Nichol v. Municipal Property Assessment Corporation, 2018 CanLII 99124

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: October 15, 2018

FILE NO.: RD 2018M12

Assessed Person(s): William David Nichol, Barbara Elizabeth Nichol

Appellant(s): William David Nichol

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 03

Respondent(s): City of Ottawa

Property Location(s): 4094 Armitage Avenue

Municipality(ies): City of Ottawa

Roll Number(s): 0614-421-840-11600-0000

Appeal Number(s): 3114227, 3114228, 3072799 and 3143957

Taxation Year(s): 2013, 2014, 2015 and 2016

Hearing Event No.: 647068

Legislative Authority: Rule 123 of the Assessment Review Board’s Rules of Practice and Procedure, as amended

Request for: A review of the Board’s Decision WR 144742 issued on January 06, 2017

Heard: By written submission

Parties

Representative

Submissions

William David Nichol, Barbara Elizabeth Nichol

William David Nichol

Requester

MPAC

Donald Mitchell

Received

City of Ottawa

No one appeared

Not Received

DECISION DELIVERED BY PAUL MULDOON AND ORDER OF THE BOARD

INTRODUCTION

1On February 6, 2017, William Nichol (the “Requester”) filed a written Request for Review with the Assessment Review Board (the “Board”) respecting WR 144742 (Nichol v. Municipal Property Assessment Corp., Region No. 3, 2017 CanLII 277 (ON ARB)) a decision made by Vice-Chair McAnsh issued on January 6, 2017 (“McAnsh Decision”).

2The Requester owns 4094 Armitage Avenue, a seasonal recreational property located along the Ottawa River (“Subject Property”). The Subject Property is pie shaped and approximately 34,000 square feet in size. Situated on the property is a 420 square foot cottage built in 1937, as well as the remains of another cottage used for scrap that were moved onto the property in 2014. The Subject Property is a lot in subdivision plan 418 (“Plan 418”).

3The crux of the originating appeal deals with the issue of whether the Requester’s property extends to the water edge. The McAnsh Decision under review found that it did, and the Requester submits that the adjudicator made errors of fact and law in arriving at that finding. In addition, the Requester raises the issue of whether there was an apprehension of bias on behalf of the adjudicator. In his Reply, the Requester submitted to the Board for the first time that the Board has no authority to conduct a review of its own decisions since it does not possess inherent jurisdiction and should therefore state a case to the Divisional Court.

Background to the Request to Review

Court Decisions re: Plan 418

4As noted above, the Subject Property to this Request to review is one of the lots in Plan 418. The history of the ownership and land rights pertaining to Plan 418 subdivision is summarized in detail at paragraphs 8 to 13 of a Court of Appeal, Lackner v. Hall, 2013 ONCA 631 (“Lacker v. Hall, (ONCA)”) discussed below. None of the submissions by the parties contest the facts outlined below.

5The lands occupied by Plan 418 were granted by Crown Patent in 1839, i.e. Broken Lot 12, Concession 6 in the then Town of Torbolton. In 1920, the lands granted were conveyed to two brothers in common (“Armitage brothers”). There is no dispute that the lands conveyed extended to the edge of the Ottawa River. In or around 1930, the Armitage brothers retained an Ontario Land Surveyor to prepare and register a plan of subdivision, Plan 418. The plan was registered with the Land Registry Office in Ottawa in 1931. Over the years these lots were subsequently sold to private owners, including the Subject Property.

6Plan 418 as registered showed what appeared to be a small strip of land between the lots and the Ottawa River. This strip has been the focus of numerous appeals before the Board, as well as subject of significant litigation before the courts. The decisions of the court that will be discussed in these reasons are set out in the chart below for ease of reference:

Court

Justice/Panel

Board’s Reference

Lackner v. Hall, (May 26, 2011) 1386 (ONSC)

Superior Court of Justice

Justice Scott

“Lackner v. Hall, (2011)” or “Order of Justice Scott”

Lackner v. Hall, 2012 ONSC 2951

Superior Court of Justice

Justice McNamara

“Lackner v. Hall, (2012)”

Lackner v. Hall, 2013 ONCA 631 (confirming 2012 ONSC 2951).

