COURT FILE NO.: DV-845

ONTARIO

SUPERIOR COURT OF JUSTICE

(DIVISIONAL COURT)

B E T W E E N:

WESTIN HOTEL COMPANY

David Sherriff-Scott, for the Moving Party

Moving Party

• and -

MUNICIPAL PROPERTY ASSESSMENT CORPORATION, REGION No. 3, CITY OF OTTAWA and ASSESSMENT REVIEW BOARD

Respondents

James N. Canapini, for the Respondents

PANET J.

DECISION

1This is a motion by Westin Hotel Company (Westin), for an adjournment of the hearing of its motion for an order granting the Westin leave to appeal to the Divisional Court from the decision of the Assessment Review Board (ARB), dated January 28, 2003 (the “Decision”).

2On January 28, 2003, the ARB rendered a decision between the Westin, the Municipal Property Assessment Corporation, Region No. 3 (MPAC), and the City of Ottawa.

3On February 27, 2003, the Westin brought a motion in this court for an order granting the Westin leave to appeal to the Divisional Court from the Decision. That motion was scheduled for March 13, 2003 and was adjourned to May 27, 2003 on consent of all parties. It is this motion for which the Westin is seeking an adjournment.

4Also on February 27, 2003 the Westin submitted to the ARB a request for review of the Decision. On April 29, 2003 the ARB agreed to hear the Westin’s motion to review the Decision. That motion for review is scheduled for hearing by the ARB on August 27, 2003.

5In the motion before me, the Westin seeks an adjournment either until the completion of the review or re-hearing by the ARB, or until the decision by the ARB on the review itself to be heard on August 27, 2003.

6The position of the Westin is that it is entitled to pursue both its right of appeal pursuant to the Assessment Act and its request for review. It submits that these are parallel and concurrent proceedings, which are justified.

7The position of MPAC is that the Westin seeks the identical relief in both its appeal pursuant to the Assessment Act and its request for review before the ARB. Because the Westin grounds both its appeal and its request for review on errors of law, which in fact are virtually identical and the fact that the decision of this court is binding on the Board, MPAC argues that, in that situation, a multiplicity of proceedings should be avoided. It submits that the court should exercise its inherent jurisdiction by considering the motion for leave to appeal, rather than follow the course of action which would result if the motion for leave to appeal is adjourned and the Westin seeks its remedy first before the ARB. MPAC further submits that the Westin should not be allowed to reserve a cause of action for a lengthy period merely because another action has been brought which may provide the same relief. It therefore submits that it would be unfair and contrary to judicial policy to grant the Westin “two kicks at the can” which, it submits, would result in the event that the Westin is unsuccessful with the review by the ARB.

8I have concluded that the motion for adjournment by the Westin should be granted. I have reached my decision after a consideration of two principles.

9First, both proceedings are authorized by statute. An appeal from the ARB to this court on a question of law, with leave, is authorized by s. 43.1 of the Assessment Act, R.S.O. 1960 c.A31. A request for a review of a decision of the ARB may be made to the Chair of the ARB – (see Rules 111 and 112 of the Rules of Practice and Procedure of the Assessment Review Board). Accordingly, these parallel proceedings are contemplated by statute. As stated by the Divisional Court in Re Schutz and Regional Municipality of Durham (1977), 15 O.R. (2d) 795, in cases where concurrent proceedings are justified, this court should try to facilitate them. In that case, which involved an application for leave to appeal a decision of the Ontario Municipal Board, the party also had a right to seek a re-hearing under the Ontario Municipal Board Act. The court concluded in that case that it should do nothing to disturb the right to seek a re-hearing by the Board as that was a right of the party and might lead to the resolution of problems that would make resort to this court unnecessary. It therefore adjourned the application for leave to be heard after the concurrent application for a re-hearing had been disposed of by the Ontario Municipal Board.

10Second, the Divisional Court in Re Ontario College of Art v. Ontario Human Rights Commission (1993), 99 D.L.R. (4th) 738 underlined the need to avoid a piecemeal approach to judicial review of administrative action. At p. 741 it stated:

For some time now the Divisional Court has, as I have indicated, taken the position that it should not fragment proceedings before administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceedings. It is preferable, therefore, to allow such matters to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion.

11MPAC submits that the issue in the present case with respect to the adjournment is different in that the Westin has sought the identical relief in its application for review before the ARB and in its motion for leave to appeal. With respect, I do not agree. The overriding consideration is that the proceedings before the tribunal should be allowed to run their full course and, thereafter, this court may consider any legal issues arising from those proceedings.

12The motion by the Westin is therefore allowed. The motion for leave to appeal is adjourned until the completion of the review application by the Westin before the ARB.

13Costs to the Westin in the amount of $2,500 plus GST.