CITATION: Minto Gardens Inc. v. Municipal Property Assessment Corporation, 2011 ONSC 4020
COURT FILE NO.: 621/10
DATE: 20110627
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: Minto Gardens Inc., Minto L8 Inc., St. Thomas Developments Incorporated, Scott & Esplanade Residences Inc. and Simcoe Residences Corporation
-and –
Municipal Property Assessment Corporation and City Of Toronto
BEFORE: Swinton J.
COUNSEL: Brad Nixon and David Fleet, for the Applicants
Melissa Van Berkum, for the Respondent Municipal Property Assessment Corporation
Terrance Denison and Angus MacKay, for the Respondent City of Toronto
HEARD AT TORONTO: June 24, 2011
E N D O R S E M E N T
[1] The Applicants have brought a motion for leave to appeal from an interim decision of the Assessment Review Board (“the Board”) dated November 19, 2010 with respect to property tax classification for four Toronto properties (the “Subject Properties”) (reported at 2010 CarswellOnt 9063).
[2] The Applicants develop, build and sell residential condominiums. On the statutory classification dates for the years under appeal, the Applicants were in the process of constructing high rise towers on the Subject Properties intended for use as residential condominiums. The Municipal Property Assessment Corporation (“MPAC”) had classified the Subject Properties in the multi-residential property class.
[3] On appeal to the Board, the Applicants argued that the Subject Properties should be classified within the residential property class, which has a tax rate of approximately one third the tax rate of the multi-residential property class. However, the Board found that three of the properties should be classified as multi-residential taxable, because they were “vacant land principally zoned as multi-residential development” within the meaning of O. Reg. 282/98 (“the Regulation”). With respect to 23 Sheppard Avenue East, the Board withheld the interim decision, as that property had no principal zoning before October 15, 2007.
[4] An appeal lies to the Divisional Court from the Board only with leave and only on a question of law (Assessment Act, R.S.O. 1990, c. A.31, s. 43.1(1)). In granting leave, the Court must be satisfied that there is some reason to doubt the correctness of the decision, and the appeal must raise an important question of law. If leave is granted, the standard of review will be correctness (BCE Place Limited v. Municipal Property Assessment Corporation, [2010] O.J. No. 4357 (C.A.) at paras. 17-18).
[5] In my view, the Board applied accepted principles of statutory interpretation and correctly concluded that the properties in issue fell within the definition of “vacant land” in s. 1(1) of the Regulation, which states, in part,
The following land, if it is not being used, is vacant land for the purposes of this Regulation:
Land that has no buildings or structures on it.
Land upon which a building or structure is being built.
3.Land upon which a building or structure has been built if no part of the building or structure has yet been used.
- Land upon which a building or structure has been built if the building or structure is substantially unusable.
… (emphasis added)
[6] For the relevant periods in issue, each of the buildings was under construction. They were not being used for residential purposes. Construction is not a use, given the wording of the regulation. Therefore, the Subject Properties came within the definition of “vacant land”.
[7] The Applicants argue that the Board erred in failing to give effect to the proposed use of the buildings as condominium residences. I see no error. The properties clearly fell within the definition of vacant land.
[8] I see no error on the part of the Board in distinguishing Ryerson University v. Municipal Property Assessment Corporation, [2005] O.J. No. 1981 (S.C.J.), an exemption case interpreting a different statute, and Burnaby/ New Westminster Assessor, Area 10 v. Intracorp. Developments Ltd., 2000 BCCA 121, a case decided under British Columbia legislation without a comparable definition of vacant land to that in the Ontario regulation.
[9] The Board correctly held that the land did not fall with the residential property class pursuant to s. 3(1)1(ii). Section 3(1) provides that the residential property class consists of, among other land, “Land used for residential purposes that is” land with six or less units or “a unit or proposed unit, as defined in the Condominium Act” (emphasis added). Because the buildings under construction will have hundreds of condominium units, the Applicants rely on the fact the land contains “a unit or proposed unit, as defined by the Condominium Act.”
[10] The Board concluded that a building destined for condominium use does not come within the residential property class until the land is “used” for residential purposes – for example, because a prospective owner has taken possession of a condominium unit. I see no error of law in that interpretation of the regulation.
[11] Having found that the Subject Properties were vacant land, the Board’s next task was to determine whether the Properties should be classified as residential because of s. 3(2)(ix) (“land not used for residential purposes that is … vacant land principally zoned for residential development but not principally zoned for multi-residential development”). Vacant land that is principally zoned for multi-residential development falls within the multi-residential property class (s. 4(1)2).
[12] The Applicants argue that the Board erred in its application of the words “principally zoned”. That term is not defined in the Act or the Regulation. In my view, the Board made no error in considering a dictionary definition, and the decision in this case is consistent with those in others cited such as Kidinks Holding Inc. v. MPAC, [2004] O.A.R.B.D. No. 637; Winzen Townhouses Ltd. v. MPAC, Assessment Review Board No. WR50431 and 347428 Ontario Limited v. MPAC (2006), 54 O.M.B.R. 436, each of which turns on a consideration of the applicable zoning by-law and a determination of proposed use.
[13] The Board concluded that “zoning” requires a consideration of the uses permitted under the applicable zoning by-law or by-laws. The Board considered the zoning for each property and made a finding about the permitted uses and the principal use, in terms of the first in importance in the by-law. I see no error in the Board’s conclusion that the principal zoning for three of the properties was high density residential development and, therefore, the properties should be classified in the multi-residential property class, because they were principally zoned for seven or more units.
[14] The Applicants took issue with the adequacy of the Board’s reasons. In my view, the decision is careful and well reasoned, showing the path by which the Board reached its decision.
[15] The Applicants did not take issue, in the hearing of this motion, with an earlier interim decision dated May 18, 2010 concerning the refusal to qualify a land use planner as an expert witness on the issue of statutory interpretation. In any event, I see no error of law in the Board’s determination of admissibility.
[16] As there is not good reason to doubt the correctness of the decision, the motion for leave to appeal is dismissed. As agreed by the parties, costs will follow the event. Costs to MPAC and to the City of Toronto are fixed at $5,000.00 each.
Swinton J.
Released: June 27, 2011