Court of Appeal

MacPherson J.A. Watt J.A. Pepall J.A.

“Lackner v. Hall, (ONCA)”

7At some point before 2004, the Requester registered plan 5R-14386 with the Land Titles Office in Ottawa to reflect a split his property, with one part being the 30 foot beach area strip of land fronting onto the water, and the other part being the remainder of the lot. In 2004, the Requester filed a Request for Reconsideration with MPAC, submitting that that the legal description of his property should be changed to reflect the split his property (but not change the assessed value). MPAC agreed and created roll number 0614-421-840-11610-000 and assigned it to strip of land at his request. Sometime around 2008, the Requester claims that this strip of land is the property of the living heirs of the Armitage brothers (“Armitage heirs”), incorporated as 2219160 Ontario Limited (“211 Ontario Ltd.”).

8Confusion as to the ownership of the strip of land along the Ottawa River remained during and after 2009. Some of the property owners brought an action against the Armitage heirs and 211 Ontario Ltd. seeking a declaratory order pursuant to s. 97 of the Courts of Justice Act that the boundaries of the lots of Plan 418 extended to the water’s edge, or in the alternative, are common lands. In that court action, Lackner v. Hall, (2012), Superior Court Justice McNamara made a declaration in favour of plaintiffs, finding that the lots in Plan 418 extended to the water’s edge. The declaration was subsequently unanimously upheld by the Court of Appeal in Lackner v. Hall (ONCA).

ARB Appeal – Whitehurst Decision

9For the 2013 tax year, MPAC returned an assessment of $319,000, plus an additional $2,000 for the cottage remains for the 2014, 2015, and 2016 tax years, resulting in a returned value of $321,000 for those years. The Requester brought an appeal before the Board and noted that, if the property was found to extend to the water’s edge, he did not dispute the assessed value. He submitted that the property did not extend to the water’s edge and the assessed value should therefore be decreased.

10After a hearing on the matter, Member Whitehurst issued a Decision on September 16, 2014, (WR 126888) (amendment issued on October 30, 2014 (WR 126888A)) Nichol v. Municipal Property Assessment Corp., Region 3, [2014] O.A.R.B.D. No. 465 (“Whitehurst Decision”) finding that the Subject Property did not extend to the water’s edge.

11The Whitehurst Decision was subsequently canceled on June 3, 3015 following a successful Request for Review brought by MPAC pursuant to the Board’s Rules of Practice and Procedure (the “Rules”). The Board found the Whitehurst Decision erred and the issue of whether the Subject Property extended to the waterfront was remitted to the Board for a new hearing.

ARB Appeal – McAnsh Decision

12The issue of whether the Subject Property extended to the waterfront was heard by Vice-Chair McAnsh on November 30, December 1 and 2 of 2016. The McAnsh Decision was issued on January 6, 2017 (WR 144742) and is the subject of this Request for Review. In this decision, Vice-Chair McAnsh found that the Subject Property did extend to the water’s edge and that the evidence supported a current value of $340,000. Since MPAC did not seek an increase in the assessment, the Board confirmed the assessed value of $319,000 for the 2013 tax year and $321,000 for the 2014, 2015 and 2016 tax years.

13On February 6, 2017, the Requester wrote to the Board for a review of the McAnsh Decision pursuant to the Board’s Rules. The Requester submits that the Board breached the rules of natural justice and procedural fairness by failing to act in an impartial manner, raising a reasonable apprehension of bias. Further, the Requester submits the Board erred in law in finding that it was bound by the decision of the courts and concluding that the Subject Property extends to the water’s edge.

