Municipal Property Assessment Corp., 2023 ONSC 6625

DIVISIONAL COURT FILE NO.: DC-23-173

DATE: 20231208

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Lococo, Emery and Schabas JJ.

BETWEEN:

Stamford Kiwanis Non-Profit Homes Inc.

Applicant (Appellant)

– and –

Municipal Property Assessment Corporation and the Corporation of the City of Niagara Falls

Respondents (Respondents)

Counsel:

Scott McAnsh and Joe Jebreen, for the Applicant (Appellant)

Jeffrey E. Feiner and Allyson Amster, for the Respondent Municipal Property Assessment Corporation

John L O’Kane, for the Respondent Corporation of the City of Niagara Falls

HEARD at Hamilton: October 31, 2023, by video conference

REASONS FOR JUDGMENT

R. A. LOCOCO J.

I. Introduction

[1] The appellant Stamford Kiwanis Non-Profit Homes Inc. appeals from the judgment of Justice Michael Bordin of the Superior Court of Justice dated November 29, 2022 (the “Application Decision”), with reasons reported at 2022 ONSC 6392.

[2] The appellant is a not-for-profit corporation that owns three multi-unit residential properties that provide affordable housing to low-income residents of the respondent Corporation of the City of Niagara Falls (the “City”). The application judge dismissed the appellant’s application for an order declaring that the three properties are exempt from municipal taxation.

[3] The appellant argues that the application judge erred in accepting the joint position of the City and the respondent Municipal Property Assessment Corporation (“MPAC”) that the appellant does not qualify for a municipal tax exemption available to certain charitable institutions: see Assessment Act, R.S.O. 1990, c. A.31, s. 3(1)12(iii). In reaching that conclusion, the application judge found, among other things, that the appellant was not “organized for the relief of the poor”, as those words have been interpreted in previous case law.

[4] For the reasons that follow, I would dismiss the appeal.

II. Background

[5] The appellant Stamford Kiwanis Non-Profit Homes Inc. (“Stamford Homes”) is a non-for-profit corporation incorporated in 1984. As stated in its letters patent, Stamford Homes’ corporate objects include the following:

a. to acquire, construct, hold, supply, operate, manage and maintain housing accommodations and incidental facilities for the purpose of operating a non-profit housing project for lower income people, senior citizens, functionally handicapped person or others with special needs; and

b. to raise money through subscriptions, memberships.

[6] The factual background of this matter was set out in the Application Decision, at paras. 8-23. In summary, Stamford Homes owns three multi-unit residential properties (the “Properties”) located in the City. The Properties are individually referred to in the Application Decision as the Buckley Property (acquired in 1987), the Ailanthus Property (acquired in 1994) and the Barker Property (acquired in 2015).

[7] The Properties have a total of 107 residential units. As explained below, 94 of those units are rented to low-income tenants who pay rent geared to income (“RGI”) or are otherwise paying rent set below the market average. RGI is a system that limits the rent paid by tenants to what they can reasonably afford.

[8] Stamford Homes works with Niagara Regional Housing to provide affordable housing to low-income residents of the City. That agency is the regional service provider under the Housing Services Act, 2011, S.O. 2011, c. 6, Sched. 1. It provides funding that enables Stamford Homes to offer RGI housing at the Buckley Property and the Ailanthus Property.

[9] Unlike the other two Properties, the multi-unit residential complex on the Barker Property was developed and built after Stamford Homes acquired that property. The Barker Property has no RGI tenants, but 17 of its 30 residential units are affordable units, with rents set below 80 percent of the CMHC Rental Market Report Guidelines. The occupants of the remaining 13 units pay market rents, which subsidize the rents for the below-market units.

[10] Stamford Homes has a board of directors that directs Stamford Homes in conducting its business. The directors serve without remuneration. They meet monthly except December. The day-to-day management of the Properties is handled by a for-profit property management company under a management contract with Stamford Homes. The management company was founded and previously owned by the current president (and a director) of Stamford Homes. Its responsibilities include all corporate reporting, financial management, regulatory compliance, taxation, tenant selection, administration and eviction, property maintenance activities, planning and budgeting.

III. Decision under appeal

[11] In November 2021, Stamford Homes brought an application to the Superior Court under s. 46 of the Assessment Act. It sought a declaration that commencing with the 2021 taxation year, the Properties were exempt from municipal taxation pursuant to s. 3(1)12(iii) of that Act. In prior years, Stamford Homes was assessed and paid municipal taxes relating to the Properties.

[12] The introductory language of s. 3(1) of the Assessment Act provides as follows:

Property assessable and taxable, exemptions

3(1) All real property in Ontario is liable to assessment and taxation, subject to the following exemptions from taxation: …

[13] The remainder of s. 3(1) consists of a total of 42 clauses (ss. 3(1)1 to 3(1)29) setting out taxation exemptions available to specified types of institutions and organizations. The Court of Appeal for Ontario has recognized that many of such organizations “perform activities which are of great benefit to either discrete groups of disadvantaged persons or to society as a whole. Exemption from property tax allows these organizations to spend more of their limited resources on those activities”, consistent with the organizations’ social and economic purposes: see Ottawa Salus Corp. v. Municipal Property Assessment Corp. (2004), 2004 14620 (ON CA), 69 O.R. (3d) 417 (C.A.), at para. 26.

[14] Land exempt from municipal land tax includes property held by charitable institutions specified in s. 3(1)12, which provides as follows:

Charitable institutions

12. Land owned, used and occupied by,

i. The Canadian Red Cross Society,

ii. The St. John Ambulance Association, or

iii. any charitable, non-profit philanthropic corporation organized for the relief of the poor if the corporation is supported in part by public funds.

[Emphasis added.]

[15] Some of the cases that the parties cite in their submissions were decided prior to the1998 amendments to the Assessment Act. Prior to those amendments, s. 3(1)12 provided as follows:

12. Land of an incorporated charitable institution organized for the relief of the poor, The Canadian Red Cross Society, St. John Ambulance Association, or any similar incorporated institution conducted on philanthropic principles and not for the purpose of profit or gain, that is supported, in part at least, by public funds, but only when the land is owned by the institution and occupied and used for the purposes of the institution. [Emphasis added.]

