Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: October 23, 2015

FILE NO.: DM 135540

Moving Party(ies): Waste Management of Canada Corporation, County of Lambton, and Municipal Property Assessment Corporation (“MPAC”) Region No. 26

Municipality(ies): Township of Warwick

Property Location(s): See Schedule A

Roll Number(s): See Schedule A

Appeal Number(s): See Schedule A

Taxation Year(s): 2010

Legislative Authority: Sections 40 and 43(1) of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Heard: by written submission

Parties

Counsel

Waste Management of Canada Corporation

Jack A. Walker, Robert D. Butterworth

County of Lambton and Township of Warwick

Peter A. Milligan, Jamie G. Walker

MPAC

Carl B. Davis, Jennifer A. Barlow

DISPOSITION OF THE BOARD DELIVERED BY JERRY V. DEMARCO

BACKGROUND

1This is the disposition by the Assessment Review Board (the “Board”) of a motion requesting that the Board state a case to the Divisional Court.

2The parties are Waste Management of Canada Corporation, the County of Lambton, the Township of Warwick and the Municipal Property Assessment Corporation (“MPAC”). All of these parties are in favour of a case being stated to the Divisional Court and there are no responding parties to the motion that oppose the requested relief.

3This is the second iteration of the motion for a stated case. When the matter first came to the Board, the panel of two assigned to hear the motion did not reach a decision and the matter was referred to me in my capacities of Alternate Executive Chair of Environment and Land Tribunals Ontario and Member of the Board. Upon reviewing the brief materials that were submitted in support of the motion, I instructed Board counsel to contact the parties with a view towards getting more useful and comprehensive submissions from the parties so that the motion could be reheard in writing.

4At my direction, on September 2, 2015, Board counsel convened a telephone conference call (“TCC”) with the parties, based on the September 1, 2015 communication to the parties from Board counsel set out in Schedule B to this decision.

5Also on September 2, 2015, as a follow-up to the TCC, Board counsel provided the parties with a list of authorities (see Schedule C to this decision) in addition to those discussed during the TCC, such as Macaulay, Robert W. and Sprague, James L.H., Practice and Procedure before Administrative Tribunals, Toronto: Thomson Reuters (updated to September 2015) and Walker, Jack, and Grad, Jerry, Ontario Property Tax Assessment Handbook, Second edition, Toronto: Canada Law Book (updated to July 2015). These were authorities that were identified by the Board as potentially relevant to some of the issues raised in the motion.

6On this written motion, the Board has before it the Notice of Motion (which includes the draft Stated Case), the Joint Factum of the Moving Parties, the Affidavit of Andy Anstett, the Brief of Authorities of the Moving Parties (the authorities relied upon by the parties are set out in Schedule D to this decision), and the additional authorities provided to the parties by Board counsel that are not included in the parties’ Brief of Authorities.

7The request to state a case to the court raises issues that require the Board to consider its proper role in resolving disputes over assessments. The main body of jurisprudence relied upon by the parties in this regard is quite dated. These older decisions do not necessarily reflect the courts’ evolving articulation of the role of administrative tribunals such as the Board. The Board has therefore elected to cite some of the more modern jurisprudence in these reasons as much of it has more present-day relevance than many of the authorities cited by the parties.

DISPOSITION OF MOTION

8For the reasons that follow, the Board dismisses the motion to state a case to the Divisional Court.

REASONS FOR DISPOSITION OF MOTION

Overview of the Request

9The parties wish the following question of law to be stated to the Divisional Court:

Should the market value of the rights associated with the Environmental Compliance Approval (Certificate of Approval) issued under the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended, be reflected in the current value of a landfill site under the Assessment Act, R.S.O. 1990, c. A.31, as amended?

10The parties list numerous grounds in support of their motion for a stated case. The key grounds can be summarized as follows:

i. The proposed question of law is of such fundamental importance that it is “essential” to have the opinion of the court before the Board proceeds;

ii. Obtaining the court’s opinion will avoid a Board decision that “would certainly be appealed”;

iii. The question would be better resolved by the court at this stage than after a full hearing at the Board;

iv. Proceeding by way of stated case is more expeditious and less expensive;

v. In answering the question stated to it, the court would not usurp the jurisdiction of the Board but would assist the Board in meeting the objectives set out in Rule 2 of the Board’s Rules of Practice and Procedure; and

vi. The parties are in agreement on the wording of the question, which is clearly defined, and would prepare the necessary materials for the Board to state a case to the court.

11The request for the stated case arises from a proceeding before the Board where the assessment for the Twin Creeks Landfill properties in Warwick Township, Lambton County, is in dispute. One of the questions raised in the Board proceeding relates to the inclusion of the current value of the rights associated with an environmental approval for the site. The materials provided by the parties also make reference to zoning and other environmental approvals but the specific question on the stated case is limited to whether the approval under the Environmental Protection Act (“EPA”) should be reflected in the current value under the Assessment Act.

