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Ontario Tax - Assessment Act - Appeals. 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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