[16] Before the application judge, the respondents did not dispute that Stamford Homes is “a charitable, non-profit philanthropic corporation that is supported in part by public funds”. As well, the respondents conceded in oral argument that Stamford Homes, by providing subsidized rent to many of its tenants, “serves the poor as intended by the exemption”: Application Decision, at para. 3. On that basis, the application judge identified the only issue in the application as being whether Stamford Homes is “organized for the relief of the poor”: Application Decision, at para. 4.

[17] The application judge further narrowed the issue for determination by making the undisputed finding, on the evidence and applying the cases the parties cited, that the tenants of the Properties were “poor”. According to the application judge, the application turned on whether Stamford Homes “is organized for the relief of the poor” (emphasis in original): Application Decision, at para. 34.

[18] The application judge found that the evidence did not support the conclusion that Stamford Homes was “organized” for the relief of the poor. In reaching that conclusion, the application judge relied on the decision of the Court of Appeal in Religious Hospitallers of St. Joseph Housing Corp. v. Regional Assessment Commissioner (1998), 1998 2943 (ON CA), 42 O.R. (3d) 532 (C.A.). As explained further below, the court in that case considered the application of the exemption in s. 3(1)12 (as it was prior to the 1998 amendments) to a multi-unit residential property that provided rental units to occupants on a subsidized basis. The court, at p. 8, interpreted “the words ‘organized for the relief of the poor’ to mean that it would be the corporation itself, by some form of endeavour of the corporation, which would provide the relief involved” (emphasis added). After reviewing the limited role of the housing corporation that owned the property in that case, the court determined that the housing corporation “was not ‘organized for the relief of’ the tenants within the meaning of the exemption provision”: Religious Hospitallers, at pp. 8-9.

[19] Before the application judge, Stamford Homes argued that the court was not bound to follow Religious Hospitallers because (among other things) the Court of Appeal failed to apply the principles of statutory interpretation of taxation legislation set out in Québec (Communauté urbaine) v. Corp. Notre-Dame de Bon-Secours, 1994 58 (SCC), [1994] 3 S.C.R. 3 and other case law. The application judge rejected that submission: Application Decision, at paras. 28, 42-43. He also rejected the submission that Religious Hospitallers was distinguishable on its facts, finding on evidence that Stamford Homes’ activities “falls short of the kind of endeavour that Religious Hospitallers indicates is required”: at paras. 55-56. In doing so, the application judge noted that with one exception, other cases cited to him that interpreted the meaning of “organized for the relief of the poor” did not expressly include a requirement for “endeavour”: at paras. 36, 57-58.

IV. Parties’ positions on appeal and decision roadmap

[20] On appeal from the Application Decision, Stamford Home argues, among other things, that the application judge erred in determining that the court was bound by the Court of Appeal’s decision in Religious Hospitallers. Stamford Homes submits that the application judge should have applied the principles for the interpretation of taxation legislation that are set out in Notre-Dame de Bon-Secours and other case law. It also argues that the application judge should have considered and applied other case law, the facts of which it says are indistinguishable from the matter under appeal. Had the application judge done so, Stamford Homes submits that there would have been a finding that Stamford Homes was “organized for the relief of the poor”, thereby qualifying the Properties for an exemption from municipal taxation. Stamford Homes also submits that the application judge erred in its factual findings or its application of legal principles to the evidence, including in his conclusion that Religious Hospitallers was not distinguishable on its facts.

[21] The respondents submit that the Court of Appeal in Religious Hospitallers properly interpreted s. 3(1)12, giving effect to its legislative purpose of providing an exemption from taxation for a charitable institution that met the statutory requirements. The respondents also dispute that there was any reversible error in the application judge’s factual findings or his application of legal principles to the evidence.

[22] In the balance of these reasons, I will first address the court’s jurisdiction to hear this appeal and the applicable standards of review. I will next set out the principles of statutory interpretation as they apply to taxation legislation and consider other case law that address the exemption in s. 3(1)12 of the Assessment Act, including the Court of Appeal’s decision in Religious Hospitallers. I will then identify and address the specific errors that Stamford Homes says justify reversal of the Application Decision. Finally, I will address Stamford Homes’ motion for the admission of fresh evidence on the appeal.

V. Jurisdiction and standard of review

[23] The Divisional Court has jurisdiction to hear this appeal: Assessment Act, s. 46(4). The appellate standards of review apply, as set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 19, 10, 26-37.

[24] The standard of review is correctness for questions of law, including legal principles extricable from questions of mixed fact and law.

[25] The standard of review is palpable and overriding error for questions of fact and for questions of mixed fact and law (except as above), including with respect to the application of correct legal principles to the evidence. A palpable and overriding error is an obvious error that is sufficiently significant to vitiate the challenged finding: Longo v. MacLaren Art Centre, 2014 ONCA 526, 323 O.A.C. 246, at para. 39. The appellant must show that the error goes to the root of the challenged finding such that it cannot safely stand in the face of the error: Waxman v. Waxman (2004), 2004 39040 (ON CA), 186 O.A.C. 201 (C.A.), at p. 267, leave to appeal refused, [2004] S.C.C.A. No. 291.

VI. Interpretation of taxation statutes

A. Modern principle of statutory interpretation

[26] In Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, the Supreme Court concisely set out the modern principle of statutory interpretation, as previously formulated in Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87, as follows:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[27] In R. v. Del Mastro, 2017 ONCA 711, 416 D.L.R. (4th) 726, at para. 61, after stating that principle, the Court of Appeal went on to state as follows:

[S]tatutory interpretation is a multi-dimensional exercise and requires a court to consider whether a particular interpretation complies with the legislative text, promotes the intention of the legislature, and produces a result that is reasonable and just, in compliance with accepted legal norms: Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014), at pp. 7-10.

B. Supreme Court’s decision in Notre-Dame de Bon-Secours

[28] In its 1994 decision in Notre-Dame de Bon-Secours, the Supreme Court of Canada considered the issue of statutory interpretation as it applies specifically to taxation legislation. In that case, the issue for determination was the application of a municipal tax exemption under Quebec provincial legislation to facilities that provided low-rent housing to indigent elderly persons.

[29] In Notre-Dame de Bon-Secours, at para. 17, the court noted that there was “a traditional rule that tax legislation must be strictly construed: this applied both to provisions imposing a tax obligation and to those creating tax exemptions.” For a provision imposing a tax liability, the burden of proving its application lay with the tax department. For an exemption provision, the taxpayer had the burden of proving that the exemption applied: Notre-Dame de Bon-Secours, at paras. 17-18.

