Melissa VanBerkum

The Municipal Property Assessment Corporation (MPAC) appealed a Divisional Court decision that affirmed an Assessment Review Board (Board) ruling.

The Board had found that MPAC failed to meet its burden of proving the "highest and best use" (HBU) of properties for assessment purposes, instead accepting the respondents' valuation based on current use.

MPAC argued the Board erred by relying on a presumption of current use and by not independently determining current value based on comparable sales.

The Court of Appeal dismissed MPAC's appeal, holding that the Board did not make a legal error.

The Board correctly found MPAC failed to prove financial feasibility for its proposed HBU and was entitled to accept the respondents' valuation evidence, especially since MPAC's own expert conceded its appropriateness if their HBU was not established.

The court clarified that while no legal presumption of current use exists, the Board's role is to determine current value based on the evidence and submissions presented, with MPAC bearing the onus.

The Court of Appeal for Ontario heard an appeal from a Divisional Court order that had allowed appeals from a Superior Court order.

The Court of Appeal agreed with the Divisional Court's reasoning and conclusions, dismissing the appeal.

The parties also agreed on an all-inclusive costs award of $35,000 payable by the appellant to the respondents, covering all levels of court proceedings, including the motion for leave to appeal.

The applicant sought a determination on whether an "air parcel" constitutes assessable "land" under section 1(1) of the Assessment Act, R.S.O. 1990, c.

A.31.

The court concluded that an air parcel, as defined in a strata plan, is not "land" for the purposes of the Act until a physical structure is affixed to the ground.

The decision emphasized that the statutory definition of "land" is paramount, not common law or conveyancing practices, and that legislative amendment would be required to include air parcels for taxation.

The applicant's request for an order was granted, and costs were awarded.