Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: November 26, 2019

FILE NO.: WR 161892

Assessed Person(s): Tartu College

Appellant(s): Tartu College and Toomas Trei

Respondent(s): Municipal Property Assessment Corporation("MPAC") Region 09

Respondent(s): City of Toronto

Property Location(s): 310 Bloor Street West

Municipality(ies): City of Toronto

Roll Number(s): 1904-052-130-03500-0000

Appeal Number(s): 3265463, 3293922 and 3350837

Taxation Year(s): 2017, 2018 and 2019

Hearing Event No.: 713468

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

Heard: August 20, 2019 in Toronto, Ontario

APPEARANCES:

Parties	Counsel
Tartu College	Richard Minster and Dan Rosman
MPAC	Karey Lunau
City of Toronto	No one appeared

DECISION OF THE BOARD DELIVERED BY SUBUOLA AWOLERI

INTRODUCTION

1Tartu College (the “Appellant”) has brought this appeal challenging the classification of a significant part of its property which is principally designated as a student residence.

2The Appellant is a not-for-profit organization. The objectives of the Appellant include constructing, maintaining and operating a dwelling and other accommodation for scholars and students at the University of Toronto and other post-secondary educational institutions. Also included as part of the objectives of the Appellant is the establishment of a community centre and organization to preserve and promote the Estonian culture. In advancing these objectives, in the late 1960’s, 310 Bloor Street West (the “Subject Property”) was constructed and financed through Canada Mortgage Housing Corporation (“CMHC”).

3The Subject Property comprises of 18 storeys out of which 16 storeys are primarily designated as student residences. The student residence has 80 suites with 459 bedrooms rented to 474 students. There are five suites on each floor and each suite typically has 6 bedrooms for the exclusive use by the students and common areas shared with other suite mates which consists of a kitchen, hallway and three bathrooms - two 2-piece bathroom (shower and sink or sink and toilet) and one 3-piece bathroom. The common laundry used by the students is located on the 18^th floor. In view of promoting and preserving the Estonian culture, portions of the Subject Property are used for Estonian Library/museum, cultural events and related offices. The main floor has a buffeteria/restaurant and a front desk both used by students.

4As stated, the issue in this appeal is the correct classification of the portion of the Subject Property designated as student residence. Since its inception in the late 1960’s until the 2017 taxation year, the student residence portion has been assessed by MPAC in the residential property class pursuant to s. 3(1) of the Ontario Regulation 282/98 (“O. Reg. 282/98”). MPAC changed this classification commencing in the 2017 taxation year to the multi-residential property class, under s. 4(1) of the O. Reg. 282/98 citing the decision of the Assessment Review Board (the “Board’) in Oshawa (City) v. Municipal Property Assessment Corp., Region 13, [2016] O.A.R.B.D. No. 187 (the “Oshawa Decision”).

5In the Oshawa Decision, the issue before the Board was whether the student housing building (“1700 Simcoe Street”) should be assessed in the residential or multi-residential property tax class. In making this decision, the Board had to determine the meaning of the phrase “self-contained unit” (“SCU”) under s. 3(1) and 4(1) of the O. Reg. 282/98. This required the Board to further determine which “physical space should be considered a unit, the individual exclusive use bedroom or the suite”. The appellant and MPAC argued that the units are not self-contained since the units are the rented bedrooms, which do not contain everything an individual requires for self-contained living. The City of Oshawa argued that the suites and not the bedrooms are the self-contained units. The Board agreed with the City of Oshawa and determined that the 133 suites were self-contained units and the building should be assessed in the multi-residential property tax class.

6MPAC reviewed its policy on the classification of student residences and identified properties affected by the Oshawa Decision and commenced the process of changing their tax class from residential to multi-residential from the 2017 taxation year.

7Counsel for the Appellant, Richard Minster, argues that the Oshawa Decision is not binding on this panel and the decision is not applicable to the facts of this appeal. He submitted that the student residence portion of the Subject Property should be assessed under the residential property class pursuant to s. 3(1)(i) of the O. Reg. 282/98 as “land that does not have seven or more self-contained units or in the alternative under section 3(1)(ix) as land used for residential purposes on a seasonal basis”. Karey Lunau, counsel for MPAC disagrees. She argues that the Oshawa Decision is persuasive unless it has an error, and that there was no leave to appeal the decision regarding the correct classification by the appellant. She submitted that the correct classification of the student residence is the multi-residential property class.

8The parties have agreed that the current value assessment (“CVA”) of the Subject Property is not an issue in this appeal and have provided the Board with agreed values for the Subject Property in the residential and the multi-residential property class. The parties agreed that the CVA of the Subject Property would be dependent on the decision of the Board on the correct classification of the student residence in the Subject Property.

ISSUES

9The issues to be determined are:

i) Is the student residence portion of the Subject Property land used for residential purposes on a “seasonal basis”?

ii) Does the Oshawa Decision apply to the facts of this appeal?

iii) Should the Board consider equity in the correct classification of the student residence in the Subject Property?

DECISION

10I do not find that the student residence portion of the Subject Property is land used for residential purposes on a seasonal basis.

11The Oshawa Decision is applicable to the facts of this appeal. The 80 suites in the Subject Property are self-contained units pursuant to s. 4(1) of the O. Reg. 282/98 and the correct classification for the student residence is in the multi-residential property class. The CVA of the Subject Property as of January 1, 2016, as agreed by the parties is:

Apportionment	Values ($)
Commercial (CT)	1,757,500
Multi-residential (MT)	29,089,300
Residential (RT)	1,776,200
Total CVA	32,623,000

12The facts of this appeal do not give rise to the consideration of equity in the correct classification of the student residence in the Subject Property.

REASONS FOR DECISION

Legislation

13The relevant parts of O. Reg. 282/98 for s. 3(1) and s. 4(1) provides:

Residential Property Class

3.(1) The residential property class consists of the following:

1. Land used for residential purposes that is,

i. land that does not have seven or more self-contained units,

ix. land used for residential purposes on a seasonal basis, including campgrounds,

Multi-Residential Property Class

4.(1) The multi-residential property class consists of the following:

1. Land used for residential purposes that has seven or more self-contained units other than land included in the residential property class under paragraph 1 of subsection 3 (1).

Appellant’s Evidence

14Mr. Minster asserted that MPAC misinterpreted the Oshawa Decision. He argued that the physical layout, legal occupation and the operations of the Appellant are significantly different from the Oshawa Decision, and all these three factors define the control test. He called two witnesses to corroborate his argument.