[30] This approach reflected the traditional view that the sole purpose of taxation legislation was to raise money: see Commissioners for Special Purposes of Income Tax v. Pemsel, 1891 21 (FOREP), [1891] A.C. 531, at p. 551; London (City) v. Ursuline Religious Diocese of London, 1964 243 (ON CA), [1964] 1 O.R. 587 (C.A.); and Yarmouth (Township) v. London (City), 1956 42 (ON CA), [1957] O.R. 37 (C.A.).

[31] In Notre-Dame de Bon-Secours, at para. 20, the Supreme Court went on to consider more recent case law, which recognized that “the purpose of tax legislation is no longer simply to raise funds with which to cover government expenditure. It was recognized that such legislation is also used for social and economic purposes.”

[32] At para. 22, the Supreme Court stated that “there is no longer any doubt that the interpretation of tax legislation should be subject to the ordinary rules of construction.” As in Rizzo, at para. 21, the court adopted Professor Drieger’s formulation of the modern principle of statutory interpretation. The court, at para. 25, went on to summarize the principles that applied to the interpretation of tax legislation as follows:

• The interpretation of tax legislation should follow the ordinary rules of interpretation;

• A legislative provision should be given a strict or liberal interpretation depending on the purpose underlying it, and that purpose must be identified in light of the context of the statute, its objective and the legislative intent: this is the teleological approach;

• The teleological approach will favour the taxpayer or the tax department depending solely on the legislative provision in question, and not on the existence of predetermined presumptions;

• Substance should be given precedence over form to the extent that this is consistent with the wording and objective of the statute;

• Only a reasonable doubt, not resolved by the ordinary rules of interpretation, will be settled by recourse to the residual presumption in favour of the taxpayer.

C. Court of Appeal’s decision in Ottawa Salus

[33] In its 2004 decision in Ottawa Salus, the Court of Appeal specifically relied on Notre-Dame de Bon-Secours in interpreting the application of s. 3(1)12(iii) of the Assessment Act.

[34] As previously noted, in the 1998 amendments to s. 3(1)12, the language requiring that the land to be “owned by the institution and occupied and used for the purposes of the institution” was amended to “land owned, used and occupied by” the charitable organization. The amended provision also removed the exemption for institutions that are “similar” to charitable institutions organized for the relief of the poor: Ottawa Salus, at paras. 5, 22.

[35] In Ottawa Salus, MPAC argued that the amended language narrowed the exemption so that it no longer applied to premises that were occupied by disadvantaged tenants rather than by the institution itself. The Court of Appeal rejected that interpretation, stating that the court below had not erred in finding that the institution “must affirmatively establish that its property falls within the four corners of the exempting provision” but that “the legislative intent and purpose of the exemption must also be kept in mind”: Ottawa Salus, at para. 16.

[36] As previously noted, the court observed that many of the institutions and organizations that had the benefit of an exemption from taxation under s. 3(1) “perform activities which are of great benefit to either discrete groups of disadvantaged persons or to society as a whole. Exemption from property tax allows these organizations to spend more of their limited resources on those activities”: Ottawa Salus, at para. 26. The court also noted that the specific purpose of s. 3(1)12(iii) was “to grant relief from property taxation to non-profit corporations ‘organized for the relief of the poor’ because the public interest in granting these organizations additional resources to relieve poverty outweighs the public interest in generating revenue through the taxation of property”: Ottawa Salus, at para. 27.

[37] At para. 28, the court held that taking into account the provision’s legislative purpose, the more expansive interpretation adopted by the court below (that is, the charity need not itself occupy the land, but the land must be used directly by the charity in carrying out its work) was the preferred interpretation that created “a balanced and just interpretation of the exemption”.

D. Court of Appeal’s decision in Religious Hospitallers

[38] In its 1998 decision in Religious Hospitallers (decided before Ottawa Salus but four years after Notre-Dame de Bon-Secours), the Court of Appeal considered the application of the exemption in s. 3(1)12 of the Assessment Act, as that provision read before the 1998 amendments.

[39] In Religious Hospitallers, the respondent housing corporation owned a 59-unit residential property used to accommodate senior citizens, which was the respondent’s only undertaking. The property was acquired from a religious order and the existing hospital building was converted for that use. Capital funding was provided by a mortgage from Ontario Housing Corporation. The units were allocated in accordance with a plan approved by the provincial Ministry of Housing. Under the plan, 20 per cent of the occupants paid market rent and the balance paid rent geared to income. The income to operate the complex was derived from rent and other charges paid by the occupants. Expenditures included payments on the mortgage loan and an administration fee to the religious order that formerly owned the property, for management of the complex. An annual budget was presented to the Ministry, which paid the respondent an amount sufficient to make up any shortfall between income and expenses.

[40] Upon the housing corporation’s application under the Assessment Act, the application judge found that the property was not exempt from municipal taxation under s. 3(1)12. On appeal, the Divisional Court reversed that decision, finding that the exemption in s. 3(1)12 applied. Upon further appeal, the Court of Appeal reversed the Divisional Court decision and restored the application judge’s decision that the property was subject to municipal land tax.

[41] In Religious Hospitallers, at p. 2, the Court of Appeal stated that the only issue in the appeal was whether the land in question met the criteria in the exemption provision. The court also stated that a taxpayer claiming an exemption “has the onus of showing that he or she comes clearly within the terms of the exemption clause” (citing its 1964 decision in Ursuline Religious and its 1957 decision in Yarmouth), the reason being that there is “no purpose in a Taxing Act but to raise money, and ... every exemption throws an additional burden on the rest of the community” (citing the 1891 English House of Lords decision in Pemsel). The Court of Appeal in Religious Hospitallers did not refer to the Supreme Court decision in Notre-Dame de Bon-Secours, decided four years earlier.

[42] After reviewing the factual background and the wording of the exemption, the Court of Appeal, at pp. 5-6, identified the only issue for determination to be whether the respondent was “organized for the relief of the poor” or a “similar incorporated institution” within the meaning of s. 3(1)12 as it then read. In doing so, the court stated that it was relevant to consider the respondent’s corporate objects, but the court also noted that corporate objects “cannot be conclusive; otherwise determining whether an exemption is available would depend purely on the drafting of the corporate objects. It is the property for which exemption is claimed and its actual operation and administration which are of primary concern in determining whether the exemption criteria are met”: at p. 7.

