FARM PROPERTY, 2022 ONSC 843
COURT FILE NO.: DC-21-00000019-0000
DATE: 2022 02 07
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Luc Adrien Pilon
John O’Kane
Moving Party
- and -
The Administrator, Farm Property Class Tax Rate Program
Susan Keenan
Kristopher Crawford-Dickinson
Township of Leeds and the Thousand Islands
Responding Parties
HEARD: December 13, 2021 by zoom video conference
REASONS FOR JUDGMENT
(Motion for Leave to Appeal)
Emery J.
[1] The moving party, Luc Adrien Pilon, is an owner of farmland in the Township of Leeds and the Thousand Islands (the “property”). The property is used for farm purposes under s. 19(5) of the Assessment Act. Mr. Pilon seeks to have his property classified in the Farm Property Class (“FPC”) under the Farm Registration and Farm Organizations Funding Act (the “FRFOFA”) to be eligible for a reduced tax rate under the Assessment Act for the years 2015-2018 inclusive.
[2] The Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) has the statutory authority to determine how a farm property is to be classified for provincial tax purposes. Mr. Pilon seeks leave to appeal the decision dated April 13, 2021, after the Tribunal found it had no jurisdiction to consider Mr. Pilon’s appeal that his property be classified in the FPC.
[3] The Tribunal also found that Mr. Pilon, as the property owner, did not meet the requirements of Regulation 282 on the facts for the property to be considered for classification in the FPC.
[4] The benefit to having property classified in the FPC is the lower tax rate that is levied against property in that classification. Under s. 308.1(3) of the Municipal Act, 2001, the tax ratio for farm property classified in the FPC under the Assessment Act is .25, or lower as the higher tier municipality may establish.
[5] Mr. Pilon brings this motion for leave to appeal the decision of the Tribunal dismissing his appeal to the Divisional Court under s. 43.1 of the Assessment Act. Under that section, an appeal lies from a decision of the Assessment Review Board (the “ARB”), and by extension the Tribunal on a question of law, with leave. The motion comes before me to hear as a single judge of the Divisional Court.
[6] The test for leave was restated in City of Dryden v. Municipal Property Assessment Corporation, 2016 ONSC 478 as follows:
a. There is some reason to doubt the legal correctness of the Tribunal’s decision; and
b. An important question of law meriting the attention of the Divisional Court is involved.
[7] For the moving party to meet the test for leave, it is necessary for that party to demonstrate that the Tribunal’s decision is “open to very serious debate.”
Statutory Framework
[8] The Municipal Property Assessment Corporation (“MPAC”) assessed Mr. Pilon’s property at a certain value that would be taxed at the rate for property in the Residential Property Class. Mr. Pilon added the classification issue to an existing appeal of valuation issues that was already before the ARB.
[9] The ARB hears appeals about the value of property under the Assessment Act. The legislature has established a separate legislative scheme for the determination and appeal of classification issues relating to farm property under Ontario Regulation 282/98 (“Regulation 282”).
[10] The Administrator, Farm Property Class Tax Rate Program, is a statutory authority established under Regulation 282. The Administrator is substituted for MPAC in several aspects under Regulation 282. Section 8 of Regulation defines the land that can be considered farmland that is eligible for classification for the FPC if it meets the prescribed criteria, and s. 8.1 provides that an owner must apply to the Administrator for that classification.
Summary of Positions Taken
[11] Under the primary ground for finding no jurisdiction, the Tribunal found that Mr. Pilon, as the property owner, did not follow the procedure in Regulation 282 to seek a reconsideration by The Administrator. This is a necessary step under s. 30(1) of Regulation 282 to ask for a reconsideration from the proper authority under s. 39.1 of the Assessment Act.
[12] Section 8.1(2) of Regulation 282 required Mr. Pilon as the property owner to apply to the Administrator to have the property classified in the FPC with respect to a specific taxation year. This is the prescribed route to apply for the classification of property under the relevant legislation. Since the Administrator did not make a decision on the classification of Mr. Pilon’s property in the first instance, there was no decision on the classification of the property for the Administrator to reconsider.
[13] On consent, the ARB referred the classification issue in this case to the Tribunal (the “Tribunal”) to determine how the property is to be classified for provincial tax purposes. This transfer was made under s. 31 of Regulation 282 and s. 40(1) of the Assessment Act.
[14] Mr. Pilon submits that his appeal to the ARB, which was transferred to the Tribunal for hearing, was a permissible route to seek a change to the classification of his property to the FPC. In support of this position, he correctly refers to the characterization of his property as farm property under s. 19(5) of the Assessment Act. Mr. Pilon relies upon the various grounds an owner of farmland may apply to the ARB, and section s. 40(1)(a)(iv) of the Assessment Act, in particular, as a ground of appeal to the Tribunal.