12The parties submit that the applicability of the Restfulcare Inc. v. Regional Assess. Commr., Region No. 23, 1986 CarswellOnt 937 (O.C.A.) decision will need to be determined in the stated case. Restfulcare involved rights associated with a licence under the Nursing Homes Act. It is evident that the applicability of paragraphs 6-8 of the Restfulcare decision will be a matter of argument with regard to the EPA approval. In this case, the parties will seek an answer to the specific question as to whether, in light of Restfulcare, the value of rights under the EPA is to be included in the assessed value of the landfill property.

13Relying on Macaulay and Sprague, at pp. 24.2-24.3, the parties submit:

The basic purpose of providing administrative tribunals with the jurisdiction to state a case is to assist the tribunal in carrying out the functions given to it by the Legislature.

A tribunal should not state a case unless the opinion of the Divisional Court is essential to the board’s ability to deal with the matter before it. The tribunal stating a case must allege and support, with facts, the need for the opinion of the court.

Where a factual basis is required in order to fully appreciate a matter, a court will not proceed in the absence of that factual background. The essential facts must be stated by the tribunal and the court will confine itself to those facts.

14The parties further submit that the court’s opinion on a stated case will significantly simplify the valuation issues and allow for a more expedited process. The parties have provided an estimate of the amount of time and money it would take to litigate the question before the Board and before the court. Based on the assumption that the Board’s decision would be subject to a motion for leave, and an appeal if leave is granted, the parties estimate that having the case heard by the Board would cost twice as much money to litigate and would take approximately four times as much time to obtain a final answer to the question.

15The parties submit that the stated case would proceed on the basis of agreed facts. They point to Roosma v. Ford Motor Co. of Canada, 1988 CanLII 5633 (ON HCJDC), [1988] O.J. No. 3114 (Div. Ct.) at para. 26, which states that the “traditional rationale for the establishment of administrative tribunals is cheapness, expedition, and expertise”. They note that s. 40, 44, and 45 set out the jurisdiction of the Board, including the authority “to hear and determine all questions of law” (s. 40(22)).

16In most proceedings before the Board, it is asked to carry out the following responsibility:

44.(3) For 2009 and subsequent taxation years, in determining the value at which any land shall be assessed, the Board shall,

(a) determine the current value of the land; and

(b) have reference to the value at which similar lands in the vicinity are assessed and adjust the assessment of the land to make it equitable with that of similar lands in the vicinity if such an adjustment would result in a reduction of the assessment of the land.

17The parties note that s. 43(1) of the Assessment Act provides the Board with the jurisdiction to state a case to the court on a question of law:

43.(1) The Assessment Review Board may, upon the application of any person, or on its own motion, and upon such security being given as it directs, state a case in writing for the opinion of the Divisional Court upon any question that, in the opinion of the Board, is a question of law.

18The parties rely on Canadian National Railway v. Bell Telephone Co., 1939 CanLII 34 (SCC), [1939] S.C.R. 308, at para. 17, for guidance on what constitutes a question of law. They argue that the proposed question “is appropriate for the Divisional Court to consider because it is a question of law involving the interpretation of both the Assessment Act and the Environmental Protection Act”. They rely on 1098748 Ontario Ltd. v. Ontario Property Assessment Corp. Region No. 11, 2001 CanLII 40233 (ON SCDC), [2001] O.J. No. 859 (Div. Ct.), at para. 11, which states:

While the Assessment Review Board is to be accorded considerable deference in making its findings with respect to assessment values of land, given its relative expertise in the area, it does not have any particular expertise in interpreting the correct legal tests to be applied in exercising that function. Statutory interpretation is a question of law.

19The parties submit that there “do not appear to any authorities which clearly outline the discretionary consideration that the Board should take into account in deciding subsection 43(1) motions”. The parties place significant emphasis on the fact that they all agree that a case should be stated to the court, to the point that they submit that “the concurrence of all of the parties is of paramount importance” in the Board’s exercise of discretion. They provide support for this position based on Regional Assessment Commissioner, Region No. 3 v. Middaugh, [2000] O.M.B.D. No. 36. The written reasons of the Ontario Municipal Board in Middaugh were delivered after a motion for a stated case was dismissed at the hearing itself. The brief section of Middaugh that deals with the stated case motion states at paras. 30 and 32:

The Board’s usual practice… is to only grant such applications where all parties involved consent to such applications being granted.

Where such stated cases occur, it is because all of the parties involved believe it is advisable to do so…

20The parties submit that Middaugh stands for the following proposition: “the OMB’s practice is to grant a stated case under subsection 94(1) of the O.M.B. Act so long as all of the parties have consented to bringing the application”. They state further that “where there is not concurrence of the parties, the exercise of the discretion is more guardingly exercised” (see: Interim Waste Authority, Re, 1995 CarswellOnt 64 (Jt. Bd.), at para. 25, West Northumberland Landfill Site, Re, 1995 CarswellOnt 967 (Jt. Bd.), at para. 24, and Middaugh, at para. 32).

