COURT FILE NO.: 02-DV-000724

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

MUNICIPAL PROPERTY ASSESSMENT CORPORATION and THE CITY OF OTTAWA

Appellants

• and -

MINTO DEVELOPMENTS INC., FIDELITAS HOLDING COMPANY LIMITED, 377 O'CONNOR LTD. and 160 BAY STREET APARTMENT LTD.

Respondents

James M. Canapini, for the Appellants

Richard N. Poole and J. Bradford Nixon, for the Respondents

HEARD: January 28, 2003

PANET J.

DECISION

1This is a motion for leave to appeal to the Divisional Court from the decision of the Assessment Review Board (ARB) released March 4, 2002 on the following question of law:

Did the ARB err in changing the property tax class of the subject properties from "hotel" to: "residential/farm" for Minto Suite Hotel; and to "multi-residential" for the Cartier Place Hotel, Cartier Tower Hotel, Victoria Park Suites Hotel and Albert at Bay Suite Hotel?

2The test on a motion for leave to appeal in the present case is whether:

(a) there is some reason to doubt the correctness of the Board's decision; and

(b) the point of law is of sufficient importance to merit the attention of the Divisional Court.

(See RAM Forest Products Inc. v. Regional Assessment Commissioner, Region No.14 (1993) O.J. No. 262.

3The issue is whether the ARB properly interpreted and applied Regulation 282/98 (the Regulation) under the Assessment Act and Section 1 of the Hotel Registration of Guests Act (the Act).

4The Regulation establishes a number of separate property classes, one of which is the "commercial property" class found in Section 5 (1) of the Regulation. Section 17 (1) of the Regulation provides that a hotel is included in the "commercial property" class and not in any other property class. Section 17 (2) provides that in this section, "hotel" means hotel as defined in the Act.

5In its decision, the ARB concluded that the subject properties did not come within the definition of a "hotel" in the Act. The ARB further concluded that the Minto Suites Hotel comes within the "residential/farm property" class and that the other four properties come within the "multi-residential property" class. It concluded that, because of those findings, there was no need to consider the default provisions of Section 5 of the Regulation.

6I conclude that leave to appeal should be granted.

7The ARB found that the Minto Suites Hotel is a condominium containing 418 separate units. As to the question whether the Minto Suites Hotel was a hotel within the definition in the Act, the ARB referred to evidence which it had heard, referred to submissions by counsel for the respondent and then concluded that "the operation of a Suite Hotel is not included in the definition contained in the Hotel Registration of Guests Act". The ARB had previously noted the agreement of the parties that all five properties are essentially identically operated as "suite hotels".

8With respect, the ARB erred in law in failing to make findings with respect to the evidence which it heard and failed to set forth the analysis which led to its conclusion that a suite hotel is not included in the definition of a hotel contained in the Act. For example, there was evidence that one of the subject properties provided a complimentary continental breakfast. There was evidence that there were restaurants either in the same building or within the building complex, in certain cases, which were operated by third parties. There is no indication whether the ARB accepted or rejected that evidence or considered whether the requirement as to the supply of food in the definition was met. By way of further example, there was evidence that the clientele of the subject properties can be described as the "travelling or transient public". There is no indication whether the ARB accepted or rejected that evidence or considered whether the requirement in the definition that the building be used mainly for the purpose of catering to the needs of the travelling public was met.

9Further, the definition of a hotel in the Act provides that those buildings falling within the definition are to be distinguished from certain other buildings or connected buildings, referred to as boarding houses or apartment houses or private hotels. The decision of the ARB does not indicate whether this part of the definition was considered by it.

10For these reasons, I conclude that there is some reason to doubt the correctness of the ARB's decision.

11As to the second part of the test, counsel for the appellants has advised that this decision will impact on numerous other commercial properties which are operated as suite hotels in Ontario and therefore is of sufficient importance to merit the attention of the Divisional Court. I agree.

12I therefore conclude that leave to appeal shall be granted to the appellants on the question as framed by the appellants.