14On May 16, 2018, the Board wrote to the parties requesting they provide additional submissions on the motion to review to the Board. On May 28, 2018, the Board received a letter from the Requester, in which he indicated he would not be providing additional submissions and would rely on the Request as previously submitted although a number of submissions were included in his correspondence. On June 14, 2018, the Board received MPAC’s response. On June 22, 2018, the Requester provided further submissions to the Board. No submissions were received from the City of Ottawa (“City”).

ISSUES RAISED IN THE REQUEST FOR REVIEW

15The Requester raises three issues:

(1) Whether the Board breached the rules of natural justice and procedural fairness by failing to act in an impartial manner raising a reasonable apprehension of bias; and

(2) Whether Board erred in law or fact such that it would have reached a different conclusion by:

a. Failing to apply the Boundaries Act, R.S.O. 1990, failing to respect and take judicial notice of law contained in the Land Titles Act, R.S.O. 1990; and the Conveyancing and Law of Property Act, R.S.O. 1990;

b. Failing to apply or recognize s. 54 of the Surveys Act;

c. Failing to understand and apply the order of the Justice Scott in Lackner v. Hall, (2011); and,

d. Refusing to accept the registration of PIN 04565-0470.

(3) Whether the Board should state a case to the Divisional Court rather than conduct a review.

16The Board finds that the Request for Review is denied for the following reasons.

RELEVANT RULES

17Requests for review are governed by Rules 121, 122, and 124 of the Board’s Rules. Rules 122 and 123 provide the grounds for review and the powers of the Board:

Grounds for Review

122. A request for review will not be granted unless the Board is satisfied that:

(a) the Board acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

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

(c) the Board heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result;

(d) there is new evidence that could not have reasonably been obtained earlier and would have affected the result; or

(e) any of the situations in Rule 122 exist.

Review Order

124. Upon consideration of a request for review, or on its own initiative, the Board may:

(a) dismiss the request;

(b) reinstate the appeal, with or without conditions; or

(c) after providing all parties an opportunity to make submissions,

i. confirm, vary, or cancel the decision,

ii. order a rehearing on all or part of the matter, or

iii. order a motion to decide the review.

DISCUSSION, ANALYSIS AND FINDINGS

Issue No. 1: Whether the Board breached the rules of natural justice and procedural fairness by failing to act in an impartial manner raising a reasonable apprehension of bias

The Requester’s Submissions

18The Requester submits that Vice-Chair McAnsh should be recused from decision-making because he failed to act in an impartial manner raising a reasonable apprehension of bias.

19The Requester submits that, because he had a law practice in Ottawa during the time of the hearing and he advertised that the City was a former client, he could not be impartial while adjudicating on a property located within the City. The Requester further submits that the Vice-Chair is possibly “beholden” towards MPAC in hope of a favourable property tax assessment of his home office. The Requester submits that it is a principle of law that judges cannot act impartially while also employed in private practice or a member of the Law Society of Ontario. In support of these allegations, the Requester submits screen shots from the McAnsh Law website.

20Secondly, the Requester further alleges that Vice-Chair McAnsh conducted himself in an argumentative manner raising a reasonable apprehension of bias. In his reply submissions received on June 22, 2018, the Requester provided the Board with a letter setting out the observations of witness Scott Smith. The Requester also purports in his reply to submit a letter from John Roberts, however, the letter was not included in the submissions to the Board.

21Third, the Requester suggests that Vice-Chair McAnsh’s comment that it is not within Vice-Chair McAnsh’s authority to overturn the Court of Appeal’s decision in Lackner v. Hall, (ONCA) is indicative that he not only had a closed mind, but has a conflict of interests with the courts and legal community in Ottawa.

22Finally, the Requester argues that the Board’s failure to determine the issue of fee simple raised a reasonable apprehension of bias. The Requester submits that Vice-Chair McAnsh failed to consider on the evidence before him in rendering the Decision.