21The parties submit the following 13 criteria that “should be considered by the Board in determining whether to exercise its jurisdiction to state a case”: justice, expediency, cost, consent of the parties, question of law, clear and unambiguous question, fundamental importance, existence of a higher court decision, assist with final determination, proportionality and complexity, simplify issues for the Board, parties will assist in preparation of materials, and clear statement of facts. They submit that the proposed question satisfies all 13 of the above criteria. They also point to the Board’s Rules of Practice and Procedure and Rules 21, 21.01(1)(a) and 22 of the Rules of Civil Procedure as support for the 13 proposed criteria.

Analysis and Findings

The Assessment Review Board

22The Board hears appeals of property assessments, classifications and other matters. The Board is one of dozens of specialized adjudicative tribunals in Ontario (see: sched. 1 of O.Reg. 126/10). Walker and Grad, at. p. 7-1, note:

Jurisdiction of the Assessment Review Board

What is an administrative tribunal? What is its role and function? Justice Abella in the Court of Appeal decision of Rasanen v. Rosemo[u]nt Instruments Limited [(1994), 17 O.R. (3d.) 267] stated:

They were expressly created as independent bodies for the purpose of being an alternative to the judicial process, including its procedural panoplies. Designed to be less cumbersome, less expensive, less formal, and less delayed, these impartial decision-making bodies were to resolve disputes in their area of specialization more expeditiously and more accessibly, but not less effectively or credibly…

23A somewhat similar point is made in Roosma, at para. 26.

24Board members are appointed through the “competitive, merit-based process” set out in s. 14 of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5 (“ATAGAA”). The Board is part of a cluster of five tribunals known collectively as Environment and Land Tribunals Ontario (“ELTO”) (see: s. 2 of O.Reg. 126/10 and s. 15 of ATAGAA). The five ELTO tribunals share a common Executive Chair (or Alternate Executive Chair if the Executive Chair position is vacant) who has the powers of the Chair of each ELTO tribunal. As ELTO’s name suggests, its tribunals deal not only with assessment matters, but other matters such as environmental approvals and land use planning.

25The Board, under its current statutory role, is no longer an inferior body relative to other adjudicative boards in Ontario. As a result of statutory changes made over 15 years ago, appeals from the Board now go to the courts rather than another board (i.e., the Ontario Municipal Board). The Board has the power to decide questions of law. Its ongoing caseload is in the tens of thousands of cases.

Stating a Case to the Divisional Court

26As noted by the parties, there is little guidance on the question of how s. 43(1) of the Assessment Act has been used. Walker and Grad, at p. 7-72, note: “The authority to state a case formerly rested only with the Ontario Municipal Board where it was used sparingly”. Since the time that the Board ceased to be an inferior board to the Ontario Municipal Board, s. 43(1) of the Assessment Act has been used from time to time by the Board. The parties did not provide, and Board counsel did not uncover, any recent Board decisions that set out the criteria the Board has used in stating cases to the court. Based on the recent volume of cases before the Board and the relatively low number of stated cases, the Board finds that the utilization of the word “sparingly” to characterize the use of s. 43(1) remains apt today.

27In the absence of specific guidance on the exercise of discretion under s. 43(1) of the Assessment Act, the Board turns to more general authorities on stated cases. Macaulay and Sprague, at p. 24-1, note that stated case provisions (like s. 43(1)) are generally permissive (i.e., that a board may state a case), though some provisions “may require a tribunal to state a case if asked”. They further state, at p. 24-2:

A tribunal should not state a case unless the opinion is essential to the board’s ability to deal with a matter before it…

The tribunal stating a case must allege and support, with facts, the need for the opinion of the court. Curiosity if not the basis of a stated case; it is need. (emphasis in original)

28As noted above, the parties posit that Middaugh stands for the proposition that the Ontario Municipal Board will state a case “so long as all of the parties have consented to bringing the application” (emphasis added). Consequently, they submit that consent of the parties is the criterion that has “paramount” importance for the Board in exercising its discretion on a motion to state a case. Middaugh itself, however, uses the following language: “The Board’s usual practice… is to only grant such applications where all parties involved consent” (emphasis added). The Board finds that there is a difference between the parties’ characterization of Middaugh and the decision itself. The Board reads Middaugh as stating that, at the time that Middaugh was decided, consent was a precondition to the Ontario Municipal Board deciding whether to state a case. It should be noted that Middaugh does not state that the Ontario Municipal Board always (as opposed to “only”) granted applications for stated cases where all parties involved consent. Even if it did, a brief passage by the Ontario Municipal Board about how it exercised its approach to stated cases 15 years ago, before many of the court decisions to be discussed below, is of little persuasive value today. What is essential to determine on this motion is how this Board, under its own legislation, should exercise its discretion over whether to state a case in the current context in which the Board operates.

29While consent could be a criterion to consider, the Board does not find it to be of paramount importance. The Board has a caseload involving tens of thousands of appeals, many of which have no legal counsel present. It would undermine the statutory role of the Board if the two parties in any given case could bypass the Board and send whatever questions of law they wanted to the court on consent.