Evidence of Linda Karuks

15Ms. Karuks is the Appellant’s General Manager, responsible for the day-to-day operations of its business and the Subject Property. She has been working for the Appellant since January 2007. Her testimony included the physical state of the Subject Property, the legal occupation of the students including the use of their rooms and other facilities, their rights and the operations of the Appellant.

The Physical Layout of the Subject Property

16Ms. Karuks testified that 16 storeys out of the 18 storeys are used as students’ residence. There are 459 rooms with 474 students. The main floor has 90% services for the students, which includes a buffeteria/restaurant, which provides meals for students at low cost and the students have a choice of buying a meal plan. She testified that on each floor there are five units. There are renovated and un-renovated units. The male and female sections are segregated by the Appellant. Using the floor plan provided in evidence, she took the Board through the physical layout of a typical unit. Each unit has six bedrooms, which she emphasized are small bedrooms with twin beds, a small desk, a chair and a small closet. She testified that the bedrooms are the students’ private spaces and the students only have exclusive rights to occupy their bedrooms. The bedroom can only be accessed by keypad and every student has their own unique access code to enter it, but the Appellant has a master access code. Each bedroom has wifi and internet. She further testified that there are other common areas within the unit; three bathrooms: - two 2-piece bathrooms (a shower and sink or a sink and toilet) and one 3-piece bathroom, a hallway and kitchen. The kitchen has a stove, microwave, kitchen cabinets for storage, fridge, sink and each student has use of their own pantry. There is a small kitchen table with four chairs. The stove does not have an exhaust and she emphasized that it is used to re-heat food or cook simple meals. These common areas are shared with other students in the unit and she emphasized that the students do not have control over the common areas. Ms. Karuks added that there is no living and dining area in the unit, which differs from the student residence at 1700 Simcoe Street in the Oshawa Decision, which has bigger rooms, with walk-in closets and the layout is of a standard apartment or condominium.

17During cross-examination, Ms. Karuks confirmed that the Appellant does not offer courses to the 474 students and that most of the students are registered with University of Toronto and Ryerson University. She added that the students may choose to take part in seminars or lectures organized by the Appellant. She further confirmed that the meal plans are not mandatory, and any person can eat at the buffeteria/restaurant but will have to pay regular price rather than the subsidized price offered to the students. Ms. Karuks admitted that students can choose to cook their meals in the unit, the stoves are wired and there is a functional kitchen in the unit. Furthermore, she confirmed the process of access into the unit from the main entrance and front door of the Subject Property using a key fob. A key fob is also used to enter the elevator, a shared key access into the unit for a regular unit or a key fob for a renovated unit and a private keypad into the bedroom.

Legal Occupancy

18According to Ms. Karuks, as stipulated in the room application, in order to be assigned a room, the students must provide the name of their educational institution, have a student number and if they do not have a student number, they must obtain a letter from their educational institution. They must also provide their home address. The students rent for a short term from September to April and upon completion of their course, they must vacate the Subject Property. She testified that the occupancy terms are flexible and the minimum duration is 60 days. A student can vacate a room without penalty if the student provides the Appellant with 60 days’ notice. Non-students can also rent rooms in the summer. Students pay a deposit to secure a room and when the first month rent is paid, the Appellant assigns a room to the student. The students can indicate their preference for the room, but it is the Appellant that assigns the room. Upon paying a $50 fee, a student can request for a transfer to another room. There are no overnight guest permitted and no sublicensing. Ms. Karuks also testified that the room application is not subject to the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”), since the students do not stay longer than one year. The students are not registered as living in the Subject Property; they must have a home address. They cannot use the Subject Property’s address for voting or car licensing. During cross-examination, Ms. Karuks admitted that the students can receive mails and parcels at the Subject Property. The students do not have guarantors in support of their agreement with the Appellant. The students are only responsible for the deposit and rents and if within the first 10 days there is a default in rent payment, a fine will be paid.

Operations of the Appellant

19Ms. Karuks testified that the Appellant owns the common areas in the units. The Appellant decides who is allowed into the common areas. The Appellant’s cleaning staff enters the unit once or twice weekly to clean the common areas. Ms. Karuks added that no notice is given to the students before entry by the staff to clean; they simply knock and enter since the Appellant “owns the common areas”. The cleaning staff do not clean the bedrooms. Notices are put on the bedroom door if the common areas are not kept adequately clean. Ms. Karuks further testified that if a unit has problems with its kitchen or bathroom, the Appellant may at its discretion permit students in the distressed unit to use the bathroom or kitchen in another unit on the same floor, without the consent of the other students, but advising them of any disruptions.

20The Appellant is responsible for pest control. Ms. Karuks testified that Rentokil, a pest control company is retained to enter the common areas twice a month and if needed the bedroom, to fumigate.

Evidence of Claude Trottier

21Mr. Trottier is a licensed Paralegal and has been a consultant in assessment and taxation for over 35 years. Mr. Trottier reiterated the testimony of Ms. Karuks regarding the physical layout of the Subject Property’s units. Comparing the floor plans presented in evidence of the Subject Property and the student residence at 1700 Simcoe Street in the Oshawa Decision, he testified that the suites in 1700 Simcoe Street have the semblance of an apartment and condominium. He testified that in accordance with the agreed statement of fact filed by the parties in the Oshawa Decision, 1700 Simcoe Street will only be used as a student’s residence for 10 years after which it can be converted to a condominium. He admitted during cross-examination that the photographs of the suites in 1700 Simcoe Street, presented in evidence at this hearing are photographs of model suites retrieved from its website and are different from the photographs in the agreed statement of fact presented by the parties in the Oshawa Decision.

22Mr. Trottier testified that at 1700 Simcoe Street, the tenants are all assessed by name on the assessment roll, which differs from the Subject Property, which only has an overall assessment of the Subject Property in the assessment roll.

23Mr. Trottier further provided a detailed comparison of the Subject Property and the student’s residence at 1700 Simcoe Street. At 1700 Simcoe Street, the Landlord must provide 24 hours’ advance notice before entering the suite since the students have a right to quiet enjoyment. The length of the tenancy is for one year with an option to renew and overnight guests are allowed. The Subject Property’s tenancy is less than one year and overnight guest are not allowed. He added that the operations in the two buildings are also different. In addition to Ms. Karuks’ testimony, he testified that pets are allowed in 1700 Simcoe Street, the tenants assign their assessment appeal rights to the Landlord and the Landlord is obligated to fix items in need of repair, but a failure to report these items to the Landlord will results in the tenants fixing these items. The lease agreement at 1700 Simcoe Street is subject to the RTA. In the Subject Property, pets are not allowed except for medical reasons and if it is feasible in the room and only the Appellant has full assessment rights.

