Corporation, 2012 ONSC 3694

DIVISIONAL COURT FILE NO.: 416/11

DATE: 20120626

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: CHURCH-ISABELLA PROPERTIES LIMITED, HBC/HPT (HOSPITALITY PROPERTIES TRUST), 1408785 ONTARIO INC., BRE/ESA CANADA TRUSTEE INC., ATWELL AIRPORT LIMITED PARTNERSHIP, AND COLBOURNE STREET LIMITED PARTNERSHIP

Applicants

AND:

MUNICIPAL PROPERTY ASSESSMENT CORPORATION (“MPAC”), THE CITY OF TORONTO, THE TOWN OF MARKHAM, THE CITY OF VAUGHAN AND THE CITY OF LONDON

Respondents

BEFORE: JENNINGS J.

COUNSEL: S. Longo Peter Milligan

for the Applicant Church-Isabella for the Applicants IHG/HPT

Properties Limited for the Applicants (Hospitality Properties Trust),

1408785 Ontario Inc., BFRE/ESA

Frank Shea Canada Trustee Inc., Atwell Airport

For the Respondent Municipal Property Hotel Limited Partnership and

Assessment Corporation Colbourne Street Limited

Partnership

HEARD: JUNE 5, 2012

ENDORSEMENT

[1] The applicants seek leave to appeal the interim decision of the Assessment Review Board (“the Board”) dated August 5, 2011. The decision determined that the properties of the appellants which offered self-contained suites for rent for periods both greater and lesser than 30 days were properly classified as hotels within the meaning of s.17(2) of the Regulation under the Assessment Act R.S.O. 1990 c.A.31 (“the Act”).

[2] The parties had put before the Board an agreed Statement of Facts and three questions of law that they wished the Board to refer for decision to the Divisional Court pursuant to s.43 of the Act. For reasons not clear either to counsel or myself, the Board declined to refer on the grounds that the questions were of mixed fact and law. The Board then agreed it would as a preliminary matter “consider and determine [the] three questions of law” (Reasons, p.2. Emphasis added) resulting in the interim order now before me.

[3] An appeal lies from the Board to Divisional Court with leave of the Divisional Court on a question of law. The test for leave from a decision of the Board is that:

a) there must be a question of law of sufficient importance to merit the attention of the Divisional Court; and

b) there must be reason to doubt the correctness of the decision under review.

c) 109874 Ontario Ltd. v. Ontario Property Assessment Corp., Region No. 11, 2000 CarswellOnt. 1924.

[4] I accept the applicants’ submission that the questions of law raise important issues as to the fair assessment of Ontario properties offering extended stay accommodation.

[5] However, the language of s.17(2) of the Act is clear and unequivocal. It is not ambiguous. It is not capable of any interpretations other than that found by the Board.

[6] I accept that the language of the amended definition of hotel does not adequately address the issues raised in the Beaubien report, which I am told, led to the amended definition. That, however, is a matter to be addressed by the Legislature if correction is required, rather than this Court.

[7] The Board understood the legislation expanding the definition of hotel, it applied the proper rules of statutory interpretation to ascertain the meaning of the words in s.17(2) and applied the interpretation to the facts that were put before it by the parties. In my opinion the Board was correct in its finding but the plain language of s.17(2) caught the subject properties in the definition of hotel.

[8] Not having grounds to doubt the correctness of the Board’s interpretation of the section I am unable to grant leave to appeal. The motion must be dismissed, but without prejudice to any right to appeal sought to be exercised following the final determination of this matter by the Board.

[9] No costs of the motion being sought, none are awarded.

JENNINGS J.

Date: June 26, 2012