Tribunals Ontario / Tribunaux décisionnels Ontario

Assessment Review Board / Commission de révision de l’évaluation foncière

ISSUE DATE: May 26, 2021 FILE NO.: DM 169542

Assessed Person(s): Ian Robert Wilson; Susan Carolyn Wilson Appellant(s): SBA Communications Corporation Respondent(s): Municipal Property Assessment Corporation Region 01 Respondent(s): Town of Champlain

Property Location(s): Duval Road, CON 6 Pt LOTS 10 Municipality(ies): Town of Champlain Roll Number(s): 0209-006-006-04700-0000 Appeal Number(s): 3412458 and 3438867 Taxation Year(s): 2020 and 2021 Hearing Event No.: 741968

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

Parties	Representative
Ian Robert Wilson; Susan Carolyn Wilson	No submissions received
SBA Communications Corporation	Chantelle MacMillan
Municipal Property Assessment Corporation	Charmaine Siddle
Town of Champlain	No submissions received

REQUEST FOR: Motion for Dismissal HEARD: March 24, 2021 in writing ADJUDICATOR(S): Carly Stringer, Member

MOTION DECISION

OVERVIEW

1The Municipal Property Assessment Corporation (“MPAC”) has brought this motion requesting the Assessment Review Board (the “Board”) dismiss appeals 3412458 and 3438867 (the “Subject Appeals”) for lack of jurisdiction.

2SBA Communications Corporation (the “Appellant”) opposes the motion.

3Neither the Town of Champlain nor respondents Ian Robert Wilson and Susan Carolyn Wilson have made submissions on this motion.

Result

4For the reasons outlined below, the Subject Appeals are dismissed.

BACKGROUND

5The parties have provided the Board with an Agreed Statement of Facts.

6The Subject Appeals relate to the property known as CON 6 PT LOTS 10 in the Town of Champlain (the “Subject Property”). The Subject Property is owned by Ian Robert Wilson and Susan Carolyn Wilson (the “Property Owners”). The Property Owners, MPAC and the Town of Champlain (the “Town”) are respondents to the Subject Appeals.

7The Appellant has a communication tower located on the Subject Property. The Appellant filed an appeal with the Board relating to the Subject Property pursuant to s. 40 of the Assessment Act (the “Act”) for the 2020 taxation year. Pursuant to s. 40(26) of the Act, the Appellant is deemed to have brought the same appeal in respect of the 2021 taxation year.

8The Appellant delivered its Statement of Issues (“SOI”) on January 7, 2021. The only issue raised in the SOI is whether the Appellant’s communication tower located on the Subject Property should be exempt from taxation pursuant to s. 3(1)21 of the Act. The Appellant argues that the classification of the Subject Property is incorrect because the communication tower is classified as commercial (CT) when it should be classified as exempt.

9The Appellant does not dispute the 2016 current value of the Subject Property.

ISSUES

10The Board must determine a single issue on this motion: should the Subject Appeals be dismissed?

ANALYSIS

Issue – Should the Subject Appeals be dismissed?

Applicable Law

11The Board’s Rules of Practice and Procedure (“Rules”) provide at Rule 24(a) that the Board may dismiss an appeal without holding a hearing, or after a hearing, if the Board is satisfied that it is without jurisdiction to hear the appeal.

12There are several provisions respecting jurisdiction in the Act. Section 46 of the Act confirms the jurisdiction of the Superior Court:

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.

Exception

(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).

13Section 40(1) of the Act confirms the Board’s jurisdiction:

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.

14Essentially, s. 46 requires an application to the Superior Court on any assessment matter that is not included in s. 40(1) of the Act.

Submissions

15MPAC submits the Board is without jurisdiction to hear the Subject Appeals. MPAC submits the sole issue raised by the Appellant in its SOI is whether a portion of the Subject Property should be exempt from taxation under s. 3(1)21 of the Act. MPAC submits that tax exemption is not classification, and the Board has no statutory ground to make a decision in this matter. MPAC submits an exemption from taxation can only be addressed by the Superior Court.

16The Appellant asks the Board to deny MPAC’s motion. The Appellant makes three submissions in support of its position:

a. The Appellant submits the Board has jurisdiction to hear a question of law that has already been decided by the Superior Court. The Appellant cites Speiran v Municipal Property Assessment Corporation, Region 28, 2019 CanLII 18804 (“Speiran”) at paragraph 26 as authority for the proposition that where courts have previously determined an exemption, the Board may apply the existing case law. The Appellant submits that the exemption of telecommunication towers has already been decided by the Superior Court in Bell Canada v Bentinck (Township), [1987] OJ No 1217, and the Board can apply this determination in the Subject Appeals.

b. The Appellant submits that exemption is a form of classification, and therefore the Board has jurisdiction.

c. The Appellant submits that if exemption is not classification, the Board must determine what is equitable. The Appellant submits the assessment of the Subject Property is inequitable.