[43] At pp. 8-10, the Court of Appeal went on to interpret the statutory language as follows:

I read the words "organized for the relief of the poor" to mean that it would be the corporation itself, by some form of endeavour of the corporation, which would provide the relief involved. In this case, the corporation itself does very little. It raises no funds by efforts of its members for the support of the institution, such as solicitation of the public or other fund-raising projects or events. It does not manage the operation; that is done by the order of the Religious Hospitallers of St. Joseph in return for payment of an annual fee of approximately $60,000. The Housing Corporation is the registered owner of the property which it purchased from the Order, but the purchase was fully financed, and the cost of financing is paid for in total, by government funds. From the outset, the actual operation and administration were organized so that the Housing Corporation has provided nothing which is for the relief of the tenants. The total cost is borne by a combination of the tenants themselves and government.

In my view, the Housing Corporation was not "organized for the relief of" the tenants within the meaning of the exemption provision.

In our case, all of the funds to operate the Housing Corporation project come from the tenants and government sources. It is that fact which, as stated above, compels me to conclude that it is not the Housing Corporation which provides relief for the tenants in this case.

[Emphasis added.]

E. Other s. 3(1)12 case law

[44] The parties also referred to other case law, decided before and after Notre-Dame de Bon-Secours, that interpreted s. 3(1)12 of the Assessment Act, including the Supreme Court of Canada decision in Ontario (Assessment Commissioner Stouffville) v. Mennonite Home Assn. of York (County), 1972 9 (SCC), [1973] S.C.R. 189, a decision that Stamford Homes relies on. In that case, the Supreme Court identified the issue for determination as whether the owner of a building used as a home for the aged (without any means test or inquiry upon admission) fell within the wording of the exemption in s. 3(1)12 as it was prior to the 1998 amendments, on the basis that it was “similar” to an incorporated charitable institution organized for the relief of the poor. In a split decision (three to two), the majority held that the exemption applied.

[45] After concluding that the other aspects of exemption were satisfied (including that the home was supported, in part at least, by “public funds”, which the majority interpreted to mean “funds from a government source”)[^1], the majority went on to consider whether the institution was “similar” to an incorporated charitable institution organized for the relief of the poor. The majority decided that it was. To determine whether the home’s occupants were “poor”, the majority indicated that the poor “does not mean the very poorest, the absolutely destitute; the word ‘poor’ is more or less relative.” The majority adopted the finding of the court below that the home’s occupants “if they are not poor, are in similar circumstances”. The majority therefore concluded that the institution was “similar to one incorporated for the relief of the poor in that it operates for the relief of the poor.”

[46] The Supreme Court’s interpretation of the term “poor” in Mennonite Homes was adopted and refined in City of London v. Byron Optimist Sports Complex Inc. (1983), 23 M.P.L.R. 10 (Ont. C.A.), where the Court of Appeal stated that “the term ‘poor’ is a relative term and that while the persons who benefit need not be destitute, there must be an element of economic deprivation or need, the relief from which is a part of the purpose of the institution claiming the exemption.”

[47] As in Mennonite Home, the issue in Byron Optimist was whether the organization seeking the exemption was “similar” to an incorporated charitable institution organized for the relief of the poor within the meaning of the pre-1998 version of s. 3(1)12. The Court of Appeal decided that the exemption was not available since an element of economic deprivation or need was not established in that case.

[48] The Divisional Court reached a similar conclusion in LDARC Corp. and City of London (1985), 1985 2148 (ON SC), 50 O.R. (2d) 677 (Div. Ct). In that case, the court observed that the institution in question carried on “worthwhile commendable work”, but “[i]t was not the Legislature's intention to grant tax exemptions to all worthwhile charitable institutions”: LDARC, at p. 8.

[49] Bolan J. of this court also considered the application of s. 3(1)12(iii) in MacKay Homes v. North Bay (City) [catalogued as Homes v. North Bay (City)], 2005 5873 (Ont. S.C.), a decision considered by the application judge: Application Decision, at paras. 36-37. In that case, the owner of a housing development established for the benefit of low-income seniors sought an exemption from taxation pursuant to s. 3(1)12(iii). The court found that the property was exempt.

[50] In MacKay Homes, at para. 13, the court described the services provided directly by the board of the property owner (not an out-sourced entity) as follows:

The Applicant is the exclusive owner and operator of these rental units. It is governed by a Board of 6 Directors who serve entirely without fee, gratuity or involvement of any kind or amount whatsoever, attending to the collection of rentals, payment of mortgage installments, maintenance and repairs to the residential units, maintenance and care of the grounds, receiving applications and allotment of accommodations along with preparation and execution of lease, personal attention and assistance to individual tenants from time to time in numerous other ways.

[51] In order to determine whether the housing corporation was organized for the relief of the poor, the court stated that “there must be an element of economic deprivation or need to the tenants and it also requires that the Applicant undertakes some form of endeavor to provide the relief”: MacKay Homes, at para. 14. The court found that those elements of s. 3(1)12(iii) had been satisfied: at paras. 16-25. The court was also satisfied that the applicant was supported in part by “public funds” by CMHC financing at “a constant interest rate substantially below [market] interest rates”: at paras. 24-26.

[52] In the Application Decision, at paras. 32-33, the application judge also referred to St. Catharines Seniors Apartments Phase Three Inc. v. Municipal Property Assessment Corporation, 2015 ONSC 3896, 41 M.P.L.R. (5th) 98. In that case, the applicant owned and operated a residential apartment building the occupants of which were low-income seniors. The parties agreed that the applicant “owns, uses and occupies … a charitable, non-profit, philanthropic, residential apartment building for seniors of low income, … and that it is supported, in part, by public funds”: St. Catharines Seniors, at para. 3. Therefore, by the parties’ agreement, all the elements of s. 3(1)12(iii) were satisfied except for the requirement that the applicant be “organized for the relief of the poor”. The court then noted that if the building’s residents “satisfy ‘the poor’ requirement of paragraph 12(iii), the applicant is entitled to, and seeks, an order declaring that the property is exempt from municipal taxation”: St. Catharines Seniors, at para. 4.

[53] The court concluded that the building’s residents were poor within the meaning of s. 3(1)12(iii), with the result that the applicant was entitled to an exemption from taxation for the building.

