North America Railway Hall of Fame v. Municipal Property Assessment Corporation, 2016 CanLII 14708

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: March 15, 2016

FILE NO.: RRD 2016M5

Assessed Person(s): North America Railway Hall of Fame

Appellant(s): North America Railway Hall of Fame

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 23

Respondent(s): City of St. Thomas

Property Location(s): 750 Talbot Street

Municipality(ies): City of St. Thomas

Roll Number(s): 3421-020-120-12100-0000

Appeal Number(s): 2970110, 2970421, 2970422, 2970423, 2970424, 2970425, 2970426, 2970427, 2970428 and 3027497

Taxation Year(s): 2010, 2011, 2012, 2013 and 2014

Hearing Event No.: 561674

Legislative Authority: Sections 33 and 40 of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Request by: North America Railway Hall of Fame (“Requester”)

Request for: A review of the Board’s decision DM 127789 issued on July 14, 2015

Heard: By written submission

DECISION OF THE BOARD DELIVERED BY PAUL MULDOON

ISSUES AND ORDER SOUGHT

1Kenneth West, counsel for the North America Railway Hall of Fame (“NARHF”), seeks a review of the disposition of the Assessment Review Board (the “Board”) (DM 127789) by Member D. Weagant issued on July 14, 2015. The request for review was filed with the Board on August 12, 2015. NARHF’s request for review is denied.

2NARHF’s request for review arises out of a motion by MPAC to dismiss NARHF’s 10 appeals filed under s. 33 and 40 of the Assessment Act (“Act”) for the taxation years 2010 to 2014 inclusive.

3The motion took place on September 22, 2014. Member Weagant requested written submissions and released his decision (DM 127789) on July 14, 2015. MPAC was successful on its motion and NARHF was given 30 days from the release of the decision to provide proof in writing that a Superior Court application had been commenced to determine if the property is exempt from taxation otherwise NARHF’s appeals would be dismissed.

4NARHF’s review request is based upon allegations that the Board made an error of law or fact such that the Board would likely have reached a different decision, misconstrued its jurisdiction and misinterpreted the Act. NARHF submits that the Board has the authority to determine if a property or portion of a property is exempt from taxation under s. 3(1)(14) of the Act when determining appeals under s. 33 and 40 of the Act and that an application to Superior Court to determine exemption from taxation is not required.

5NARHF seeks the following relief from the Board: (a) a stay pending the determination of the review request; (b) a determination that DM 127789 contains an error of fact or law and that the Board correct DM 127789 without a motion or rehearing; or (c) a rehearing before a different member; or (d) a motion to argue the question of whether or not a review request should be granted; or (e) state a case to the Divisional Court pursuant to s. 43.1 of the Act.

6In addition to the review request, NARHF filed what it refers to as a precautionary Notice of Motion for Leave to Appeal DM 127789 with the Division Court.

7The Board requested written submissions from MPAC and the City of St. Thomas in response to NARHF’s request for review. Don Mitchell, counsel for MPAC, provided submissions. No submissions were received from the City of St. Thomas.

RELEVANT RULES

8The Board’s rules respecting requests for review are set out in Rules 141 to 146 of the Board’s Rules of Practice and Procedure (the “Rules”).

9A request for review is received pursuant to Rule 144 which grants the Board with the following authority:

144. Receipt of Request for Review

(1) Where a request for review has been received, the Board may:

(a) seek written submissions from the parties on the issue raised in the request;

(b) grant a motion to argue the question;

(c) grant a re-hearing without a motion; or

(d) confirm, vary, suspend or cancel the decision.

10The grounds for review are stated in Rule 145:

145. Grounds for Review

(1) The Board may consider reviewing its decision if the grounds for the request raise a convincing and compelling case that the Board:

(a) acted outside its jurisdiction;

(b) violated the rules of natural justice or procedural fairness, including allegations of bias;

(c) made an error of law or fact such that the Board would likely have reached a different decision;

(d) should consider new evidence, which was not available at the time of the hearing, but that is credible and could have affected the result; or

(e) heard false or misleading evidence from a party or witness, which was discovered only after the hearing and could have affected the result.

DISCUSSION AND REASONS

11As a preliminary matter, on August 5, 2015, MPAC requested a correction to paragraph 12 of DM 127789 with the addition of the word “not” and a correction of “there” to “they”. This request is granted and I order that paragraph 12 of DM 127789 be corrected to read:

Mr. Somerville submits that MPAC has apportioned the assessment of the subject property between “taxable” and “exempt.” The taxation portions of the spaces within the building were those spaces that were determined by MPAC not to qualify for an exemption because they were not occupied by the NARHF for their purposes [emphasis added on corrected words].