24During cross-examination, Mr. Trottier admitted that a portion of the lease agreement at 1700 Simcoe Street, which stipulates the nature of the occupancy arrangement, is the same at the Subject Property; the only distinction as admitted by Mr. Trottier is the degree of control by the Appellant. It provides:

In consideration of the rents, agreements and obligations contained in this Lease, and of the facts stated by the Tenants in his/her application to lease, the Landlord hereby leases to the Tenant the Personal Space in the Premises hereinafter called the “Leased Premises”, together with the right to use the common areas of the Premises…

25Mr. Trottier further testified that there is a lack of permanence in the Subject Property’s rental application since the student’s occupation is seasonal based on school terms.

26Mr. Trottier referred the Board to 15 other properties in the Appellant’s evidence within and outside Toronto, which he testified are similar and MPAC classified differently from the Subject Property. He testified that there are no other student residences in Toronto that could be found that MPAC placed in the multi-residential property tax class.

Appellant’s Submissions

27Mr. Minster argued that for the Board to understand the meaning of SCU, the Board has to consider who is in occupation by referring to s. 14 of the Assessment Act, R.S.O. 1990, c. A.31, where SCU is used to define tenants. Section 14 provides in part:

Assessment roll

Contents

14 (1) The assessment corporation shall prepare an assessment roll for each municipality, for each locality and for non-municipal territory and the assessment roll shall contain the following information as well as the information required under subsections (1.1) and (1.2):

1. The name and surnames, in full, if they can be ascertained, of all persons who are liable to assessment in the municipality or in the non-municipal territory, as the case may be.

Additional contents, land in a municipality or locality

(1.1) The assessment roll shall also contain the following information respecting land in a municipality or locality:

1. The name of every tenant who is a supporter of a school board.

Preparation

(2) The following provisions shall be observed in the preparation of the assessment roll:

2. Each subdivision shall be assessed separately, and every parcel of land (whether a whole subdivision or a portion thereof, or the whole or a portion of a building thereon) in the separate occupation of any person shall be separately assessed; provided that no portion of any building used or intended to be used as a residence shall be separately assessed unless it is a domestic establishment of two or more rooms in which the occupants usually sleep and prepare and serve meals.

Attributable assessment for school purposes

(3) If a parcel of land has more than one self-contained residential unit, the assessment attributable, for school support purposes, to the person who occupies such a unit shall be determined by dividing the assessment attributable to all the self-contained residential units on the parcel of land by the number of such units.

28He submitted that at 1700 Simcoe Street, each tenant is named in the assessment roll since they occupy a SCU and this is different from the Subject Property. He argued that what is being rented at the Subject Property is the bedroom in the unit and the students only have exclusive possession of the bedroom; while at 1700 Simcoe Street, the tenants are renting the entire suite in which they have exclusive occupation and control. He suggested that based on this distinction, the Oshawa Decision may be correct. He submitted that the classification of the student residence in the Subject Property should be in the residential tax class under s. 3(1)(i) of O. Reg. 282/98 since it does not have seven or more self-contained units or s. 3(1)(ix) as land used for residential purposes on a seasonal basis, since the length of tenancy is between four to eight months.

29The case-law presented by Mr. Minster relevant to the context of this appeal are provided below:

30Camp Manitou Inc. v. Municipal Property Assessment Corp., Region No. 28, [2004] O.A.R.B.D. No. 212, (“Camp Manitou”).

The Board’s task was to determine the correct classification of a residential children’s summer camp. The complainant argued that it should be classified as land used for residential purpose on a seasonal basis and that it is a campground. MPAC’s position was that the correct classification is in the commercial property tax class. The camp was opened for seven weeks from the end of June to mid-August. It is also open from Victoria Day to the end of September and in May, early June and into the fall for rental by school groups and church groups. An international music camp uses it at the end of each summer. Mr. Mitchell, counsel for MPAC argued that the complainant is occupying the camp and carrying on its business of providing summer camp for children. The Board acknowledged that there was no dispute between the parties regarding the fact that the property is a residential camp used on a seasonal basis. The dispute was whether the camp was used for a “residential purpose”. The Board was satisfied based on the evidence adduced that the property was used “primarily for residential purpose, since all the children who attended the camp stayed overnight”, most of the campers reside at the camp for at least three weeks, 45 cabins were for the campers and 80% of the camp budget was for accommodation and food.

31D.H Neilson Investments Ltd. v. Municipal Property Assessment Corp. Region No. 32, [2009] O.A.R.B.D. No. 4 (“D.H. Neilson”)

The issue in this appeal was whether the property, an 11-unit motel qualified for vacancy rebate under s. 442.5 of the Municipal Act, 2001, S.O. 2001, c. 25. The motel operated on a yearly basis until October 2000, when it suffered a close in business due to various causes. In 2001, it remained closed except for the month of September and accordingly, the complainant applied to the municipality for vacancy rebate. The application was denied by the municipality on the basis that businesses which operate on a seasonal basis are not eligible for the rebate. The complainant filed an appeal of the municipality’s decision to the Board. The municipality argued that the word seasonal is “not limited to seasons of the year but also applies to other cyclical events such as annual shutdown of the pulp mill”. The Board considered the meaning of seasonal using the Webster’s Third New International Dictionary as:

a time or period of time characterized or made significant by a particular feature, circumstance or event; and a period not specifically limited but usually short or moderate duration

The Board determined that it was “satisfied that “seasonal” is broad enough to include a period of unusual demand for motel rooms, such as the annual shutdown of the pulp mill”.

