CITATION: Niagara Falls (City) v. Lundy’s Lane Portfolio, 2010 ONSC 3495
COURT FILE NO.: DC-10-0200 (ML)
DATE: 2010-06-16
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
IN THE MATTER OF Section 43.1 of the Assessment Act, R.S. 1990, C.A. 31;
AND IN THE MATTER OF Sections 359(1) and 359.1 of the Municipal Act, 2001, S.O. 2001, c.25, as amended;
AND IN THE MATTER OF an appeal with respect to taxation year 2005 on premises known municipally as 7500 Lundy’s Lane, Roll No. 2725-090-007-29000-0000;
AND IN THE MATTER OF an intended appeal of the Amended Decision of the Assessment Review ARB, issued the 12th day of February, 2010 in ARB File No. WR77017A.
B E T W E E N:
THE CORPORATION OF THE CITY OF NIAGARA FALLS
Applicant
- and -
LUNDY’S LANE PORTFOLIO INC.
Respondent
Andrew J. Larmand, for the Applicant
Francy B. Kussner, for the Respondent
HEARD: June 15, 2010
Turnbull, J.
RULING ON JURISDICTION OF COURT TO ENTERTAIN A MOTION FOR LEAVE TO APPEAL TO THE DIVISIONAL COURT
[1] The appellant has brought a motion seeking leave to appeal the decision of the Assessment Review Board (ARB) pursuant to S. 43.1 of the Assessment Act, R.S.O.1990, c.A. 31. The decision from which the appeal is taken was made pursuant to Section 359.1 of the Municipal Act, 2001, S.O. 2001, c.25 in favour of the taxpayer Lundy’s Lane. At the outset of this motion, counsel for the respondent taxpayer raised a preliminary issue relating to the jurisdiction of this court to even hear the Notice of Leave to Appeal.
Position of the Respondent
[2] The position of the respondent is well articulated in the factum filed on behalf of that party and I am borrowing heavily from that document in summarizing these issues.
[3] Ms. Kussner submitted that the Applicant has no statutory authority to apply for leave to appeal from a decision of the ARB made under section 359.1 of the Municipal Act. She argued that the City has brought the within motion for leave to appeal pursuant to section 43.1 of the Assessment Act, seeking leave to appeal a decision of the ARB made under the Municipal Act. However, it is submitted that section 43.1 of the Assessment Act is limited to decisions of the ARB made under the Assessment Act, and otherwise only where section 43.1 of the Assessment Act is incorporated by express reference into the Municipal Act.
[4] Section 43.1 of the Assessment Act reads as follows:
An appeal lies from the Assessment Review ARB to the Divisional Court, with leave of the Divisional Court, on a question of law. 1997 c. 5, s. 28.
[5] She argued that since section 43.1 of the Assessment Act is not incorporated into section 359 or 359.1 of the Municipal Act by express reference, this Court does not have jurisdiction to hear the appeal sought on the within motion. She submitted that, the principles of statutory interpretation demonstrate that the Legislature did not intend for section 43.1 of the Assessment Act to provide for a general right to seek leave to appeal from any and all decisions of the ARB, including decisions of the sort under consideration herein. In that respect, she relied on three principles of statutory interpretation to support her well prepared and helpful submissions.
Principles of Statutory Interpretation: Implied Exclusion When Patterns Are Not Followed
[6] The Respondent submitted that in the case at bar, subsections 331(14) and 364(18) of the Municipal Act expressly incorporate the right of appeal provided for by section 43.1 of the Assessment Act. As further detailed below, it is submitted that the right of appeal is confined to decisions concerning these sections of the Municipal Act rather than more generally. Likewise, it is submitted that the Court should presume an implied exclusion of the leave to appeal provisions of the Assessment Act from section 359.1 of the Municipal Act.
[7] To support that contention, counsel argued that patterns in legislation are assumed to be intended rather than inadvertent. Thus, where the Legislature follows a pattern of express reference in some areas, but fails to follow the same pattern in others, the court may presume an implied exclusion. Marche v. Halifax Insurance Co., 2005 SCC 6, [2005 1 S.C.R. 47 (“Marche”), para. 95; R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] S.C.J. No. 55, paras. 42-43.
b. Principles of Statutory Interpretation: Related Provisions
[8] The respondent further submitted that another method to interpret statutes involves comparing related provisions. Related provisions are those that are (a) grouped together and/or (b) deal with the same or similar subject. Where provisions are grouped together under a heading, it is presumed that they are related to one another in some particular way, that there is a shared subject or object or a common feature to the provisions. Sullivan and Driegder, Construction of Statutes, 5th ed., (Markham: LexisNexis Canada, 2008) (“Sullivan on Statutes”), p. 361.
