CITATION: 2198806 Ontario Inc. v. The Corporation of the City of Windsor, 2024 ONSC 139
DIVISIONAL COURT FILE NO.: DC-23-8
DATE: 20240105
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Kurke, O’Brien, and MacNeil JJ
BETWEEN:
2198806 ONTARIO INC.
Applicant
– and –
THE CORPORATION OF THE CITY OF WINDSOR
Respondent
J. Jebreen and S. McAnsh, for the Applicant
J. O’Kane, for the Respondent
V. Crystal, for the Assessment Review Board
HEARD: November 23, 2023, by videoconference in London
O’BRIEN J.
REASONS FOR JUDGMENT
Overview
[1] In 2016, the Applicant shut down a hotel property it owns in Windsor for construction. The hotel reopened under a new brand name, Town Place Suites by Marriott, in November 2017. Because of the period it was shut down, the Applicant applied to the Respondent, City of Windsor for a tax refund for both the 2016 and 2017 taxation years. It applied under two provisions of the legislation addressing municipal taxation: the first provides tax relief where demolition takes place at a property; the second provides tax relief where a property is vacant. The application in this court relates to the demolition provision.
[2] Although the City provided a refund to the Applicant, the Applicant appealed to the Assessment Review Board for a larger amount. The Board dismissed the appeal of the 2016 demolition decision because it found there was no appeal of that decision before it. The Board denied the appeal of the 2017 demolition decision. It concluded the Applicant was not entitled to relief in 2017 since the demolition took place in 2016 (2198806 Ontario Inc. v Windsor (City), 2021 132950 (ON ARB)).
[3] The Board also dismissed the Applicant’s request to review its decision (2198806 Ontario Inc. v. Windsor (City), 2023 1778 (ON ARB)) on the basis that there were no errors in the original decision and the Applicant was attempting the reargue the case on review.
[4] The Applicant applied for judicial review of the Board’s decision to this court. The issues before this court are:
a. Did the Board err in failing to treat the document the Applicant filed to challenge the City’s decision as an appeal of the 2016 demolition decision?
b. Did the Board err in requiring demolition to take place in the year for which relief was sought? and
c. Did the Board deny the Applicant procedural fairness when it interpreted the demolition provision without seeking submissions from the parties on its proposed interpretation?
[5] For the reasons that follow, the application is dismissed.
Standard of Review
[6] The Applicant brings this application for judicial review pursuant to s. 2 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. Subsection 357(17) of the Municipal Act, 2001, S.O. 2001 c. 25 (the Act), a decision of the Board under s. 357, which includes the demolition provision found at s. 357(1)(d)(ii) is final. The parties agree that the applicable standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 33.
Did the Board err in failing to treat the document the Applicant filed as an appeal of the 2016 demolition decision?
[7] The Applicant submits the Board favoured form over substance when it found there was no appeal of the 2017 demolition decision. It says it filed an appeal using the vacant property form, but that it intended to file an appeal of the demolition decision. It relies on Toth Equity Limited v. Ottawa (City), 2015 21998 (ON ARB), where the Board allowed a taxpayer to pursue an appeal when it had referenced the incorrect statutory provision on its appeal form and cover letter.
[8] I find the Board’s determination that there was no appeal to be reasonable. The Member highlighted the differences between the procedures to challenge the statutory provisions at issue. Both provisions are found in Part X of the Municipal Act, 2001, S.O. 2001, c. 25 (the Act). Subsection 364(1) addresses tax relief for vacant land. It permits a municipality to establish a program for tax rebates to “owners of property that has vacant portions.” Subsection 357(1)(d)(ii) authorizes a municipality to cancel, reduce, or refund all or part of taxes if a building on the land “was razed by fire, demolition or otherwise.”
[9] As the Member noted, the two provisions form part of different regimes in the Act. A decision under s. 357 is made by city council at a meeting at which the applicant may make representations. Under s. 357(7), the applicant may appeal the council’s decision to the Board within 35 days. The amount of the relief council may grant is discretionary and, pursuant to s. 357(17), the Board’s decision is final. Meanwhile, a decision under s. 364 may be mailed to the applicant by the municipality. Under s. 364(14), the applicant can challenge it by filing a complaint with the Board within 120 days. Municipalities are required to have vacant unit rebate programs in place and the amount of relief is legislated: see O. Reg. 325/01, s. 32. There is a right of appeal under the Assessment Act from the Board’s decision on the complaint.
[10] The form the Applicant filed, entitled “Municipal Act Complaint – Vacant Unit Rebate,” makes it clear it cannot be used to initiate an appeal. It contains a warning that it is to be used for vacant unit rebate complaints only, stating:
Do not use this form for any other applications, appeals and/or complaints under the Municipal Act, 2001. Different forms are available to file the other applications, appeals and complaints.
[11] On the form, the Applicant marked the box indicating it was making a complaint under s. 364(14). The available check box options relate only to s. 364. There is no mention in the form of s. 357.
[12] In these circumstances, it was reasonable for the Member to distinguish Toth. There, while the property owner marked the wrong provision on the form, the two statutory provisions at issue were, as the Member stated, “nearly identical.” They provided for almost the same relief. Both also required an appeal to the Board. Further, Toth was unusual in that the decision arose after a judicial review in this court and subsequent appeal to the Court of Appeal, which resulted in the matter being remitted to the Board. Both this court and the Court of Appeal considered the statutory provision the property owner had intended to rely on rather than the provision it had mistakenly named on the form.
