CITATION: Near North Enviro-Education Centre v. Municipal Property Assessment Corporation, 2023 ONSC 7066

DIVISIONAL COURT FILE NO.: DC-22-00002183-0000

DATE: 2023-12-14

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, Williams, and Nieckarz JJ.

B E T W E E N:

Near North Enviro-Education Centre

L. Watt and M. Cicchino, for the Applicant/Respondent in Appeal

Applicant/Respondent in Appeal

• and -

Municipal Property Assessment Corporation and the Corporation of the Village of Sundridge

S. Corman and H. Brown, for the Respondent/Appellant in Appeal

Respondents/Appellants in Appeal

HEARD: by videoconference in Sudbury: April 13, 2023

NIECKARZ J.

REASONS FOR DECISION

Overview

[1] This statutory appeal concerns the proper interpretation of the scope of an exemption for property taxation found in section 3(1)5 of the Assessment Act, R.S.O. 1990, c.A.31 (the “Act”), and the application of that section to the facts of this case.

[2] Municipal Property Assessment Corporation (“MPAC”), appeals from the Judgment of Justice Koke (“the Application Judge”), dated June 28, 2022 (the “Decision”), granting the Near North Enviro-Education Centre (“NNEEC”) an exemption from property taxation pursuant to s. 3(1)5 of the Act, for property that it owns at 140 Street in the Village of Sundridge (the “Property”).[^1]

[3] The appeal is brought pursuant to s. 46(4) of the Act.

[4] Section 3(1) of the Act provides for twenty-nine exemptions from Ontario’s property taxation regime. Section 3(1)5 of the Act provides an exemption from payment of property taxes for “land owned, used and occupied solely by a non-profit philanthropic, religious or educational seminary of learning…”.

[5] The Application Judge found that the activities of the NNEEC fell within the “educational seminary of learning” aspect of the exemption.

[6] MPAC argues that the primary use of the Property by NNEEC is not a “seminary of learning” within the meaning of s. 3(1)5 of the Act, and as such, the Application Judge erred in granting the exemption sought. It is argued that the overly broad interpretation of the scope of the “seminary of learning” exemption applied by the Application Judge caused him to fundamentally err in his interpretation of s. 3(1)5 of the Act. That error effectively negated the intention of the legislature and eliminated all established indicia of a “seminary of learning” as set out in previous cases.

[7] The NNEEC denies that the Application Judge made any error in his interpretation of the “seminary of learning” exemption, or in the application of the Act to the facts of this case. The NNEEC argues that the Application Judge correctly interpreted the relevant section of the Act and made no error in the application of the facts.

[8] The Application Judge considered the applicable caselaw and the proper factors. He rejected MPAC’s assertion that for an institution to qualify as a seminary of learning, it must have a traditional classroom setting with students, teachers/instructors and a curriculum or structured program of learning leading to a specific educational target. He found that the relevant caselaw demonstrated a flexible approach to “seminary of learning” and it was to be given a wide meaning, recognizing that learning is not confined to the acquisition of skills necessary to earn a livelihood.

[9] In finding that the primary purpose of NNEEC was that of a Seminary of Learning, the Application Judge considered that its unique programs are responsive to the rural community in which it is located, which requires educational programs that extend beyond traditional classroom learning. He found that NNEEC as an institution uses and occupies land not only to hold various educational initiatives but also for time spent planning and administering programs, whether they are on-site or off-site. We find no error in his interpretation of the “seminary of learning” exemption. For the reasons set out below, the Appeal is dismissed.

Factual Background

[10] The Corporation of the Village of Sundridge was a statutory party to the application but did not participate. It has not participated in this appeal. By way of letter dated March 28, 2022, the Village of Sundridge advised that it takes no position on the appeal.

[11] MPAC is a corporation incorporated pursuant to the Municipal Property Assessment Corporations Act and is a required party to all property tax exemption applications and appeals.

[12] Most of the facts are not in dispute. As the Application Judge identified, almost all the evidence in the application is provided through an affidavit from the founder, president, and director of the NNEEC, Jocelyn Palm, and her cross-examination.

[13] Under the heading, “What is Near North Enviro-Education Centre?”, the NNEEC’s website states that it serves as a “catalyst for businesses, government agencies, universities, schools, students, and individuals to find and generate leaders aligned with three pillars essential to the viability of our rural communities”. The website further sets out the NNEEC’s “Vision and Values” as being “…to inspire vibrant rural communities now and in the future through our values of innovation, engagement, respect and accountability”. The website explains that the NNEEC is:

• A hub for year-round leadership, education and research on topics, including sustainability, stewardship, renewable energy, building construction, agriculture, and health;

• A partner for universities, colleges and other academic institutions;

• A community network and think tank for building and promoting leadership in matters related to environmental sustainability, economic security, and social diversity; and

• A resource for companies, government agencies, trade associations, faculty, researchers, students and the public.

[14] The Mission Statement for the NNEEC as set out in its Letters Patent, and as noted in the Decision is as follows:

a. To establish, maintain and operate an educational centre that will provide instruction on environmental topics, including sustainability, stewardship, renewable energy, building construction, agriculture, and health.

b. To preserve, conserve and protect the environment by carrying out projects that benefit the public and provide sustainable means of achieving economic growth and regeneration.

[15] Ms. Palm’s evidence was that the NNEEC’s primary purpose is to establish, maintain and operate an education centre that provides instruction on environmental topics in accordance with the Mission Statement.

[16] The evidence of the NNEEC on the Application was that the Property is used for conducting workshops, seminars and lectures, symposiums, and sustainable architecture demonstrations. There was evidence that planning is underway for high school programs that despite some delays, hope to be conducted on site. Some NNEEC programs and activities are also conducted off-site. The Property is open Monday to Friday, year-round, and receives many visitors. Tours are offered that focus on the environmentally sustainable architectural features of the building.

