VIA Rail Canada Inc. v. MPAC, 2016 ONSC 5705

CITATION: VIA Rail Canada Inc. v. MPAC, 2016 ONSC 5705

OTTAWA COURT FILE NO.: DC-15-2104

DATE: 20160915

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D. ASTON, G. TAYLOR and J. THORBURN JJ.

BETWEEN:

VIA RAIL CANADA INC.

Matthew J. Halpin, for the Appellant/Moving Party (Responding Party on the Motion to introduce Fresh Evidence)

Appellant

• and -

MUNICIPAL PROPERTY ASSESSMENT CORPORATION (MPAC), REGION 3 and CITY OF OTTAWA

Melissa E. VanBerkum, Conway Davis Gryski, for the Respondent MPAC (Moving Party on the Motion to introduce Fresh Evidence)

Respondents

Matthieu Charron, for City of Ottawa (appearing but not making submissions)

HEARD at Ottawa: June 13, 2016

REASONS FOR DECISION

THORBURN J.

OVERVIEW

[1] This appeal is a test case for the tax assessment value of all VIA passenger stations in Ontario.

[2] Via Rail Canada Inc. (“VIA”) appeals the decision of the Assessment Review Board regarding taxes payable for the Ottawa railway station for the years 2009 to 2012. The Respondent, Municipal Property Assessment Corporation (“MPAC”) seeks to introduce new evidence.

[3] It is agreed that the property should be assessed at market value, it must be assessed for its value as railway property, and there is only one company in the business of a national passenger railway service in Canada. Market value is defined in the Canadian Uniform Standards of Professional Appraisal Practice as “the most probable price which a property should bring in a competitive and open market…”

[4] There are different methods to assess the market value of property, one of which is by assessing the replacement value of the property new less appropriate adjustments to allow for physical deterioration, functional depreciation (obsolescence) and external depreciation (negative influences outside the building) (See Assessor of Area #01 – Capital v. Nav Canada, 2016 BCCA 71 (application for leave to appeal dismissed with costs, NAV Canada, et al. v. Assessor of Area #01 - Capital, et al., 2016 51054 (SCC).)

[5] The Board did not accept VIA’s submission that the property was essentially valueless on the basis that VIA as a company does not make a profit. Instead the Board held that the property has value because VIA is required to provide passenger service to the public, it would need a station in Ottawa if the Station were destroyed, and it would likely be rebuilt, as in fact VIA has been building and renovating other stations.

[6] Moreover, although the Board accepted that economic obsolescence should be considered, it was not clear whether the Station was making or could be making a profit and noted that in 2008, the base year for taxation years under appeal, VIA reported the total passenger volume of the Ottawa station to be 821,867 and revenue $22,360,997. Because VIA provided no empirical evidence to support a reduction in value due to economic obsolescence (other than the submission that the Station should be valued at $10 which the Board rejected), no reduction was made by the Board.

[7] The Board assessed the value of the Ottawa railway station at 200 Tremblay Road considering the relevant provisions of the Assessment Act and the case law that interprets those provisions.

[8] For the reasons set out below, we recognize that the Board is a specialized tribunal that assesses property values. The approach taken by the Board was both correct and reasonable.

THE LEGISLATIVE PROVISIONS

[9] VIA is a federal Crown corporation incorporated in 1977, mandated to offer intercity passenger rail services in Canada. It is the only national intercity passenger railway company in Canada. In 1989, VIA purchased the Ottawa railway station and associated right of way from the Canadian Pacific and Canadian National railways for $7,500,000. Part of the Ottawa railway station is leased to third parties for purposes unrelated to intercity passenger rail. The remainder is used and occupied by VIA.

[10] This appeal concerns only the assessed value of the land used and occupied by VIA at the Ottawa railway station.

[11] Sections 1 and 19 of the Assessment Act R.S.O. 1990, c. A.31 provide that land is assessed based on its current value, which is the amount the fee simple, if unencumbered, would realize if sold at arm’s length by a willing seller to a willing buyer.

[12] Section 30(2)(d) of the Assessment Act specifically deals with how railway land is to be assessed for tax purposes. Railway land must be assessed “at its actual cash value as it would be appraised upon a sale to another company possessing similar powers, rights and franchises”.

THE BOARD’S DECISION

[13] The Board recognized that their task was to determine the market value of the VIA rail station in Ottawa and that in so doing, they were to be guided by section 30(2)(d) of the Assessment Act that specifically deals with the assessment of railway property.