32Amica (Whitby) Inc. v. Municipal Assessment Corp. Region No. 13, [2011] O.A.R.B.D. No. 283 (“Amica”)

This case was also presented by the parties in the Oshawa Decision. The property is a six-storey retirement home, with 139 units; some of the units were on the assisted living floor. The suites have a full bath (a two-bedroom unit had two bathrooms), living and sleeping area or combined living and sleeping area, a small sink area with a small fridge, microwave, plumbing and sink, countertops and cupboards. Hot plates and stoves were not allowed in the suites. The residents share a communal dining room on their floor for breakfast, lunch and dinner. The meal plans were mandatory. The Board had to determine whether the correct classification for the property was under the residential or multi-residential property class. In order to decide the appropriate classification, the Board had to determine the meaning of the words “self-contained”. Counsel for the appellant argued that the kitchens in the unit were not independent cooking facilities as derived from MPAC’s internal test. Furthermore, he submitted that the units are not complete for independent living; therefore, the units are not self-contained. He argued that:

The small kitchens in each unit are convenient only for the preparation of breakfast and snacks, and the participation in some or all meals severs the independent living arrangements and integrates them into a community living arrangement…

He concluded that the correct classification of the property is in the residential property class. Counsel for MPAC argued that the question is one of practicality. That the kitchen may not be a full kitchen that most people are accustomed to, it is a cooking facility and the functionality is still there and all the units have “the functionality to be considered self-contained”. He argued that the correct classification of the property is in the multi-residential property class. The Board found that the units in the facility were not self-contained units. The kitchens were designed to enable residents prepare breakfast and snacks and that “the units not only function differently from normal self-contained apartment units, they were designed to function differently”. The Board determined that the correct classification of the facility is in the residential property class.

33Amelia Properties Inc. v. Municipal Property Assessment Corp. Region No. 18, [2003] O.J. No. 4605 (“Amelia”)

In Amelia, the Divisional Court denied leave to appeal the Board’s decision that determined that Amelia’s facility had self-contained units. The court held that:

The Board correctly determined that the governing consideration is the use to which the property is being put. In assessing use, the physical aspects of the property must be considered”

34Municipal Property Assessment Corp. v. R.M.L. Parking Ltd. [2006] O.J. No. 2049 (“RML”)

MPAC appealed the decision of the Board that ordered the change of class of the property, a four-storey parking garage, from commercial to residential. The garage parking licensees were owners of three residential condominium units located near the parking garage. The owner of the garage dealt directly with the licensees and they paid directly to the owner. The court determined that the Board’s reasons did not specifically address “whether or not, on a proper interpretation of the Regulation, there was a requirement that the property include at least one self-contained unit in order to be placed in the residential property tax class”. The court in finding that the Board correctly determined that the parking garage was for the exclusive use of the residents in condominium buildings and accordingly, the parking garage was used for residential purposes, held at paragraph 21 and 40 that:

On its face, s. 3(1)1(i) contains no requirement that there be at least one self-contained unit on the land. The section clearly includes land with zero to six self-contained units, in the residential property class.

…under s. 3(1), "use" and not ownership is the key requirement; moreover, it is clear from the context of s. 3 that the "use" in issue is referable to use by the ultimate user of the property.

35Mr. Minster submitted that these cases reveal that this panel should not just consider the physical layout of the Subject Property, but the real use of the property and the Subject Property does not need to have a SCU to be in the residential property tax class.

36Mr. Minster further argued that the Subject Property is the only student residence that MPAC changed its classification to multi-residential property class as a result of the Oshawa Decision. He urged the Board to consider equity in the classification of the Subject Property. He presented the following decisions to support his position.

37Jonas v. Gilbert, (1881), 1881 CanLII 36 (SCC), 5 S.C.R. 356 (“Jonas”)

The Supreme Court of Canada held that:

… a power to discriminate must be expressly authorized by law and cannot be inferred from general words such as are used in this statute; that a statute such as this must be construed strictly; and the intention of the legislature to confer this power of discrimination, must, I think, explicitly and distinctly appear by clear and unambiguous words

38Mount Pleasant War Memorial Community Cooperative Assn. v. British Columbia (Assessor of Area #09 (Vancouver Sea to Sky Region), [2017] B.C.J. No. 1710 (“Mount Pleasant”)

An application for direction was made to the British Columbia Supreme Court. One of the issues raised was whether the Property Assessment Appeal Board erred in the misinterpretation or misapplication of s. 57 of the British Columbia Assessment Act RSBC 1996 Chapter 20 (“BCAA”), with respect to equity of classification. Section 57(1) of the BCAA provides:

In an appeal under this Part, the board

(a) May reopen the whole question of the property’s assessment to ensure accuracy and that assessments are at actual value applied in a consistent manner in the municipality, treaty lands of the taxing treaty first nation, Nisga’a Lands or other rural area,…

The Court held at paragraph 94 that:

s. 57 (1) (a) of the Assessment Act imposes a statutory duty on the Board to consider whether a property is equitability classified even when the parties have only raised the issue of whether the property is accurately classified. There is an overriding obligation to ensure the classification is applied equitably and without discrimination between properties with similar particular uses.

39Digital Imaging and Design Inc. v. Municipal Property Assessment Corp., Region 15, [2017] O.A.R.B.D. No.82 (“Digital Imaging”)

The Board agreed with MPAC that “equity does not apply in classification”. The Board further reasoned that “a more consistent application of the Regulation is desired…”

40Mr. Minster concluded that from the case law he presented, the overriding issue is “control” by the Appellant and the Board should determine that the units in the Subject Property should be classified under the residential property class under s. 3(1)(i) or 3(1) (ix) of the O. Reg. 282/98.

MPAC’s Position and Submissions

41Ms. Lunau submitted that the Oshawa Decision applies to the facts of this appeal. She added that the Oshawa Decision has been applied to 84 properties and there may be more properties affected by the decision.

42Ms. Lunau argued that there are three significant points in this appeal:

a. Physical Layout: The Subject Property and 1700 Simcoe Street in the Oshawa Decision have the same layout. The two properties have the same sets of lock system for the entrance of the building, the suite and the bedroom. The students share the common areas. The only difference being that 1700 Simcoe Street has a living and dining room, a dishwasher and different number of bathrooms. In addition, the Subject Property is older, while 1700 Simcoe Street is newer and nicer.

b. What is leased is the same in both buildings; a bedroom with the use of a shared common area within the suite.

c. Control by the Appellant is additional services provided by the Appellant in the Subject Property in form of housekeeping and pest control.

43She submitted that the length and complexity of the legal agreement with the student differ; in 1700 Simcoe Street, the tenancy agreement is lengthy and complex, with a yearly tenancy, but the nature of the occupancy in both buildings does not change. The students lease the bedroom with the use of a shared common area.

44She further submitted that the detailed comparisons provided by Mr. Trottier between both student residences are distinctions without a difference. She emphasized that she does not understand how the rental agreement in the Subject Property is not subject to the RTA, however, in both lease agreements the landlords have a right to enter the premises. The prohibition of overnight guest in the Subject Property is a City of Toronto fire code issue and the tenants being on the assessment roll at 1700 Simcoe Street is not determinative of the correct classification. The only reason pets are allowed at 1700 Simcoe Street is because it is subject to the RTA. In both students’ residences, the students are not allowed to sublet without the permission of the Landlord.