[17] More specifically, the Application Judge referred to the following evidence:

a. The Village of Sundridge has approximately 1000 residents.

b. The size of the community imposes challenges with respect to the programs the NNEEC is able to deliver. It would be able to provide more robust programming in a larger centre that has access to more resources and labour.

c. Because of the challenges associated with its location, this necessitates that the education provided by the NNEEC extend beyond traditional classroom learning. Programs and activities carried out by or sponsored by the NNEEC are led almost exclusively by volunteers or instructors and experts employed by other institutions (i.e. universities and high schools), with much of the learning being hands-on and experiential.

d. Curriculum materials for the programs are often developed by and adopted from third party sources, but the NNEEC has managed to compile approximately 15 lesson plans on environmental and sustainability topics which can be used for teaching high school students. The NNEEC provides a wide variety of services, including providing a setting for the instruction of local Grade 11 students to obtain a credit in Environmental Science.

e. In partnership with Wilfried Laurier University, the NNEEC has been able to provide educational support to students enrolled in their third year of Geography and Environmental Studies. Laurentian University assisted in the design of the main building, and students at Laurentian’s architecture program have been provided with an opportunity to learn hands-on sustainable building design through studying the building on the Property.

f. The NNEEC sponsors weekend sessions on various topics relating to the environment and sustainability. These sessions have students and instructors and follow a curriculum.

g. An annual Climate Change Symposium is sponsored by the NNEEC, that provides leadership and instruction on various topics relating to the environment.

h. In support of the community education mandate, the NNEEC has hosted speakers who give presentations on topics related to the environment, and it offers a Community Workshop Series for community members to become models for sustainable living by providing information, education, and hands-on learning.

i. The NNEEC sponsors a community garden learning initiative at a local off-site location to teach sustainable growing methods.

j. The NNEEC has created awareness in the community of the threat phragmites pose to the region’s wetlands, has established a working group of volunteers who meet every other week during the summer months, receive field instruction and equipment, and take steps to remove the phragmites.

k. The NNEEC is an active participant in the U.N. Climate Change Forest Study initiative, which is designed to monitor the effect of climate change on forests. Volunteers collect scientific data in this study area and provide it to researchers. The participants receive instruction from the NNEEC on topics such as species identification, to assist in this work.

l. During the summer months, a summer camp-like program is run for children offering fun, recreational, and educational experiences in which children learn about geology, rocks, wilderness survival, climate change, and other topics related to the environment.

m. A swim instruction program is run that follows established curriculums, offering a range of level of instruction from basic to lifeguard certification.

The Decision:

[18] After considering the principles of statutory interpretation relevant to the Act as set out by Leach J., in London Jewish Community Village v. The Municipal Property Assessment Corporation, Region 23 et al,[^2] and other caselaw, the Application Judge determined that the issue before the court was “whether the primary purpose of NNEEC, determined objectively, is that of a Seminary of Learning.”

[19] The NNEEC’s position on the Application was that it is exempt from taxation on the basis that the activities it carries out and sponsors are such that its primary focus constitutes an “educational seminary of learning”.

[20] MPAC took the position (as it does on this Appeal), that while the NNEEC is a worthwhile non-profit philanthropic institution, the services that the NNEEC provides are such that they do not render the primary use of the land as educational. MPAC noted that there must be a “structured curriculum leading to a specific target”, and here there is none. While there may be an educational component to some of the NNEEC’s activities, there is no structured program of study and many of the activities of NNEEC occur at off-site locations and not on the Property.

[21] The Application Judge considered the factors set out by Harvison Young J. (as she then was) in Keewaydin Camps Corporation Canada v. Temagami (Municipality)[^3] to determine whether the NNEEC’s primary purpose is that of a “seminary of learning”. In concluding that all factors favoured the NNEEC’s position and the granting of the exemption, he made the following findings:

a. The stated objectives of the institution

After considering the Mission Statement, the Application Judge found that it articulates a focused educational agenda. He noted that both the workshops sponsored by the NNEEC and the projects it undertakes in the community invariably include a significant instructional component.

In accordance with the analysis set out in Keewaydin, he then proceeded to determine whether the objectives are of a recognizable type of educational agenda and whether they are sufficiently specific. He found that they were. In doing so he noted that in Re Societa Unita and Town of Gravenhurst [^4], Lerner J., stated that the words “seminary of learning” in the context of the predecessor to s. 3(1)5 were to be given a wide meaning, recognizing that learning is not confined to the acquisition of skills necessary to earn a livelihood. As such, the Application Judge found that the “object of the agenda is to make more informed citizens of the people who participate in its programs, in the NNEEC’s case by increasing their knowledge about their environment in areas such as sustainability, stewardship, renewable energy, building construction, agriculture and horticulture and health.”[^5]

The Application Judge next considered whether the objectives are sufficiently specific to constitute a “seminary of learning”. He found that they are, given that almost all activities and programs carried out by the NNEEC are directed to fulfilling the objectives of providing participants with an education in environmental sustainability. He rejected MPAC’s argument that to be a “seminary of learning” there must be regular “students, physical facilities, teachers or instructors [and] a curriculum designed to further the advancement in life of those in attendance so that they might better pursue their vocation or life’s work.”[^6] He held that MPAC’s approach was not in accordance with the considerable degree of flexibility demonstrated by previously decided cases both with respect to the educational programs and their administration. He also rejected MPAC’s argument that there is insufficient on-site instruction, noting that considerable time is also devoted to planning and administration of programs whether they are on-site or off-site.

b. The objectives of the participants

The Application Judge concluded that almost all participants who attend and engage in the activities and functions of the NNEEC do so for the purpose of increasing their knowledge with respect to the environment, and therefore this factor also favours the NNEEC. He acknowledged that when viewed independently, the primary purpose of all NNEEC activities and programs (such as the summer day camp) cannot be considered educational but concluded that not every activity or program carried out by a “seminary of learning” is required to be designed to directly fulfill the primary purpose of the institution claiming the exemption. He noted that there can be secondary or ancillary purposes included in the overall program, provided those purposes complement and are compatible with the primary purpose. He reviewed the various programs of the NNEEC that did not have education as their primary purpose and found they were acceptable ancillary uses that do not detract from the primary educational purpose of the NNEEC, but rather are complementary and supportive of this purpose.