30Finally, if the Legislature had intended to have consent be the paramount criterion, then s. 43(1) would have been worded to reflect that the parties could bring questions of law directly to the court regardless of the Board’s view on the suitability of a case being stated to the court. As Macaulay and Sprague note at p. 24-1, provisions can be drafted such that they do not give the relevant tribunal discretion over whether to state a case. Under such provisions, the parties would be in the driver’s seat. If the Board were to adopt consent as the paramount consideration, it would essentially download its discretion to the parties even though s. 43(1) is not drafted in that manner.

31In the cases provided to the parties by Board counsel, there is no indication that consent is the paramount or even primary consideration. While there are no comprehensive lists of criteria found in Interim Waste Authority, West Northumberland or 3244160 Nova Scotia Limited (Re), 2014 NSUARB 205 there is a theme: administrative tribunals should not avoid answering difficult questions by stating questions to the court that the tribunals could answer themselves. As will be seen below, this theme is also consistent with recent Supreme Court of Canada guidance on the roles of tribunals. Accordingly, the Board finds that it should look more to the role and values of administrative tribunals to guide its discretion to state a case. Consent is simply too blunt a tool to use as the paramount consideration.

32Before proceeding further with its analysis, the Board notes that it can only state a case on a “question that, in the opinion of the Board, is a question of law”. The parties list “question of law” as one of their 13 proposed criteria. However, the Board does not find this to be one criterion to be merely considered alongside other appropriate criteria. Rather, the presence of a question that the Board determines to be one of law is a statutory prerequisite that cannot be waived.

33Nevertheless, as will be shown below, the nature of the question sought to be stated to the court, and in particular the standard of review that would be applied by the court in respect of an appeal of the Board’s answer to such a question, is a threshold or paramount criterion that the Board finds to be appropriate in guiding its discretion. The standard of review applicable to the proposed stated case question is a criterion that the Board finds to be more tied to the role and values of tribunals, and hence more apt as a means to structure its discretion, than consent is.

34Board counsel indicated as follows in his communication to the parties:

Discretion: Assuming it is within its jurisdiction, what is the nature of the Board’s discretion to state a case and how should the consent of the parties be factored into this? How should the issue of deference to and the expertise of administrative tribunals be considered in this respect?

35The parties chose not to address several of the recent decisions related to the last aspect of the above point provided to them by Board counsel. With respect to the key case relied upon by the parties, the question for the Board is whether to follow the tenor of a more dated but Board-specific decision (i.e., 1098748 Ontario Ltd.), or to follow the approach of more recent Supreme Court of Canada decisions that only address administrative tribunals generally. The Board opts for the latter.

Recent Guidance on the Role of Tribunals

36The Board starts with Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513, which stands for the proposition that tribunals can be called upon to apply statutes other than their home statutes. It should be recalled that the parties in the current motion submit that the question proposed to be sent to the court would involve both the Board’s home statute, the Assessment Act, as well as the EPA, which is, of course, not a statute close to the heart of the Board’s jurisdiction.

37Tranchemontagne reminds the Board that it should not be automatically scared off by issues that may arise from areas of law that may not be part of its everyday work.

38The Board now moves on to examine several passages from Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190:

48The move towards a single reasonableness standard does not pave the way for a more intrusive review by courts and does not represent a return to pre-Southam formalism. In this respect, the concept of deference, so central to judicial review in administrative law, has perhaps been insufficiently explored in the case law. What does deference mean in this context? Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. The notion of deference “is rooted in part in a respect for governmental decisions to create administrative bodies with delegated powers” (Canada (Attorney General) v. Mossop, 1993 CanLII 164 (SCC), [1993] 1 S.C.R. 554, at p. 596, per L’Heureux-Dubé J., dissenting). We agree with David Dyzenhaus where he states that the concept of “deference as respect” requires of the courts “not submission but a respectful attention to the reasons offered or which could be offered in support of a decision”: “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286 (quoted with approval in Baker, at para. 65, per L’Heureux-Dubé J.; Ryan, at para. 49).

49Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers. As Mullan explains, a policy of deference “recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime”: D. J. Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 C.J.A.L.P. 59, at p. 93. In short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system.

50As important as it is that courts have a proper understanding of reasonableness review as a deferential standard, it is also without question that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law. This promotes just decisions and avoids inconsistent and unauthorized application of law. When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct.

39These passages point to a more modern view of administrative tribunals than the one illustrated in the Divisional Court’s 1098748 Ontario Ltd. decision cited by the parties, which states that the Board “does not have any particular expertise in interpreting the correct legal tests”. Dunsmuir notes that the deference line is not conveniently found along the same borderline between questions of fact and questions of law. As the Supreme Court noted: “deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law”. Nevertheless Dunsmuir does not push the deference line too far into the realm of questions of law, recognizing that a correctness standard ought to still apply to “jurisdictional and some other questions of law”.

40Fortunately, the court provides more insight on the question of how far deference may extend from the traditional territory of questions of fact, discretion or policy:

53Where the question is one of fact, discretion or policy, deference will usually apply automatically (Mossop, at pp. 599-600; Dr. Q, at para. 29; Suresh, at paras. 29-30). We believe that the same standard must apply to the review of questions where the legal and factual issues are intertwined with and cannot be readily separated.