[54] In its analysis, the court, at paras. 32-35, referred to the interpretive framework set out in Notre-Dame de Bon-Secours and Ottawa Salus, and, at paras. 40-46, also considered previous case law that interpreted the meaning of “poor” in this context. In that regard, the court noted that qualification for the exemption in s. 3(1)12(iii) did not require that the building “be occupied by the poorest of the poor” and found that the building’s residents “are not cardboard-box-in-the-park poor, but they are poor”: St. Catharines Seniors, at paras. 51-52. The court concluded that the exemption from taxation applied, giving effect to “the important public interest in providing affordable housing for poor senior citizens”: St. Catharines Seniors, at para. 53.

[55] In its submissions, Stamford Homes also refers to the Divisional Court decision in Sandy Hill Community Health Centre Inc. v. Ontario (Regional Assessment Commissioner, Region No. 3) (1997), 1997 16223 (ON SC), 34 O.R. (3d) 226 (Div. Ct.), which considered the application of the exemption in s. 3(1)12 before the 1998 amendments to the Assessment Act. In that case, the applicants were three charitable institutions that provided basic health care in low-income neighbourhoods. The principal issues on appeal were (i) whether the institutions mainly served the poor, and (ii) whether providing health care services to the poor can be regarded as providing relief to the poor: Sandy Hill, at p. 6. To determine those issues, the court, at p. 3, described the scope of its inquiry as follows:

It is well settled that the issue of whether a corporation is organized for the relief of the poor is not determined by the statement of its objects contained in its incorporating documents. Instead, the inquiry should be directed to [an] examination of the actual activities of the corporation. It is, therefore, necessary to examine the evidence describing the work of the 3 applicants in the case at bar.

[56] After examining the evidence, the Divisional Court decided both questions in the affirmative, that is, (i) the applicants mainly served the poor, and (ii) providing health care services to the poor can be regarded as providing relief to the poor: Sandy Hill, at pp. 6, 20.

VII. Issues for determination

[57] Stamford Homes submits that the application judge erred in determining that the Court of Appeal’s decision in Religious Hospitallers was binding on the application judge and determinative of Stamford Homes’ application. In support of that position, Stamford Homes advanced the following arguments (among others):

a. Error in statutory interpretation? In Religious Hospitallers, the Court of Appeal applied outdated principles of statutory interpretation relating to taxation legislation, rather the updated principles set out in Notre-Dame de Bon-Secours and Ottawa Salus. The application judge erred in law in relying on Religious Hospitallers in these circumstances.

b. Error in legal test? – interpretation of “endeavour”: The application judge erred in the statement and application of the legal test for determining whether an institution is “organized for the relief of the poor”, including by giving an expansive interpretation to the requirement in Religious Hospitallers of some kind of “endeavour”. Among other things, the Court of Appeal in Religious Hospitallers erred in law in interpreting “endeavour” as imposing a requirement that the institution seek and obtain outside funding beyond that provided by government sources and its tenants.

c. Is Religious Hospitallers distinguishable? The application judge erred in finding that the Court of Appeal decision was not distinguishable on its facts. The facts of the matter under appeal were materially different than in Religious Hospitallers.

[58] I will address each of the above issues in turn. As explained below, I am not persuaded that the application judge made any reversible error in the Application Decision.

VIII. Analysis

A. Error in statutory interpretation?

[59] Stamford Homes submits that the Court of Appeal in Religious Hospitallers applied outdated principles of statutory interpretation relating to taxation legislation, rather the principles set out in Notre-Dame and Ottawa Salus. The application judge erred in law in relying on Religious Hospitallers in these circumstances.

[60] Stamford Homes raised the same before the application judge, who addressed the issue in the Application Decision, at paras. 42-43, as follows:

42. Stamford Homes says that Religious Hospitallers can be distinguished because the court based its analysis on the principle that there is no purpose in a taxing act but to raise money, and every exemption throws an additional burden on the community. It says the court in Religious Hospitallers failed to consider the second purpose of the Act - the public interest in granting appropriate organizations additional resources to relieve poverty.

43. The court in Religious Hospitallers was obviously considering whether the applicant had established facts sufficient to allow the court to grant the exemption. Religious Hospitallers was decided four years after the Supreme Court's decision in Notre-Dame de Bon-Secours. It is this court's view that the Court of Appeal for Ontario must be taken to have contemplated the principles in Notre-Dame de Bon-Secours. The Court of Appeal's silence cannot be taken to mean that the applicable interpretive principles were not considered. Moreover, as noted above, the comments of the court in Religious Hospitallers were made in the context of a discussion regarding who bears the burden.

[61] Stamford Homes takes particular exception with the application judge’s statement that the court’s failure to mention Notre-Dame de Bon-Secours in Religious Hospitallers “cannot be taken to mean that the applicable interpretive principles were not considered.” Stamford Homes points out that the “dual purpose” approach to interpretation of taxing statutes adopted in Notre-Dame de Bon-Secours (and applied in Ottawa Salus) represents a shift from strict statutory construction premised on the single legislative purpose (raising money to meet expenditures) to a purpose-based interpretation that also recognizes social and economic purposes. Stamford Homes argues that given the Court of Appeal’s reliance on outdated authority premised on a sole purpose interpretative approach, there is no conclusion to draw other than that the Court of Appeal did not take the required interpretive approach. Stamford Homes submits that the application judge’s contrary findings constitute reversible errors of law reviewable on a correctness standard.

[62] I disagree. Elsewhere in the Application Decision, the application judge recognized that, consistent with the interpretive framework in Ottawa Salus, the court in Religious Hospitallers appropriately considered the exemption’s legislative purpose in reaching its decision, including whether the exemption served the purpose of granting relief to the poor on the facts of that case.

[63] Citing Ottawa Salus, at para. 16, the application judge noted that the onus was on Stamford Homes to “affirmatively establish that its property falls within the four corners of the exempting provision”, but also stated that “the legislative intent and purpose of the exemption must also be kept in mind”: Application Decision, at para. 27. The application judge, at paras. 28 and 64, went on to note the court’s findings in Ottawa Salus, at paras. 26-27 (relying on the interpretation principles in Notre-Dame de Bon-Secours), that (i) exemption from property tax allows qualifying organizations “to spend more of their limited resources on those activities”, and (ii) the legislative purpose of s. 3(1)12(iii) is to grant relief from taxation to “non-profit corporations ‘organized for the relief of the poor’ because the public interest in granting those organizations additional resources to relieve poverty outweighs the public interest in generating revenue through the taxation of property.”