[15] The Administrator takes the position that the Tribunal correctly concluded as a matter of law, that it had no jurisdiction to hear the moving property owner’s appeal because he had not requested The Administrator to reconsider the MPAC’s decision as a statutory step. The Administrator also states that the Tribunal was correct in finding that the moving property owner did not meet the necessary conditions under s. 8.1(1.1) of Regulation 282 to have his property classified in the FPC.
[16] The Township of Leeds and The Thousand Islands did not appear on the motion for leave to appeal and takes no position.
Conclusion
[17] I consider an issue on the question of jurisdiction conferred on the Tribunal under the Assessment Act to be a question of law. The exercise of that jurisdiction is set out in Regulation 282, including the role of The Administrator.
[18] The decision of the Tribunal finding it has no jurisdiction involves a question of how that jurisdiction is ceded and exercised between the Assessment Act and Regulation 282. This is a question of law. As a question of law, the standard of appellate review is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, (2019) SCC 65 (SCC), at para. 37. In Pinto v. Regan, 2021 ONSC 5502, this Court described questions of law as generally about whether the correct legal test was applied, or an approach prescribed by statute had been followed. See Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, at paras. 43, 44 and 47.
[19] Questions of mixed fact and law are questions which involve the application of a legal standard to a set of facts: Teal Cedar Products Ltd. v. British Columbia. The standard of appellate review for questions of mixed fact and law runs along a spectrum. A question that is more factual in nature is subject to the standard of whether there has been palpable and overriding error made. In contrast, a question that is more legal in nature shall be reviewed more on a correctness standard: Housen v. Nikolaisen, 2002 SCC 33, at para. 36. Where questions of law can be separated by extricating them from the facts giving rise to the issue under appeal, the extricable question of law can be analyzed on its own: Li v. MPAC, 2019 ONSC 5393.
[20] For the purposes of this motion, if the proposed appeal involves a question of law and the Tribunal decided the question correctly, the motion must fail. Alternatively, if a question of fact is raised as the issue, or a question of mixed fact or law that is inextricable or is more weighted to being factual in nature, no appeal lies to this court as s. 43.1 confines the appellate jurisdiction of this Court to questions of law.
[21] Mr. Pilon has not complied with the prescribed routes to have his property classified in the FPC. He has overlooked or ignored the requirements of Regulation 282, choosing to go around it instead of following its process. He has failed to meet the s. 8 criteria to make farm property eligible to qualify for the FPC, such as obtaining a farm registration number under the FRFOFA within the taxation year for which he seeks classification. Section 8.1(2) that makes it mandatory that the application for classification of the property in the FPC go through the Administrator. Finally, there is s. 8.1(1.1) that provides property designated within the United Counties of Leeds and Grenville as set out in the designated column under that section belongs to the FPC only if the owner has complied with s. 8 and s.8.1.
[22] Section 30(1) of Regulation 282 further provides that in the event property that is not classified in the FPC, a property owner must apply to the Administrator for reconsideration to have a property classified in the FPC, and not MPAC.
[23] Mr. Pilon has conceded that he did not make a request for the Administrator to classify his property in the FPC before commencing an appeal to the Tribunal.
[24] In my view, there is no good reason to doubt the legal correctness of the Tribunal’s decision. The submissions made on Mr. Pilon’s behalf that it was open for him to appeal the MPAC assessment under s. 40(1) of the Assessment Act to the ARB ignores the prohibition of an appeal under s. 40(3). That section provides that no appeal may be brought to the ARB by a person who is entitled to make a request for reconsideration under s. 39.1 if the person has not made the request within the time required under that section.
[25] The proposed appeal does not raise a question of law that merits the attention of the Divisional Court. Leave to appeal the decision of the Agriculture, Food and Rural Affairs Appeal Tribunal dated April 13, 2021, is denied.
[26] Costs were not addressed at the motion. I am inclined to order no costs as this motion concerned a matter of public interest. However, if the Administrator is seeking costs and the parties cannot resolve costs between themselves, a further attendance for 20 minutes can be arranged through my judicial assistant at janet.gunness@ontario.ca.
Released: February 7, 2022
FARM PROPERTY, 2022 ONSC 843
COURT FILE NO.: DC-21-00000019-0000
DATE: 2022 02 07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Luc Adrien Pilon
Moving Party
- and –
The Administrator, Farm Property Class Tax Rate Program
Township of Leeds and the Thousand Islands
Responding Parties
REASONS FOR JUDGMENT
Emery J.
Released: February 7, 2022