1056626 Ontario Inc. v. Municipal Property Assessment Corp., 2015 ONSC 7967

CITATION: 1056626 Ontario Inc. v. Municipal Property Assessment Corp., 2015 ONSC 7967

DIVISIONAL COURT FILE NO.: 522/14
DATE: 20151217

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SACHS, WILTON-SIEGEL AND MULLIGAN JJ.

BETWEEN:

1056626 ONTARIO INC. Applicant

– and –

MUNICIPAL PROPERTY ASSESSMENT CORPORATION and the CORPORATION OF THE TOWN OF WHITBY Respondents

Peter Milligan and Jamie Walker, for the Applicant Marc McLaren-Caux, for the Respondent, Municipal Property Assessment Corporation John R. Hart, for the Respondent, Corporation of the Town of Whitby

HEARD at Toronto: December 17, 2015

SACHS J. (ORALLY)

[1] The applicant seeks judicial review of a decision dated April 7, 2014 of Member Gary Minnie (the “Member”) of the Assessment Review Board (the “Board”). The applicant requested a review of this decision in a timely fashion and the decision was upheld in a Review Decision dated August 1, 2014 of the Alternate Executive Chair of the Board, Jerry DeMarco (the “Review Decision”).

[2] In the April 7, 2014 Decision, the Member determined that pursuant to s. 19(5) of the Assessment Act, R.S.O. 1990, c. A. 31 (the “Act”) and ss. 1(1) and 5(1) of O. Reg. 282/98, the tax class of the applicant’s property was to be changed from farm land to vacant, commercial land. The Member increased the current value of the assessment for this property from $45,000 to $1,715,000 for the 2013 taxation year, given the change in the tax class of the applicant’s property.

[3] In the Review Decision, the Reviewing Member found that the Member considered the parties’ submissions and properly disclosed available evidence in arriving at his decision. The Reviewing Member then held that the April 7, 2014 decision is within a reasonable range of outcomes.

Jurisdiction of the Court

[4] The applicant brings this application under ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

Preliminary Matter

[5] The respondent, MPAC, submits that the Divisional Court should decline to hear this application on the ground that the applicant ought to have brought this matter pursuant to its statutory right of appeal in s. 43.1 of the Act. This provision provides for a right of appeal to the Divisional Court of a decision of the Board on a question of law with leave of the Divisional Court, if the appeal is filed within 30 days of the mailing of the Board’s decision. The applicant brought its application for judicial review on November 7, 2014. This application was approximately 180 days after the deadline had expired in respect of the April 7, 2014 decision and approximately 100 days after the deadline had expired in respect of the Review Decision.

[6] The following two decisions address the circumstances of this proceeding and inform our conclusion on the preliminary issue that has been raised.

[7] In Katz v. Municipal Property Assessment Corp., Region No. 9, 2012 ONSC 630, 211 A.C.W.S. (3d), 459 (Div. Ct.), at paras. 1-2, this Court held the following:

Judicial review is a discretionary remedy and may be refused where the applicant has a right of appeal. The Assessment Act, R.S.O. 1990, c. A.31, s. 43.1(1) provides a right to appeal a decision of the Assessment Review Board (the “Board”) only on a question of law and only with leave of the Divisional Court. An appeal must be filed within thirty days of the mailing of the Board’s decision (s. 43.1(2)).

The applicant did not pursue a motion for leave to appeal in a timely fashion. No explanation has been provided as to why she failed to pursue the proper appeal procedure and why she should now be allowed to proceed by judicial review. Therefore, we would exercise our discretion to dismiss this application.

[8] A similar decision was made by this Court in Municipality Property Assessment Corporation v. Snab Holdings Ltd., 2013 OSNC 2388, 228 A.C.W.S. (3d) 17 (Div. Ct.) in which the Court stated at para. 4:

Given the existence of a statutory right of appeal, we decline to exercise our jurisdiction to conduct a judicial review. This is important in order to preserve the Court’s gate-keeping function. The effect of allowing a judicial review would be to circumvent the statutory leave requirement set out in s. 43.1.