MPAC’s Response Submissions

23MPAC argues the Requester failed to meet the high threshold required to prove a reasonable apprehension of bias. MPAC submits the test for determining a reasonable apprehension of bias is “whether a fully informed reasonable person viewing the Member’s conduct practically and realistically would conclude that it is more likely than not that the presiding member did not decide the matter fairly,” set out in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 (“Committee for Justice and Liberty”). Further, the test does not require that actual bias is shown, only reasonable apprehension of bias, relying on Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 (“Wewaykum”). MPAC submits there is strong presumption of impartiality, and further that evidence to the contrary must be fact specific and evaluated from the objective perspective with a standard of reasonableness.

24MPAC submits that the Requester provided no evidence to support the allegation that the Vice-Chair is beholden to MPAC or received a favourable assessment. The Requester’s assertion that Vice-Chair McAnsh’s statement that “it is not open to me to reach a different conclusion that the Court of Appeal” indicates a forgone conclusion does not recognize the statement was made under the heading “Stare Decisis.” Further, to the Requester’s assertion that Vice-Chair McAnsh’s reliance on the unanimous decision of the Court of Appeal in Lackner v. Hall, (ONCA) is due to a lack of independence and impartiality is unsupported by the evidence submitted.

25In response to the Requester’s submissions on Vice-Chair McAnsh’s demeanor, MPAC submits that no evidence was provided with relation to this submission and therefore it does not meet the high threshold required. MPAC notes that the allegations of bias were not raised until after the decision was issued. Further, MPAC submits that a Member’s disagreement with a party’s position or evidence is not indicative of bias.

26Finally, in response to the Requester’s submission that the Board failed to consider the evidence before him, MPAC submits that a tribunal is not required to refer to every piece of evidence or set out every finding in arriving at the decision, relying on Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670.

Board’s Findings

27In determining allegation of bias in administrative law, the Board adopts the tests outlined in in Committee for Justice and Liberty and Wewaykum. The analysis starts from the presumption that the adjudicator acted in a fair and impartial manner. The onus of rebutting this presumption is with the person alleging bias, in this case, the Requester. While only a reasonable apprehension of bias must be proven, mere suspicion is not enough. In order to rebut the presumption, the Requester must demonstrate through evidence that a real likelihood or probability of bias exists.

28In this matter, the fact that Vice-Chair McAnsh had a law practice in Ottawa, and the City was once a client, does not provide an automatic finding of an apprehension of bias. In Wewaykum, the Supreme Court held that previous professional association does not give rise to a reasonable apprehension of bias unless the member had some involvement in the matter now before the tribunal. The mere fact that Vice-Chair McAnsh practiced municipal law in Ottawa does not meet this onus.

29The Requester did not provide any evidence that there was any connection between the Vice-Chair’s practice and the matter before him. It was a bald, unsubstantiated allegation. Moreover, the allegations were made after the hearing even though such information was available to the Requester before the hearing. In any event, while the City was named as an automatic respondent in the appeal, the City did not participate in the appeal before the Board. The Board finds that there is no apprehension of bias just because the Vice-Chair practiced law in the City of Ottawa and that the City, at one time, may have been a client. There is no evidence that the Vice-Chair was “beholden” to MPAC.

30The Board finds that there is no evidence to support the view that Vice-Chair McAnsh conducted himself during the hearing in such a manner that would raise a reasonable apprehension of bias.

31As previously mentioned, the Requester submitted a letter authored by a witness at the hearing, Scott Smith, to support his allegations of bias. This letter suggests that the Vice-Chair was bias because he did not mention Mr. Smith’s testimony in the Decision and therefore “Mr. McAnsh was not interested in considering what I had to say.” This letter further alleges that Vice-Chair McAnsh was “generally hostile” to Mr. Smith’s point of view, however, this letter did not cite any specific incidents in support of this allegation.

32A Board Member has the authority to review the evidence and assess its relevance, weight and probative value. In this instance, it is apparent that Vice-Chair McAnsh did not rely on Mr. Smith’s letter. The weight and reliability of evidence is within the discretion of the Board, as such Vice-Chair McAnsh had the authority to make such a determination and the Board will not interfere with the reasonable use of discretion in this regard. Further, as noted below, the Board is not required to address every piece of evidence before it.