c. The type of use of the land in question

Citing Keewaydin, the Application Judge considered the “proportion between the activities that are geared towards fulfilling the organization’s stated educational objective, versus other activities”.[^7] He concluded that the majority of the initiatives carried out by the NNEEC are geared towards fulfilling the educational objective. He held that the primary purpose test did not require that all activities which comprise the primary purpose take place on the subject property. The test focuses on the primary purpose of the institution as opposed to the land. He noted the various educational activities that take place on the Property, and noted that for those that do not, the Property continues to serve as the centre of administration and organization for these programs.

d. The centrality of the educational aspects

This factor requires consideration of whether the participants are immersed in a program that fulfills the educational objective, or whether the educational aspects of a program are merely a by-product of the environment.[^8] The Application Judge concluded that with a few exceptions, the activities and programs sponsored or carried out by the NNEEC are directly related to its educational objectives.

e. The structure of the program

The Application Judge again rejected MPAC’s assertion that the NNEEC’s programs do not have a structure that provides both coherence and a specific target. He adopted a flexible approach which focused on educational indicia compatible with the nature and objects of the institution. He noted that “Whether the learning takes place experientially in the field or passively in the workshops and seminars, the target throughout is to increase the level of appreciation and knowledge by the participants in the programs about their natural environment…”[^9] He found that the program was responsive to the need of community members, many of whom are employed on weekdays and could not participate in the type of structure MPAC argued is necessary to satisfy the requirements of the exemption.

Standard of Review:

[22] This appeal alleges errors of law with respect to statutory interpretation. The standard of review with respect to the interpretation of s. 3(5)1 is correctness.[^10]

[23] This appeal also alleges errors of fact and mixed fact and law with respect to the application of the facts of this case to the interpretation of the statute. The standard of review for questions of mixed fact and law is palpable and overriding error unless there is an extricable error of law.[^11] MPAC alleges both.

Analysis:

Did the Application Judge err in law in his interpretation of [s. 3(1)5 of the Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-a31/latest/rso-1990-c-a31.html#sec3subsec1_smooth), or make a palpable and overriding error in the application of the facts to that interpretation?

Did the Application Judge fail to conduct the statutory interpretation analysis set out in caselaw and misconstrue the “primary purpose” test?

[24] MPAC argues that the Application Judge erred in law by failing to apply the well-established “primary purpose” test which requires a rigorous analysis of the actual use of the land for which the exemption from taxation is sought and whether that primary use fits within the four corners of the legislated exemption. MPAC argues that the Application Judge misstated the “primary purpose” test as requiring a focus on the institution, as opposed to the NNEEC’s use of the land. Because of this, the Application Judge placed too much emphasis on subjective statements as to the purpose of the institution itself, rather than the actual use of the Property. This caused him to fail to do a “deep dive” into the actual use of the Property. Had he properly, objectively determined the actual use of the Property, the only conclusion he could have reached is that while the NNEEC has some environmental educational objectives, the primary purpose is not educational.

[25] MPAC argues that despite reproducing the correct statutory interpretation principles from London Jewish Community Village, the Application Judge failed entirely to conduct the statutory interpretation analysis set out in that case. It is argued that had he done so, the only plausible conclusion to be reached is that the NNEEC does not use the Property as an educational “seminary of learning” and is not entitled to the exemption.

[26] In London Jewish Community Village, a comprehensive framework for the interpretation of exemptions provided for in s. 3(1) of the Act, was set out by Leach J., based on an extensive analysis of statutory interpretation principles. We do not intend to repeat the entire analysis, but rather adopt that analysis, as did the Application Judge.

[27] The starting point is the legislation. All real property in Ontario is subject to taxation under the Act, subject to enumerated exemptions.[^12]

[28] The provisions of the Act, including the exemptions listed in section 3(1), must be interpreted using the generally applicable approach to statutory interpretation:

.…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.[^13]

[29] The Act is directed at raising revenue for municipal governments from taxation on real property. MPAC concedes that by the enumerated exemptions, the legislature also intended that the public interest in generating real property taxation can be outweighed by the public interest in providing relief from property taxation to some organizations. The legislature did not intend for all worthwhile entities to be granted tax exemptions, but only those which meet the defining exemption in the Act. Courts must scrutinize exemptions applications carefully. [^14]

[30] Section 3(1)5 provides one such exemption. The exact wording of the exemption is:

5. Land owned, used and occupied solely by a philanthropic, religious or educational seminary of learning or land leased and occupied by any of them if the land would be exempt from taxation if it was occupied by the owner. This paragraph applies only to buildings and up to 50 acres non-profit of land. [Emphasis added]

[31] The exemption is available only if the party seeking the exemption can satisfy the primary purpose test.

[32] The “primary purpose” test is well established in the jurisprudence. Both parties to this appeal acknowledge it to be the test to be applied. Both parties rely on Diocese of Toronto Camps, at paras. 11-12, for their formulation of the “primary purpose” test. They disagree as to what the test requires with respect to s. 3(1)5.

[33] The NNEEC argues that the question to be asked with respect to the “primary purpose” test is whether the primary purpose of the institution is as an educational seminary of learning? NNEEC argues that this is the test adopted by the Application Judge at paragraph 36 of the Decision and is the one most consistent with legislative intent and caselaw. NNEEC rejects MPAC’s formulation of the test, arguing that the legislature removed the property purpose requirement in its 1998 amendment of the exemption, which demonstrates the legislature’s intent to look solely at the primary purpose of the organization as opposed to the property.

[34] MPAC argues that adopting the test as framed by the NNEEC is one of the most significant ways in which the Application Judge fell into error. MPAC says that instead of focusing on the primary purpose of the institution, the Application Judge should have focused on the primary purpose for which the land is used. The question to be asked is whether the primary purpose for which the land is used is as an educational seminary of learning?

[35] The analysis required by the “primary purpose” test is a combination of the formulations of each party. It has been considered extensively by the caselaw, including cases determined after the 1998 amendments to the Act.