[14] The Board adopted the decision in CPR v. Sudbury (City), 1960 15 (SCC), [1961] S.C.R. 39 that “Section 30(2)(d) [of the Assessment Act] creates a limited hypothetical market for section 30(2)(d) properties [railway companies] and the bottom end of the range of values for those properties should exceed their scrap or salvage value”.

[15] The Board rejected VIA’s submission that it should be guided by decisions involving non-railway assessments of “special use uneconomic property with no market” because the Assessment Act specifically addresses how railway land is to be assessed.

[16] The Board also rejected VIA’s claim that there was 100% economic obsolescence.

[17] Economic obsolescence is a factor that reduces the value of an improvement because of something external to the property itself, such as the downturn of an industry. A property with a factory only capable of producing a single product may suffer from partial economic obsolescence if demand for that product experiences a long-term drop. (Domtar Inc. v. Municipal Property Assessment Corporation, Region No. 30 [2013] O.A.R.B.D. No. 27 (Assessment Review Board)).

[18] The Board held that the notion of 100% economic obsolescence is incompatible with the decision of the court in CPR v. Sudbury and “there is no quantifiable evidence to support a finding that the Station suffers from EO [economic obsolescence] for the taxation years under appeal”. On the contrary,

a. In 2008, the base year for taxation years under appeal, VIA reported the total passenger volume of the station to be 821,867 and revenue $22,360,997;

b. It is not clear if the Station is making or could be making a profit;

c. If the Station were destroyed it would likely be rebuilt;

d. VIA has been building and renovating existing stations; and

e. VIA has a mandate to provide passenger rail service to the public.

[19] The Board therefore concluded that, “the best evidence of actual cash value for the Station is MPAC’s recommended assessments.” MPAC’s recommended values were $7,705,000 for the 2009-2011 taxation years and $7,873,000 for 2012. The base date used for the assessment was January 1. These figures represent the replacement cost of the building plus land value less physical depreciation and economic obsolescence.

THE POSITIONS OF THE PARTIES ON APPEAL

[20] The parties to this Appeal agree that:

a. the Station must be assessed at market value for use as a railway station and cannot be assessed by considering the value for other purposes;

b. VIA uses the station to provide intercity passenger rail service;

c. the passenger railway service as a whole is subsidized by the Federal government and does not generate a profit;

d. VIA has spent millions of dollars on renovations to the Ottawa railway station; and

e. the Station would have to be replaced if it were destroyed.

[21] VIA appeals the Board’s decision and in the alternative, seeks an order remitting the matter back to the Board for reconsideration on the following grounds:

a. the Board confused use value and market value and incorrectly based its decision on the subjective value of the station to VIA to fulfil its public mandate rather than market value. (Market value is the value the market attributes to the property based on the value a set of potential buyers attaches to the property. Subjective value is subjective to the extent that the buyer is willing to pay possibly more based on its own valuation of the property);

b. there is no market for the land as a passenger rail station and the legislation does not permit the valuation of railway land based on its value for non-railway uses;

c. even if it could, because VIA is a money losing corporation, there is 100% economic obsolescence which reduces the value to $10.

[22] VIA submits that because it is a government-subsidized money-losing passenger rail system, “no rational buyer [possessing similar powers, rights and franchises] acting in an open, competitive market in its own self-interest would ever agree to pay more than a nominal amount for a property restricted to a money losing use… that must be assessed in its current use.” Moreover, without subsidies provided by the Federal government, the national passenger railway system operates at a loss and there should therefore be 100% economic obsolescence applied to the Station’s value.

[23] MPAC claims the Board’s decision was reasonable and in any event, it made no errors of fact or law as the Board correctly determined that a notional market must be imputed to create a notional railway with VIA’s public service mandate.

[24] MPAC agrees that economic obsolescence must be considered, but notes that VIA provided no empirical evidence to support a reduction in the valuation of the Station. The mere fact that the Station is used as a rail station does not warrant the application of 100% economic obsolescence. Nor does the fact that VIA has a federal monopoly.

[25] MPAC seeks to introduce fresh evidence including documents relating to the sale of part of the assessed property to the City of Ottawa as part of the Light Rail Rapid Transit project. MPAC claims there is new evidence that the land in question has market value as a passenger rail station.

