COURT FILE NO.: 65/07

DATE: 20070416

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

greer, lax and swinton jj.

B E T W E E N:

VIRGINIA MABEL AMBLER, ELIZABETH MERLE AMBLER, CATHERINE MARGARET AMBLER, SWISH MAINTENANCE LIMITED

Appellants

• and -

THE MUNICIPAL PROPERTY ASSESSMENT CORPORATION REGION NO.7 AND THE CITY OF PETERBOROUGH

Respondents

Michael Bowman and

Denise Sayer, for the Appellants

Christian G. Schulze, for the Respondent Municipal Property Assessment Corporation

HEARD at Toronto: April 16, 2007

swinton J.: (Orally)

1The standard of review on this appeal is correctness, as an appeal lies to this Court only on a question of law (see Ontario Property Assessment Corp. v. Praxair Canada Inc. (2002), 155 O.A.C. 360 (Div. Ct.) at paragraph 8).

2The Assessment Review Board erred in law in failing to interpret and apply s.6(1) of O.Reg. 282/98 under the Assessment Act, R.S.O. 1990, c.A.31 to determine whether the portion of the building used by Swish fell within that provision.

3The Board made findings of fact that Charlotte and Swish are separately incorporated companies which share common ownership; that each has a separate lease to separate portions of the property; that each operates an independent operation within defined areas of the property; and that Swish does no manufacturing. The Board made no findings that Swish’s activities were carried on in connection with manufacturing.

4Given the Board’s findings of fact, the Board erred in holding that the entire property fell within the industrial property class. Had the Board given proper consideration to the language of s.6(1), the Board should have concluded that the portion of the property used by Swish fell within the commercial property class.

5Therefore, the appeal is allowed. The Order of the Board dated December 2, 2005 is set aside. MPAC seeks an order remitting the matter to the Board for a new hearing. In our view, there is no reason to refer the matter back, and it would be unfair to the appellants to do so. Given the Board’s findings of fact and the power of this Court under s.44(1) of the Assessment Act, the appropriate order is to restore the Swish portion of the property to the commercial

property class for the 2004 and 2005 taxation years. Costs to the appellants for the appeal are fixed at $7,500, all inclusive.

SWINTON J.

GREER J.

LAX J.

Date of Reasons for Judgment: April 16, 2007

Date of Release:

COURT FILE NO.: 65/07

DATE: 20070416

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

greer, lax and swinton jj.