Court File and Parties

CITATION: East of Bay v. MPAC, 2011 ONSC 242

DIVISIONAL COURT FILE NO.: 348/10

DATE: 20110113

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: East of Bay (2003) Development Corporation, Applicant (Respondent in Appeal)

AND:

Municipal Property Assessment Corporation and City of Toronto, Respondents (Appellant)

BEFORE: Jennings, Aston, Herman JJ

COUNSEL: Donald G. Mitchell, for the Respondents/Appellants

Michael S. Steinberg, for the Applicant/Respondent

HEARD: January 10, 2011

ENDORSEMENT

aston j.

[1] This is an appeal by the Municipal Property Assessment Corporation (“MPAC”) from the June 8, 2010 judgment of Belobaba J., invalidating assessments made under s. 33(1) of the Assessment Act.

[2] For s. 33(1) to apply, it is a precondition that “land liable to assessment has been in whole or in part omitted from the tax roll”.

[3] The application judge concluded that:

MPAC’s practice of assessing a fully-occupied residential property as “vacant land” and later re-assessing the property to “rectify the omission” by adding the “omitted” building [its place-holder practice] does not fall within the letter or spirit of section 33(1).

[4] The reasons of the application judge emphasize the fact that MPAC’s failure to put any value on the building was deliberate, rather than because of oversight or negligence.

[5] In our view, it is not necessary to address the broader issue of whether deliberate omissions are captured under s. 33(1) on the particular facts of this case. Simply put, no land “liable to assessment … in whole or in part”, has been omitted in the 293 separate Notices of Assessment sent out on or about October 31, 2006.

[6] Those Notices did not properly assess the current value of the individual apartment units. However, those Notices did identify every part of the land “liable to assessment”. Separate roll numbers were assigned to each dwelling unit in the building, rather than continuing the prior assessment roll number and legal description for the entirety of the land.

[7] In that respect this case is distinguishable from Magee et al v. Municipal Property Assessment Corporation and the City of Belleville 2010 ONSC 6498 (Nov. 24, 2010, Divisional Court).

[8] In Magee there is no indication MPAC’s omission of the golf course improvements in 2005-2007 was necessarily deliberate. More importantly, however, the description of the land did not change when the “omitted assessments” were issued. As the Divisional Court pointed out, at paragraph 9:

Section 33(1) refers to “land” that is liable to assessment that has been in whole or in part omitted from the tax roll. It does not refer to “land” whose description has been omitted from the description of the property in the assessment or tax roll.

[9] In this case, unlike Magee, MPAC did not omit the building. It identified 293 individual apartment units as “liable to assessment” and gave each one its new and unique assessment roll number. The apartment building in this case was not “omitted” just because MPAC failed in its statutory obligation under s. 14(1) of the Act, to put a “current value” on the building.

[10] The appeal is dismissed. MPAC is ordered to pay costs of the appeal fixed, on consent, at $7,500, all inclusive.

Jennings J.

Aston J.

Herman J.

Date: January 13, 2011