Findings on the Issue

17The Board has carefully reviewed and considered the evidence, submissions and case authorities presented by the parties. The Board will only reference those submissions most germane to the analysis. The Board accepts MPAC’s submission that the Subject Appeals must be dismissed for lack of jurisdiction, for the following reasons.

Jurisdiction to Apply Case Law Regarding Exemptions

18The parties agree that the sole issue in the Subject Appeals is whether the portion of the Subject Property that has a telecommunications tower on it should be exempt from taxation.

19The Act provides for the Board’s jurisdiction at s. 40(1). Neither s. 40(1) of the Act, nor any Regulations made thereunder, provides the Board with jurisdiction to hear matters relating to exemption from taxation. Section 46 of the Act allows for an application to the Superior Court on any assessment matter not included in s. 40(1). Therefore, if the Appellant is seeking a remedy related to a tax exemption, it must go to Superior Court.

20The statute and case law could not be clearer on this point. 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.

21The Board has reviewed the Speiran, supra decision, and does not accept the Appellant’s submission that it stands for the proposition that where the Superior Court has previously determined a tax exemption, this Board can apply it. In Speiran, the Appellant raised an argument that the improvements on his property were neither assessable nor taxable. At paragraph 26, cited by the Appellant, the Board relied on “a volume of decisions respecting the interpretation of s. 3(1) [of the Act]” to confirm that the improvements were assessable. The Board did not contemplate exemption from taxation in Speiran, nor did the Board attempt to apply a tax exemption previously determined by the Superior Court.

22The Appellant has not provided further authority supporting its position that the Board can hear questions of tax exemption where the Superior Court has previously decided the issue. In fact, the case law reviewed shows that it is well-established that questions of tax exemption are heard by the Superior Court.

Distinguishing Tax Exemptions and Classification

23Regarding the Appellant’s submission that exemption is a form of classification over which the Board has jurisdiction – the Appellant appears to be confusing property classification (a matter for which this Board has jurisdiction in accordance with s. 40(1)(a)(iv) of the Act) with tax class (including the status of being a tax-exempt property pursuant to s. 3(1)21 of the Act, a matter for which the Superior Court has exclusive jurisdiction). They are not the same thing.

24In fact, “classification”, for which this Board has jurisdiction, is defined at s. 1 of the Act as “…a determination of the class or subclass of real property that land is in…” Classes and subclasses of real property are prescribed in accordance with section 7 and section 8 of the Act, and in Ontario Regulation 282/98. The Appellant is not arguing that the Subject Property should be classified in one of the prescribed classes or subclasses of real property in the Act or in Ontario Regulation 282/98. The Appellant submits the Subject Property should fall into an “exempt” class. Respectfully, there is no “exempt” property class.

25The Appellant submits that the Board has considered exemptions interchangeably with classification in other decisions, relying on White v Municipal Property Assessment Corporation, Region 06, 2019 CanLII 5474 (ON ARB) (“White”). The Board does not accept the Appellant’s submissions on White. In reading the decision, it does not appear that tax exemption was a live issue at the hearing, nor does it appear that the Board made a finding on the issue.

26Tax classification and property classification are not the same thing. Questions involving property classification can be heard by the Board in accordance with s. 40(1) of the Act. Only the Superior Court can hear matters relating to if a property should be in an exempt tax class: see China Evangelical Seminary (Canada) v Municipal Property Assessment Corporation, Region 9, 2019 CanLII 126974 (ON ARB) at paragraph 12.

Equity

27The Board does not accept the Appellant’s submission that the Board can order “the equitable treatment of telecommunications towers”.

28The Appellant has not provided authority for this submission. For the above-noted reasons, including the clear wording of the statute and many previous decisions of this Board, issues of tax exemption are within the exclusive jurisdiction of the Superior Court. The Board does not have the authority to hear matters involving tax exemption, even under the guise of equity.

CONCLUSION

29For the reasons outlined above, the Board is satisfied it does not have jurisdiction to hear the Subject Appeals and determine whether the Subject Property is exempt from taxation.

ORDER

30The Board grants MPAC’s motion to dismiss the Subject Appeals.