33The Board also finds that there is no apprehension of bias where an adjudicator is applying their understanding of the law. In the McAnsh Decision, the Vice-Chair held that he was bound by the declaratory order made by Justice McNamara of the Superior Court (Lackner v. Hall, 2012), in which the court held at paragraph 79 that, “the boundaries of the lots in issue [Plan 418] extend to the water’s edge.” This declaration expressly included the Subject Property. In fact, it is the adjudicator’s duty to interpret and apply the law. The hierarchy of courts and principle of stare decisis is a tenant of the common law system in Ontario. TheBoard finds that Vice-Chair McAnsh did not have a “closed mind” when applying the law that would suggest an apprehension of bias. Instead, he was applying the law in circumstances where he felt he was compelled to do, and that is the role of an adjudicator within the administrative justice system.

34The Board agrees with the submissions of MPAC that the Board is not required to address every piece of evidence before it and find that the McAnsh Decision provided sufficient reasons to support its findings. Hence, the fact that Vice-Chair McAnsh did not determine the issue of fee simple, supposedly because he found it was not relevant, does import any notion of apprehension of bias.

Issue No. 2 – Whether the Board made a significant error of law or fact such that the Board would likely have reached a different decision

Requester’s Submissions

35The Requester submits that the Board erred in fact and law by:

a. Failing to apply the Boundaries Act, R.S.O. 1990, failing to respect and take judicial notice of law contained in the Land Titles Act, R.S.O. 1990; and the Conveyancing and Law of Property Act, R.S.O. 199;

b. Failing to apply or recognize s. 54 of the Surveys Act;

c. Failing to understand and apply the Order of Justice Scott in Lackner v. Hall, (2011); and,

d. Refusing to accept the registration of PIN 04565-0470.

36In support of these submissions, the Requester submits numerous excerpts of documents and statements, many of which were not submitted to the Board in their entirety or not in context as part of this Request. These excerpts which are incomplete are generally unhelpful to the Board in determining this motion.

MPAC’s Response Submissions

37MPAC submits that the McAnsh Decision is correct and the Requester is attempting to reargue the issues determined in by Justice McNamara in Lackner v. Hall, (2012) for a third time.

38MPAC contends that the decision of Justice McNamara in Lackner v. Hall, (2012) and the Court of Appeal in Lackner v. Hall, (ONCA) determined the ownership of the waterfront with respect to the Subject Property. Further, and as noted in the McAnsh Decision, the Land Titles Register was amended to show the Subject Property extends to the water’s edge.

39With respect to the Requester’s claim that the Board failed to understand and apply the Decision of Justice Scott rather than the declaration of Justice McNamara, MPAC submits that this is addressed at paragraphs 12 and 15 of the McAnsh Decision.

Board’s Findings

Issue 2. a) Failing to apply the Boundaries Act, R.S.O. 1990, and failing to respect and take judicial notice of law contained in the Land Titles Act, R.S.O. 1990; and the Conveyancing and Law of Property Act, R.S.O. 1990

40The submission by the Requester that the Board failed to take judicial notice of the law of Boundaries Act, Land Titles Act and the Conveyancing and Law of Property Act relates to the allegation that the Board erred in finding that it was bound by the declaration in Lackner v. Hall, (2012). The Board finds that this submission is an attempt to reargue the issues disposed of in the Decision. A Request for Review is not an opportunity to reargue the merits of the appeal or make-up for insufficiency in argument and evidence provided at the hearing.