45Ms. Lunau referred the Board to the Oshawa Decision, in which she was also MPAC’s counsel. In the Oshawa Decision, according to Ms. Lunau, part of her argument was based on the exclusivity of the locked bedrooms by the tenants as being the indicator of control. In that appeal, she argued that the rateable or assessable unit is the bedroom, and this is the unit referred to in the term SCU. She derived this argument from the rateable occupancy concept derived from the case of Westminster City Council v. Southern Railway Company [1936] 2 All E.R. 322 (H.L.). The Board disagreed with Ms. Lunau. The Board determined at paragraphs 61 and 64 that:

…the occupancy and exclusivity of the group of tenants over the whole suite better informs the ordinary meaning of SCU, than does the exclusive control of individual bedrooms.

Further having regard to the purpose of the occupation, the House of Lords confirmed that "The rateability does not depend on the title to occupy, but on the fact of occupation." So while the title to occupy by way of the lease terms sets up an individual occupancy for part of the suite, the fact of the occupation which is paramount is the group of individuals living communally in premises designed just for that purpose. It is simply not clear to me why the test of rateable occupancy should apply only to define the "unit" that is not self-contained, rather than the "unit" which is.

46In this appeal, Ms. Lunau argued that the fact that the Appellant has access to the suite in the Subject Property does not exclude the suite from being a SCU; the physical layout of the suite shows that it is a SCU. She further referred to paragraph 71 of the Oshawa Decision, which provides:

…SCU is a description of a physical space that contains the minimum amenities necessary for an individual or group of individuals to eat, sleep, lounge and use a bathroom. A landlord's choice to leave vacant, allow to deteriorate or institute unusual occupancy arrangements, does not alter the character of a SCU. The 133 suites in the subject building are physically laid out as SCUs and are in fact being used as such by groups of students who simply pay rent in a manner that is out of the ordinary for most apartment buildings.

47Ms. Lunau urged this panel to give paramount consideration to the physical layout of the building as determined in the Oshawa Decision at paragraph 84:

These physical spaces where people can eat, sleep, lounge and bathe to the exclusion of others are ordinarily referred to as apartments. The root word "apart" and the modifier "self-contained" share some grammatical synomymity in the context of defining these physical spaces. This context would suggest the ordinary grammatical meaning of SCU is a physical layout that is ordinarily understood to be an apartment, like the ones in the subject building. The single bedroom theory fails to fit into the entire context, purpose or intention of these provisions designed to differentiate between two categories of apartment buildings.

48She submitted that there are no distinctions between these two appeals and this panel should follow the Oshawa Decision. Ms. Lunau further referred the Board to the decision in Union Gas Limited v. Municipal Property Assessment Corporation et al (unreported) (“Union Gas Limited”), where the Board stated that a decision of the Board:

that is directly on point should be followed unless there is a significant change in circumstances or there are reasons to doubt that the previous decision is correct.

49Ms. Lunau argued that the Amica and Amelia decisions corroborate her argument that the paramount consideration in this appeal should be the physical layout of the Subject Property. In Amica, the physical requirement of SCU is to sleep, eat, bath and the aspect of eating was in the dining room. Ms. Lunau further argued that this was the reason that the Board determined it was not a SCU, as the units were designed to function differently from a self-contained unit. She submitted that at the Subject Property, the students have the option to cook since the meal plan is not compulsory. In Amelia, Ms. Lunau submitted that the Divisional Court determined that the paramount consideration is the use of the property and in determining use “the physical aspect of the property must be considered”. Ms. Lunau submitted that the Appellant cannot argue that the suite is not a SCU due to the house keeping services it provides.

50Ms. Lunau concluded that the facts in the Subject Property and 1700 Simcoe Street are similar and the differences are insignificant, since the physical layout of the property is the most important, therefore there is no reason not to follow the Oshawa Decision.

51Ms. Lunau further submitted that the Subject Property is not land used for residential purpose on a seasonal basis. She argued that the plain and ordinary meaning of seasonal means that it is open for seasons. The Subject Property is not a seasonal property since it is open all year round, unlike a campground that will not be used in all seasons. In Camp Manitou, the Board found that the children’s summer camp was land used for residential purposes on a seasonal basis. She argued that none of the parties disputed the fact that the 16 floors in the Subject Property housing the students were not residences. In D. H. Neilson, the motel was not open all year round, unlike the Subject Property.

52Ms. Lunau also submitted that there was no suggestion from the Appellant that all the 15 properties presented by Mr. Trottier were incorrectly classified. According to the Supreme Court of Canada decision in Jonas, for there to be discrimination, it must be permitted by law. In this regard, she argues that the legislation has allowed newer buildings to be taxed under the new multi-residential class. There are exemptions provided for student residences for Universities. Ms. Lunau argued that in Mount Pleasant, the wordings of the s. 57 (1) of the BCAA is different from s. 44 of the Assessment Act, which provides that:

Assessment may be open upon appeal

44 (1) Upon an appeal on any ground against an assessment, the Assessment Review Board or court, as the case may be, may reopen the whole question of the assessment so that omissions from, or errors in the assessment roll may be corrected, and the amount for which the assessment should be made, and the person or persons who should be assessed therefor may be placed upon the roll, and if necessary the assessment roll, even if returned as finally revised, may be opened so as to make it correct in accordance with the findings made on appeal.

Reference to similar lands in vicinity

(2) For taxation years before 2009, in determining the value at which any land shall be assessed, reference shall be had to the value at which similar lands in the vicinity are assessed.

Same, 2009 and subsequent years

(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.