[64] With that background, the application judge, at para. 65, quoted the following passage from Religious Hospitallers, at p. 10, which called into question the utility of granting a taxation exemption that would have the effect of shifting the burden of the housing corporation’s funding shortfall from the provincial government to the municipality, rather than freeing up limited resources for use to relieve poverty:

On the facts as outlined above, if the Housing Corporation were to succeed in obtaining an exemption, there would be no item in its statements showing municipal property taxes as an expense. This would reduce their deficit by the amount of those taxes. However, since the provincial government makes up the total amount of that deficit, the Housing Corporation has nothing obvious to gain in obtaining an exemption. It appears that the only result is to shift the burden of the shortfall, to the extent of the municipal property tax amount, from the province to the municipality, which was never a party to the arrangement in the first place.

[65] It is evident from the foregoing that in Religious Hospitallers, the Court of Appeal was aware that shifting the burden of the property owner’s funding shortfall from one level of government to another would not serve the purpose of freeing up funds for the owner’s use to relieve poverty, which the court in Ottawa Salus identified as the legislative purpose of the tax exemption in s. 3(1)12. In these circumstances, I see no legal error in the application judge’s reliance on Religious Hospitallers despite the absence of an explicit reference to the interpretive principles in Notre-Dame de Bon-Secours.

B. Error in statutory test? – interpretation of “endeavour”

[66] Stamford Homes submits that the application judge erred in the statement and application of the legal test for determining whether an institution is “organized for the relief of the poor”, including by giving an expansive interpretation to the requirement in Religious Hospitallers for some kind of “endeavour”. Among other things, Stamford Homes argues that the Court of Appeal in Religious Hospitallers erred in law in interpreting “endeavour” as imposing a requirement that the institution seek and obtain outside funding beyond that provided by government sources and its tenants.

[67] Stamford Homes submits that in other case law that has interpreted the phrase “organized for the relief of the poor”, the consistent legal test applied has been whether the poor primarily used the services that the charitable institution offers, based on the evidence before the court of what the institution actually does. That is the test that the application judge should have applied, according to Stamford Homes. It argues in the alternative that the requirement for some form of “endeavour” in Religious Hospitallers should be narrowly interpreted, confining the “endeavour” requirement to the facts of that case.

[68] Stamford Homes also submits that there is nothing in the case law to support the Court of Appeal’s interpretation of the phrase “organized” for the relief of the poor as including a requirement that the institution seek or obtain outside funding as part of the court’s analysis of the type of “endeavour” that would be necessary for the exemption to apply. The exempting provision included a requirement that the institution be “supported, at least in part, by public funds”. Stamford Homes argues that it was an error in law to impose an additional requirement for private funding that goes beyond the requirement for public funds set out in the legislation.

[69] Among the many decisions that Stamford Homes relied on to support its submissions relating to “endeavour” are the 1973 Supreme Court decision in Mennonite Home, the 1983 Court of Appeal decision in Byron Optimist, the Divisional Court decision in LDARC (1985) and Sandy Hill (1997) and the Superior Court decisions in MacKay Homes (2005) and St. Catharines Seniors (2015), which are referred to previously in these reasons.

[70] I consider the cases that Stamford Homes relies on for this purpose to be of little use in determining whether the Court of Appeal erred in requiring “some form of endeavour” when deciding whether the property owner is “organized” for the relief of the poor. As indicated above, in some of the pre-1988 cases cited (including Mennonite Home and Byron Optimist), the court identified the issue to be determined as being whether the institution seeking the exemption was “similar to” an incorporated charitable institution that was organized for the relief of the poor. Such institutions were removed from the scope of the exemption in 1998 when s. 3(1)12 was amended. In addition, consistent with Stamford Homes’ submissions about the change in approach to statutory interpretation of tax legislation that was heralded by the Supreme Court’s 1998 decision in Notre-Dame de Bon-Secours, the court should be cautious about relying on earlier decisions that were decided when now-outdated interpretative principles applied. As well, as was the case with the Application Decision, Religious Hospitallers and other decisions the parties cited, the narrow issue to be determined in a particular case is sometimes framed by parties’ agreement that aspects of the exemption were not in dispute or were definitively determined on the evidence. In these circumstances, it may be difficult to articulate a test of general application for use in other cases.

[71] As noted in the Application Decision, at para. 57, the parties did not cite any decided cases that included an express requirement for some form of “endeavour’ in order for the property owner to be “organized” for the relief of the poor, except for Religious Hospitallers and MacKay Homes (which was decided after Religious Hospitallers). However, I am not persuaded that there is anything in the case law to suggest that the Court of Appeal in Religious Hospitallers erred in law in deciding that the activities the property owner undertakes (which may fairly be characterized as some form of “endeavour”) should be considered when determining whether the owner is “organized” for the relief of the poor.

[72] I also disagree with Stamford Homes that Religious Hospitallers (or the Application Decision) should be read as interpreting “endeavour” as imposing a requirement that the institution seek or obtain outside funding when determining whether the institution was “organized” for the relief of the poor. It is clear from Religious Hospitallers, at p. 10, that the Court of Appeal considered the fact that “all of funds to operate the Housing Corporation project come from the tenants and government sources” to be an important factor that “compels” the court to conclude that it is not providing “relief for the tenants in this case.” However, as noted earlier in that case at p. 8-9, that was not the only factor that the court considered in determining that the housing corporation was not “organized for the relief” of the tenants. As noted previously, the court cited other reasons for its conclusion that “the corporation itself does very little” for the relief its the tenants:

It raises no funds by efforts of its members for the support of the institution, such as solicitation of the public or other fund-raising projects or events. It does not manage the operation; that is done by the order of the Religious Hospitallers of St. Joseph in return for the payment of an annual fee…. The Housing Corporation is the registered owner of the property which it purchased from the Order, but the purchase was fully financed, and the cost of financing is paid for in total, by government funds. From the outset, the actual operation and administration were organized so that the Housing Corporation has provided nothing which is for the relief of the tenants.

[73] As was the case in other decisions, the court was considering the “actual activities” of the institution in determining whether the exemption applied, including whether the activities had the effect of relieving poverty. I do not agree that the Court of Appeal found that seeking or obtaining private funding was a necessary element of the institution’s activities, nor do I regard the court’s consideration of such activities to be inconsistent with the statutory language. The wording of s. 3(1)12 requires the institution to be supported “in part” by public funds. Seeking or obtaining private funding is therefore a permitted (but not necessary) activity for the institution. Its efforts to do so are within the ambit of the activities that the court may review when considering the effect of the institution’s poverty-relieving efforts.