[36] In Diocese of Toronto, the land for which an exemption was sought was owned by the Anglican Church (Diocese of Toronto Camps) and operated as a camp for children. The Diocese brought an application under the Act for a declaration that the land on which the camp was located was exempt from taxation because it was used for the purpose of the care of the children who attended the camp. The application judge held that the primary purpose of the camp (the use of the land) was recreational, and that it did not fall within the exemption claimed. The Divisional Court disagreed. The Court of Appeal restored the application judge’s original decision and found no error in the conclusion that the primary purpose of the land was recreational.

[37] The exemption at issue was s. 3(1)11, which exempts from assessment:

11. Land owned, used and occupied by a non-profit philanthropic corporation for the purpose of ….the care of children…

[38] In Diocese of Toronto, Doherty J.A., stated that the exemption in s. 3(1)11 is available only if the party seeking the exemption can show that the primary purpose for which the land is used and occupied is one of the purposes identified in para. 11.[^15] In that case, the issue was whether the Diocese could come within the “care of children” portion of the exemption.

[39] Also, at para. 11 of Diocese of Toronto, Doherty J.A., cited with approval the following excerpt from Re Buenavista on the Rideau Assessment Commissioner, Region No. 2:

Finally, the test for determining whether an exemption should be granted is whether the primary purpose of the institution comes within the words defining the exemption in the Assessment Act. This is true with respect to s. 3 of the Assessment Act generally…It is also true with respect to the interpretation of the specific exemptions set out in s. 3, para. 11 of the Assessment Act [citations omitted].[^16] [emphasis added]

[40] Justice Doherty then went on to state:

[12] The “primary purpose” test employed in Re Buenavista is well established in the jurisprudence of this province. It requires an “objective determination of the principal purpose for which the land is used and occupied. That purpose must be distinguished from others that are incidental to it…”[^17] [Emphasis added]

[41] In London Jewish Community Village, Leach J., summarized the proper formulation of the test from Re Buenavista and Diocese of Toronto as follows:

[19(e)] The test for determining whether an exemption should be granted accordingly is whether the primary purpose of the institution claiming the exemption comes within the words defining the exemption in the Assessment Act, supra. This is true with respect to section 3 of the Assessment Act generally. It is also true with respect to the interpretation of the specific exemptions set out in section 3 of the Act. That “primary purpose” test is well established in the jurisprudence of this province and requires an objective determination of the principal purpose for which land is used and occupied, which must be distinguished from others that are incidental to it. [^18] [Emphasis added]

[42] In other words, the test is whether the “primary purpose” of the institution is as an educational seminary of learning. In determining the primary purpose of the institution there must be an objective determination of the principal purpose for which the land is used and occupied. This is a formulation of the test that is consistent with legislative intent, and how the exemption has been applied in other cases. As Leach J., stated in London Jewish Community Village, “What you are is what you do.”[^19] It is not enough for an applicant to say they are an educational “seminary of learning”. What the “primary purpose” of the institution is, must be determined by what they do with respect to their use and occupation of the land.

[43] As has been recognized in the caselaw, a “seminary of learning” is not a term of art. It is simply a place of education; a place that is fundamentally devoted to teaching subjects or skills.[^20] To qualify for the exemption in s. 3(1)5, an institution must have as its primary purpose education, with the subject property being primarily a place devoted to education.

[44] In Keewaydin, a case relied upon by both parties, Harvison Young J., set out some factors to be considered in determining “whether the primary purpose of a certain institution is educational.” She noted that they are not meant to be exhaustive, nor are they rigid categories, but rather they are intended to inform the ultimate determination. They include:

a. The stated objectives of the institution;

b. The objectives of the participants;

c. The type of use of the land in question;

d. The centrality of the educational aspects; and

e. The structure of the program.[^21]

[45] With respect to the various factors set out in Keewaydin, Harvison Young J., recognized that the type of activity, or use of the land is one of the most important factors:

[25] …Probably the most important factor is the proportion between the activities that are geared towards fulfilling the organization’s stated educational objective, versus other activities. [^22]

Citing Associated Gospel Churches v. Regional Assessment Commissioner, Region No. 13 et. al. (1979), 9 M.P.L.R. 287 (Ont. Div. Ct.) (upheld on appeal), she noted that a “fact-specific inquiry was required to determine the purpose for which the grounds were being used.”[^23]

[46] In Keewaydin, it is worth noting that MPAC took the position that the s. 3(1)5 exemption is satisfied when the claimant can show that the “properties are occupied and used for the primary purpose of running a seminary of learning”.[^24]

[47] Consistent with these principles, the Divisional Court in FLK Institute of Taosim v.MPAC,[^25] confirmed that in order for an exemption to apply, the actual “use of the property” must fit within the four corners of the exemption. As Fitzpatrick J., explained in FLK Institute, at paras. 21-22, whether an applicant qualifies for an exemption under the Act requires an analysis of what is going on at the subject property.

[48] In considering all authorities relied upon by the parties, and specifically MPAC, we are of the view that the Application Judge not only referred to but applied the appropriate analysis of the “primary purpose” test as set out above. The primary purpose test requires an objective examination of the NNEEC as an institution and how it uses the land, applying the factors as set out in Keewaydin.

[49] MPAC argues that in paragraphs 78-79 of the Decision, the Application Judge’s core error is articulated, and confirms a focus throughout the Decision on the purpose of the institution and rather than performing the rigorous analysis of the use of the land.

[50] While the Application Judge states that the “application of the test focuses on the purpose of the institution which is seeking the exemption.”, and he also speaks of the “…central educational nature or purpose of the institution.”, those paragraphs as a whole, and the analysis throughout the decision demonstrate that the Application Judge did not lose sight of the importance of the actual use of the Property in determining the educational purpose of the institution.