54Guidance with regard to the questions that will be reviewed on a reasonableness standard can be found in the existing case law. Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity: Canadian Broadcasting Corp. v. Canada (Labour Relations Board), 1995 CanLII 148 (SCC), [1995] 1 S.C.R. 157, at para. 48; Toronto (City) Board of Education v. O.S.S.T.F., District 15, 1997 CanLII 378 (SCC), [1997] 1 S.C.R. 487, at para. 39. Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context: Toronto (City) v. C.U.P.E., at para. 72. Adjudication in labour law remains a good example of the relevance of this approach. The case law has moved away considerably from the strict position evidenced in McLeod v. Egan, 1974 CanLII 12 (SCC), [1975] 1 S.C.R. 517, where it was held that an administrative decision maker will always risk having its interpretation of an external statute set aside upon judicial review.

55A consideration of the following factors will lead to the conclusion that the decision maker should be given deference and a reasonableness test applied:

— A privative clause: this is a statutory direction from Parliament or a legislature indicating the need for deference.

— A discrete and special administrative regime in which the decision maker has special expertise (labour relations for instance).

— The nature of the question of law. A question of law that is of “central importance to the legal system . . . and outside the . . . specialized area of expertise” of the administrative decision maker will always attract a correctness standard (Toronto (City) v. C.U.P.E., at para. 62). On the other hand, a question of law that does not rise to this level may be compatible with a reasonableness standard where the two above factors so indicate.

56If these factors, considered together, point to a standard of reasonableness, the decision maker’s decision must be approached with deference in the sense of respect discussed earlier in these reasons. There is nothing unprincipled in the fact that some questions of law will be decided on the basis of reasonableness. It simply means giving the adjudicator’s decision appropriate deference in deciding whether a decision should be upheld, bearing in mind the factors indicated.

41The final recent Supreme Court decision to which the Board will make reference is Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, which states at para. 24: “It goes without saying that administrative decision-makers must act consistently with the values underlying the grant of discretion…”. As s. 43(1) of the Assessment Act is a discretionary provision, Doré reminds the Board that it should exercise discretion in keeping with the Legislature’s intentions.

A Different Threshold Criterion

42A review of the above recent decisions leads the Board to conclude that a different criterion than consent should occupy the most prominent role in the list of the criteria to be applied by the Board exercising discretion in a motion for a stated case. The Board finds that the deference that would be given to the Board if it answered the stated case question itself to be of primary importance as such a criterion would be more tied to the role and values of tribunals than consent is.

43The threshold criterion that the Board finds to be the most important can be articulated in the form of the following question: “If the Board answered the stated case question first, what standard of review would the court likely apply in an appeal of the Board’s determination of the question?”

44The Board further finds that, if the answer to the above question would be reasonableness, as opposed to correctness, then the Board should dismiss the motion for a stated case and answer the question itself. If the standard would be correctness, then the Board, on a motion for a stated case, should proceed to consider additional criteria to determine whether to grant the motion for a stated case.

45As the modern jurisprudence regarding administrative tribunals reflects significant deference towards them, it follows that those tribunals that have stated case provisions should not be too quick to use them on questions that the courts and the legislatures expect tribunals to answer themselves. In the words of Macaulay and Sprague, a case should not be stated unless the court’s opinion is “essential”. It follows that it is not essential to have the court answer questions that the court itself would assess on a reasonableness standard if no case had been stated. There is no compelling policy rationale to bypass a specialized tribunal on a question that would attract deference if the Board answered it itself.

46Before proceeding to apply the threshold criterion to the circumstances of this case, the Board notes that the overall objective being sought by the parties in seeking to state a case is one that is shared by the Board. The Board also wishes to provide these parties and other similarly situated parties with a “transparent, predictable, and consistent valuation methodology for landfills province-wide” within the current legislative and regulatory environment. The only question is what path will be followed to reach that destination. Will the journey include an analysis by the Board or will that step be bypassed in favour of the court?

Application of the Threshold Criterion

47The Board now turns to the nature of the question that the parties propose to have stated to the court. It states: “Should the market value of the rights associated with the Environmental Compliance Approval… issued under the EPA be reflected in the current value of a landfill site under the Assessment Act?” The question is just one aspect of the Board’s larger inquiry into the current value of the land under s. 44(3)(a), which is the provision the Board applies every day. Normally, assessing the current value of land is not a question of law. It is normally a question of fact. While current value is not a question of law per se, the parties submit that the subsidiary issue of whether the rights associated with the environmental approval should be reflected in the current value is a legal question.

48The parties state that the Board is being asked a legal question that involves both the Assessment Act and the EPA:

The proposed question in the form as agreed to by the Parties is appropriate for the Divisional Court to consider because it is a question of law involving the interpretation of both the Assessment Act and the Environmental Protection Act.