[9] Ms. Kussner argued that sections 359 and 359.1 of the Municipal Act are grouped together and address similar subject matters. Section 359 allows a municipality to clarify clerical errors in a tax bill in the year in which it is tendered. Section 359.1 deals with the municipality’s power to deal with an error in a prior year’s bill (2004 in the case at bar) to overcome capping restrictions (under s. 329) which would prevent a proper tax being levied in the current year. She argued, and I agree, that section 359.1 is clearly more closely related to section 359 than to either of sections 331 or 364 of the Municipal Act.
[10] Subsection 359(11) of the Municipal Act indicates that a decision of the ARB made under section 359 is to be considered final. This privative clause suggests, in addition to there being no express right to appeal, any review of a decision of the ARB made under this section should be shown deference. Ms. Kushner suggested that since section 359.1 is more closely related to section 359, the principles of statutory interpretation suggest that a decision made under section 359.1 is to be considered final, rather than subject to a right of appeal.[^1] She further noted that sections 359.1 and 359 are near sections 356 and 357, which, like section 359, also provide that a decision of the ARB is final. These four sections are all in respect of tax collection.
d. Principles of Statutory Interpretation: Gaps in Legislation
[11] The court has the jurisdiction to correct drafting errors in legislation; however, it has no jurisdiction to cure gaps in legislation. The standard response to gaps is illustrated by the judgment of the Supreme Court of Canada in R. v. Shubley 1990 149 (SCC), [1990] 1 S.C.R. 3, In that case, the Supreme Court declined to add the missing provision to the regulation in order to bring it in line with its apparent purpose. As McLachlin J. explained:
It must be assumed that the decision to limit the protection (against multiple proceedings) to the discontinuance of disciplinary proceedings and not to extend it to the staying of criminal charges was made advisedly, for good reason.... The legislature having chosen to limit the ambit of s.29(2), it is not for this court to extend that protection beyond what the legislature has seen fit to grant.
[12] Counsel for the respondent further cited Sullivan on Statutes, supra, pp. 177, 179-181. There the learned author referred to the case of Stone v. Woodstock (Town) 2006 NBCA 71, [2006] N.B.J. No. 277; 302 N.B.R. (2d) 165 (N.B.C.A.) which dealt with an alleged gap in legislation dealing with legislation dealing with a police officer charged under the Criminal Code. The Act said nothing of what would happen if the member was not acquitted as a result of an appeal but the sanction was less severe than the loss of pay and suspension during the interim suspension. The court refused to find there was a “gap” in the legislation because there was no redress available in the circumstances. There the court held that there may have been many plausible reasons the legislature might have wished to reserve the right of recovery to officers acquitted on appeal.
[13] Ms. Kushner submitted that the same reasoning applies in the case at bar, namely, there may be good reason for the legislature limiting the right of appeal under S. 359.1. She argued that if the Legislature had intended for section 43.1 of the Assessment Act to apply to a decision of the ARB under section 359.1 of the Municipal Act, such an omission by the Legislature would clearly be considered a gap in the legislation and should not be read in by the court.
Position of the Appellant
[14] Mr. Larmand argued that section 43.1 is broadly worded and contains no words of limitation. It contains no distinction of the actions of the ARB which are appealable. Hence, he argued that there is no ambiguity in the legislation to require the court to involve itself in an exercise of statutory interpretation to determine what was meant by the section.
[15] He noted that under s. 359.1 of the Municipal Act, there are no words within that section which would limit the right of a party to initiate an appeal to the Divisional Court. He noted that parts of section 359 are incorporated into section 359.1 in subsection (4). Subsection 11 of s. 359 states that the decision of the ARB is final but that provision is absent in s. 359.1
[16] He argued that section 43.1 of the Assessment Act is a relatively recent amendment to the Act and provides a broad route of appeal to the Divisional Court unless there is a specific restriction within the proper legislation.