JURISDICTION TO HEAR THE APPEAL AND/OR ADMIT FRESH EVIDENCE

[26] The Divisional Court has jurisdiction to hear this appeal.

[27] Section 43.1(1) of the Assessment Act, R.S.O. 1990, c. A.31, provides that, “An appeal lies from the Assessment Review Board to the Divisional Court, with leave of the Divisional Court on a question of law.” Leave to appeal was granted by Warkentin J. on November 30, 2015.

[28] The Divisional Court also has jurisdiction to admit fresh evidence when conducting an appeal pursuant to section 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which provides that:

Unless otherwise provided, a court to which an appeal is taken may, in a proper case…receive further evidence by affidavit, transcript of oral examination, oral examination before the court or in such other manner as the court directs…to enable the court to determine the appeal.

[29] Motions for the receipt of fresh evidence on appeal are to be determined by the panel hearing the appeal (Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 61.16(2)). Such evidence is not generally admitted if, by due diligence, it could have been adduced at trial. In order to admit fresh evidence on appeal:

a) the evidence is relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

b) the evidence is credible in the sense that it is reasonably capable of belief; and

c) if believed, it could reasonably be expected to have affected the result.

(Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759, at p. 775)

STANDARD OF REVIEW

[30] The Appellant asserts that the appropriate standard of review is correctness because the interpretation of section 30(2)(d) of the Assessment Act is a question of law and, as a test case, is a matter of central importance to the legal system as a whole. On questions of pure statutory interpretation, the court has held that the standard of review is correctness. (BCE Place Limited et al. v. Municipal Property Assessment Corporation et al, 2010 ONCA 672 at para. 18).

[31] The Respondent asserts that where the Board interprets its home statute, the standard of review should be reasonableness. The Respondent notes that the BCE case relied on by VIA was decided prior to the recent Supreme Court of Canada decisions that have held that there is a presumption that tribunals interpreting or applying their home statutes are to be reviewed on a reasonableness standard. Moreover, MPAC’s approach was adopted by the Divisional Court in Assessment Review Board appeals such as Junvir Investments Ltd. v. Municipal Property Assessment Corp., 2015 ONSC 1526, 35 M.P.L.R. (5th) 122, at para. 5, and Kensington Foundation v. Municipal Property Assessment Corp., 2013 ONSC 7694, 20 M.P.L.R. (5th) 202, at paras. 12-13.

[32] More recently, in Municipal Assessment Corporation v. Schumacher, 2016 ONSC 3239, the Divisional Court specifically referred to the standard of review on questions of law where MPAC is applying its home statute. The Divisional Court reiterated that the standard of review is presumed to be reasonableness except in respect of issues of law that are of “central importance to the legal system as a whole” and that lie outside the specialized expertise of the tribunal: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at para. 39. In Schumacher, the Divisional Court held that,

[10] Post Alberta Teachers and McLean, panels of this Court have repeatedly held that appeals relating to the Board’s determination of issues under the Act or other related statutes or Rules of the Board are subject to deferential treatment on a reasonableness standard…Like the Court in Junvir, Equity and Kensington Foundation, we are respectfully of the view that the Supreme Court’s presumption of reasonableness must be accounted for.

[12] …Even though an appeal lies to this Court on a question of law, the Board was interpreting its home statute, in a highly specialized area with which it is profoundly familiar: the assessment of commercial properties for the purposes of municipal taxation.

[33] The appropriate standard of review is reasonableness as the key issue to be determined is the interpretation of the words in section 30(2)(d) of the Assessment Act. The statute in question is the Board’s home statute and it is an expert tribunal.

KEY ISSUES

[34] There are three key issues to be addressed:

a. Did the Board err in its interpretation of how the value of the Ottawa railway station should be calculated?

b. If the VIA railway system as a whole operates at a loss, should there be 100% economic obsolescence applied to the Station’s value? and

c. Should MPAC be permitted to introduce fresh evidence on appeal?

ANALYSIS

I. Defining Market Value

[35] It is agreed that the value of the Station for tax purposes must be based on market value.

[36] Market value is based on competitive bids with each party acting in their own self-interest. Use value is the value a property has for a specific purpose, focusing on what it contributes to the enterprise of which it is a part, without considering the amount that might be realized from the property’s sale. (The Appraisal of Real Estate, Third Canadian Edition (Appraisal Institute of Canada) at 2.12).