49The only cases the parties cite in support of the above proposition are the 1939 Supreme Court decision in Canadian National Railway and the 2001 Divisional Court decision in 1098748 Ontario Ltd. The Board would have preferred to have more thorough submissions on why the stated case question is a pure question of law and what specific statutory interpretation exercise it was expecting the court to engage in, especially in regard to the EPA. Without more thorough submissions and without clear details in the draft Stated Case as to what specific EPA statutory interpretation exercise the parties have in mind, the analysis that follows is relatively limited in its nature.

50While statutory interpretation is a question of law, as noted in 1098748 Ontario Ltd., not all questions of law now attract a correctness standard. In this vein, the Board finds that the following statement from 1098748 Ontario Ltd. is no longer applicable: “it [the Board] does not have any particular expertise in interpreting the correct legal tests”. Given the evolution of the Supreme Court of Canada’s jurisprudence, and the Board’s high caseload, present-day courts would likely recognize that the Board has extensive experience in interpreting the legal tests applicable to its functions, including the tests under the Assessment Act. It follows that, if there are two or more reasonable interpretations of a provision of a tribunal’s home statute, the Board should not automatically assume that the question should be punted to the courts. To the extent that the stated case question asks for an answer as to whether current value under the Assessment Act should include the value of an approval given the wording of the Assessment Act and Restfulcare, the Board’s answer would likely be afforded some deference.

51It is recognized that the Board does not have as much experience in dealing with environment-related matters affecting the value of land, though it does have some. This leads the Board to ask itself how the EPA-related statutory interpretation aspects of the stated case question would likely be dealt with by the court. Would the court grant any deference to the Board in that regard?

52The only provision of the EPA set out in the parties’ submissions states:

27.(1) No person shall use, operate, establish, alter, enlarge or extend a waste management system or a waste disposal site except under and in accordance with an environmental compliance approval.

53It is evident from s. 27(1) of the EPA that an environmental approval is required to operate a waste deposal site. No challenging question of law arises there. Though they clearly cite the EPA in the stated case question, the parties have not indicated: what specific ambiguity in the EPA itself will need to be resolved via statutory interpretation, why that interpretive exercise would be better undertaken by the court, or how the EPA interpretation exercise could be readily separated from the Assessment Act interpretation that is close to the Board’s central role.

54The draft Stated Case provided by the parties is essentially a copy of a portion of its written submissions on the motion and sheds no further light on this subject. The draft Stated Case includes many details about other approvals for the site, including those under the Environmental Assessment Act, Ontario Water Resources Act, and Planning Act (it is not clear from the materials what the relevance of these other approvals is to the stated case question, which refers only to the Assessment Act and EPA). Having read all of the materials provided by the parties, the Board is left with an unclear picture of what specific EPA statutory interpretation exercise the parties are expecting to be addressed by the court on a stated case. With regard to the EPA, the draft Stated Case fails to set out a convincing “need for the opinion of the court”, using the words of Macaulay and Sprague.

55The Board notes that the parties have not put forward an argument that the EPA purports to provide any guidance on the value of a landfill approval and whether it is to be reflected in assessed values of landfill properties. That type of question would appear to arise only under the Assessment Act, not the EPA. The Board, therefore finds, that the parties have not made out a case that a question of law involving the statutory interpretation of the EPA itself is present as an aspect of the Board carrying out its duty to determine the current value of the land.

56Moving on from the EPA itself, the Board acknowledges that answering the question proposed to be stated would likely involve looking at the actual environmental approval issued under the EPA to determine its legal nature, perhaps with some reference to how a related question was answered in Restfulcare. In other words, there may be a legal question to answer even if it is not evident that one specifically arises from the statutory interpretation of a provision of the EPA. Of course, the presence of a legal question arising from outside the tribunal’s home statute does not mean that the tribunal should avoid answering it (see Tranchemontagne).

57It must also be recalled that the Board does not have the jurisdiction to state a case involving a question of fact or a question of mixed fact and law. It can only state a case involving a question of law. The Board does not wish to present a “questionable” stated case to the court, as was the situation in Victoria Wood Development Corp. v. Jan Davies Ltd., 1979 CarswellOnt 1620 (Div. Ct.). For the purposes of this motion, even though the parties’ submissions on this point are lacking, the Board is prepared to assume that some sort of question of law is involved in the question proposed to be stated. Based on the parties’ brief submissions on this aspect (including referring only to s. 27(1) of the EPA), the Board is not convinced that there is a specific question of statutory interpretation arising from a provision of the EPA itself. At best, the Board may be asked to interpret the Assessment Act and to also examine the conditions of the environmental approval and interpret the legal and factual significance of those conditions in determining the current value of the land under the Assessment Act. The transferability or non-transferability of the approval between persons or properties, may for example, be raised by the parties. It is arguable that this is, at least in part, a legal question. It is also arguable that this is a situation where the legal and factual issues are intertwined, as mentioned in Dunsmuir, and as perhaps was the case in Victoria Wood.