41The Requester further submits an accompanying boundary order, that is, the order by Justice McNamara in Lackner v. Hall, (2012), would not confer title since only an application brought pursuant to s. 36(1) of the Land Titles Act can confer title by adverse possession. These arguments were thoroughly discussed at paragraphs 14 to 18 of the Decision. At paragraph 17, Vice-Chair McAnsh stated:

[…] while I take Mr. Nichol’s point that he would have preferred an order directing the registry office, as was requested in Chen v. Stafford, 2012 ONSC 3802, there was no need for those orders to make the declaration binding. The registrar has already complied with the declaration […] The registration reflected the state of the law, as declared by Justice McNamara and affirmed by the Court of Appeal.

42The Board is not satisfied that Vice-Chair McAnsh made any legal or factual errors with respect to his understanding of the Boundaries Act, the Land Titles Act, and the Conveyancing and Law of Property Act.

Issue 2. b) Failing to apply or recognize s. 54 of the Surveys Act

43The Requester submits that Vice-Chair erred in failing to apply or recognize s. 54 of the Survey Act, R.S.O. 1990. At the hearing, the Requester submitted that s. 54 of Surveys Act, which states, “every line… established by survey and shown on a plan of subdivision is a true and unalterable line”, is contradicted by Justice McNamara’s judgement since he is of the opinion that the Plan 418 does not depict the lots as extending to the water’s edge.

44This submission is addressed at paragraphs 19 to 25 of the McAnsh Decision. At paragraph 20, the Vice-Chair McAnsh cites Michnick v. Bass Road Beach Association, 2015 ONSC 1936 (“Michnick”) and notes that Justice Sachs relied on the findings of Justice McNamara’s decision to support its reasons that s. 54 of the Surveys Act is not a barrier to the declaration that the lots of Plan 418 extended to the edge of the river.

45The Requester provides an excerpt from paragraph 50 of the reasons in Michnick in an attempt to argue that the Divisional Court concluded that Justice McNamara was precluded by s. 54 of the Surveys Act from making that declaration. Vice-Chair McAnsh relied on the various court rulings on this topic. The Board is satisfied that there was no error of law or fact with respect to this issue.

Issue 2. c) Failing to understand and apply the order of the Justice Scott in Lackner v. Hall, (2011)

46The Requester states that Board erred in applying or interpreting the Summary Judgment and Order of Justice Scott issued May 26, 2011.

47The Requester submits that Justice McNamara’s decision is of no force or effect since it is a declaration and is not referred to as an “order”, therefore the Board is not bound by the declaration in Lackner v. Hall (2012), nor the decision issued by the Court of Appeal Lackner v. Hall, (ONCA). Rather, the Requester contends that the Board is bound by the Order of Justice Scott in Lackner v. Hall, (2011) since the endorsement states “THIS COURT ORDERS AND ADJUDGES,” that the lands described in the order “[…] are not common lands.” The Requester further argued the judgment of Scott, J. is not an interim order.

48The Board was correct in finding that it was bound by the decision in Lackner v. Hall, (2012) and its affirmation by the Court of Appeal. The Order of Justice Scott in Lackner v. Hall, (2011) was a disposition to a motion brought by Wayne Morris, the owner of 4068 and 4064 Armitage Avenue (lots of Plan 418). The motion brought by Mr. Morris before Justice Scott requested that he be removed as defendant from the Lackner v. Hall, (2012) proceedings since his properties, 4068 and 4064 Armitage Avenue, extend to the water’s edge. The Order of Justice Scott in Lackner v. Hall, (2011) effectively terminated the claims against Mr. Morris, finding the waterfronts of 4068 and 4064 Armitage Avenue are “not common lands.”

49Vice-Chair McAnsh specifically and thoroughly addresses this issue. For instance, in paras. 14 and 15, he states:

14 Mr. Nichol puts a great deal of weight on the differences between the interim order of Justice Scott and the judgment of Justice McNamara in Lackner v Hall. He points to the use of the word “order” in particular. Justice Scott’s order states “this court orders and adjudges that [the lands] are not ‘common lands’.” The judgment of Justice McNamara states “this court declares and adjudges that the boundaries of [the lands] extend to the water’s edge.” Mr. Nichol argues that the use of the word “order” makes Justice Scott’s findings binding, while characterizing the judgment of Justice McNamara as a cost order, because costs are the only clause in the judgment that uses the word “order.”

