Parya Trillium Foundation v. Municipal Property Assessment Corporation, 2020 CanLII 1383

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: January 08, 2020

FILE NO.: DM 163042

Assessed Person(s): Parya Trillium Foundation

Appellant(s): Mario Racco

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 14

Respondent(s): City of Markham

Property Location(s): 344 John Street

Municipality(ies): City of Markham

Roll Number(s): 1936-020-110-20600-0000

Appeal Number(s): 3172575

Taxation Year(s): 2016

Hearing Event No.: 726066

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

Heard: November 18, 2019 by written submission

Parties	Representative	Submissions
MPAC	Carrie Carone	Moving Party
Parya Trillium Foundation	Mario Racco	Received
City of Markham	Amanda Knegje	Not Received

DECISION OF THE BOARD DELIVERED BY CARLY STRINGER AND SUBUOLA AWOLERI

OVERVIEW

1The property owner of 344 John Street (“subject property”) in the City of Markham, the Parya Trillium Foundation (the “Appellant”), has brought an appeal pursuant to s. 40 of the Assessment Act, R.S.O. 1990, c. A.31, (the “Act”) relating to the 2016 taxation year. The Appellant’s position on appeal is the subject property is incorrectly classified. It is classified for the 2016 taxation year as “industrial.” The Appellant is arguing it should be classified as a property that is exempt from taxation pursuant to s. 3(1)12 iii. of the Act.

2MPAC has brought this motion requesting the Board dismiss the appeal for lack of jurisdiction.

3The Appellant argues MPAC’s motion should be dismissed and a hearing date should be scheduled to hear the merits of an appeal under s. 3(1)12 iii. of the Act.

4For the reasons outlined below, the appeal is dismissed.

ISSUES

5We must determine a single issue on this motion: should the Appellant’s appeal be dismissed?

POSITIONS OF THE PARTIES, LAW, AND ANALYSIS

6The Assessment Review Board (“Board”) Rules of Practice and Procedure (“Rules”) provide at Rule 24(a) that the Board may dismiss an appeal without holding a hearing event, or after a hearing event, if the Board is satisfied that it is without jurisdiction to hear the appeal.

7Although MPAC presented several arguments in its Request to Dismiss, its motion materials focus on jurisdiction. MPAC argues the only issue put forward by the Appellant is whether the subject property is tax exempt. MPAC submits an exemption from taxation can only be addressed by the Superior Court pursuant to s. 46 of the Act. Therefore, the Board does not have jurisdiction and must dismiss the appeal.

8Section 46 of the Act provides:

46 (1) Subject to subsection (1.1), any of the following persons may apply to the Superior Court of Justice for the determination of any matter relating to an assessment:

1. Any person against whom the land is assessed.

2. The assessment corporation.

3. The municipality in which the land is located or, if the land is located in non-municipal territory, the Minister.

(1.1)1.1 No application to court may be made for the determination of a matter that could be the subject of an appeal under subsection 40 (1).

9Subsection 40(1) of the Act provides:

40 (1) Any person, including a municipality, a school board or, in the case of land in non-municipal territory, the Minister, may appeal in writing to the Assessment Review Board,

(a) on the basis that,

(i) the current value of the person’s land or another person’s land is incorrect,

(ii) the person or another person was wrongly placed on or omitted from the assessment roll,

(iii) the person or another person was wrongly placed on or omitted from the roll in respect of school support,

(iv) the classification of the person’s land or another person’s land is incorrect, or

(v) for land, portions of which are in different classes of real property, the determination of the share of the value of the land that is attributable to each class is incorrect; or

(b) on such other basis as the Minister may prescribe.

10The Appellant argues the Board does have jurisdiction. The Appellant argues the subject property is incorrectly classified such that the Board has jurisdiction pursuant to s. 40(1)(a)(iv).

11“Classification” is defined at s. 1 of the Act as “…a determination of the class or subclass of real property that land is in…” Classes of real property are prescribed by the Minister in accordance with s. 7 of the Act, and in Ontario Regulation 282/98.

12Despite generally stating this is an appeal about an incorrect classification of land, the Appellant has not argued or presented evidence that the subject property fits under any class of real property listed in s. 7 of the Act or in Ontario Regulation 282/98. Instead, the Appellant argues the subject property should be classified as a property that is exempt from taxation and the Board should issue an order pursuant to s. 3(1)12 iii. of the Act to that effect.

13Section 3(1)12 iii. of the Act provides:

3 (1) All real property in Ontario is liable to assessment and taxation, subject to the following exemptions from taxation:

12. Land owned, used and occupied by,

iii. any charitable, non-profit philanthropic corporation organized for the relief of the poor if the corporation is supported in part by public funds.

14The Appellant appears to be confusing the classification of land, a matter for which the Board has jurisdiction pursuant to s. 40(1)(a)(iv) of the Act, with the status of being a tax-exempt property pursuant to s. 3(1)12 iii. of the Act, a matter for which the Superior Court has exclusive jurisdiction.

15The statute and case law could not be clearer. Questions of exemption from taxation are within the exclusive jurisdiction of the Superior Court, not the Board: see North America Railway Hall of Fame v Municipal Property Assessment Corporation Region 23, 2016 CanLII 14708 (ON ARB) at paragraphs 15 and 19; Toronto (City) v E.L., 2019 CanLII 29140 (ON ARB) at paragraphs 5 and 6. The Appellant’s evidence and argument on this motion relate to whether or not the property owner should receive a tax exemption for the subject property, not that the property is incorrectly classified as industrial rather than any of the classes enumerated in Ontario Regulation 282/98 and at s. 7 of the Act. The Appellant’s attempt to characterize the substance of this appeal as an issue of incorrect classification for which the Board has jurisdiction is simply not consistent with the evidence or argument.

CONCLUSION

16MPAC’s motion to dismiss the appeal is granted. We are satisfied the Board does not have jurisdiction to hear the appeal and determine whether the subject property is exempt from taxation. We therefore dismiss the appeal filed by the Appellant.