[37] There are five bases upon which market value may be determined (Montreal v. Sun Life Assurance Co. of Canada, 1951 307 (UK JCPC), [1952] 2 D.L.R. 81 at 89 (J.C.P.C.), affirming Sun Life P.C. Sun Life Assurance Co. of Canada v. Montreal (City), 1950 29 (SCC), [1950] S.C.R. 220). They include:

a. a recent free sale of the property itself where neither the conditions of the property nor the market have since changed;

b. recent free sales of identical properties in the same neighbourhood and market;

c. recent free sales of comparable properties;

d. the price which the revenue producing possibilities of the property will command;

e. the depreciated replacement cost.

[38] Depreciated replacement cost is a permissible means of determining market value. A competitive and open market for the property being valued is not always necessary to establish market value. (Assessor of Area #01 – Capital v. Nav. Canada, 2016 BCCA 71)

II. Valuation of Railway Property

[39] Section 30(2)(d) of the Assessment Act outlines the way in which railway property is to be assessed for tax purposes. Railway land must be assessed “at its actual cash value as it would be appraised upon a sale to another company possessing similar powers, rights and franchises”.

[40] The leading case regarding the valuation of railway stations for assessment purposes is the Supreme Court of Canada decision in Canadian Pacific Railway v. Sudbury (City), 1960 15 (SCC), 1960 CarswellOnt 67 (S.C.C.),[1961] S.C.R. 39. Canadian Pacific Railway appealed the 1954 assessment of property owned by the railway company.

[41] The court held that,

This section confronts the assessor with a very difficult task—an appraisal of the actual cash value of these assets on a notional sale between two railway companies. I agree with Roach J.A. that the reason for the introduction of the notional sale was to avoid any suggestion that these assets could be valued at their scrap or salvage value. … [The assessor’s] task is defined by the subsection. The test is an appraisal on notional sale of these particular assets to another railway company and not on a notional sale of all the assets of the Canadian Pacific Railway Company to another railway company. The assessor is not required to value these assets as part and parcel of the whole Canadian Pacific railway system.

[42] VIA’s submission that the Ottawa railway station suffers from 100% economic obsolescence and has no value at all is contrary to the above decision.

III. The Assessment of Commercial Property

[43] In Assessor of Area #01 – Capital v. Nav Canada, 2016 BCCA 71 (application for leave to appeal dismissed with costs, NAV Canada, et al. v. Assessor of Area #01 - Capital, et al., 2016 51054 (SCC)), a five person panel of the British Columbia Court of Appeal considered the question of how to value land and improvements for assessment purposes that have a single purpose, are unique, have no identifiable market and are used by a monopoly for a restricted use. The property in question was used for air navigation services.

[44] Bauman C.J. for the Court of Appeal held that where there are no buyers and sellers, one must take into account the sum that the owner would pay. The court held that in regarding the owner like any other purchaser, one must ignore the subjective value – the special value to the particular owner – and value the property in the hands of an objective owner. Replacement cost, with appropriate adjustments, is an accepted approach for doing so.

[45] He further held that the decision in Southam Inc. (Pacific Newspaper Group Inc.) v. British Columbia (Assessor of Area No. 14 – Surrey/White Rock), 2004 BCCA 245 which held that one cannot use “replacement cost” as a measure of market value where apart from the owner, there is no other potential purchaser for the current use, is wrong and contrary to long-standing judgments. (See also Montreal v. Sun Life Assurance Co. of Canada, 1951 307 (UK JCPC), [1952] 2 D.L.R. 81 (J.C.P.C.) and Ontario (Assessment Commissioner York) v. Office Specialty Ltd., 1974 148 (SCC), [1975] 1 S.C.R. 677 where the courts determined that an accepted approach to valuation is to consider the replacement cost with appropriate adjustments such as depreciation).

[46] By contrast, in Gander International Airport Authority v. Gander (Town), 2011 NLCA 65, 313 Nfld. & P.E.I.R. 125), the three member majority of the five member appeal panel found that the airport had only nominal value for municipal taxation purposes due in part to the legal limits placed on its uses. In Gander, the airport was not profitable, but was of great use to the public. The Airport Authority was barred from collecting any revenue; the number of passengers using the airport was in decline, and there were no federal subsidies. The evidence suggests that there was no market for the airport, given the restrictions and economic non-viability.

[47] VIA is not prevented from collecting fees, there is no evidence of passenger or revenue decline in Ottawa, and unlike the case in Gander, section 30 of the Assessment Act is invoked as VIA is a railway.