15 This argument puts form over substance, which should be avoided. There is nothing in the word “order” that makes the declaration of Justice Scott anything more than a declaration. Both Justice Scott and Justice McNamara made findings related to the legal status of land. Neither of them issued specific coercive instructions to any person. They are both judicial declarations, which have a clear status in law.

50In paragraph 17, Vice-Chair McAnsh concludes that there was no need for accompanying order to make the declaration of Justice McNamara binding, and further clarified that the registrar already complied with the declaration. Vice-Chair McAnsh found that the parcel register reflected the state of the law as it relates to the Subject Property.

51The Board finds that there is no basis to suggest there is any error or fact with respect to this issue. The Requester is simply re-arguing issues that were previously argued at the hearing.

Issue 2. d) Refusing to accept the registration of PIN 04565-0470

52The Requester submits that the refusal to recognize the registration of PIN 04565-0470 was an error of the Board. According to the Requester, PIN 04565-0470 was created on June 10, 2016. The Requester suggests that the newly created PIN 04565-0470 supersedes the Justice McNamara’s decision in Lackner v. Hall, (2012), and should therefore have been accepted as determinative on the issue of whether the property is a waterfront property. However, the Requester did not provide a legal analysis in support of this proposition.

53Vice-Chair McAnsh did not directly address this issue, although he did refer to it. It is apparent that Vice-Chair McAnsh found that the finding in Lackner v. Hall, (2012) and Lackner v. Hall, (ONCA) was both compelling and binding, and the submission concerning the registration of the PIN would not affect the finding the Court. The Board agrees with that implied finding. The Board is not satisfied that the Board erred with respect to this issue.

Issue No. 3: Board’s Jurisdiction – Whether the Board has the authority to Review its own decisions

54In his reply to MPAC’s submissions, the Requester raised a number of new arguments with regard to the jurisdiction of the Board to consider or grant Requests for Reviews.

55The Requester submits that the Board did not have authority to cancel the Whitehurst Decision and submits that, as a practical matter, the Board cannot overturn its own decisions once issued and available to the public. Further, the Requester argues that since the Board did not have the authority to cancel the Whitehurst Decision and have it reheard by Vice Chair McAnsh, the Board has sent itself into disrepair by publishing contradictory orders. The Requester concludes that the Board is not permitted to have two contradictory decisions and therefore is required to state a case to the Divisional Court pursuant to s. 43(1) of the Assessment Act.

56It is settled law that the Board does have the jurisdiction to review its own decision and was not acting beyond its jurisdiction when it canceled the Whitehurst Decision. MPAC correctly stated in its submissions that the Board’s jurisdiction is not inherent, meaning the jurisdiction of the Board was created by the legislature. While jurisdiction is not inherent to any tribunal, the power to review was expressly delegated to the Board by the legislature by virtue of s. 21.2(1) of the Statutory Powers Procedure Act, R.S.O. 1990, which states:

Power to review

21.2 (1) A tribunal may, if it considers it advisable and if its rules made under section 25.1 deal with the matter, review all or part of its own decision or order, and may confirm, vary, suspend or cancel the decision or order.

57The Board’s Rules also reflect this authority and provide directions with respect to the Board’s review process.

58The Board finds that it does have the authority to review its decisions. One of the rationales for having a tribunal to review its decision is to allow it to reflect on a matter when there are contradictory decisions. There is no requirement to state a case to Divisional Court.

CONCLUSION

59Based on the reasons and findings above, the Board finds that the Requester has not provided sufficient reasons, when considered individually or collectively, to satisfy the Board that any of the of grounds set out in Rule 122 have been established. Therefore, the Board finds that the Request for Review must be denied.

ORDER

60The Request for Review is denied and Vice-Chair McAnsh’s Decision is confirmed.