Drewlo Holdings Inc. v. MPAC

CITATION: Drewlo Holdings Inc. v. MPAC, 2023 ONSCDC 4839

DIVISIONAL COURT FILE NO.: DC-22-46

DATE: 2023/08/24

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: DREWLO HOLDINGS INC., Appellant

AND: municipal property assessment corporation and the corporation of the city of lonDON, Respondent

BEFORE: Tranquilli, J.

COUNSEL: Scott McAnsh, Joe Jebreen, for the Appellant/Responding Party Karey Lunau, for the Respondent Municipal Property Assessment Corporation Grace Smith, for the Respondent The Corporation of the City of London Valerie Crystal, for the Proposed Intervenor/Moving Party

HEARD at London: July 6, 2023

ENDORSEMENT

[1] The Assessment Review Board brings this motion seeking leave to intervene in this appeal of one of its decisions as a friend of the court, pursuant to rule 13.02 of the Rules of Civil Procedure.

Background

[2] Drewlo Holdings Inc. appeals a Board decision which held the Municipal Property Assessment Corporation had the statutory authority under s. 33 of the Assessment Act to issue a second “omitted” assessment in the same taxation year in respect of two of three apartment towers that Drewlo converted to individual units under a registered condominium plan.

[3] Drewlo argued that MPAC had already issued an omitted assessment for the same property in May 2019. Even though this omitted assessment failed to address those units converted to a condominium plan, the appellant argued MPAC had no statutory authority to issue the second omitted assessment because the “land” as considered by the Act had been assessed. Consequently, the Appellant maintains that MPAC did not have the authority to issue the s. 33 omitted assessment in September 2019.

[4] The Board rejected Drewlo’s arguments and dismissed its appeal. In doing so, the Board concluded that the relevant question was whether the registration of the condominium plan created new “lands” to be added to the Assessment Roll. The Board concluded that the condominium plan created new lands and that MPAC’s assessment position was correct.

[5] For reasons reported at 2023 ONSC 1466, the court granted Drewlo leave to appeal the Board’s decision to the Divisional Court based upon five alleged errors of law.

Positions of the Parties

[6] MPAC takes no position and the City of London consents to the Board’s motion. Drewlo vigorously opposes the Board’s participation in its appeal of the Board’s decision.

[7] The Board submits it does not intend to argue the merits of its decision and will not take a position on the outcome of the appeal or the current value of the subject property. As set out in its proposed factum on the appeal filed in support of its motion, the Board seeks to provide the court with the statutory and procedural context for its decision and to make the following limited submissions:

a. the limitation of the appeal to questions of law or an extricable question of law from a finding of mixed fact and law;

b. the applicable standard of review of correctness within the context of the Board’s specialized function; and

c. procedural fairness as it relates to the tribunal’s ability to make procedural choices and the extent to which the Board may consider law or argument not raised by the parties.

[8] The Board submits these limited submissions will assist the court on the appeal. Its intervention will promote a full, informed adjudication without compromising tribunal impartiality or prejudicing the parties.

[9] Drewlo contends the court should dismiss the Board’s motion. The Board does not have a statutory right to appear on this appeal. The appeal is opposed by two responding parties such that there are no “gaps” in the record which would benefit from the Board’s participation. The parties are represented by knowledgeable and experienced counsel who will be able to make fully informed arguments to the appeal panel. The Board’s proposed terms of participation are unnecessary and threatens to compromise tribunal impartiality in its adjudicative function. To that end, Drewlo submits some of the Board’s proposed submissions verge on addressing the merits of the appeal and defending the tribunal’s decision.

Analysis

[10] The applicable principles that guide the court’s exercise of its discretion under Rule 13.02 on the question of tribunal intervention are well recognized. This includes consideration of the factors outlined in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd., (1990) 1990 6886 (ON CA), 74 O.R. (2d) 164 and the non-exhaustive factors identified in Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147 at para. 59. Concerns about tribunal participation on appeal should not be read to establish a categorical ban. For the most part, there is a more relaxed attitude in allowing tribunal participation in statutory appeals of its decisions. A discretionary approach provides the best means of ensuring the principles of finality and impartiality are respected without sacrificing the ability of reviewing courts to hear useful and important information and analysis. Ontario (Energy Board), at paras. 46, 52.

[11] For the following reasons, I find that it is appropriate for the Board to participate in the appeal on the proposed terms and subject to the discretion of the panel hearing the appeal.

[12] The Divisional Court encourages and routinely grants tribunal intervention as an aid the court in understanding the procedural and institutional context behind the decision under appeal: Tartu College v. Municipal Property Assessment Corporation et al. (29 June 2022), Toronto, 715/19, 309/20 (Div. Ct.) [unreported]. However, this does not mean the court grants leave without due consideration of the recognized factors that must inform the court on the propriety of the proposed terms of tribunal standing on the appeal.