58The Board now returns to the related threshold question of what standard of review would be applicable to this sort of question if the Board decided to answer it first. If it is a question “where the legal and factual issues are intertwined” then a reasonableness standard would apply as per Dunsmuir. If it is a question of law arising from the interpretation of the Assessment Act, one of the Board’s home statutes, it is likely to be subject to the reasonableness standard as well, especially since this question does not appear to relate to the Board’s jurisdiction over the matter. If there is a question of law arising from the interpretation of the EPA, which is not the Board’s home statute, it is possible (though not certain) that correctness, as opposed to reasonableness, would apply as the appropriate standard of review. Finally, if it is a question as to the legal and factual significance of the provisions of a specific environmental approval (as opposed to the EPA itself) in determining the current value of the land under the Assessment Act, it is likely that a reasonableness standard would apply.

59As noted above, the parties did not set out a clear argument as to what aspect of the EPA itself needs to be interpreted in order to answer the stated case question (and if so, why the Board should shy away from interpreting the EPA despite Tranchemontagne). In the regulated environment in which many industries operate, numerous approvals may be required in order to carry on business. Presumably, there will be disputes among owners, municipalities and MPAC as to whether some of those approvals have an impact on the value of land. Given the high number of industrial and commercial properties that are the subject of appeals before the Board, the Board does not see anything particularly unusual about landfill approvals or s. 27(1) of the EPA such that the determination of this stated case question would be best left to the court. Indeed, a case could be made that the written submissions provided on this motion could be adapted to many cases now before the Board in which land is being used for purposes that require approvals or licences. Should all of them be referred to the court too? Or, if the Board answered these types of questions, would the court apply a correctness standard to each of those cases because they may involve approvals containing conditions that have some legal significance? The Board’s view is that the court would be more likely to apply a reasonableness standard.

60In short, the Board finds that the parties have put forward a question that is either a mixed question of fact and law or a question of law that would attract some deference on a reasonableness standard. Having regard to the role and values of tribunals, there is no rationale for a specialized tribunal to pass off to the court questions that would be subject to a reasonableness standard in an appeal. The Legislature has asked the Board to make determinations of the current value of land and it should not shy away from the task because the parties in a given case have reached a consensus that they all wish to bypass the Board on what they consider to be an interesting question of law. If administrative tribunals are to “act consistently with the values underlying the grant of discretion” (Doré) given to them by legislatures and if they are to merit the degree of deference now given to them by the courts, even on questions of law, then it follows that such tribunals must bravely answer the many difficult legal questions that arise.

61It also must be recalled that, in light of recent Supreme Court jurisprudence, many tribunals have recently had to address Charter of Rights and Freedoms or human rights issues that they were not used to addressing. These types of issues are often much further from the core expertise of those tribunals than questions about licences or approvals are from the core expertise of the Board. If the Board were to state cases such as the one sought here simply because the parties prefer that option, then it would not be acting in a manner consistent with the modern view of specialized tribunals. That modern view of tribunals includes administrative decision-makers who are called upon to answer tough legal questions. In this case, the Board is prepared to answer the question posed by the parties. If one or more of the parties wishes to challenge the Board’s answer to the question, then the matter can be brought to the Divisional Court after the Board provides its answer.

Additional Criteria to Consider

62Even if correctness had been found by the Board to be the applicable standard, the Board would not automatically refer the matter to the court. In such a case, the Board would consider additional criteria to determine whether to grant the motion for a stated case, but its reliance on s. 43(1) to decide matters before it is a tool that the Board should continue to use sparingly. The Board would be expected in most cases to hear and decide the matter itself.

63Given the Board’s conclusion on the threshold criterion that reasonableness would apply here, it is not necessary to make a final determination on what other criteria should be considered in cases where the answer to the threshold criterion is correctness. The Board does note that some of the 13 criteria proposed by the parties would likely be useful in that second stage of the analysis. The Board is especially mindful of those criteria that speak to cost and expediency, for example, because efficiency is one of the underlying rationales for tribunals. While efficiency cannot be the sole criterion, given that parties will often be able to argue that it is faster to bypass the Board in cases that the parties agree will be the subject of an appeal no matter the outcome, the Board finds that efficiency is one of the criteria that would be relevant in the second stage of the analysis. The Board will leave it to a future case to determine the relevance and weight to be given to efficiency and other criteria in deciding whether to send to the court questions that would attract a correctness standard.

Conclusion and Next Steps

64While the Board has decided not to grant this motion, the Board does wish to thank counsel for their efforts in proposing criteria for the consideration of requests for stated cases. As it turned out, the Board has decided on a different approach to the threshold or paramount criterion than the one proposed by the parties. The Board finds that the approach set out in these reasons is more in keeping with the modern view of the role of administrative tribunals. Tribunals continue to adapt to the role expected of them by legislatures and courts. At present, tribunals are frequently called upon to answer questions that may be different from their typical day-to-day issues. Tribunals should not shy away from this responsibility. Rather, tribunals should embrace this challenge in accordance with the significant responsibility they have as front line decision-makers delivering specialized and efficient administrative justice to the public.