[74] In any case, if Religious Hospitallers was wrongly decided, it is not for this court or the application judge to take corrective action. Contrary to Stamford Homes’ submission, this is not one of those unusual cases in which the court would be entitled to ignore a binding decision of a higher court: see Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 44.

[75] As well, I do not agree with Stamford Homes that it is open to this court to attempt to narrow the scope of Religious Hospitallers by engaging in “restrictive distinguishing”. To the extent it is relevant, the supporting authority that Stamford Homes has cited relates to a prior decision of the same court (the Supreme Court of Canada), not a higher court’s decision: see R. v. Kirkpatrick, 2022 SCC 33, 471 D.L.R. (4th) 440, at para. 97. In any case, I do not consider Religious Hospitallers to be distinguishable on its facts from the matter under appeal, as explained below.

C. Is Religious Hospitallers distinguishable?

[76] Stamford Homes submits that the application judge erred in finding that the Court of Appeal decision in Religious Hospitallers was not distinguishable on its facts. According to Stamford Homes, the facts of the matter under appeal are materially different than the facts in Religious Hospitallers.

[77] Among other things, Stamford Homes submits that the application judge erred in finding that (as in Religious Hospitallers), no private funds were used for the purchase, construction or operation of the Properties. Stamford Homes says that there was ample evidence that Stamford Homes sought and obtained private funding.

[78] As is evident in the Application Decision, at paras. 44-51, Stamford Homes made similar submissions before the application judge. The application judge found that there was no cogent evidence to support those submissions. At paras. 54-56, the application judge also reviewed some of the other key factual findings in Religious Hospitallers relating to the institution’s activities and considered the evidence before him relating the activities of Stamford Homes, as follows:

54. According to Religious Hospitallers, the method of administration of the housing corporation matters, and the corporation itself, by some form of endeavour, is to provide the relief involved to obtain the exemption. The key aspects of Religious Hospitallers are:

*The corporation did very little

*It did not raise funds by efforts of its members such as soliciting the public or by fund-raising projects or events;

*It outsourced the management of the operation for a fee;

*The purchase of the property was fully financed;

*The cost of financing is paid for by government funds; and

*The cost of the operation is borne by the tenants and the government.

55. The same can be said for Stamford Homes. The evidence is that it does very little beyond finding and owning the Properties. There is no evidence that it raises funds by efforts of its members for the support of the Properties, or by solicitation of the public or other fundraising projects or events. Borrowing money from a member and repaying it with interest (from government funds and tenant funds) is not fundraising. Stamford Homes is the registered owner of the Properties, but there is no cogent evidence before the court as to the source of the funds for the non-financed portion of the purchase of any of the Properties. While the Properties were initially funded in large part by mortgages from private institutions, the evidence indicates that the mortgage payments were made from the same source of funds: tenants and government funds. The total cost of the Properties, on the evidence, is borne by a combination of the tenants themselves and government funds.

56. While there is some evidence of work done by the board, the operations and management, even of board meetings, is outsourced for a fee. There was no evidence that the board did anything beyond what a typical board is required to do, give direction to a corporation. The evidence falls short of the kind of endeavour that Religious Hospitallers indicates is required.

[79] In effect, what Stamford Homes is asking this court to do is to reweigh the evidence and make findings in substitution for those of the application judge on questions of fact and the application of legal principles to the evidence. As previously noted, the applicable standard of review in these circumstances is palpable and overriding error. I see no palpable and overriding error in the application judge’s findings.

D. Fresh evidence

[80] Thirteen days prior to the appeal hearing, Stamford Homes served a Notice of Motion seeking leave to introduce fresh evidence on appeal. That evidence consists of an affidavit relating to social events and gift cards that Stamford Homes’ board has provided or plans to provide for the benefit of the Properties’ tenants. The timing of those events and benefits was (or would be) subsequent to the Application Decision. The respondents did not have an opportunity to cross-examine the affiant on the contents of the affidavit prior to the appeal hearing.

[81] I agree with the respondents that the contents of the affidavit do not meet the requirements for admission of fresh evidence on appeal: see R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, at p. 775. Among other things, given the timing and nature of the activities set out in the affidavit, I am not satisfied that the evidence “bear[s] upon a decisive or potentially decisive issue” on this appeal.

[82] Nonetheless, I considered the contents of the affidavit in making the above determinations and found that they did not affect the conclusions reached.

IX. Disposition

[83] For the above reasons, I would dismiss the appeal.

[84] The parties have advised that they have resolved the issue of costs. Therefore, I would not make a costs order.

___________________________ R. A. Lococo J.

I agree: ___________________________ Emery J.

SCHABAS J. (concurring):

[85] I have read the reasons of Lococo J. and agree that the appeal must be dismissed. However, this result is driven by what I regard as an unsatisfactory state of the law, in which the decision in Religious Hospitallers of St. Joseph Housing Corp. v. Regional Assessment Commissioner (1998), 1998 2943 (ON CA), 42 O.R. (3d) 532 (C.A.) compelled the outcome. In my view, that decision needs to be revisited.

[86] Religious Hospitallers created a requirement of the landowner engaging in “some form of endeavour” in order to qualify as an entity “organized for the relief of the poor.” This requirement was not in the legislation prior to 1998 and is not in the legislation today. The concept of “some form of endeavour” appears to require the owner to raise at least some funds privately, as the Court stated in Religious Hospitallers that it was the fact that all funds came from government or rents which compelled the conclusion that the housing corporation was not “organized for the relief of the poor.” In my view, this conclusion is not supported by the legislation and leads to results that may be driven by very minor differences between entities that are indeed organized for and provide relief to the poor.

[87] As my colleague notes, Religious Hospitallers interpreted “the words ‘organized for the relief of the poor’ to mean that it would be the corporation itself, by some form of endeavour of the corporation, which would provide the relief involved” (emphasis added). The Court of Appeal went on to note, with some merit, that corporate objectives alone are not sufficient and that in that case, where the corporation did not engage in fundraising and contracted the management to a private entity, “the corporation itself does very little.”

[88] However, as little as that may seem, the corporation in this case, as in Religious Hospitallers, owns and oversees the provision of affordable housing.

