Court File and Parties

CITATION: Li v. Municipal Property Assessment Corporation, 2019 ONSC 5393

DIVISIONAL COURT FILE NO.: 308/19

DATE: 2019-09-17

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Baozhong Li, Applicant -and- Municipal Property Assessment Corporation, Respondent

BEFORE: F.L. Myers J.

COUNSEL: Baozhong Li in person, Jeffrey E. Feiner and Michelle Stephenson, for the Respondent

HEARD at Toronto: September 17, 2019

Endorsement

[1] Mr. Li seeks leave to appeal to the Divisional Court from the decision of the Assessment Review Board dated July 13, 2018 and the dismissal of his request for a review of that decision by the Associate Chair of the Assessment Review Board dated May 13, 2019.

[2] Appeals to this court from the Assessment Review Board are limited to questions of law by s.43.1(1) of the Assessment Act, RSO 1990, c A.31. The parties agree that to obtain leave to appeal, Mr. Li must satisfy the court that:

(a) there is some reason to doubt the legal correctness of the board’s decision; and

(b) the appeal involves an important question of law meriting the attention of the Divisional Court: City of Dryden v Municipal Property Assessment Corporation, 2016 ONSC 478.

[3] Mr. Li relies on the decision of the Supreme Court of Canada in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, for the following explanation of the difference between questions of law and other types of questions:

Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. A simple example will illustrate these concepts. In the law of tort, the question what “negligence” means is a question of law. The question whether the defendant did this or that is a question of fact. And, once it has been decided that the applicable standard is one of negligence, the question whether the defendant satisfied the appropriate standard of care is a question of mixed law and fact. I recognize, however, that the distinction between law on the one hand and mixed law and fact on the other is difficult. On occasion, what appears to be mixed law and fact turns out to be law, or vice versa.

[4] Mr. Li argued that the last sentence of this quotation means that questions of mixed law and fact are treated as questions of law for the purposes of appeal. But the Supreme Court of Canada said that this is so only “[o]n occasion”. Questions of mixed law and fact can be of different types. There is a spectrum recognized in the case law. Sometimes questions of mixed law and fact are predominantly factual. Sometimes they can present a question of law that can be separated from the facts and analyzed on its own as a pure question of law. This is referred to as an “extricable question of law”. Unless a question of mixed law and fact contains an extricable question of law however, when a statute limits appeals to questions of law alone, questions of mixed law and fact are not appealable: Asnake and Vittorio v. Aldrey, 2019 ONSC 4092, http://canlii.ca/t/j1b6w, at para. 20.

[5] The Assessment Review Board determined the value for assessment purposes of a property owned by Mr. Li. It arrived at its valuation by considering prices at which comparable properties had sold reasonably near in time to the valuation date. Several different properties were advanced in evidence by Mr. Li and MPAC. Each side argued before the board that the properties that they advanced were the most comparable to Mr. Li’s property. The board found that two of the comparable properties put forward by MPAC were the most like Mr. Li’s property and it arrived at its valuation by averaging the sale prices of those two comparables.

[6] Mr. Li argues that the board made an error by failing to ensure that one of the two comparable properties represented an arm’s length sale. He says that there is reason to believe that the sale was a private sale as it is not available on MLS. From this he concludes that the board erred in law by using the comparable.

[7] A decision that a property is similar to Mr. Li’s property is decision of fact. So too is a decision that a sale was an arm’s length transaction. The fact that a sale may have