[13] A fair reading of the decisions relied upon by the Board in support of its motion demonstrates the court’s due consideration and principled application of the established factors in the exercise of its discretion to grant standing to various adjudicative tribunals, such as the Board: Birani v. Tarion, 2017 ONSC 2503; Hutchison v. Aviva General Insurance Company, 2022 ONSC 7136; Tartu College. In Birani and Hutchison, the court did not simply grant the tribunal’s proposed terms of participation. Each decision demonstrated a balancing of the need for fully informed adjudication against the importance of maintaining tribunal impartiality. In both cases, the court put limits on the proposed participation, such as prohibiting the tribunal from making submissions on standard of review or reasonable apprehension of bias. Although the court did not cite caselaw in its reasons in Tartu College, again, reading the reasons as a whole, it is evident that the court had the principles in Ontario (Energy Board) and Peel at the forefront in its reasons and did not simply presume standing.

[14] Although this is an opposed appeal involving experienced counsel, I am persuaded the Board brings a background and perspective to the statutory and tribunal process that is distinct from that of the parties, such as MPAC. As demonstrated in its proposed factum, the Board is in a unique and well-equipped position to present information concerning its process, jurisdiction, the record, the applicable standard of review, policy considerations and the interrelationship of various legislative provisions: Ontario (Energy Board), at paras. 43, 44; Birani at para. 15; Hydro Ottawa v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2019 ONSC 4898 at para. 7; Tartu College.

[15] Drewlo contends that the Board’s proposed factum demonstrates the Board intends to defend the merits of its decision through advancing positions that are directly opposed to Drewlo’s position.

[16] Drewlo argues the proposed factum shows the Board explicitly intends to defend its decision with its submission “there is no breach of procedural fairness” if the parties had notice of the essential issues in dispute and an adequate opportunity to respond. I do not accept that characterization of the proposed submission. Simply because the Board proposes a submission that is at odds with the appellant’s position cannot mean the Board is engaging in the merits of either its decision or the appeal. The impugned statement is a proposition of law that follows several paragraphs detailing the relevant aspects of the audi alteram partum rule and related legal precedent as it pertains to adjudicative tribunals. It goes no further in that submission, such as in attempting to apply those principles to the facts under appeal.

[17] Drewlo also specifically objects to the Board’s proposed submissions on appealable errors of law. The Board’s proposed submission submits that the “chronology of events” cited by the tribunal in its reasons are findings of fact which are not subject to appeal unless an extricable question of law is raised. Drewlo contends this is another example of the Board attempting to engage in the merits of the appeal, as the tribunal’s submission is in opposition to its own. The appellant also suggests the Board is taking a position that improperly questions the correctness of the court’s decision in granting Drewlo leave to appeal. Again, I see no such engagement on the merits or improper challenge to the leave decision. The impugned submission is a statement of a legal principle in the context of several statements of legal precedent about identifying errors of law and extricable errors of law from findings of mixed fact and law. The Board makes no attempt to apply that principle to merits of the appeal. I also note that in granting leave to appeal, Justice Nicholson expressly qualified his reasons as being granted based on “alleged errors” and that he had made no conclusion as to whether the Board was, in fact, in error. He expressly left that question to be determined by the appeal panel.

[18] I am persuaded the Board can make a useful contribution to the appeal without causing an injustice to the immediate parties. The Board can speak to issues that transcend the interests of the immediate parties in terms of the legislative imperatives and processes to achieve correctness of the assessments, finality of tax assessments and fairness to taxpayers.

[19] The Board’s involvement will not result in a material delay of the appeal. The Board notified the parties of its intention to seek standing shortly after leave to appeal was granted. Drewlo has perfected its appeal. MPAC and the City have refrained from delivering their responding materials pending the disposition of this motion and Drewlo would want the right to file reply materials if leave to intervene is granted. The parties hope the appeal can be heard in the November 2023 sittings. It is therefore possible that the appeal can be ready for that week, although much will depend on the status of that hearing list. It may well not be listed for argument in November 2023 due to scheduling demands; however, that will not be as a result of the Board’s participation. To the extent these reasons have delayed the readiness of the matter for hearing, that is through no fault of the Board. As explained at the hearing of the motion, I have had to dedicate resources to a criminal jury trial that proceeded over the bulk of this summer.

Disposition

[20] The Board’s motion is granted for the foregoing reasons. The court understood the parties are agreed that each party is to bear its own costs of this motion. If I am mistaken in that regard, they should immediately notify the court and I will impose a schedule for cost submissions.

[21] I direct the parties and the Board to confer on an updated consent timetable for the completion of the remaining steps in readiness for the appeal. They are to file a consent timetable for my attention at Divisional.Court.London@ontario.ca by no later than September 8, 2023. If the parties are unable to achieve a consent timetable, they will notify the court by September 8, 2023, with advice as to three dates on which all counsel are available for a brief case management conference at 8:30 am in the weeks of September 11 and September 18. 2023. The parties shall also each file their proposed draft timetable for the court’s consideration in advance of the case conference.

Tranquilli J.

Date: August 24, 2023