[51] The Application Judge’s comments in paragraphs 78-79 of the Decision were made in response to MPAC’s argument that many of the activities of NNEEC, such as the community learning garden, the U.N. Climate Change Forest Study, and the Phragmites Working Group take place at locations away from the Property. MPAC argues that the primary use must be established on the property itself, and cannot be determined by consideration of off-site activities, even if they are facilitated by the NNEEC in some way. The Application Judge disagreed and concluded that the fact that “…some of NNEEC’s programs and activities are conducted off-site does not detract from the central educational nature or purpose of the institution.” In making this finding, the Application Judge specifically noted that:

“…In the circumstances of this case, the subject property is used for conducting workshops, seminars and lectures, symposiums, high school classes, sustainable architecture demonstrations, all of which contribute to the primary educational purpose of the institution. With respect to the off-site activities, the property at 140 Main St. continues to serve as the centre of administration and organization for these programs.”[^26]

[52] We are satisfied that even though the NNEEC is not what one would think of as a conventional educational facility, and despite the statements of the Application Judge in paragraphs 36 and 78 of the Decision with respect to the primary purpose of the institution, a review of the decision as a whole demonstrates that the analysis of the primary purpose test, and application to the facts of this case, was appropriately conducted by the Application Judge when considering the principles set out in London Jewish Community Village, and the factors set out in Keewaydin. The Application Judge considered the primary purpose of the institution by reference to its primary use of the land.

[53] First, it is important to note that in this case, the NNEEC as an institution is located exclusively on the Property. The facility itself is an educational experience. There is no evidence of any other land or facility owned or used by the institution. This is not a situation in which the institution itself may have different locations with different purposes, such as a religious organization running an educational program. The Application Judge’s reasons were alive to the fact that the NNEEC as an institution uses and occupies the land not only to hold various educational initiatives, but also planning and administration related to those initiatives and its overall educational goals. While there was no evidence as to the amount of time devoted to planning, and most of the work done is by volunteers as opposed to employees, there was evidence on which the Application Judge could conclude that these activities form part of the use of the land; that the land is used not only to deliver educational programming but run the educational facility. The Application Judge found that these administrative aspects of the work of the NNEEC as an institution, performed at the Property factored into a determination as to whether the primary purpose was educational. Contrary to MPAC’s assertion, this was not an improper consideration. It is reasonable to conclude that this administrative work is necessary to further the educational goals of the institution, and constitute a use made of the land that furthered the educational purpose. This is a use of the land consistent with an educational “seminary of learning”. It is necessary to fulfill the educational purposes of the institution. The comments of the Application Judge in paragraph 78 that in his view, ‘the fact that some of the NNEEC’s programs and activities are conducted off-site does not detract from the central nature or purpose of the institution’, must be viewed in this light. For this reason, we disagree with MPAC’s argument that off-site activities cannot be considered in the context of this particular case, in determining primary purpose. It was not improper for the Application Judge to consider what is done on-site to facilitate off-site learning experiences that comprise the programming of the NNEEC.

[54] Second, we reject MPAC’s narrow focus on aspects of specific programs and whether they demonstrate traditional indicia of a “seminary of learning” such as classrooms and cohorts of students. While these programs are important and necessary to examine as part of the “primary purpose” analysis, and while traditional indicia of a “seminary of learning” are factors to consider, they are not exclusive. The actual use of the land by the NNEEC requires a broader analysis, consistent with the factors in Keewaydin. It is a fact specific analysis. MPAC’s narrow approach is inconsistent with the direction set out by the Court of Appeal for Ontario in Ottawa Salus Corp. v. Municipal Property Assessment Corp.,[^27] and the cases referred to by both parties that have since applied those principles. All of the work of the institution, and therefore all of the uses it makes of the land, must be examined.

[55] Third, the Decision viewed as a whole, demonstrates that the Application Judge was alive to the criteria required to perform an objective analysis of what was actually happening at the Property. We disagree with MPAC that the Application Judge placed too much emphasis on the subjective intent of the NNEEC, and not enough emphasis on actual use of the land. He reviewed the various programs and concluded that what was happening was primarily (although not exclusively) educational in nature. He did not review the programs in the narrow lens and interpretative context advocated for by MPAC. We find no error.

In applying the Keewaydin factors as part of the primary purpose test, did the Application Judge commit any error in law or palpable and overriding errors?

[56] The objective analysis of the Application Judge was evident in his consideration of each of the Keewaydin factors. We disagree with MPAC’s argument that he misunderstood and misapplied these factors, and in doing so committed either errors in law or palpable and overriding errors.

Stated Objectives of the Institution and Whether there is a Recognizable Educational Agenda:

[57] With respect to the stated objectives of the NNEEC, after considering the Mission Statement of the NNEEC, the Application Judge proceeded to determine whether the objectives are of a recognizable type of educational agenda and whether they are sufficiently specific. He found that they are. This required an objective analysis of the stated objectives, which the Application Judge conducted, guided by a consideration of other “seminary of learning” cases. The case law has recognized a wide range of instructional agendas as educational. We find no error in the Application Judge’s conclusion that the diverse educational programs offered by the NNEEC was to educate citizens with respect to various listed environmental issues.

The Stated Objectives of the Participants:

[58] MPAC argues that the Application Judge purported to make the factual finding, in the absence of evidence in the record, that “almost all of the participants who attend and engage in the activities and functions of NNEEC do so for the purpose of increasing their knowledge of the environment and learning how to respond to their environment in ways that are sustainable and responsible”.[^28]

[59] There is no palpable and overriding error in the Application Judge’s application of this factor and conclusion with respect to the intentions of various attendees of NNEEC’s activities. The Application Judge made a reasonable inference from the nature of the program itself, similar to what Harvison-Young J. did in Keewaydin. In that case, it was noted that in cases that have found education as the primary purpose, the program attendees would have seen the purpose of the program as such.[^29] That is the inquiry made by the Application Judge. In the case of NNEEC’s Community Adventures Program, the Application Judge drew the reasonable inference that the parents’ purpose in sending their children was as a recreational summer camp, not environmental education. With respect to NNEEC’s other programs such as the workshops, tours of the building, participation by various educational institutions, it was reasonable to infer that environmental education was the purpose for attendance at these programs. There was no reviewable error committed in reaching this conclusion.