53Ms. Lunau argued that s. 44 shows that the assessment should be correct but has no provision for accuracy as stipulated in s. 57 (1) of the BCAA. She submitted that equity does not apply to classification and even if it were to be applied, there was no evidence furnished by the Appellant to suggest that the properties presented were incorrectly classified. She argued that there is no room for common law and equity in assessment and property classification and that this has been taken over by the legislature. She advised that there are about 8 to10 properties to be placed in the new multi-residential property class. The fact that other properties are in a different tax class is irrelevant since common law or equity does not apply. To support her argument, she presented the decision in Zaidan Group Ltd. v. London (City) (Ont. C.A.), 1990 CanLII 2624 (ON CA), 71 O.R. (2d) 65 (“Zaidan”). Zaidan successfully appealed the assessment of some properties and received the principal sum of the overpayment of tax paid to the City of London. It sought recovery of the interest earned by the City on the overpayment. There was no specific statutory provision relating to this entitlement. It relied on the common law principle of unjust enrichment. The trial judge allowed the claim and the majority of the Divisional Court agreed with the trial judge. The City appealed to the Ontario Court of Appeal. The Ontario Court of Appeal held that:

…The common thread of unfairness recognized by the common law breaks when a legislative body acts within its jurisdiction and stipulates, as here, that the municipality shall levy assessed amounts, the taxpayers shall pay those amounts, the municipality may use the money it has collected, and must refund it if adjusted downward on appeal, with interest if it has passed a by-law.

… There is no question of a gap being left in the legislation for the common law to fill. The taxes are a statutory creation and the conditions surrounding their payment and repayment must be in the statutes associated with their creation. The common law cannot characterize competent legislation as unjust, and it would be doing so if it imposed an additional duty to pay interest on a statutory duty to levy and to refund a specific amount of money.

54The Ontario Court of Appeal further agreed with the dissenting Judge in the Divisional Court, which “characterized the relevant statutory provisions as a complete statutory code which excludes the common law”, relying on the decision in Windsor Roman Catholic Separate School Board v. Windsor, 1988 CanLII 4603 (ON CA), [1988] OJ No. 139, 64 O.R. (2d) 241, 49 DLR (4th) 576, 27 OAC 275, 37 MPLR 70, 8 ACWS (3d) 215.

Board’s Analysis

Is the student residence portion of the Subject Property land used for residential purposes on a “seasonal basis”?

55There is no dispute between the parties that the purpose to which the 16 storeys designated for student’s residence in the Subject Property is residential. As stipulated in s. 3.(1) and s. 4(1) of the O. Reg. 282/98, all land dedicated for residential purpose are within these sections of the Regulation. The Divisional Court further determined in RML, that the contextual interpretation of “use” in s. 3 of the O. Reg. 282/98 refers to use by “the ultimate user of the property”. This in no doubt refers to the students and non-students using the Subject Property for a residential purpose.

56Part of the dispute arises over whether the residential purpose is on a “seasonal” basis.

57The decision in Camp Manitou refers to E.A. Driedger’s book, Construction of Statutes, 2nd ed. (Toronto: Butterworth’s 1983) as a recognized authority on statutory interpretation. At page 87 Driedger states:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. This principle is expressed repeatedly by modern judges, as for example, Lord Reid in Westminster Bank Ltd. v. Zang, and Culliton C.J. in R. v. Mojelski. Earlier expressions though different in form, are to the same effect; Lord Atkinson in Victoria (City) v. Bishop of Vancouver Island put it this way:

In the construction of statutes their words must be interpreted in their ordinary grammatical sense, unless there be something in the context, or in the object of the statute in which they occur, or in the circumstances with reference to which they are used, to show that they were used in a special sense different from their ordinary grammatical sense.

58In Camp Manitou, the dispute was whether the camp was used for a residential purpose, which differs from this appeal. The facts reveal that the camp was not open all year round. In D. H. Neilson, the Board considered the meaning of seasonal in the context of a vacancy rebate application. The Board determined that “seasonal was broad enough to include a period of unusual demand for motel rooms, such as the annual shutdown of pulp mill” [emphasis added]. The Board referred to Webster’s Third New International Dictionary definition of seasonal to include “a period not specifically limited but usually of short or moderate duration”. In both decisions, the properties were not open all year round.

59Mr. Minster argued that since the Appellant rented the units to students for four to eight months, it qualifies as seasonal and seasonal in this appeal refers to the nature of the business/occupation.

60In interpreting this section of the Regulation, while referencing the ordinary grammatical sense of the word, the entire context in which the word seasonal is used must be considered, in line with the object of the Regulation and legislative intent. The legislature included campgrounds in s. 3.(1)(ix), which are not open all year round but at specific seasons of the year. Ms. Karuks testified that the units are rented to non-students during the summer months. In other words, the Subject Property is open all year round except in some cases where there could be some vacant rooms.

61I find that the student residence portion of the Subject Property is not land used for residential purposes on a seasonal basis.

Does the Oshawa Decision apply to the facts of this appeal?

62Mr. Minster argued that in order to determine the correct classification of the Subject Property, the Board should not only consider s. 3(1) and s. 4(1) of the O. Reg. 282/98 but also s. 14 of the Assessment Act to understand the meaning of SCU, to know who is in occupation. He argued that pursuant to this section, the names of the renters at the Subject Property are not individually listed on the assessment roll, unlike the tenants in 1700 Simcoe Street; therefore, the renters are not in separate occupation of the Subject Property for the purpose of being separately assessed since they do not occupy self-contained residential units.

63Section 14 of the Assessment Act enumerates the contents and the preparation of the assessment roll and the assessment attributable for school purposes. It does not provide the criteria for determining the correct classification of properties neither does it define a SCU. The Oshawa Decision determines the paramount consideration in defining a SCU. The fact that the renters at the Subject Property are not individually named in the assessment roll has little relevance to the issue to be determined in this appeal. This distinction provides a difference in the content of the assessment roll for both properties but shows no determination on how the properties are to be classified. It is incumbent on MPAC to use this provision in preparing the assessment roll. The manner MPAC executes this should be in accordance to the Assessment Act. It does not determine how a property should be correctly classified. The fact that tenants are not named on the assessment roll or that they are not a supporter of a school board under the Education Act, R.S.O. 1990 c. E.2 has no relevance to how the building is correctly classified and does not define a SCU.

64This panel is bound by s. 7.(1) and s. 7.(3) of the Assessment Act, which gives the Minister the authority to prescribe classes of property and to define what is included in a class, which has been established by the Regulations.

65The Board agrees with Mr. Minster that the Oshawa Decision is not binding on this panel; however, as determined in Union Gas Limited, the Board should follow its prior decisions if it is directly on point unless there is a significant change in circumstances or there are reasons to doubt its correctness.

66I find that the Oshawa Decision provides an in-depth persuasive analysis of the substance of the main issue in this appeal, which is the correct classification of the student residence portion of the Subject Property and the decision applies to the facts of this appeal.