12As with all review requests the starting point for the determination of whether a decision should be remedied is a convincing and compelling case that the Board breached one of the five grounds listed in Rule 145. As the commentary immediately prior to Rule 141 says, the “Board requires very good reasons for changing a final decision.”

13The Board will not grant a request for review in this case. The Board requires a convincing and compelling case that it breached one or more of the five grounds listed in Rule 145.

14NARHF submits that the Board made jurisdictional, factual and legal errors by not hearing appeals regarding whether NARHF occupies and uses for its purposes a disputed portion of 750 Talbot Street, St. Thomas. MPAC considers NARHF to be a public scientific institution and therefore the space it occupies and uses for its purposes are exempt from taxation pursuant to s. 3(1)14 of the Act. However, MPAC disputes whether a portion of 750 Talbot Street is occupied by NARHF and returned this disputed portion as taxable.

15The Board’s position is that it lacks jurisdiction to determine whether a property or portion thereof is exempt from taxation. Section 40 of the Act circumscribes the Board’s jurisdiction and s. 46 circumscribes the Superior Court’s jurisdiction. MPAC submits that Member Weagant’s Decision is correct and reasonable. Jurisprudence from the Supreme Court of Canada, the Ontario Court of Appeal and the Divisional Court clearly states that questions of exemption from taxation are within the exclusive jurisdiction of the Superior Courts (see Corporation of the City of Toronto v. Olympia Edward Recreation Club Ltd 1955 CanLII 11 (SCC), [1955] SCR 454, Quance v. Thomas A. Ivey & Sons Limited 1950 CanLII 113 (ON CA), [1950] OR 397 and Re Downtown Churchworkers Association of the Anglican Church of Canada, Diocese of Toronto and Regional Assessment Commissioner, Region No 07 et al. (1978) 1978 CanLII 2166 (ON HCJDC), 18 OR (2d) 302).

16I do not find that the Board made a jurisdictional error.

17NARHF also submits that the Board made a material error of law or fact such that it would have reached a different decision. While the issue of occupation is a factual one, the Board does not have the power to determine questions of fact other than those questions of fact within the Board’s jurisdiction pursuant to s. 40 of the Act. Exemption is not a basis upon which a person may appeal to the Board. Whether or not NARHF occupies portions of 750 Talbot Street in St. Thomas, Ontario is a determination for the Superior Court pursuant to section 46 of the Act. This is also a matter of settled law (see Ottawa Salus Corporation et al v. Municipal Property Assessment Corporation et al. (2004) 2004 CanLII 14620 (ON CA), 69 OR (3d) 417 and Mount Sinai Hospital et al v. Municipal Property Assessment Corporation et al (2003) 43 MPLR (3d) 254).

18I do not find that the Board made a material or other error of fact or law such that it would have reached a different decision.

19Lastly, NARHF submits that the Board ought to have stated a case to the Divisional Court rather than dismiss the appeals. This remedy was not sought at the hearing. The jurisdiction to determine exemptions from taxation for a property or portion of a property rests squarely with the Superior Court and not the Board. Furthermore, as outlined in paragraph 18 of MPAC’s submissions, the Ontario Municipal Board (“OMB”) (when it heard appeals from the Board) stated a case to the Divisional Court regarding exemption from taxation. The Divisional Court held that questions of liability to taxation are outside the OMB’s jurisdiction (see Re Great Lakes Power Limited and Regional Assessment Commissioner, Region No 31 et al (18 June 1996) (Ont.Div.Ct.) [unreported]. A recent case, Waste Management of Canada (Re), 2015 CanLII 68073 (ON ARB) outlines how the Board exercises its discretion with respect to requests for stated cases.

20As noted, the Board is not aware of a motion by parties for a stated case with respect to this matter and the Board will not be seeking on its own initiative to state a case in writing for the opinion of the Divisional Court on the question of liability to taxation.

ORDER

21NARHF’s request for review is denied and Member Weagant’s Decision (DM 127789) is hereby confirmed. As a result of this disposition the request for a stay is moot and the Decision will remain in full force and effect with the changes as outlined in paragraph 11 above.

22As NARHF has filed a motion for leave to appeal DM 127789 with the Divisional Court the Board awaits the Court’s determination. The Board directs NARHF’s counsel to keep the Board apprised of the motion for leave.