Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE: September 18, 2015 FILE NO.: WR 134387
Assessed Person(s): Non-Profit Seniors Housing of Kenora Appellant(s): Non-Profit Seniors Housing of Kenora Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 32 Respondent(s): Town of Kenora
Property Location(s): 7 Woods Drive Municipality(ies): Town of Kenora Roll Number(s): See Schedule “A” Appeal Number(s): See Schedule “A” Taxation Year(s): 2015
Hearing Event No.: 597942
Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31, as amended
Heard: September 1, 2015 in Kenora, Ontario
APPEARANCES:
| Parties | Counsel⁺/Representative |
|---|---|
| Non-Profit Seniors Housing of Kenora | Trevor Smith |
| MPAC | Jack Jamieson⁺ |
| Town of Kenora | No one appeared |
DECISION OF THE BOARD DELIVERED BY SCOTT McANSH
INTRODUCTION
1The Appellant is the owner of a life-lease project for seniors located at 7 Woods Drive in Kenora (the “Property”). The 34 appeals before me are all condominium units held by the Appellant and are the dwelling units and parking facilities at the Property. The Appellant contends that they should not be treated as 34 parcels, but rather one unified building, and that the assessed value should be lower as a result. For the reasons set out below I cannot accept that submission and confirm the assessed values of the 34 appeals listed in Schedule “A” of these reasons.
Background
2The Property was developed sometime around 2006 and is an apartment style building with 33 dwelling units and a parking garage. The Property has always been run as a life-lease development for seniors but has had two legal arrangements that have impacted its assessed value.
3When the Property was first built it was on a single parcel of land and was assessed as a life-lease project in the residential property class. For the January 1, 2012 valuation day the parties agree that the assessed value as a single parcel is $5,431,000.
4On May 13, 2011 the Property was converted to a 34 unit condominium at the instance of the Appellant’s lender. Those condominium units were held by the Appellant at all times and the operation of Property continued unchanged while it was a condominium. However, the aggregate of the individually assessed condominium units was $8,220,000 for the January 1, 2012 valuation day. That assessed value was applied by MPAC for the 2013, 2014 and 2015 taxation years.
5The Appellant had significantly higher tax payments as a result of the change in assessed value, which resulted from the change in legal registration. In 2014 the Appellant began the process of de-registering the condominium, beginning informally as early as March 2014. The notice required by s. 122 of the Condominium Act was issued by the condominium corporation on January 30, 2015 and the registration of that notice was not completed until February 17, 2015. It was only on that date that the legal status of the Property returned to a single parcel of land.
6The only issue before me is if the Property should be assessed as 34 condominium units or one parcel of land for the 2015 taxation year. MPAC takes the position that the Property must be assessed as 34 condominium units because that was the state and condition of the Property when the roll was returned. The Appellant does not seriously contest that the Property was 34 condominium units on the roll return date, but argues that a supplementary assessment ought to be issued to reflect the February 17, 2015 change in legal status. I agree with MPAC that the assessment for the 2015 taxation year must be as a 34 unit condominium and do not accept that a supplementary assessment can be issued.
Legislation
7Section 36.(1) of the Assessment Act (“Act”) requires assessments to be made annually and s. 32.(2) requires that the assessment roll be returned to the municipality “not later than the second Tuesday following December 1 in the year in which the assessment is made.”
8Section 34.(1)(b)(v) of the Act permits MPAC to issue a further assessment if “land or a portion of land ceases…to be classified in a subclass of real property.” Section 34.(2) permits MPAC to issue a change in the class of real property if there is an event that would justify that change. Classes are set out in s. 7 of the Act, while subclasses are set out in s. 8. Classification is addressed in more detail in the General Regulation, O. Reg. 282/98 (“Regulation”). Section 3 of the Regulation deals with the residential tax class and s. 3.(1)1.(ii) includes in that class “a unit or proposed unit, as defined in the Condominium Act,” while s. 3.(1)1.(x) includes “land with self-contained units, organized as what is commonly known as a life lease project.” The Property has always been in the residential tax class, but for different reasons at different times.