[17] With reply to Ms. Kussner’s submission that the legislature has specifically incorporated the appeal provisions under s 43.1 into certain sections of the Municipal Act, he submitted that a careful review of those sections indicates the reference to s. 43.1 was simply necessary to distinguish the specific right of appeal in other subsections from that provided for in s. 43.1. In that respect, he noted that under s. 331 of the Municipal Act, subsection 14 is there simply to identify where the appeal is to be taken considering that under subsections 13 and 16 there are alternative courses available.
Analysis
[18] I agree with the Respondent’s submissions. The Assessment Act is a separate piece of legislation from the Municipal Act. Section 43.1 is found in the section of the Assessment Act dealing with appeals under that legislation. The Municipal Act incorporates s. 43.1 in specific instances where the legislature wishes to give that avenue of appeal to an aggrieved party.
[19] On careful review of sections 359 and 359.1, it is clear that the same appeal procedure applies to each section. In this matter, the original decision of Council was made under section 359.1 but the decision of the ARB was made under section 359(7) because section 359.1(4) directed the ARB to that section. In reviewing the Amended Motion Record (AMR), a letter is found at page 40 from the Respondent’s lawyer which launched the appeal from the decision of council under s. 359(5). Next, in accordance with s. 359(6), a Notice of Hearing was sent out (p. 102 of the AMR). The decision relating to the matters raised under s. 359.1 are then determined by the ARB pursuant to powers granted to it under s. 359(7).
[20] Section 359 (11), the Municipal Act specifies the decision of the ARB is final. I find that it is applicable to a decision under s. 359 or s. 359.1. A final decision in certain cases may leave a right of judicial review to an aggrieved party.
[21] I find that there is no specific right of appeal granted to the aggrieved party under S. 359.1 and in particular, s. 43.1 of the Assessment Act is not incorporated into that section. I do not feel it is within the jurisdiction of this court to “second guess” the legislature and grant a right of appeal where clearly, those types of questions have been considered by the legislators in drafting the legislation.
[22] I am reinforced in this respect by a review of the structure of some of the sections of the Municipal Act referred to above. It is noteworthy that sections 331 and 364 of the Municipal Act (which expressly provide for a right to seek leave to appeal) deal with complaints from taxpayers to the ARB regarding administrative actions taken by municipal representatives, whereas sections 356, 357 and 359 deal with appeals of municipal council decisions to the ARB. In instances where a decision was made by municipal representatives, under sections 331 or 364, the complaint that is heard by the ARB is the first “trial” of the issue and thus a further appeal is allowed with the incorporation of section 43.1 of the Assessment Act. In contrast, under sections 356, 357 and 359, the hearing before the ARB follows a decision having been made by Council following a meeting. The Respondent has submitted, and I agree, that the Legislature intended to limit the number of ‘kicks at the can’ and, as such, did not provide for a right to seek leave to appeal from a ARB decision which was preceded by a meeting of Council.
[23] To accept the submission of counsel for the City of Niagara Falls, this court would have to assume that the Legislature intended to simultaneously enact s. 359(11) stating the decision of the ARB was final and to provide for a general right of appeal to the Divisional Court under S. 43.1 of the Assessment Act. I do not accept that submission.
[24] There is a presumption of coherence which is applicable to statutory enactments which entitles the court to assume that the Legislature did not intend to enact contradictory remedies. In her text entitled Sullivan on the Construction of Statutes, the learned author notes at page 223 that “the presumption of coherence is expressed as a presumption against internal conflict”. She notes that legislation is presumed to work together cohesively as a “functioning whole”.
[25] It has long been recognized by our courts that the Municipal Act and the Assessment Act together form a complete code for assessment and taxation in the province of Ontario. Zaidan Group Ltd. v. City of London, (1990) 1990 2624 (ON CA), 71 O.R. (2d) 65 (Ont. C.A.) at pp. 67 and 69, affirmed 1991 53 (SCC), [1991] 3 S.C.R. 593. In my view, the provisions of both must be considered as a “functioning whole.” I do not find that the Legislature intended to provide remedies which appear on their very face to be inconsistent with respect to the right of appeal or review of decisions of the ARB made under s. 359 or s. 359.1. In my view, the case law supports such a finding.