Structure of the Program:

[60] MPAC argues that the Application Judge fundamentally misapprehended the factor requiring a structured program when he held that “a considerable degree of flexibility is acceptable both with respect to the educational programs and the administration thereof”.[^30] MPAC states that Keewaydin makes it clear that an institution’s program must “have some kind of structure, insofar as the intensity of the educational experience…the activities undertaken and the type of environment fostered must have coherence and a specific target.” MPAC argues that despite the fact that the case law has supported a broader interpretation of the term “education” than it used to have, the further one moves from a more traditional academic, vocational or religious program, the more important the structure of the program becomes.[^31]

[61] MPAC states that in all “seminaries of learning” recognized in the case law, there was evidence of a tailored, structured, and rigorous program to advance a student in a course of study leading to a specific objective. None of them involved providing one-off activities to members of the public to foster public education on a wide variety of topics. MPAC cites Worldwide Evangelization Crusade, Windsor Flying Club[^32], Seafarers Training Institute[^33], and Societa Unita as examples of “seminaries of learning” in which there was a structured daily program that was designed to promote a particular educational goal.

[62] At para. 33 of Keewaydin, Harvison-Young J., notes that no formal structure is required for the purpose of qualifying as “educational”, but the program should have some kind of structure insofar as the intensity of the educational experience is concerned. The activities undertaken and the type of environment fostered must have some coherence and a specific target. There must be something that holds the experience together.

[63] MPAC is correct that the educational programming offered by the NNEEC is different from the more traditional educational programs considered in the caselaw. But we are not persuaded that this means that the Application Judge erred in law or committed a palpable and overriding error. The Application Judge cited and was alive to the proper principles to apply. In rejecting MPAC’s assertion that NNEEC’s programs lacked the required structure that provides both coherence and a specific target, the Application Judge properly took into account that its unique programs are responsive to the rural community in which is is located which requires educational programs that extend beyond traditional classroom learning. We agree with the Application Judge that what ties together the educational aspects of what the NNEEC offers is that all programming, and indeed the existence of the building itself, has as the specific target, to increase the level of appreciation and knowledge by the participants in the programs about the natural environment, and to encourage and direct them to respond to the environment in responsible and sustainable ways. The coherence, in this case, is the target, which comprises the primary purpose of many of the NNEEC ventures. What holds all programming together is the overriding goal of environmental education.

Use of the land:

[64] The Application Judge not only considered the subjective intention of the NNEEC as articulating a focused educational agenda, but the actual use of the Property in relation to the objectives of the NNEEC.[^34] He did not merely accept that the NNEEC professes to be an educational seminary of learning, he did review what the NNEEC actually does to assess objectively whether education is central and at the core of the programs and experiences offered. He reviewed the various programs and noted that both the workshops sponsored by the NNEEC and the projects it undertakes in the community invariably include a significant instructional component in furtherance of the Mission Statement.

[65] The Application Judge agreed with MPAC that there are some activities and programs whose primary purpose, when viewed objectively, cannot be considered educational. He specifically considered the Community Adventure Program as discussed above and determined it to be more of a recreational camp that has an educational component, as opposed to a program that has education as its primary focus. He also agreed with MPAC that other activities that occur on the Property such as the “Rooting for the Raptors” events in 2019, the ice cream shop that operated for three months as a fundraiser for the NNEEC and community gathering opportunity, “The Taste of Almaguin”, are not educational, but found them to be acceptable ancillary purposes. He objectively considered the totality of the NNEEC’s programs, including the planning and administration that goes into them and running the facility, in finding that education is the primary purpose as reflected by use of the property.

Did the Application Judge err in law by improperly expanding the scope of the exemption and rejecting established indicia of an educational “seminary of learning”?

[66] MPAC argues that the Application Judge was led into error in his application of the primary purpose test because of his error in interpreting “seminary of learning” and applying the applicable caselaw to the facts of the case. He either did not follow or misconstrued the cases and principles he has referred to, and failed to refer to other cases and principles that were relevant and applicable. He disregarded the key criteria established by the caselaw in attempting to stretch the use of the Property by the NNEEC into the “seminary of learning” exemption. He failed to undertake a rigorous analysis of the evidence of actual use of the Property. In doing so, his interpretation of “seminary of learning” is considerably broader than the established caselaw permits. Because of this, the Application Judge has erred in law by significantly expanding the scope of s. 3(5)1 beyond that which was intended by the legislature when it coined the term “seminary of learning”. Alternatively, he has committed a palpable and overriding error in applying the law to the facts.

[67] Specifically, it is argued that the Application Judge interpreted the exemption provision in a manner that eliminates all established indicia of a seminary of learning. In doing so, and in holding that a seminary of learning does not need to have a curriculum, teachers, or students, he departed from the caselaw in a significant way. He has determined that a program that consists of one-off experiences, held occasionally, and often without instruction or structure provided by the NNEEC constitutes a “seminary of learning”. While the determination of whether the NNEEC is a “seminary of learning” is a question of mixed fact and law, MPAC argues that that by expanding the exemption in this manner, the Application Judge has misinterpreted the legislation and committed an inextricable error in law that subsequently caused him to make incorrect findings of fact.

[68] In submissions, MPAC argued that it is not advocating for an unduly narrow and restrictive interpretation of the exemption for “seminary of learning”, but rather one that fits into the established indicia required to bring the use of a property within the four corners of the exemption. We disagree. On the facts of this particular case, MPAC’s approach to the interpretation of “seminary of learning” is narrow and restrictive.

[69] The Application Judge’s consideration of what constitutes a “seminary of learning” was informed by Societa Unita and Town of Gravenhurst and the Supreme Court of Canada in Worldwide Evangelization. Both of those cases confirmed, as have subsequent cases, that the words “seminary of learning” in the context of s. 3(1) of the Act are to be given a wide meaning. Each of these cases recognize that learning is not necessarily confined to conventional learning such as the acquisition of skills necessary to earn a livelihood, or conventional instruction like that which is provided in educational institutions such as universities. With this in mind the Application Judge found that the educational agenda of the NNEEC was to “make more informed citizens of the people who participate in its programs…by increasing their knowledge about their environment…”[^35] We find no error.