Roll Return
9The law in Ontario is well established that the state and condition of a property on the roll return date determines how that property is assessed for the following taxation year. The law of finality on roll return was set down nearly 100 years ago by Lord Parmoor in Gt. Western and Metropolitan R. Cos. v. Kensington Assessment Committee, [1916] 1 AC 23 at 54. Our Court of Appeal confirmed, in Williams v. Regimbal, 1935 CanLII 91 (ON CA), [1935] O.R. 199, that “any changes that take place after [the return of the roll] in the ownership of the property must be ignored in the assessment for that year at least.” That rule has been followed many times. Two notable cases, for their firm application of the finality of the roll return date, are Gilbey Canada Inc. v. Regional Assessment Commissioner, Region No. 12 [1996], 33 O.M.B.R. 323 [“Gilbey”] and Inmet Mining Corp. v. Municipal Property Assessment Corp, Region No. 32, [2001] O.A.R.B.D. No. 1006 [“Inmet”].
10Gilbey concerned a distillery that was announced to be closing in August 1990. It closed on December 20, 1990 and the roll had closed on December 18, 1990. The Ontario Municipal Board found that because the distillery had operated on the roll return date, it should be assessed as a distillery for the subsequent taxation year. In Inmet, a mine suspended its operation on the roll return date and formally closed just over two months later. A differently constituted panel of this Board held that the roll return date is firm and “when a ‘snapshot’ of use and occupation may be taken for use in the determination of an assessment”. The Board’s decision in Inmet was upheld by the Divisional Court, (2002) 2002 CanLII 7325 (ON SCDC), 163 O.A.C. 59.
11Justice O’Connell applied the rule to condominium status changes substantially similar to those before me in Scollard Developments Inc. v. Regional Assessment Commissioner, Region No. 9 [1992], 34 ACWS (3d) 378. He held, at paragraph 15, that “the assessment of real property is determined by the situation and facts as they were at the time of the return of the roll.”
12Nothing before me indicates that the rule that the roll return date is a firm cutoff date has been altered in any way. The roll return date here is the second Tuesday after December 1, 2014, which is December 9, 2014. There is no dispute that, on that date, the Property was registered as 34 condominium units. The Appellant does not contest that the Property must be assessed as 34 condominium units at the total agreed value of $8,220,000 for at least a portion of the 2015 taxation year. The Appellant argues, however, that a supplementary assessment ought to have been issued, pursuant to s. 34 of the Act, once the de-registration was complete.
Supplementary Assessment
13Section 34 of the Act provides MPAC with a limited authority to issue assessments outside of the usual process. It is an extraordinary power, especially given the emphasis placed on finality of the roll at roll return in the jurisprudence reviewed above. The Appellant argues that there are two ways in which the supplemental assessment could have been triggered. First, through a change in subclass, as set out in clause 34.(1)(b)(v), and secondly, by a change in classification, as set out in s. 34.(2). Both of these arguments turn on the Appellant’s interpretation of the Regulation.
14The Appellant acknowledges that the Property has always been in the residential property class, but argues that a change in the reason for that classification has some significance. Prior to the condominium registration, the Property was in the residential property class by virtue of s. 3.(1)1.(x) of the Regulation as a qualifying life-lease project. Once it was registered as condominium units, each of those units was in the residential property class by virtue of s. 3.(1)1.(ii) of the Regulation. The Appellant argues that this change is sufficient to trigger a supplementary assessment. I disagree.
15Section 34 of the Act is limited in its application and was clearly intended to be so. The legislature did not grant MPAC a wide or discretionary authority to issue supplementary assessments. These unusual assessments are, rather, only permitted when the specific list of triggers listed in s. 34 are satisfied. They are not satisfied here.
16Section 34.(1)(b)(v) permits a supplementary assessment when there is a change in a “subclass of real property.” This is a defined, in s. 1(1) of the Act, as “a subclass prescribed under s. 8(1).” Section 8(1) only creates one subclass in the residential property class, “farm land awaiting development.” That has no application here, so a supplementary assessment is not permitted pursuant to s. 34.(1)(b)(v).
17Similarly, s. 34.(2) is limited to changes in the “class of real property,” which is defined in s. 1(1) of the Act as “a class of real property prescribed by the Minister under s. 7.” Section 7(2) lists eight classes, which includes the residential property class. It is agreed that the Property has never been in any class but the residential property class. As there has been no change in classification, s. 34.(2) does not permit a supplementary assessment.
18The Appellant did not put forward any other manner in which MPAC would have been permitted to issue a supplementary assessment. Section 45 of the Act grants me “all the powers and functions of the assessment corporation in making an assessment.” If MPAC lacks the statutory authority to issue a supplementary assessment then I also lack that authority. Without express statutory authority the relief in s. 34 cannot be granted.
