DATE: 20040406

DOCKET: C40665

COURT OF APPEAL FOR ONTARIO

RE:

ONTARIO PROPERTY ASSESSMENT CORPORATION [now described as MUNICIPAL PROPERTY ASSESSMENT CORPORATION] (Appellant) –and– D. VERMEERSCH FARMS LTD. and THE TOWNSHIP OF MALHIDE (Respondents)

BEFORE:

CATZMAN, GOUDGE and SHARPE JJ.A.

COUNSEL:

Christian Schulze

for the appellant

Dan Vermeersch

the respondent in person

HEARD AND ENDORSED:

April 6, 2004

On appeal from order of the Divisional Court (Justices J. Douglas Cunningham, Susan E. Greer and James C. Kent) dated May 5, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] This appeal must be allowed. The Board found that “Product is received and shipped without changing its appearance or characteristics other than removing excess moisture, if required. No other activity or business is conducted on the property.”

[2] Both the Assessment Review Board and the Divisional Court read the language of s. 6(2), para. 4 of the regulation conjunctively, rather than disjunctively, that is, as if the paragraph said “and” instead of “or”. This was clearly in error. The respondent’s facility is indisputably an elevator that receives and stores grain and, as a result, falls within s. 6(2), para. 4 and was properly classified as industrial.

[3] The appeal is allowed. The appellant does not ask for costs, and we award none.