[70] Citing Worldwide Evangelization, the Application Judge rejected a strict construction of the exemption as put forward by MPAC. He concluded that there is considerable flexibility in determining the specific types of instruction which entitle an institution to qualify as a “seminary of learning”.[^36] MPAC argues that the Application Judge expanded Worldwide Evangelization beyond that which was contemplated by the case, and in doing so, he incorrectly rejected leading caselaw such as Seafarers Training Institute, which listed which listed these primary indicators of a “seminary of learning” as follows:

“… If a place has students, physical facilities, teachers or instructors, a curriculum designed to further the advancement in life of those in attendance so that they might better pursue their vocation or life’s work, it should be held to be an institution (seminary) for educational purposes.”

[71] We disagree with MPAC’s argument that the Application Judge “refused to apply binding law” and held that a “seminary of learning” need not meet any of the factors set out in the caselaw. That is not an accurate statement of the Application Judge’s reasons. In keeping with principles set out in Ottawa Salus Corp., Worldwide Evangelization, and Societa Unita, the Application Judge correctly noted that while there are some recognizable indicia of “seminary of learning”, they are not to be universally applied; rather they are case specific.[^37] He noted that in Windsor Flying Club the educational purpose was to teach students to fly an airplane, and in Seafarers it was to teach them to become qualified seafarers. He noted that in both Seafarers Training Institute and Windsor Flying Club the education is very specialized and leads to a defined goal. He noted that the indicia referred to by the courts in those cases constitute necessary components of the type of educational programs provided by those institutions. He correctly stated that neither of these two cases stands for the proposition that this is an exhaustive list of criteria that must be applied in every case. In fact, Windsor Flying Club says the exact opposite.[^38]

[72] What was compelling to the Application Judge was the need to recognize that the location of the NNEEC and the Property is a small, rural community. We disagree with MPAC’s position that these are irrelevant considerations. The challenges associated with program delivery in a small rural community, combined with the student target being the community as a whole, do not allow the indicia of “seminary of learning” to be considered in a traditional or conventional manner, and requires a broader approach to those indicia. This is not an error provided that this broader approach still results in the Applicant coming within the four corners of the exemption. In other words, a broad approach cannot be used to justify an exemption not contemplated by the legislation.

[73] The Application Judge’s reasons make it clear that in his view, the diverse ways in which the NNEEC carries out its educational objective (and its actual use of the Property) does not detract from the primary purpose being a “seminary of learning” that provides an education in environmental sustainability. In this regard, it was not that the Application Judge rejected teachers, students, facilities, instructors, and curriculum/structured programming as some indicia of a “seminary of learning”, but rather his reasons acknowledge that how we traditionally view these concepts was not appropriate given the nature of this facility, its location, and its educational objective. This is a small, not-for-profit organization, started by Ms. Palm in a very small community. The teachers or instructors cannot be a traditional faculty, but rather includes people such as volunteer leaders, the NNEEC director, various sessional or workshop lecturers, and teachers from elementary or secondary schools who are bringing their class to the facility. While in some cases they may not be found to be teachers, in this case the conclusion that they are still teachers to those attending NNEEC led or sponsored programming was a reasonable one and is entitled to deference. The decision also recognizes that the educational objectives of the NNEEC require it to extend education beyond traditional classroom learning. There are students who are community members, elementary school students, high school students and university students, that come to learn about environmental sustainability.

[74] We also reject MPAC’s argument that the dictionary definitions of the word “seminary” necessitates an interpretation of “seminary” as being something that operates like a training institute, college, academy, or school.[^39] While certainly the closer an applicant may be to establishing the traditional indicia of a conventional training institute or school, the more likely it will be found to be a “seminary of learning”, Worldwide Evangelization and Societa Unita rejected such a narrow construction of the term “seminary of learning”. In Worldwide Evangelization, the Supreme Court held that the primary meaning of the word “seminary” is simply a “place of education”. The Supreme Court further held that it may not be appropriate to compare an applicant’s method of instruction with that given in other institutions that fall within the description of “seminary of learning”, “but rather to inquire whether those in attendance do learn to fulfil better and more effectively the…purpose to which they have dedicated themselves”. [^40] The distinction drawn in Childreach Centre v. Ontario (Regional Assessment Commissioner) was whether the primary purpose was “teaching” or merely “informational”.[^41] If it is “teaching”, then the “seminary of learning” exemption is likely to apply.

[75] In the case at hand, the Application Judge found that most people who participate in the programs and activities sponsored by NNEEC do so for the purpose of increasing their knowledge about the environment, and to become better acquainted with sustainable methods of interacting with it. He further found that most of activities and programs of the NNEEC support this objective. He speaks of the lesson plans compiled by NNEEC with the intention of using them for “teaching”. The reasons of the Application Judge suggest a conclusion that the NNEEC is used primarily for teaching and not merely information. This is a conclusion he was entitled to reach on the evidence.

[76] The Application Judge also recognized that the NNEEC had only been operating for several years as of 2019 (the year in consideration) and that the educational services must be delivered with limited resources. He acknowledged that the organization relies on volunteers for instruction. He acknowledged the argument as to the number of days for which on-site instruction occurred but stated that given the limited resources, he is not surprised that onsite programming has not been more robust.

[77] MPAC argues that the overbroad interpretation of the exemption for property used as a “seminary of learning” is contrary to the intention of the Legislature. On the unique facts of this case the MPAC argument fails to recognize that it is a combination of all NNEEC’s activities, combined with the educational nature of the building and other programming supported by the NNEEC that brings it within the four corners of the exemption.

[78] We reject MPAC’s submission that the Application Judge failed to undertake a rigorous analysis of the evidence of NNEEC’s actual use of the Property. His reasons demonstrate that he considered the programming and activities in detail. His comments with respect to the Grade 11 program do not detract from this. Despite that program not having happened on the Property as of the date of cross-examination of Ms. Palm, the evidence is that planning occurred for this educational endeavour. Overall, there is no error of law or palpable and overriding error in the conclusion that NNEEC’s primary purpose, reflected by its use of the land, is as an educational seminary of learning.