[48] The three member majority of the Court in Gander held that,

[37] In the circumstances, where an alternate use is not possible, it could not be said that, if sold on the open market, a willing buyer would offer more than a nominal amount, determined by the assessors here to be one dollar. Assessment in future years may, of course, change should the airport become financially viable or freed from the restrictions that applied as of the base date with the result that a market with more than a nominal value could be identified under section 17 of the Assessment Act.

[49] However, Barry J.A. in dissent, (with the concurrence of Chief Justice Green) disagreed. He noted that,

[50] … In the present case, hypothetically there were other potential purchasers, namely those entities who would have been called upon to operate an international airport at Gander had the Authority ceased operation. Accordingly, there was a hypothetical market, though a limited one.

[52] Gander Airport fell within the National Airports Policy of the Government of Canada and that Government had decided an international airport should continue to be operated there. …[to determine] the exchange value of a property, an assessor must take into account not only the amount which a buyer would give but also the sum at which the owner would sell. What that sum would be is best ascertained by regarding the owner as one of the possible purchasers or by estimating what the owner would be willing to expend on the building to replace that which is being valued, regarding the owner like any other purchaser and avoiding subjective valuation.

[53] … the best approach for determining fair market value of the improvements on Airport land is the replacement cost approach, with appropriate adjustments to allow for physical deterioration, functional depreciation (obsolescence) and external depreciation (negative influences outside the building). (Emphasis added)

[50] In the assessment of economic obsolescence, railway lands are treated the same as general industrial properties. (Canadian Pacific Railway v. Municipal Property Assessment Corporation, 2011 CarswellOnt 9902, aff’d 2012 ONSC 3719 (Div. Ct.). However, economic obsolescence does not reduce the value to scrap value. (CPR v. Sudbury (supra)).

[51] We agree with the decision of the court in Assessor of Area #01 – Capital v. Nav Canada that the Southam decision is wrong. Replacement cost with appropriate adjustments as a measure of market value where apart from the owner, there is no other potential purchaser for the current use, is a valid means of determining market value. (See also Montreal v. Sun Life Assurance Co. of Canada, 1951 307 (UK JCPC), [1952] 2 D.L.R. 81 (J.C.P.C.) and Ontario (Assessment Commissioner York) v. Office Specialty Ltd., 1974 148 (SCC), [1975] 1 S.C.R. 677 where the courts determined that an accepted approach to valuation is to consider the replacement cost with appropriate adjustments such as depreciation).

CONCLUSION AS TO THE ASSESSMENT OF VALUE

[52] For the reasons that follow the Appeal is dismissed.

[53] The property must be assessed based on market value, meaning not only the amount which a buyer would give but also the sum at which the owner would sell. That sum is best ascertained by regarding the owner as one of the possible purchasers or by estimating what the owner would be willing to expend on the building to replace that which is being valued, regarding the owner like any other purchaser and avoiding subjective valuation.

[54] Section 30(2)(d) of the Assessment Act outlines the specific requirements for the assessment of railway property for tax purposes. Railway land must be assessed “at its actual cash value as it would be appraised upon a sale to another company possessing similar powers, rights and franchises”.

[55] The plain meaning of the words “as it would be appraised” envisages the possibility of a hypothetical or notional market where there is no actual competitor to determine the value of railway property for assessment purposes.

[56] Replacement cost method less external depreciation in the form of obsolescence is a valid means to assess market value. (or what the objective owner would pay) The replacement cost method may be used in cases such as this where the owner uses the property for its intended purpose (here, for railway service), would have to replace it if it were destroyed, and other market evidence is not available. (Assessor of Area #01 – Capital v. Nav Canada, (supra)).

[57] VIA complains that the Board wrongly considered evidence of a 1989 sale of the Station to VIA by Canadian National and Canadian Pacific railway saying that the 1989 sale price was determined using different principles than required under section 30(2)(d) of the Assessment Act, there was no evidence as to how much of the value was allocated to equipment, what property was not included in the assessment or how, if at all, the sale price was influenced by Government policy.

[58] The Board did not err in considering the 1989 transfer as the amount paid was not used as the assessed value. It was considered only to refute VIA’s assertion that the value of the railway station was $10.