[9] In the present proceeding the applicant’s explanation for its failure to proceed by way of an appeal is that it chose to request a review of the Board’s April 7, 2014 decision. By doing this, it could not comply with the time limit set out at s. 43.1(2) of the Act for making an application for leave to appeal. Section 43.1(2) reads as follows:

An application for leave to appeal under this section shall be made within 30 days of the mailing of the decision of the Assessment Review Board.

[10] According to the applicant, “decision” for the purposes of this section means the April 7, 2014 decision, not the Review Decision.

[11] In support of its position the applicant relies on the decision of the Divisional Court in Montevallo Developments Ltd. v. Municipal Property Assessment Corp., Region No. 9, [2008] O.J. No. 5411. In Montevallo, MPAC did not attempt to appeal the Board’s decision. Instead, it moved for a review. When the Board confirmed its decision, MPAC applied for judicial review before this Court and the application was allowed to proceed. The applicant appears to be suggesting that this case stands as authority for the proposition that, if a party seeks a review of the Board’s decision, it is entitled to bring a judicial review application if the review is not successful, without first exhausting its rights of appeal.

[12] With respect, this is not what Montevallo says. It is clear from reading paragraphs 14 and 15 of Montevallo that the Court asked itself the question whether the judicial review application should be disallowed because MPAC had not exhausted its appeal rights. It decided that the answer to that question was “no”, but it did so for two reasons that are not present in this case. First, all counsel had advised the Court that the sections of the Act in issue in that case had not been considered by a Court. The sections of the Act at issue in this case have been considered by the Courts. Second, in Montevallo, the Board took three years to issue its review decision and the Court was concerned about the effects on the interest of justice of not allowing the matter to proceed in view of the long period of delay that had occurred. In this case, the Review Decision was issued just under four months after the original decision.

[13] If the applicant was concerned about its ability to pursue an appeal in a timely way in the face of its desire to seek a review, it had two obvious options available to it: (1) File its request for leave to appeal within 30 days of the April 7, 2014 decision and then seek to have the motion deferred until the Review Decision was issued; and (2) Take the position that the time for filing its application for leave to appeal started from the date of the Review Decision.

[14] In Snab, supra, at para. 3, the Divisional Court found that review decisions of the Board were “decisions” that could be appealed within the meaning of s. 43.1 of the Act. We agree with Snab, a decision that was decided approximately a year before the April 7, 2014 decision in this case.

[15] In this regard, it is worth noting that the respondent offered to consent to the applicant’s late filing of its application for leave to appeal, an offer that the applicant rejected on the basis that it had no obligation to bring such an application; it could proceed by way of judicial review.

[16] In our view, the applicant’s actions have the effect of circumventing the statutory leave requirements set out in s. 43.1, a requirement that the Legislature inserted for very good reasons. The Board hears thousands of cases and it is only in those cases where the requirements for leave to appeal are met that the Courts are to intervene in the decisions of the Board.

[17] For these reasons, we find that this is not a case where we should exercise our jurisdiction to conduct a judicial review in spite of the fact that the applicant has failed to exhaust its appeal rights.

[18] The application is therefore dismissed.

COSTS

[19] I have endorsed the Application Record, “This application is dismissed for reasons given orally by Sachs J. As per the agreement of the parties, the respondent MPAC is entitled to its costs of this application fixed in the amount of $10,000, all inclusive. The respondent, Whitby, did not seek costs.”

___________________________ SACHS J.

WILTON-SIEGEL J.

MULLIGAN J.

Date of Reasons for Judgment: December 17, 2015 Date of Release: January 7, 2016

CITATION: 1056626 Ontario Inc. v. Municipal Property Assessment Corp., 2015 ONSC 7967 DIVISIONAL COURT FILE NO.: 522/14
DATE: 20151217

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SACHS, WILTON-SIEGEL AND MULLIGAN JJ.

BETWEEN:

1056626 ONTARIO INC. Applicant

– and –

MUNICIPAL PROPERTY ASSESSMENT CORPORATION and the CORPORATION OF THE TOWN OF WHITBY Respondents

ORAL REASONS FOR JUDGMENT

SACHS J.

Date of Reasons for Judgment: December 17, 2015 Date of Release: January 7, 2016