COURT FILE NO.: 631/03
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MacFARLAND, THEN, FERRIER JJ.
B E T W E E N: )
INCO LIMITED and FALCONBRIDGE ) Jack A. Walker, Q.C., for the
LIMITED ) Applicant, Inco Limited
Applicants ) Phillip L. Sanford and
- and - ) Sarah Chesworth, for the Applicant,
) Falconbridge Limited
THE CORPORATION OF THE CITY OF )
GREATER SUDBURY and MUNICIPAL ) Richard Poole and David G. Fleet,
PROPERTY ASSESSMENT ) for the Respondent, The Corporation
CORPORATION ) of the City of Greater Sudbury
Respondents ) Christian G. Schulze, Q.C., for the
) Respondent, Municipal Property
) Assessment Corporation
) HEARD: April 5, 2004
MacFarland J.
1This matter comes before the Court on a stated case at the direction of the Assessment Review Board (ARB) and at the request of the parties. At the outset of this hearing, counsel for Falconbridge informed the Court that Falconbridge and the City of Greater Sudbury had resolved their differences and the Court excused his further participation.
2On March 28, 2002, Ms. Danielle Braney, Sudbury’s Property Negotiator/Appraiser filed assessment complaints with respect to some seven properties owned by Inco and Falconbridge. She had no prior specific authorization from the Municipal Council to do so.
3Furthermore, Ms. Braney’s decision to file the subject complaints was not specifically considered by Municipal Council prior to the last date for filing appeals: April 2, 2002. Section 40(1)(a) of the Assessment Act provides:
Any person, including a municipality or a school board, may complain in writing to the A.R.B. that,
(a) the current value of the person’s land or another person’s land is incorrect.
4Required “third party” notices were given to Inco and Falconbridge pursuant to s.40(3) of the Assessment Act.
5City Council was informed of the complaints by letter from the General Manager of Corporate Services dated June 6, 2002. That letter was brief and provided no detail as to the basis for the complaints.
6Counsel for Inco takes the position that the City Council was required to specifically authorize the complaints and that the only power the Property Negotiator/Appraiser had was to execute the complaints by signing and filing them once authorized. Alternatively, Inco argues that at the very least, Council had to ratify the action of the Property Negotiator/Appraiser prior to April 2, 2002 failing which the complaints were not validly made. The Municipal Property Assessment Corporation supports the position of Inco.
7The City’s position is that its By-law 2001-2 authorizes the Property Negotiator to execute assessment appeals on behalf of the City and that power includes the authority to initiate a complaint on behalf of the City.
8By-law 2001-2 provides:
Real Property
35.(4) Subject to the provisions of Schedule “F,” the Property Negotiator is hereby authorized to execute on behalf of the Corporation: …
(h) assessment appeals.
9Further, the job description in relation to the position, “Property Negotiator/Appraiser” outlines the duties of the position to include:
Review the Notices of Assessment for CGS properties annually, and advise the Ontario Property Assessment Corporation if corrections are required. Request a re-assessment and file assessment appeals, when required.
10Inco informed the City, through counsel, that its position was that absent the specific authorization of Council, the complaints were invalid and the Assessment Review Board was without jurisdiction to entertain them. The language of the by-law was not broad enough to give the Property Negotiator the authority to initiate complaints and in any event the City could not delegate power to its employee, Ms. Braney.
11The four questions stated for the opinion of the Court are:
Did By-law 2001-2 in conferring on the Property Negotiator/Appraiser the authority to “execute” assessment complaints authorize the Property Negotiator/Appraiser to decide whether or not to file individual assessment appeals in the absence of any prior specific determination by City Council?
Did Resolution No. 2002-703 validly ratify the decision of the Property Negotiator/Appraiser to make the Complaints?
Has the Sudbury City Council exceeded its jurisdiction by delegating to a member of staff responsibility for determining whether or not complaints of assessment are to be filed?
In view of the answers to the questions in paragraphs 11, 12 and 13, are there valid complaints before the Assessment Review Board?
