CITATION: MPAC v. 1695408 Ontario Ltd. and Orangeville (Town), 2010 ONSC 4025
COURT FILE NO.: DC-10-09ML
DATE: 20100716
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MUNICIPAL PROPERTY ASSESSMENT CORPORATION
Moving Party
and
1695408 ONTARIO LTD. and THE CORPORATION OF THE TOWN OF ORANGEVILLE
Respondent
BEFORE: KRUZICK J.
COUNSEL: Shawn R. Douglas, for the Moving Party
Peter Milligan, for the Respondent
E N D O R S E M E N T
Nature of the Motion
[1] This is a motion by the Municipal Property Assessment Corporation (“MPAC”) for leave to appeal to the Divisional Court a decision of the Assessment Review Board (“ARB”) released on December 18, 2008.
[2] The issue before the ARB was to determine whether or not the premises in issue were properly classified under the provisions of O.Reg. 282/98 as being industrial or commercial. MPAC submits ARB erred in the classification of this property as commercial.
The Facts
[3] The Respondent carries on business as “Sign Needs Inc.” as a “sign shop” in Orangeville and operates out of a condominium unit being the subject property.
[4] In this case, the ARB found that the activity at the property in issue did not qualify as being in the industrial property class on this motion. It was agreed that if the property is not found to be in that class, by default, it would then fall into the commercial class.
[5] Section 6(1) of O.Reg. 282/98 classifies property for assessment purposes as Industrial. It reads:
- Land used for or in connection with,
i. manufacturing, producing or processing anything,
ii. research or development in connection with manufacturing, producing or processing anything,
iii. storage, by a manufacturer, producer or processor, of anything used or produced in such manufacturing, production or processing if the storage is at the site where the manufacturing, production or processing takes place, or
iv. retail sales by a manufacturer, producer or processor of anything produced in manufacturing, production or processing, if the retail sales are at the site where the manufacturing, production or processing takes place but are not on land to which section 44 applies.
[6] Section 5(1) of O.Reg 282/98 defines the Commercial Property Class as follows:
(1) The commercial property class consists of the following:
Land and vacant land that is not included in any other property class.
A care home, as defined in the Tenant Protection Act, 1997, to which that Act does not apply, that is operated with the intention of generating a profit and that does not have seven or more self-contained units.
If a portion of land is in the office building property class, any other portion of the land that is not included in any other property class.
If a portion of land is in the shopping centre property class, any other portion of the land that is not included in any other property class.
[7] The ARB member found that the activities at the subject did not constitute “manufacturing”, “producing” or “processing”. The ARB member found the subject property does not qualify for inclusion in the industrial property class and therefore, by default, is in the “commercial property class”.
[8] There is no transcript of the ARB hearing, however, the decision of the ARB is in the motion record at Tab 3.
Test for Leave
[9] The parties agree that the test for leave on this motion is twofold: there must be a question of law of sufficient importance to merit the attention of the Divisional Court and reason to doubt the correctness of the ARB’s decision. (1098748 Ontario Ltd. v. Ontario Property Assessment Corp. Region No. 11, [2000] O.J. No. 2050 (Div. Ct.).
Analysis
[10] In this case Peter Gauthier, a Valuation Review Specialist with MPAC testified on behalf of the moving party and opined the property was industrial. He presented MPAC’s report and he based his conclusions on two visits to the property and on his discussions with the principal of the Respondent, Mr. Filsinger. The activities of the company were summarized in the reasons of the ARB and are not in dispute.
[11] The position of the MPAC is that the ARB interpretation of the law has rendered different decisions on similar facts leaving uncertainty for participants involved in the assessment process. MPAC takes the position that the appeal may settle the uncertainty.
[12] In his review of the evidence the ARB member did not accept the MPAC opinion and position.
[13] The functions of the MPAC and the ARB were well summarized in MPAC v. Minto Developments Inc., [2003] O.J. No. 4808 (Div. Ct.) at paras. 31 and 32.
The powers and functions of the ARB are found in s. 45 of the Act:
s. 45.(1) Upon a complaint or appeal with respect to an assessment, the assessment review board may review the assessment and, for the purpose of the review, has all the powers and functions of the assessor in making an assessment, determination or decision under this Act, and any assessment, determination or decision made on review by the assessment review board shall, except as provided in (2), be deemed to be an assessment, determination or decision of the assessor and has the same force and effect.
MPAC is responsible for the assessment of every property in Ontario for municipal tax purposes. Any complaint or appeal of an assessment is heard by the ARB. In effect, the member of the tribunal stands in the shoes of the assessor for the purpose of applying the provisions of the Act to the matter in appeal. The role of the ARB is to provide a province-wide recourse from the activities of MPAC, subject to judicial review. This weighs in favour of a degree of deference.
[14] It is argued that the interpretation of s.6(1) is such that the ARB erred and requires leave so that the interpretation is clarified by the appeal.
[15] Counsel for the Respondent takes the position that the decision here was fact driven and that the case was decided on the finding of fact of this particular property. Both counsel, however, agreed that the function of the ARB was one of mixed fact and law, that is, making findings of fact and applying them to the statutory provisions. See MPAC v. Minto, supra.
[16] The ARB member in his decision referred to the applicable case law as he dealt with the meaning of “manufacturing”, “producing” or “processing” in s.6(1). He referred to and cited: Tenneco Canada Inc. v. Canada, 1987 9000 (FC), [1987] F.C.J. No. 955, Federal Farms Ltd. v. Minister of National Revenue, 1966 884 (CA EXC), [1966] Ex. C.R. 410, Canada v. York Marble, Tile and Terrazzo Ltd., 1967 469 (SCC), [1968] S.C.R. 140 and Econ-O-Pac Ltd. v. Ontario Property Assessment Corp. Region No. 11, [2000] O.A.R.B.C. No. 992.
[17] I agree with the Respondent that this is a matter which requires a case by case approach. The result here impacts on this particular property and operation. I, therefore, find that this is not a question of sufficient importance that requires the attention of the Divisional Court.
[18] Here the moving party argued that the correctness of the ARB decision creates uncertainty for other participants in the assessment process.
[19] MPAC also submits that there is reason in law to doubt the correctness of the decision. In my view there is no good reason here to doubt the correctness of the decision. The case before the ARB turned largely on the finding of fact. The ARB member did not accept the evidence of Mr. Gauthier and his position that this property should be classed as industrial.
[20] The reasons of the ARB are fulsome and well reasoned. I find that they address all the issues raised and were based on the findings of fact, to which the law was properly applied. The reasons set out how the ARB member came to his conclusions and what evidence he relied on. While a different member may have come to a different conclusion, that is not enough to give reason to doubt the correctness of the decision.
Conclusion
[21] The motion for leave to appeal is dismissed. Costs were not agreed. If counsel cannot agree they may make submissions limited to five pages on or before August 20, 2010.
Kruzick J.
DATE: July 16, 2010
CITATION: MPAC v. 1695408 Ontario Ltd. and Orangeville (Town), 2010 ONSC 4025
COURT FILE NO.: DC-10-09ML
DATE: 20100716
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MUNICIPAL PROPERTY ASSESSMENT CORPORATION
and
1695408 ONTARIO LTD. and THE CORPORATION OF THE TOWN OF ORANGEVILLE
BEFORE: KRUZICK J.
COUNSEL: Shawn R. Douglas, for the Moving Party
Peter Milligan, for the Respondent
ENDORSEMENT
Kruzick J.
DATE: July 16, 2010