[89] Here, the applicant acquired and owns the properties. The corporation’s Board meets monthly to ensure that its objective of providing affordable housing is achieved through the provision of approximately 100 housing units. It contracts with a private company to manage its operations and ensures that the private company complies with its contractual obligations. The Board provides advice and direction to the manager. It has financial commitments including mortgages and loans from the private sector. It seeks grants and funding for renovations and repairs, taking on long-term commitments to own, operate and maintain the properties. It earns some modest investment income. The funding for all of these obligations comes from public coffers and from rent, but the corporate applicant is the entity which is ultimately responsible for the enterprise, and it does nothing else. It is difficult to see, therefore, how it is not “organized” for the relief of the poor.

[90] Religious Hospitallers appears inconsistent with the decision of the Supreme Court in Stouffville (Village) (Assessment Commissioner) v. Mennonite Home Assn. of York County, 1972 9 (SCC), [1973] S.C.R. 189, which granted an exemption in very similar circumstances to those in Religious Hospitallers and in this case. Religious Hospitallers also made no reference to Québec (Communauté urbaine) v. Corp. Notre-Dame de Bon-Secours, 1994 58 (SCC), [1994] 3 S.C.R. 3. I see nothing in the reasons in Religious Hospitallers which indicates that the Court of Appeal considered the “dual purpose” approach to the interpretation of taxing statutes established in Notre-Dame de Bons-Secours. Indeed, the added requirement of a “some form of endeavour” seems inconsistent with the recognition, made in Notre-Dame de Bons-Secours, that tax laws also serve the purpose of advancing social and economic objectives beyond simply raising money to pay for government expenditures.

[91] In contrast, in the subsequent case of Ottawa Salus Corp. v. Municipal Property Assessment Corp. (2004), 2004 14620 (ON CA), 69 O.R. (3d) 417 (C.A.), the Court of Appeal considered the amended legislation and the principles in Notre-Dame de Bon-Secours to apply a more generous interpretation of the legislation. As my colleague observes, the property owner “must affirmatively establish that its property falls within the four corners of the exempting provision” but that “the legislative intent and purpose of the exemption must also be kept in mind”: Ottawa Salus, at para. 16. The Court cited Religious Hospitallers but it did not consider the requirement of “some form of endeavour”, which is in my view outside the “four corners” of the legislation.

[92] In Salus, at para. 26, the Court of Appeal noted that the exemption from property tax allows organizations to spend more of their limited resources on activities that benefit the disadvantaged, but it did not draw a line suggesting additional activities must be demonstrated, or the level of activity required. Rather, the Court simply recognized that “the clear implication of these exemptions is that while there is a substantial public interest in the generation of revenue through the taxation of real property, in the context of the real property covered by these exemptions, that public interest is outweighed by the public interest in giving relief from property taxation to certain organizations.”

[93] No cases since the 1998 amendments have considered the meaning of “organized for the relief of the poor.” Prior to 1998, with the exception of Religious Hospitallers, the cases considered whether there was evidence that the poor were the primary users of the services.

[94] Cases decided since the legislation was amended in 1998, and following the release of the decision in Salus, have not addressed the “some form of endeavour” requirement found in Religious Hospitallers or, as the application judge stated at para. 57, “put so as fine a point on ‘organized for the relief of the poor’.”

[95] In MacKay Homes v. North Bay (City) [catalogued as Homes v. North Bay (City)], 2005 5873 (Ont. S.C.), the housing was entirely funded by public sources and rents, and there was no evidence that the corporation engaged in external fundraising. The only difference from this case appears to be that the Board itself – a volunteer Board – attended directly to the administration and operation of the premises as opposed to contracting it out. A tax exemption was granted.

[96] Similarly, in St. Catharines Seniors Apartments Phase Three Inc. v Municipal Property Assessment Corporation et al., 2015 ONSC 3896, the applicant was incorporated by the Kiwanis Club to provide and operate non-profit subsidized residential housing which was funded from public sources. There was no evidence of any fundraising or other endeavours of the applicant, yet an exemption was granted. The decision does not say whether the applicant managed the building directly or retained a professional manager.

[97] The vague requirement of “some form of endeavour” found in Religious Hospitallers leaves one wondering where the line is to be drawn, or why it must be drawn. If private sources of funding are required, as suggested by Religious Hospitallers, how much funding? If the housing corporation directly manages the building with its own employees, or volunteers, as appears to have been the case in MacKay Homes, rather than hiring a management company, is that an “endeavour” sufficient to gain the exemption? Religious Hospitallers provides no assistance, simply observing how “little” the corporation did in that case. The application judge also commented on this issue, observing at para. 58:

Religious Hospitallers does not make clear why engaging paid professionals to operate the Properties is better than employing a qualified entity to perform these services. It is not evident from the wording of the exemption that fundraising is required to qualify for the exemption. The exemption does not reference fundraising and only requires that the corporation be supported in part by public funds. The law has been clear for some time that public funds means government funding.

[98] My colleague, like the application judge and like the Court of Appeal in Religious Hospitallers, notes that exempting the applicant from property tax is unlikely to free up funds for the applicant to use to relieve poverty, as the gain to the applicant may lead to a reduction in its subsidy. But this is not a justification for maintaining a vague requirement of “some form of endeavour” which has no support in the legislation and can lead to irrational and unfair results which can deny otherwise eligible corporations of a tax exemption inconsistent with a recognized purpose of the legislation.

[99] Despite my misgivings about the application of Religious Hospitallers to this case, as there are some factual distinctions, the differences are not such that I can find the application judge erred in law or made a palpable and overriding error in failing to distinguish it. Accordingly, I agree that the appeal must be dismissed.

Paul B. Schabas J.

Date: December 8, 2023

Municipal Property Assessment Corp., 2023 ONSC 6625

DIVISIONAL COURT FILE NO.: DC-23-173

DATE: 20231208

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Lococo, Emery and Schabas JJ.

BETWEEN:

Stamford Kiwanis Non-Profit Homes Inc.

Applicant

– and –

Municipal Property Assessment Corporation and the Corporation of the City of Niagara Falls

Respondents

REASONS FOR JUDGMENT

R. A. LOCOCO J.

Date of Release: December 8, 2023

[^1] In Religious Hospitaller, at p. 9, the Court of Appeal noted the majority’s conclusion in Mennonite Home that “public funds” in this context means funds from a government source.