67In the Oshawa Decision, the Board examined the exclusive use, control and occupation of the property, the physical layout of the property, the nature of the occupancy, statutory exceptions, and the ordinary meaning and purpose of the Assessment Act in arriving at its decision that the 133 suites are SCU and the property should be in the multi-residential class. In order to determine, whether the 80 suites in the Subject Property are SCU, pursuant to s. 4.(1) of the O. Reg. 282/98, this panel will review the physical layout of the building, the legal occupancy and the operations (control) of the Appellant.

The Physical Layout of the Subject Property

68The Board determined in the Oshawa Decision that the physical layout is the “paramount” consideration in defining a SCU. Member Wyger, in the Oshawa Decision confirmed this reasoning upon further review of the Board’s case-law presented by the parties, which determines that “physical capability or potential to be a SCU predominates over the nature of occupancy arrangements”. As admitted by Mr. Trottier, in both properties, the Landlord/Appellant leases the bedroom to the student together with the right to use a shared common area. This is the nature of the occupancy arrangement in the Subject Property. The only difference according to Mr. Trottier is the degree of control by the Appellant in the Subject Property. This will be addressed in this decision under the operations of the Appellant.

69In 1700 Simcoe Street and the Subject Property, access to the building, common area and bedroom by the renter is the same. The means to access both properties using either keys or key fob is different but the nature of the access from the building entrance to the unit and into the bedroom is still the same. The Appellant argued that it has keys to all the unit bedrooms; this does not change the nature of the access by the renters. The Board further reviewed the floor plans of both properties and from the facts elicited from the Appellant’s witnesses, the only structural difference present in the Subject Property is the absence of a living and dining area, a dishwasher, and the laundry located on the 18^th floor. During cross-examination, Ms. Karuks admitted that the Subject Property has a functional kitchen in each unit adequate for cooking. The kitchen also has a table with four chairs. The meal plans at the buffeteria/restaurant are not compulsory and students can choose to use the stove to cook meals.

70Mr. Minster argued that in Amica, the residents had the physical ability to cook but they did not use it and that the Board should not just consider the physical kitchen but the real use in which it is being put. The facts in Amica are different from the facts in this appeal. In Amica, hot plates and stoves were prohibited. The kitchens were designed for the preparation of breakfast and snacks. The meal plans were compulsory and not optional. As the Board determined in Amica, the kitchens “were designed to function differently.” The Subject Property has a functional kitchen, the renters have a choice to use the stove to cook meals or opt for the meal plans.

71The Board in Amica also reviewed the decision in Amelia, where leave to appeal was denied by the Divisional Court, citing that the Board in Amelia “correctly determined that the governing consideration is the use to which the property is being put. In assessing use the physical aspects of the property must be considered.” In the Oshawa Decision, the Board determined at paragraph 71 that:

… SCU is a description of a physical space that contains the minimum amenities necessary for an individual or group of individuals to eat, sleep, lounge and use a bathroom. A landlord's choice to leave vacant, allow to deteriorate or institute unusual occupancy arrangements, does not alter the character of a SCU. The 133 suites in the subject building are physically laid out as SCUs and are in fact being used as such by groups of students who simply pay rent in a manner that is out of the ordinary for most apartment buildings.

72The Subject Property space has the minimum amenities to be included as a SCU, the fact that it does not have a living and dining room, does not change the physical layout of the unit as being used as self-contained and the nature of the occupancy arrangement.

Legal Occupation – What is rented?

73Mr. Minster submitted that a review of the rental application for the Subject Property reveals that what is being rented in the unit is the bedroom, unlike the lease agreement at 1700 Simcoe Street, where the entire suite is rented and the lease is subject to the RTA. The Board determined in the Oshawa Decision at paragraph 54 that:

In reviewing the position and rights of the students in the lease governing the subject property, I find that the legal occupancy arrangement providing joint and exclusive occupation of the suite-mates over the suite is paramount to the single occupation of individuals over bedrooms. The individual bedrooms are not self-contained, but the use and occupation by the group of tenants over the whole suite better informs the interpretation of the phrase SCU. [Emphasis added]

74Member Wyger in the Oshawa Decision, noted that in the lease agreement at 1700 Simcoe Street, the terms “Apartment, Unit, Exclusive room, Personal Space, Premises and Leased Premises” are used inconsistently. He noted that upon review of the terms of the lease agreement, it all deals with the premises or suite rather than the personal space bedroom. Included in the body of the lease agreement at 1700 Simcoe Street is a provision, which states “the Tenant, together with the Residential Parties jointly has exclusive control and possession of the common area space within the Premises."

75The legal document for the Subject Property is a four-paged document. The first page is titled “Room Application”; the next page summarizes the responsibilities of the residents, which each resident is expected to sign indicating their agreement to observe the terms and conditions; and the rules and regulations of the Appellant which is a two-page document attached to the application.

76The room application has rates for students and non-students. It further provides the resident with an option on the preferred suite/room. It explicitly provides “PREFER TO SHARE SUITE/ROOM WITH…”. Ms. Karuks testified that the students can provide their preference, but the Appellant assigns the room. Further stipulated in the rental application is a provision that a deposit is required to secure a room reservation and this deposit is used for the last month’s occupancy payment. On the second page of the legal document is a summary of the responsibilities of each resident, which includes: “CLEANLINESS: Each Resident is responsible to keep his/her suite’s common areas, (kitchen, toilets/bathrooms, hallways), neat, clean and free of garbage!” It also provides that “residents are responsible for any damages caused to rooms, suite’s common areas…” The next page which contains the internet usage policy and rules and regulations, has terms that refers to the whole suite as premises, the duration of the tenancy is also referred to as a “lease”.

77I find that in the Subject Property’s legal document what is being rented is not only the bedroom but also the suite. The four-page rental application incorporates the “use” of the whole suite/premises, as the lease shows that the residents are equally responsible for the common areas, this means the whole suite, not just the bedrooms. This is the nature of the lease at 1700 Simcoe Street, although lengthier and more complex, essentially what is being rented is the same. As Member Wyger stated at paragraph 60 of the Oshawa Decision:

The arrangement of individually leased bedrooms is not really the current "use", it is simply a manner of structuring the residential use as between the occupants. It is equally arguable that the current and not potential "use" is that of suite-mates living together in an apartment that they jointly rent. Either of those scenarios fall within the requirement of "used for residential purposes."

78In both lease agreements, the residents cannot sublet without the consent/permission of the landlord/Appellant, the residents are responsible for damages to leased premises/room and the common areas in the suite, no undue/unusual noise permitted in the leased premises/premises. In the Subject Property, overnight guests are not allowed due to the City of Toronto Fire Department Regulations. Pets are allowed at 1700 Simcoe Street and not at the Subject Property and as Ms. Lunau submitted, the reason being the lease at 1700 Simcoe is subject to the RTA.

