[28] While the court is empowered to replace a tribunal’s opinion on questions of law with its own, the correctness standard does not detract from the need to respect the tribunal’s specialized function. The tribunal’s subject matter experience and expertise relating to the requirements of its home statute should be taken into account: Reisher v. Westdale Properties, 2023 ONSC 1817 (Div. Ct.), at paras. 9-10, citing Planet Energy (Ontario) Corp. v. Ontario Energy Board, 2020 ONSC 598 (Div. Ct.), at para. 31; Vavilov, at para. 36. . Manulife Ontario Property Inc. v. MPAC and Ottawa (City) [equitable adjustment]
In Manulife Ontario Property Inc. v. MPAC and Ottawa (City) (Div Court, 2023) the Divisional Court considers the 'equitable adjustment' appeal provision of the Assessment Act [s.44(3)(b)] ['have reference to the value at which similar lands in the vicinity are assessed']:[36] Manulife cited the principles of equity in taxation citing Toronto (City) v MPAC, 2013 ONSC 6137 at para. 30: The primary objective of the Act is to achieve equity in taxation. Equity will result when every parcel of land bears its proportionate and fair share of the tax burden for the community. This principle favours ensuring the correctness of the assessments upon which the tax payable is based. On the other hand, it is also the intention of the legislation to ensure a stable and reliable tax base. This principle favours finality. The principles of equity and finality are often in conflict and each must be weighed in the balance in arriving at the proper interpretation of the legislation. ....
Did the Board fail to fulfill its statutory obligations under the s. 44(3)(b) of the Act to consider whether the assessments under appeal are equitable compared to assessments of similar lands in the vicinity?
[40] Manulife submits that the Board was required to consider anew the issue of whether the assessments for 2021-22 were “equitable compared to assessments of similar lands in the vicinity” The Board erred because it was required do so by statute.
[41] I do not agree. Manulife raised the equitable comparison issue in its “Statement of Issues” filed for the 2017-2020 appeals, arguing that “the assessment of the Subject Property is inequitable, as compared to the assessment of similar lands in the vicinity.” Manulife included a list of similar lands in the vicinity. The parties settled this issue and the Board incorporated an equitable adjustment into the 2017-2020 orders. In doing so, it fulfilled its statutory obligations to determine the CVA of the office building as of January 1, 2016. . Manulife v. Municipal Property Assessment Corporation et al
In Manulife v. Municipal Property Assessment Corporation et al (Div Court, 2023) the Divisional Court considered a s.43.1(1) Assessment Act leave to appeal (to the Divisional Court) motion:[11] An appeal of a decision of the Board lies to the Divisional Court, with leave on questions of law: Assessment Act, R.S.O. 1990, c. A.31, s. 43.1(1) (the “Act”).
[12] MPAC and Ottawa submit that the proposed appeal by Manulife involves an issue of mixed fact and law and, therefore, this Court lacks jurisdiction. I disagree. In my view, the issue is whether the Board misapplied the doctrine of issue estoppel, which is a question of law. I find that this Court has jurisdiction to hear the appeal if leave is granted.
[13] In granting leave to appeal, the Court must be satisfied that:a. There is reason to doubt the legal correctness of the Board’s decision; and
b. The question is an important question of law: City of Dryden v. Municipal Property Assessment Corporation et al, 2016 ONSC 478, 49 M.P.L.R. (5th) 104, at para. 2, citing Via Rail Canada Inc. v. MCAP, 2015 ONSC 7459, 87 O.M.B.R. 42, at paras. 15-17. A: There is good reason to doubt the legal correctness of the Board’s decision
[14] There is reason to doubt the correctness of a decision if it is “open to very serious debate”: Exchange Tower v. Municipal Property, 2012 ONSC 415, 97 M.P.L.R. (4th) 200, at paras. 17-18.
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B: The legal issue is important
[33] The test for leave to appeal requires a moving party to demonstrate both a good reason to doubt the correctness of the impugned decision and the importance of the legal issue.
[34] A legal issue is considered important when it goes beyond the interest of the immediate parties and involves questions of general importance: Sahota v. Sahota, 2015 CanLII 20903 (Ont. Div. Ct.), at para. 5. At paras 15-32 the court considers, and grants, leave to appeal.
. Drewlo Holdings v. MPAC
In Drewlo Holdings v. MPAC (Div Court, 2023) the Divisional Court sets out the test for leave to appeal, here in an Assessment Act s.43.1(1) appeal:[24] The Act sets out the appeal route in s. 43.1(1). An appeal lies from the Board to the Divisional Court, with leave, on a question of law.
[25] The parties agree on the applicable test for leave to appeal in this context, as set out in Via Rail Canada Inc. v. MPAC, 2015 ONSC 7459. In order to grant leave to appeal, the court must be satisfied that:(a) There is some reason to doubt the legal correctness of the Board’s Decision; and
(b) The appeal involves an important question of law meriting the attention of the Divisional Court. [26] As noted in Via Rail, at para. 17, to meet the first branch of the test, the party seeking leave to appeal need not show that the Board’s Decision was wrong or even probably wrong. This part of the test is satisfied if the correctness of the Decision is “open to very serious debate”.
[27] If there are conflicting decisions on an issue, this may give reason to doubt the correctness of a decision. If the Board has applied legal tests or factors that are novel or not in accordance with established case law, the threshold of “open to very serious debate” may be met (see: Via Rail, at para. 18).
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