Did the Application Judge commit a reviewable error by failing to discuss/reconcile cases referred to in argument?

[79] The Appellant argued that the Application Judge’s reasons were insufficient for failing to refer to, and apply, cases such as Childreach Centre, that determined the subject property in those cases were not educational seminaries of learning.

[80] With respect to Childreach Centre specifically, this was a case submitted to the Application Judge by MPAC, which it argues is most similar to the facts of this case. In Childreach, the court found that a non-profit parent resource and drop-in centre was not an educational seminary of learning. McDermid J., came to this conclusion in response to the question, “What is the principal purpose in actual use of the applicant’s lands and buildings viewed objectively”.

[81] A decision need not refer to every case submitted to the decision-maker. The Application Judge explained at length why he concluded that the Property was used for an educational seminary of learning. While MPAC is correct that he did not specifically distinguish each case referred to in which the property was found not to be an educational “seminary of learning”, his failure to do so did not constitute an error of law. In Childreach, the Centre was found to qualify for a tax exemption as an institution similar to one organized for the relief of the poor under an exemption in s.3.12 of the Act that was in existence at the time. In obiter, the court rejected Childreach’s alternate claim for an exemption under s.3.5 of the Act. Childreach Centre was found to be a resource centre and not to be a seminary of learning under s.3.5 which is hardly surprising, given that when claiming the exemption, the executive director stated that “we are not an educational institution …” Failing to refer to Childreach does not make the Decision unreasonable or incorrect, and would not have affected the result if it had been addressed overtly.

Conclusion

[82] The Application Judge made no error in law in his interpretation of s. 3(5)1 of the Act. Neither did he make a palpable and overriding error in the application of the test to the facts that warrants disturbing his decision. There was an evidentiary basis, upon which the Application Judge was entitled to rely, to find that the primary purpose of the NNEEC fit within the four corners of educational “seminary of learning”. The appeal is dismissed.

Costs

[83] The parties agreed that regardless of the outcome of this appeal, each party shall bear their own costs. In accordance with this agreement, there shall be no order as to costs.

­­­______________________________

Nieckarz J.

I agree _______________________________

Backhouse J.

I agree _______________________________

Williams J.

Released: December 14, 2023

[^1]: The Decision is reported as Near North Enviro-Education Centre v. Municipal Property Assessment Corp. et al, 2022 ONSC 3856. [^2]: London Jewish Community Village v. The Municipal Property Assessment Corporation, Region 23 et al., 2020 ONSC 6794, as cited in para. 32 of the Decision. [^3]: Keewaydin Camps Corporation Canada v. Temagami (Municipality), 2007 15800 (Ont S.C.), as cited in para. 38 of the Decision. [^4]: Re Societa Unita and Town of Gravenhurst, (1977) 1201, 1977 1201 (ON SC), 16 O.R. (2d) 785 (H.C.J.). [^5]: Decision, at para. 50. [^6]: Decision, at para. 59. [^7]: Decision, at para. 74, citing Keewaydin (in part), at para. 25. [^8]: Decision, at para. 81, citing Keewaydin, at para. 29. [^9]: Decision, at para. 95. [^10]: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235, at para. 8. [^11]: Housen, at para. 10. [^12]: Diocese of Toronto Camps (Anglican Church of Canada) v. Municipal Property Assessment Corp., Region No. 16, 2004 34918, [2004] O.J. No. 4443 (ONCA), (2004), 246 D.L.R. (4th) 170, at para. 1. [^13]: London Jewish Community Village, at para. 17(b). [^14]: London Jewish Community Village, at para. 19(b) & (c). [^15]: Diocese of Toronto, at para. 11. [^16]: Re Buenavista on the Rideau Assessment Commissioner, Region No. 2(1996), 1996 11792 (ON SC), 28 O.R. (3d) 272 at 276. [^17]: Diocese of Toronto, at para. 12. [^18]: London Jewish Community Village, at para. 19(e), and County of Lambton Community Development Corporation. v. Municipal Property Assessment Corporation, 2021 ONSC 8279, at para. 40(v). [^19]: Ibid., para. 19(i)(v). [^20]: London Jewish Community Village, at para. 19(h)(i), citing Worldwide Evangelization Crusade (Canada) v. Beamsville (Village), , 1959 21 (SCC), [1960] S.C.R. 49, at paragraph 6. [^21]: Keewaydin, at para. 14. [^22]: Ibid., at para. 25. [^23]: Ibid., at para. 27. [^24]: Ibid, at para. 11. [^25]: FLK Institute of Taosim v. MPAC, 2022 ONSC 57 (Div. Ct.). [^26]: Decision, at para. 78. [^27]: Ottawa Salus Corp. v. Municipal Property Assessment Corp., 2004 14620 (ON CA), at para. 15. [^28]: Decision, at para. 63. [^29]: Keewaydin, at para. 23. [^30]: Decision, at para. 59. [^31]: Keewaydin, at para. 32. [^32]: Windsor Flying Club v. Ontario (Regional Assessment Commissioner, Region No. 27), [2000] O.J. No. 2353 (ON SC). [^33]: Seafarers Training Institute v. Twp. of Williamsburg (1982), 1982 2186 (ON SC), 39 O.R. (2d) 370 (Div. Ct,) [^34]: Decision, at paras. 57, 59, 60, and 61. [^35]: Decision, at paras. 49-54. [^36]: Decision, at para. 56. [^37]: Decision, at para. 89. [^38]: Decision, at para. 89, and Windsor Flying Club, at para. 3. [^39]: Catherine Soanes & Angus Stevenson, eds, Concise Oxford Dictionary, 11th ed. (New York, US: Oxford University Press, 2006), Bryan A. Garner, ed., Black’s Law dictionary, 11th ed. (Thomson Reuters, 2019). [^40]: Worldwide Evangelization, at pp. 52-53. [^41]: Childreach Centre v. Ontario (Regional Assessment Commissioner), 2000 22463 (ON SC), 2000 CarswellOnt 4983 (ON SC), at para. 56.