79Mr. Minster argues that s. 5.(g) of the RTA provides an exemption of the Subject Property from the RTA due to the duration of the tenancy being less than a year. Furthermore, that the RTA does not apply to SCU and land used on seasonal basis. Section 5.(g) of the RTA provides:

Exemptions from Act

5. This Act does not apply with respect to,

(g) living accommodation provided by an educational institution to its students or staff where,

(i) The living accommodation is provided primarily to persons under the age of majority, or all major questions related to the living accommodation are decided after consultation with a council or association representing the residents, and

(ii) The living accommodation does not have its own self-contained bathroom and kitchen facilities or is not intended for year-round occupancy by full-time students or staff and members of their household;

80I find that this section has no relevance to the determination of the correct classification of the Subject Property. As noted earlier, this Board is bound by s. 7.(1) and (3) of the Assessment Act which authorizes the Minister to prescribe classes of property and to define what is included in a class. In Amica and the Oshawa Decision, both tenancies were subject to the RTA and the Board arrived at different outcomes in the correct classification of the properties. In both decisions, this was not a factor used in this determination. Consequently, this difference bears no relevance for this panel in determining the correct classification of the Subject Property.

81The Board agrees with Ms. Lunau that these are distinctions without a difference as the paramount consideration is the use of the Subject Property and as determined by the Divisional Court in Amelia, in assessing this, the “physical aspects of the property must be considered”.

Operations of the Appellant

82Mr. Minster argues that the control by the Appellant is what differentiates the Subject Property from 1700 Simcoe Street, which confirms that the suites in the Subject Property are not self-contained due to the lack of exclusive control by the residents. Ms. Karuks testified that the Appellant has control of the common areas in the suite since it has access to it through its cleaning staff who knock on the door and enter the suite to clean once or twice a week. She added the Appellant is also responsible for pest control. Accordingly, Mr. Minster argues that these actions by the Appellant assert control over these common areas and is not private space since the Appellant determines who is allowed into the common areas, without notice to the residents. He compared this to 1700 Simcoe Street, where he submits that the tenants have exclusive possession of the whole suite and the Landlord must provide 24 hours’ notice to the tenants before entry to the suites. In other words, the additional services provided by the Appellant proves that the Appellant controls the common areas and removes the exclusivity and control of the common areas by the renters and based on this, the suites are not self-contained, since the bedroom is only exclusive to the renters. The Board disagrees with this argument. This does not change the use and the physical layout of the suites, which the Board finds is of paramount consideration. This was also confirmed in Lester Shoalts Ltd. v. Ontario Property Assessment Corp., Region No. 18 [2001] O.A.R.B.D. No. 365 (“Shoalts”), a case presented by the parties in the Oshawa Decision. In Shoalts, despite the level of services provided to the residents in the independent living facility for seniors, the Board reasoned that although more services were provided than usual in a standard apartment building, the scope of the use is at the choice of the residents. The Board determined that “the use of the complex and the physical characteristics of both the building and the individual units are multi-residential in nature.”

83In Amelia, the complainant argued that due to the services the owner of the retirement facility provided such as housekeeping, nursing and other forms of activities, the units cannot be considered as self-contained apartment units. The Board determined at paragraph 16 that:

The Board does not accept the submission from counsel for the complainant that the subject units, because of the level of services being provided to the residents and/or because of the physical state of the units, fail to meet MPAC’s definition of “self-contained unit”. The Board also finds that the key word which governs the classification is “use”.

84The Board further determined that “there is no reference to the word “use” in the Regulations that may relate to activities”. That the word “used” is found in s. 3.(1) and s. 4.(1) of the O. Reg. 282/98, which describes the use of the land. Furthermore, that increased activities in the future “may indicate a state of dependency of the residents, but do not take away from reality that the units are potentially capable of being used in the same manner as those in an apartment building.”

85Member Wyger in the Oshawa Decision further emphasizes that the physical description is the key determining factor in the meaning of a SCU over the occupancy arrangements. He determined at paragraphs 71 and 83 that:

… A landlord's choice to leave vacant, allow to deteriorate or institute unusual occupancy arrangements, does not alter the character of a SCU. The 133 suites in the subject building are physically laid out as SCUs and are in fact being used as such by groups of students who simply pay rent in a manner that is out of the ordinary for most apartment buildings.

The purpose of both s. 3.(1) and s. 4.(1) is to count the number of physical spaces in a building within which people have all they need to meet their residential purposes. The entire context of these provisions is that they provide a delineation of small apartment buildings like triplexes, fourplexes and sixplexes, from bigger apartment buildings of seven apartments or larger. The intention of the legislators is to permit different levels of taxation on either side of this delineation.

86The nature of the occupancy arrangement and the operations of the Appellant does not change the use of the suites as self-contained and the 80 suites are physical spaces in which the residents have what they need to meet their residential purpose.

87I find that the 80 suites in the Subject Property are self-contained units pursuant to s. 4.(1) of the O. Reg. 282/98 and the correct classification of the student residence portion in the Subject Property is in the multi-residential property class.

Should the Board consider equity in the correct classification of the student residence in the Subject Property?

88Section 44 of the Assessment Act makes no provision to consider equity in the classification of properties. Mr. Trottier did not testify nor present evidence suggesting that the 15 properties he presented were incorrectly classified. In Digital Imaging, the Board agreed with MPAC that “equity does not apply in classification”.

89In determining the correct classification of the Subject Property, the Board has to specifically review the Subject Property to find if the suites are SCU. The Appellant has also not adduced sufficient evidence to prove that the other 15 properties are similar to the Subject Property. The Board notes that seven of the properties are exempted from classification due to their educational and university affiliation, two are in the new multi-residential class, the classification of one of the properties is unknown, one is in the multi-residential class (1700 Simcoe Street) and two are classified as residential due to being a co-operative and registered condominium and the remaining two are also classified as residential due to being student residence. This essentially brings the comparison to two student residences of which sufficient evidence of similarity was not presented neither did the Appellant suggest that their classification is incorrect.

90I find that equity does not apply in the correct classification of the student residence in the Subject Property.

CONCLUSION

91The Subject Property has 80 self-contained units and the student residence has been correctly classified under the multi-residential property class pursuant to s. 4.(1) of the O. Reg. 282/98.