CONCLUSION
19The state and condition of the Property on the roll return date was as 34 condominium units. While the process to change that status had begun, the Property legally remained condominium units. That state and condition governs the assessment for the 2015 taxation year and the Act does not permit any supplementary assessments to reflect the change in the legal status of the Property. The parties agree that if the state of the Property is as 34 condominium units the returned assessments should be confirmed. I therefore confirm assessed values set out in Schedule “A” to these reasons, which have a total assessed value of $8,220,000.
“Scott McAnsh”
SCOTT McANSH MEMBER Assessment Review Board A constituent tribunal of Environment and Land Tribunals Ontario Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
SCHEDULE “A”
| Description | Roll Number | Appeal No. | Assessed Value |
|---|---|---|---|
| Level 2, Unit 1 | 6016-040-002-1450-0000 | 3093757 | $205,000 |
| Level 2, Unit 2 | 6016-040-002-1451-0000 | 3093994 | $294,000 |
| Level 2, Unit 3 | 6016-040-002-1452-0000 | 3093993 | $289,000 |
| Level 2, Unit 4 | 6016-040-002-1453-0000 | 3093962 | $251,000 |
| Level 2, Unit 5 | 6016-040-002-1454-0000 | 3093886 | $236,000 |
| Level 2, Unit 6 | 6016-040-002-1455-0000 | 3093792 | $231,000 |
| Level 2, Unit 7 | 6016-040-002-1456-0000 | 3093959 | $251,000 |
| Level 2, Unit 8 | 6016-040-002-1457-0000 | 3093889 | $256,000 |
| Level 2, Unit 9 | 6016-040-002-1458-0000 | 3093996 | $256,000 |
| Level 2, Unit 10 | 6016-040-002-1459-0000 | 3093824 | $251,000 |
| Level 2, Unit 11 | 6016-040-002-1460-0000 | 3093865 | $195,000 |
| Level 3, Unit 1 | 6016-040-002-1461-0000 | 3093927 | $205,000 |
| Level 3, Unit 2 | 6016-040-002-1462-0000 | 3093929 | $294,000 |
| Level 3, Unit 3 | 6016-040-002-1463-0000 | 3093793 | $289,000 |
| Level 3, Unit 4 | 6016-040-002-1464-0000 | 3093758 | $251,000 |
| Level 3, Unit 5 | 6016-040-002-1465-0000 | 3093888 | $236,000 |
| Level 3, Unit 6 | 6016-040-002-1466-0000 | 3093887 | $231,000 |
| Level 3, Unit 7 | 6016-040-002-1467-0000 | 3093864 | $251,000 |
| Level 3, Unit 8 | 6016-040-002-1468-0000 | 3093796 | $256,000 |
| Level 3, Unit 9 | 6016-040-002-1469-0000 | 3093863 | $256,000 |
| Level 3, Unit 10 | 6016-040-002-1470-0000 | 3093885 | $251,000 |
| Level 3, Unit 11 | 6016-040-002-1471-0000 | 3093823 | $195,000 |
| Level 4, Unit 1 | 6016-040-002-1472-0000 | 3093995 | $205,000 |
| Level 4, Unit 2 | 6016-040-002-1473-0000 | 3093991 | $294,000 |
| Level 4, Unit 3 | 6016-040-002-1474-0000 | 3093992 | $289,000 |
| Level 4, Unit 4 | 6016-040-002-1475-0000 | 3093822 | $251,000 |
| Level 4, Unit 5 | 6016-040-002-1476-0000 | 3093821 | $236,000 |
| Level 4, Unit 6 | 6016-040-002-1477-0000 | 3093795 | $236,000 |
| Level 4, Unit 7 | 6016-040-002-1478-0000 | 3093794 | $251,000 |
| Level 4, Unit 8 | 6016-040-002-1479-0000 | 3093756 | $256,000 |
| Level 4, Unit 9 | 6016-040-002-1480-0000 | 3093960 | $256,000 |
| Level 4, Unit 10 | 6016-040-002-1481-0000 | 3093961 | $256,000 |
| Level 4, Unit 11 | 6016-040-002-1482-0000 | 3093928 | $195,000 |
| Level 1, Units, 1,2,3 | 6016-040-002-1483-0000 | 3093825 | $65,000 |