[59] Once land value and replacement value of the property are established, the value to be deducted for economic obsolescence must be supported by empirical evidence and it must be assessed at more than scrap value. The fact that a Station is used as a rail station, has a federal monopoly or receives federal subsidies does not warrant the application of 100% economic obsolescence. (CPR. v. Sudbury (supra)).

[60] In this case, the Board reasonably determined the adjusted replacement cost to assess the value of the station by considering the aggregate of the replacement cost of the improvements (using MPAC’s automated cost system), less depreciation plus land value.

[61] The Board reasonably found that “there is no quantifiable evidence to support a finding that the Station suffers from EO for the taxation years under appeal”.

[62] VIA claims that the Board improperly disregarded jurisprudence dealing with uneconomic public services properties which suggest that an uneconomic special use property with no market has only nominal value. VIA cites the Gander decision as one of the key cases in support of this position. None of these cases including Gander deal with railway land, an important distinction.

[63] VIA submits that because it is a government-subsidized money-losing passenger rail system, “no rational buyer [possessing similar powers, rights and franchises] acting in an open, competitive market in its own self-interest would ever agree to pay more than an nominal amount for a property restricted to a money losing use… that must be assessed in its current use.” Moreover, without subsidies provided by the Federal government, the national passenger railway system operates at a loss and there should therefore be 100% economic obsolescence applied to the Station’s value.

[64] We disagree. The notional market must also reflect the fact that in creating a monopoly for VIA’s passenger rail service the Government of Canada will continue to subsidize that service, either for VIA or for any other railway company stepping into VIA’s shoes. The fact that VIA has a mandate to operate a railway passenger service means they must have a railway station. The question is therefore what must be paid for a suitable property.

[65] The evidence does not support VIA’s claim for 100% obsolescence. Unlike the case in Gander (which lost its strategic position, was barred from collecting landing fees or revenue in lieu of fees, and the total passenger volume was a fraction of what it was),

a. the Ottawa VIA station remains a busy passenger rail station suggesting ongoing value,

b. VIA is not prevented from collecting and does collect fees for services,

c. there is no evidence of significant passenger or revenue decline in Ottawa,

d. VIA would have to pay a significant sum to buy land in Ottawa to house the Ottawa railway station and it did, and

e. VIA has spent millions of dollars on renovations and improvements that if destroyed, VIA would likely make a case to rebuild and the Federal government would probably fund.

[66] The Board accepted that, “the station does not suffer from economic obsolescence because there is a strong demand for the service of passenger rail service in Ottawa. That demand is evidenced by the fact VIA is willing to build stations (Fallowfield), modify stations (Cobourg) or renovate stations (the Ottawa and Brockville stations) to accommodate that demand.” VIA must pay commercial rates to construct its stations.

[67] Contrary to the assertion made by counsel for VIA, the Board did not determine the value of these railway lands by asking itself whether the restrictions affected the subjective value to VIA but rather, considered their effect on market value in accordance with the provisions of the Act applicable to railway property.

[68] We note that the Board did not reject VIA’s claim to consider economic obsolescence. It merely held that the evidence before the Board did not justify 100% economic obsolescence and noted that VIA provided no evidence to support a lesser amount.

[69] For these reasons, we conclude that the decision of this specialized Board was reasonable. Moreover, if the appropriate standard of review is correctness on the Board’s interpretation and application of CPR. v. Sudbury, we would have found that the Board correctly applied that case and declined to apply other cases in which section 30(2)(d) was not applicable.

[70] The Appeal is therefore dismissed with costs to MPAC in the amount of $20,000 as agreed by the parties. No costs are payable to the City of Ottawa as it made no representations and filed no material.

[71] As the Appeal is dismissed, we need not address the request to provide new documents requested by MPAC. No costs are payable on the cross motion that need not be addressed.

“Justice J. Thorburn”

Thorburn J.

“Justice D.R. Aston”

Aston J.

“Justice G. Taylor”

Taylor J.

Released: September 15, 2016

CITATION: VIA Rail Canada Inc. v. MPAC, 2016 ONSC 5705

OTTAWA COURT FILE NO.: DC-15-2104

DATE: 20160915

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D. ASTON, G. TAYLOR and J. THORBURN JJ.

BETWEEN:

VIA RAIL CANADA INC.

Appellant

– and –

MUNICIPAL PROPERTY ASSESSMENT CORPORATION (MPAC), REGION 3 and CITY OF OTTAWA

Respondents

reasons for decision

Thorburn J.

Released: September 15, 2016