65The Board is aware of the parties’ desire for an efficient process for the resolution of their specific dispute. Should the parties wish to have the question that they requested to be stated to the Divisional Court be the subject of a first phase of this proceeding, where the Board would provide its answer to the question (assuming it has sufficient facts and submissions to do so) before progressing to the next phase of the hearing, then the parties should notify the Board Registrar in writing within two weeks of the release of this ruling. The parties should include with such a request a proposed schedule for the exchange and filing of documents for the first phase of the hearing and proposed dates for the first phase of the hearing (if the parties wish the first phase to be conducted in person rather than in writing). The Board will endeavour to accommodate the parties.

66The Board dismisses the motion for a stated case.

“Jerry V. DeMarco”

JERRY V. DEMARCO

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

SCHEDULE B

Communication from Board counsel to the parties on September 1, 2015

I wanted to write to provide some outline of the issues that I hope to discuss on the conference call tomorrow.

The first point to discuss is whether the parties wish to pursue this motion. There might be other options to address the matter that we can discuss.

If the parties do intend to proceed, we can discuss some of the issues that the Board would like to see addressed in the motion for the stated case. The Board will be seeking submissions and, where required, supporting material on the following issues:

1. Question and Record:

a. The current motion material proposes asking the Div. Ct. the following question:

“Should the market value of the rights associated with the Environmental Compliance Approval (Certificate of Approval) issued under the Environmental Protection Act, RSO 1990, c. E.19, as amended, be reflected in the current value of a landfill site under the Assessment Act, RSO 1990, c. A.1 as amended.”

Is this the wording of the question that the parties still wish to pursue? Please also provide submissions on the implications of having this question answered by the Court on this case and any other cases.

b. Depending upon the question, what evidence will be necessary to put the case to the Div. Ct. and is that evidence uncontested. In the event the motion is granted, the Board will have to provide the evidentiary record to the Div. Ct. Submissions on what evidence is possible and necessary would be helpful. It would also be helpful for the parties to consider how the Board should compile the evidence required.

2. Nature of the board’s jurisdiction, discretion and criteria for granting a stated case:

Once the parties have made submissions on the nature of the question and the evidentiary record required, it would be helpful to get submissions on the following:

a. Jurisdiction: Having regard to the nature of the question, would the ARB have jurisdiction to state a case under section 43?

b. Discretion: Assuming it is within its jurisdiction, what is the nature of the Board’s discretion to state a case and how should the consent of the parties be factored into this? How should the issue of deference to and the expertise of administrative tribunals be considered in this respect?

c. Criteria: In considering whether to exercise its discretion to state a case, what are the criteria the Board should consider? How should the Board consider the impact of a stated case on a particular appeal? How should the implications for other appeals be considered? What undertakings might be required? How should the Board address the question of whether the motion is “necessary”?

3. Application of the criteria to this case: Once the parties make submissions on general criteria, please provide further submissions on how this case meets those criteria.

4. Authorities: I’d like to discuss if we can agree on some of the authorities – both case law and commentary that should be put before the Board.

5. Procedure: The Board has the parties’ original notice. Based on the discussion at the case conference, supplementary or replacement materials should be filed. We should discuss the timing and options with respect these materials.

SCHEDULE C

Authorities provided to the parties by Board counsel on September 2, 2015

Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190

Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513

Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395

City of Toronto v. Goldlist Properties Inc. (2003), 2003 CanLII 50084 (ON CA), 67 O.R. (3d) 441 (C.A.)

Interim Waste Authority Ltd, Re, 1995 CarswellOnt 64 (Jt. Bd.)

Victoria Wood Development Corp v. Jan Davies Ltd, 1979 CarswellOnt 1620 (Div. Ct.)

West Northumberland Landfill Site, Re, 1995 CarswellOnt 967 (Jt. Bd.)

3244160 Nova Scotia Limited (Re), 2014 NSUARB 205

SCHEDULE D

Authorities cited by the parties

1098748 Ontario Ltd. v. Ontario Property Assessment Corp. Region No. 11, 2001 CanLII 40233 (ON SCDC), [2001] O.J. No. 859 (Div. Ct.)

Canadian National Railway v. Bell Telephone Co., 1939 CanLII 34 (SCC), [1939] S.C.R. 308

Interim Waste Authority Ltd., Re., 1995 CarswellOnt 64 (Jt. Bd.)

Regional Assessment Commissioner, Region No. 3 v. Middaugh, [2000] O.M.B.D. No. 36

Restfulcare Inc. v. Regional Assess. Commr., Region No. 23, 1986 CarswellOnt 937 (O.C.A.)

Roosma v. Ford Motor Co. of Canada, 1988 CanLII 5633 (ON HCJDC), [1988] O.J. No. 3114 (Div. Ct.)

Victoria Wood Development Corp. v. Jan Davies Ltd., 9 O.M.B.R. 308

West Northumberland Landfill Site, Re, 1995 CarswellOnt 967 (Jt. Bd.)

Robert W. Macaulay, Q.C. & James L. H. Sprague, Practice and Procedure before Administrative Tribunals (Toronto: Thomson Reuters, 2004)