CITATION: Junvir Investments Ltd. v. Municipal Property Assessment Corporation, 2015 ONSC 1526
DIVISIONAL COURT FILE NO.: 204/14
DATE: 20150306
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, HAMBLY AND SALMERS JJ.
BETWEEN:
JUNVIR INVESTMENTS LTD. Appellant
– and –
MUNICIPAL PROPERTY ASSESSMENT CORPORATION and THE CITY OF TORONTO Respondents
Stanley M. Makuch and Matthew S. Schuman, for the Appellant Francis X. Shea and Marc McLaren-Caux, for the Respondents
HEARD at Toronto: March 6, 2015
SACHS J. (ORALLY)
Nature of the Proceeding
[1] The appellant owns a grocery store in Toronto. It appeals two property assessment decisions of the Assessment Review Board (“the Board”) pursuant to s. 43.1 of the Assessment Act (“the Act”).
[2] The first decision, dated March 27, 2014, found that the Current Value Assessment (“CVA”) of the appellant’s property was $3,661,000 for the 2008 taxation year reduced to $2,103,000. The second decision, dated August 26, 2014 (“the Amended Decision”), amended the first decision raising the CVA of the appellant’s property to $4,288,000 for the 2008 taxation year, reduced to $2,730,000.
Jurisdiction
[3] Section 43.1(1) of the Act provides as follows:
An appeal lies form the Assessment Review Board to the Divisional Court, with leave of the Divisional Court, on a question of law.
Issues Raised
[4] On this appeal the appellant asserts that the Board made three errors in law:
(i) It erred in law in failing to properly determine the current value of the appellant’s property.
(ii) It erred in law in failing to have reference to similar properties in the vicinity;
(iii) It acted without jurisdiction when it amended its first decision and issued the Amended Decision.
Standard of Review
[5] Before us, both parties agreed that the standard of review applicable to the Board’s decision on the questions of law at issue is correctness. In doing so they rely on a decision of the Court of Appeal in Municipal Property Assessment Corp. v. BCE Place Ltd., 2010 ONCA 672, which held that questions of law arising under the Act should be reviewed on a standard of correctness. As the Divisional Court pointed out in Kensington Foundation v. Municipal Property Assessment Corp. 2013 ONSC 7694, [2013] O.J. No. 5848, at paras. 12-13, the BCE case 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. In Kensington Foundation, the Divisional Court held that the Board’s decision was to be reviewed on a standard of reasonableness. We agree.
[6] The third issue raised by the appellant involves what it alleges to be issues of jurisdiction and breach of procedural fairness. If the issue raised is one of true jurisdiction, the reasonableness standard does not apply. Similarly, if the Board did breach its duty of procedural fairness, no standard of review analysis is necessary.
Did the Board Err in Law in Failing to Properly Determine the Current Value of the Appellant’s Property?
[7] The appellant submits that, while the Board correctly understood its task, which was to determine the current value of the appellant’s property based on an income approach, the Board erroneously relied on only two of the comparable properties submitted by the parties for consideration, while ignoring eight other grocery stores whose current values were not challenged.
[8] In our view, this argument does not raise a question of law. The appellant simply disagrees with the Board’s findings of fact and the weight it afforded to various pieces of evidence. This is not a case where the Board’s conclusion was unsupported by any evidence or where the Board ignored relevant evidence (it considered the other eight grocery store comparables but found that they were not sufficiently comparable to the appellant’s independent grocery store) or where the Board misapprehended relevant evidence. Such errors could constitute errors of law. However, what the appellant is arguing before us on the first issue is a simple question of fact from which no appeal lies to this Court.
Did the Board Err in Law in Failing to have Reference to Similar Properties in the Vicinity?
[9] The appellant’s argument on this issue is very similar to its argument on the previous issue and must be dismissed for the same reason. In essence the appellant is arguing that the Board’s decision was wrong because it ended up with an assessment value that it states was double the assessment value of eight other grocery stores in the vicinity. Again the Board made a finding of fact that the best comparables to use were the comparables relating to two independent grocery stores in the vicinity, rather than the eight other grocery stores, which were chain stores. Again, they had an ample evidentiary basis upon which to make this finding.
Did the Board have Jurisdiction to Amend its Decision in the Manner that it did?
[10] The appellant submits that the Board made substantive changes to the CVA without providing the parties an opportunity to respond. In making this submission the appellant acknowledges that under s.21.1 of the Statutory Powers Procedure Act, the Board has jurisdiction to “correct a typographical error, error of calculation or similar error made in its decision.” Further, the Board has enacted Rule 130 of its own Rules of Practice and Procedure, which provides that the Board has jurisdiction to “correct a technical or typographical error, error in calculation or similar minor error made in a decision or order and may clarify a misstatement, ambiguity or other similar problem.”
[11] First we note that this is not an issue that leave was granted on. In spite of this, we have considered this issue and it is clear to us that the Amended Decision was issued to correct a typographical error and mathematical miscalculations. This was something that the Board clearly had jurisdiction to do in the manner it did.
Conclusion
[12] For these reasons, the appeal is dismissed.
Costs
[13] I have endorsed the Appeal Book, “This appeal is dismissed for reasons given orally by Sachs J. The respondent is entitled to its costs of the appeal and the motion for leave to appeal. The parties agree that the costs for the leave motion should be fixed at $4,500 and it is so ordered. With respect to the appeal we fix the costs of the appeal at $10,000 for a total order of costs for $14,500, all inclusive.”
___________________________ SACHS J.
HAMBLY J.
SALMERS J.
Date of Reasons for Judgment: March 6, 2015 Date of Release: March 19, 2015
CITATION: Junvir Investments Ltd. v. Municipal Property Assessment Corporation, 2015 ONSC 1526
DIVISIONAL COURT FILE NO.: 204/14
DATE: 20150306
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, HAMBLY AND SALMERS JJ.
BETWEEN:
JUNVIR INVESTMENTS LTD. Appellant
– and –
MUNICIPAL PROPERTY ASSESSMENT CORPORATION and THE CITY OF TORONTO Respondents
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: March 6, 2015 Date of Release: March 19, 2015