[13] Overall, the Board’s analysis on this issue was transparent, intelligible, and justified: Vavilov at para. 86. It was reasonable for the Board to conclude it did not have authority over an appeal the Applicant had failed to initiate.
Did the Board err in requiring demolition to take place in the year for which relief was sought?
[14] The Applicant submits the Board erred when it interpreted s. 357(1)(d)(ii) as requiring demolition to have occurred within the same tax year for relief to be available. In the Applicant’s submission, the Board adopted a novel interpretation of the statutory provision and unreasonably failed to explain its departure from existing jurisprudence.
[15] I do not see a basis to interfere in the Board’s interpretation. Section 357 specifically refers to relief available during the year in which the building was “damaged by…demolition.” It provides:
357(1) Upon application to the treasurer of a local municipality made in accordance with this section, the local municipality may cancel, reduce or refund all or part of taxes levied on land in the year in respect of which the application is made if,
(d) during the year or during the preceding year after the return of the assessment roll[^1], a building on the land,
(ii) was damaged by fire, demolition or otherwise so as to render it substantially unusable for the purposes for which it was used immediately prior to the damage. (emphasis added)
[16] The Board found that the property did not qualify for relief because the demolition which caused it to be substantially unusable occurred prior to 2017 and did not occur in 2016 after the return of the assessment roll. It noted that the only demolition in 2017 was of a small area of the property that did not render the building substantially unusable.
[17] Given the specific requirement that the building be damage by demolition “during the year” in which tax relief was sought, it was open to the Board to interpret the provision as requiring the demolition and resulting damage to have occurred during that year.
[18] I disagree that the Board’s interpretation departs from existing jurisprudence in any significant way.
[19] In Canadian Property Holdings (Ontario) Inc. v. Municipal Property Assessment Corporation, Region 15, 2017 78332 (ON ARB), the property demolition occurred and continued to keep the property substantially unusable through the tax year for which relief was sought. The decision does not address demolition that occurred in a prior year.
[20] In Panagiotis v. Municipal Property Assessment Corporation Region 15, 2019 135404 (ON ARB) the Board granted relief on the basis that a fire in late 2015 rendered the property unusable for the 2016 taxation year. While the result is consistent with the applicant’s submission, the question of whether the property owner was entitled to relief in the year after the fire was not an issue in dispute. The Board did not expressly rule on it.
[21] In Vavilov, the Supreme Court of Canada stated at para. 131 that administrative decision makers are not bound by internal precedent in the same manner as courts. But it cautioned that where a decision maker departs “from longstanding practices or established internal authority, it bears the justificatory burden of explaining that departure in its reasons.” The cases cited by the applicant do not directly address the issue in dispute. There is no longstanding practice or established internal authority in this case that would render the Board’s analysis unreasonable. This ground of review therefore fails.
Did the Board deny the Applicant procedural fairness when it interpreted the demolition provision without seeking submissions from the parties on its proposed interpretation?
[22] The Applicant submits the Board breached procedural fairness when it interpreted s. 357(1)(d)(ii) without seeking submissions from the parties on its new proposed interpretation.
[23] There was no breach of procedural fairness in the circumstances of this case. The Board has the authority to control its own process and is owed deference on procedural rulings: Council of Canadians with Disabilities v. Via Rail Canada Inc., 2007 SCC 15, at para. 231; Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at para. 27.
[24] The parties should have knowledge of the essential issues in dispute so they can meaningfully respond. But the right to be heard does not require a tribunal to provide the parties with a further opportunity to make legal submissions every time a legal argument arises in deliberations that was not mentioned by the parties: Girouard v. Canada (Attorney General), 2020 FCA 129, at paras. 97-98; IWA v. Consolidated-Bathurst Packaging Ltd., 1990 132 (SCC), [1990] 1 S.C.R. 282, at para. 93.
[25] Here, the Member did ask the parties for additional submissions on the interpretation of s. 357(1)(d)(ii). At para. 53 of her reasons, the Member noted that, although the parties’ submissions were directed primarily at the quantum of relief, she was concerned about the issue of entitlement under s. 357(1)(d)(ii). She requested and received submissions on entitlement. She therefore proceeded in a procedurally fair manner.
Disposition
[26] The application is dismissed. As agreed by the parties, the Applicant shall pay costs to the City in the amount of $5,000 all-inclusive.
O’Brien J.
I agree _______________________________
Kurke J.
I agree _______________________________
MacNeil J.
Released: January 5, 2024
CITATION: 2198806 Ontario Inc. v. The Corporation of the City of Windsor, 2024 ONSC 139
DIVISIONAL COURT FILE NO.: DC-23-8
DATE: 20240105
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Kurke, O’Brien, and MacNeil JJ
BETWEEN:
2198806 ONTARIO INC.
Applicant
– and –
THE CORPORATION OF THE CITY OF WINDSOR
Respondent
REASONS FOR JUDGMENT
O’BRIEN, J
Released: January 5, 2024
[^1]: The Member at para. 64 of her decision noted that the roll return date for the 2016 tax year was December 13, 2016.