Analysis
12The parties disagree on whether the power to “execute” as set out in the by-law includes authority to initiate complaints.
13Inco says that it does not. They say it can only mean that the Property Negotiator/Appraiser has the authority to carry out the decision of Council in respect of any assessment appeal. Only Council can make the decision as to whether there is to be an appeal. They rely on dictionary definitions to support their position.
14Section 9 of the Municipal Act requires that the powers of a municipal corporation shall be exercised by its council.
15Section 40(1) of the Assessment Act set out above authorizes a municipality to complain to the Assessment Review Board in relation to the value of another’s (here Inco’s) land.
16Section 102.1 of the Municipal Act authorizes Council to delegate to an employee any “… powers, duties or functions that are administrative in nature.” It does “… not authorize the delegation of powers, duties or functions that are legislative or otherwise non-administrative in nature…”
17In general, it has been held that municipalities are free to delegate powers which are purely administrative in nature – where the exercise of discretion and/or personal judgment is not required.
18Here the Property Negotiator/Appraiser, Ms. Braney, filed the complaints which are the subject of this application within the specified time period prior to April 2, 2002. Her actions in so doing, as the record demonstrates, involved filling in a form and essentially ticking off boxes. Her decision in so doing was not specifically authorized or ratified by Council before April 2, 2002.
19In our view, the act of filing the complaint was purely administrative in nature and was authorized by By-law 2001-2. In effect, her actions did little more than preserve the period of limitation by the filing of a pro forma form. No ratification of this purely administrative act is required.
20We are, however, of the view that the Municipality must, at some point, authorize the pursuit of the complaint and that such authorization, or ratification if you will, must be within a reasonable time.
21In the decision of this Court in East York v. Ontario (Assessment Review Board) (1995), 26 M.P.L.R. (ed) 36, complaints were filed with the Assessment Review Board having been authorized by the treasurer of the municipality and filed by the clerk of the municipality. The clerk filed the complaints with the Board one day prior to the last date for filing complaints under the Act. The treasurer reported the action to Council on April 26, 1993. On November 1, 1993, before the hearing commenced at the Board, the Council passed a resolution confirming “the administrative actions” of the treasurer. In that case, the Respondent took the position that because the ratification did not take place prior to April 20, 1993 (the last date for filing complaints with the Act), the Board correctly determined that the complaints filed in the name of the Municipality were invalid. The Divisional Court disagreed. The Court held that the clerk and treasurer were employees of the Municipality acting within what they believed to be their responsibilities. The Court further stated:
There is no specific time limit required for the ratification of these actions, as long as such ratification is within a reasonable time.
It will be a question of fact in each case whether the time is reasonable.
22While the action of the Property Negotiator/Appraiser in filing the complaint forms was purely administrative in nature, as the process unfolds there comes a point in time – to be determined on the facts of each case – where the decision to pursue the appeal must be that of Council.
23In the East York case, ratification came prior to the hearing before the Board and the Court in that case held the ratification to be valid and dated back to the date on which the complaints were filed.
24However, in this case, there has been no ratification by Council of the “administrative action” by Ms. Braney in filing the complaints.
25Its resolution dated December 12, 2002, provided:
That the Council of the City of Greater Sudbury confirm the intent of by-law 2001-2 regarding the delegation of powers and duties to make decisions to appeal and to execute all documents required to process such appeals, to the Property Negotiator/Appraiser as the expert in the field of property valuation.
26It appears from the language used that Council was leaving the “power and duty to make decisions to appeal” to the Property Negotiator/Appraiser. It is clear from section 102.1 of the Municipal Act that Council is only empowered to delegate functions that are administrative in nature. There is nothing in the language of this resolution which ratifies or endorses the action taken by Ms. Braney in filing the complaint and making the decision to appeal that of Council. In our view, the process was deficient in this respect.
27Accordingly, the questions posed for the Court are answered as follows:
Yes
No
No
No
28As counsel have agreed, there will be no costs of this application.
MacFarland J.
Then J.
Ferrier J.
Released: April 20, 2004