CITATION: Municipal Property Assessment Corporation v. Spadina Ave 93-99 Inc., 2010 ONSC 6179

DIVISIONAL COURT FILE NO.: 77/10

DATE: 20101117

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: MUNICIPAL PROPERTY ASSESSMENT CORPORATION, Applicant

AND:

SPADINA AVE 93-99 INC., 208-210 ADELAIDE STREET WEST INC., and CITY OF TORONTO, Respondents

BEFORE: Harvison Young J.

COUNSEL: Karey Lunau, Counsel for the Applicant

Michael S. Steinberg, Counsel for the Respondents, Spadina Ave 93-99 Inc. and 208-210 Adelaide Street Inc.

HEARD: October 28, 2010

ENDORSEMENT

[1] The Municipal Property Assessment Corporation (“MPAC”) seeks leave to appeal from a decision of the Assessment Review Board (“ARB”) in which it determined that it had jurisdiction to determine whether an assessment made by MPAC had been validly made.

[2] MPAC had moved for an order declaring that ARB did not have jurisdiction to determine the legality of omitted assessments made by MPAC with respect to the Owners’ properties located at 208 Adelaide Street West and 99 Spadina Avenue in the City of Toronto.

[3] The applicant argued before the Board, and argues here, that the ARB was assuming jurisdiction to determine whether land was liable for assessment. It is common ground that matters of liability for assessment and taxation are within the exclusive jurisdiction of the Superior Court pursuant to s. 96 of the Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c.3; see Quance v Thomas A. Ivey & Sons Limited, [1950] O.R. 397 (C.A.); see also Corporation of the City of Toronto v. Olympia Edward Recreation Club Ltd., [1955] S.C.R. 454.

[4] The respondents, however, argue that the issue before the court is not one of liability, but merely whether MPAC was correct in its decisions to issue the omitted assessments, which is within the jurisdiction of the ARB.

The Background

[5] In August 2005, MPAC issued several “omitted assessments” with respect to internal renovations made to 208 Adelaide St West, and with respect to internal renovations and an addition made to 99 Spadina Avenue. The omitted assessments were issued pursuant to section 33 of the Assessment Act, R.S.O. 1990, c.A31, as amended, which permits MPAC to make any assessment required to correct an omission for all or part of the current year or for either or both of the two preceding years where land liable to assessment has been in whole or in part omitted from the tax roll.

[6] As the Board noted in its reasons, MPAC had presumably not issued supplementary assessments pursuant to section 34 of the Act, because the renovations or additions were not discovered until after the time limit for issuing supplementary assessments to be issued only up to the last day in the taxation year in which improvements to a property resulted in an increase in value.

[7] Having read the materials filed and heard counsels’ submissions, I conclude that the motion for leave to appeal must be dismissed for the following reasons.

Analysis

[8] The issue under appeal turns on the narrow question of whether the issue of the “omitted assessment” is one of liability for assessment and taxation, or if it relates, in essence, to issues of quantum of the assessment in issue. In my view, this is not a case where any issue of exemption or liability arises. All the property in question was liable for assessment. The only issue was the assessors’ power to retroactively add value to the assessment.

[9] The jurisdiction of the ARB arises from the Owners’ appeals under section 40 of the Act that the Properties are assessed too high. Section 40(22) of the Act provides that:

“The Assessment Review Board, as to all matters within its jurisdiction under this section, has authority to hear and determine all questions of law or of fact ….”

[10] In dismissing MPAC’s motion, the ARB stated:

“Clearly, the Board does not have jurisdiction to deal with the issue of whether a property is exempt from assessment and taxation, However, subject to that limitation, subsection 40 (22) of the Act confers on the Board the power to determine all questions of law and fact as to all matters within its jurisdiction under section 40.” (ARB decision, para. 20)

[11] The applicant submits that the ARB “gave itself jurisdiction” that it did not have to determine whether an assessment made was validly made. I disagree. The ARB correctly stated that it did not have jurisdiction to deal with issues of exemption from assessment and taxation, but that was not in issue in the present case. It did have the authority, pursuant to the Act, to “hear and determine all questions of law and fact” with respect to matters within its jurisdiction.

[12] Having determined that the issue here was not liability or exemption from taxation, but rather the quantum (in the sense of the power to retroactively add value) of the assessment, I agree with the respondent that the cases cited by the applicant relating to the s.96 issue are not applicable. This is a situation similar to that which arose in Re Cencourse Project Inc. et al. and Regional Assessment Commissioner, Region No. 27 et al. (1994), 18 O.R. (3d) 65 (C.A.). While the omitted assessment in issue here might have been challenged in Superior Court, this falls within an area of overlapping jurisdiction, and I find no basis for finding that the ARB was wrong on this issue.

[13] For the foregoing reasons, I am unable to conclude that there is any reason to doubt the correctness of the ARB’s decision and that the decision involves a point of law of sufficient importance to merit the attention of Divisional Court. The appeal is therefore dismissed. Costs are payable by MPAC in the amount of $1,500 inclusive of HST to Spadina Ave 93-99 Inc, and to 208-210 Adelaide Street West Inc.

Harvison Young J.

Date: November 17, 2010