[26] In Guardian Realty Co. of Canada Ltd. & City of Toronto, 1934 156 (ON CA), [1934] 2 D.L.R. 721 (C. A.) the court held that when the then Assessment Act provided for a scheme of appeals, it is not open to the appellant to seek a right of appeal in another Act. More recently, the Court of Appeal dealt with a similar issue in a different context in the case of Maclean v. Dabbs. Et al, (1998) 1998 7165 (ON CA), 165 D.L.R. (4th) 482. In that case, a class action settlement had been approved by a Judge under the Class Actions Proceedings Act, 1992, S.O. 1992, c.6. A member of the class who had not sought nor been granted party status, sought to appeal. The court found that the right of appeal was specifically limited under s. 30(3) and that section took precedence over the general right to appeal a final order under S. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. O’Connor J.A. held that:
“it would make no sense for the Legislature to have provided for specific limited rights of appeal in s. 30(3) if the general right of appeal in s. 6(1)(b) was also to apply. Section 30(3) would be redundant and whatever limits result from its specific wording would be frustrated.
[27] I find this reasoning directly relevant to the issue before this court. In my view, it would make no sense to have a limited right of appeal in section 359(11) if the general right of appeal in s. 43.1 of the Assessment Act was also to apply.
[28] It has also been drawn to my attention that pursuant to Rule 145 of the Rules of Practice and Procedure of the Assessment Review Board, a procedure has been enacted for the review of a Board Decision or Order. The remedies available include a rehearing of the matter if the error in the decision is patently obvious. This further supports my view that the Legislature intended there be no appeal to the Divisional Court under S. 43.1 of the Assessment Act.
Consideration of other Legislation
[29] It is noteworthy that the Ontario Municipal Board Act, R.S.O. 1990, c. O.28 (the legislation which creates and enumerates the powers of the OMB) provides in section 96 that an appeal lies from the OMB to the Divisional Court, with leave of the Divisional Court on a question of law. Of course, the OMB deals with a significant number of administrative issues under diverse legislation such as planning, environmental assessment, and expropriations to just name a few. However, under the constating legislation of the ARB, the Assessment Review Board Act, R.S.O. 1990, C. A.32, there is no equivalent general right of appeal included. In the Notice of Hearing sent to the parties in this matter under s. 359(5) of the Municipal Act, it refers in the “standard form” to the City of Toronto Act. It is another piece of legislation over which the ARB has some jurisdiction aside from the Municipal Act and the Assessment Act. Under s. 294 of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sch. A, the legislation specifically provides for any appeal to take place under S. 43.1 of the Assessment Act. Also under section 331(17) and (18) of the City of Toronto Act, the right of appeal is specifically legislated incorporating the provisions of s. 43.1 of the Assessment Act.
[30] I find that the decision of the legislature to not specifically incorporate s. 43.1 into sections 359 and 359.1 of the Municipal Act to be consistent with the legislature’s intention to limit such redress to those sections where it was specifically included.
[31] It is settled law that the right to apply for leave to appeal is not a right at common law, but, rather, must be granted by statute. Kourtessis v. M.N.R., 1993 137 (SCC), [1993] 2 S.C.R. 53, para. 17. Absent a specific right to appeal in s. 359.1 or s. 359 of the Municipal Act, I am not satisfied that this court has jurisdiction to hear the Motion for Leave to Appeal.
[32] Before concluding, I feel compelled to state that I am not happy with this result because my review of the record without having received submissions from counsel, made me feel that there is a serious question with respect to the correctness of the Amended Decision of the ARB.
Conclusion:
- The appellants Motion for Leave to Appeal is dismissed with costs to be agreed by counsel or fixed by the court.
Turnbull, J.
Released: June 16, 2010
CITATION: Niagara Falls (City) v. Lundy’s Lane Portfolio, 2010 ONSC 3495
COURT FILE NO.: DC-10-0200 (ML)
DATE: 2010-06-16
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
THE CORPORATION OF THE CITY OF NIAGARA FALLS
Applicant
- and –
LUNDY’S LANE PORTFOLIO INC.
Respondent
REASONS FOR JUDGMENT
TURNBULL J.
Released: June 16, 2010
[^1]: Flood and Sossin, Administrative Law, (Toronto: Edmond Montgomery Publications Limited, 2008), p. 61 and 213