CITATION: Drewlo Holdings Inc. v. Municipal Property Assessment Corporation, 2024 ONSC 786
DIVISIONAL COURT FILE NO.: DC-22-46
DATE: 2024-02-08
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Kurke, O’Brien, and MacNeil JJ
BETWEEN:
Drewlo Holdings Inc.
Appellant
– and –
Municipal Property Assessment Corporation and the Corporation of the City of London
Respondents
-and-
Assessment Review Board
Intervenor
J. Jebreen and S. McAnsh, for the Appellant
K. Lunau, for the Respondent Municipal Property Assessment Corporation
G. Smith, for the Respondent Corporation of the City of London
V. Crystal, for the Intervenor Assessment Review Board
HEARD: November 22, 2023, by videoconference in London
reasons ON APPEAL
A.D. KURKE J.
Overview
[1] The appellant Drewlo Holdings Inc. (“Drewlo”) developed the property municipally known as 750 Capulet Lane in London, Ontario, by constructing three residential apartment towers, each containing 165 units. In December 2018, the appellant registered a condo plan that converted two of the three towers into 330 condominium units. The third tower was to remain a multi-residential building.
[2] The respondent Municipal Property Assessment Corporation (“MPAC”) issued an “omitted assessment” (an “omit”) against 750 Capulet Lane in May 2019 as a single parcel of land with three multi-residential towers of a value of $68,410,000, using s. 33(1) of the Assessment Act, RSO 1990, c. A-31 (the “Act”). An omit is used to assess land liable to assessment that has been omitted from the tax roll. In October 2019, because of the condo plan, MPAC issued further omits, but this time for the 330 individual condo units in the two towers as 330 residential assessments, and one more for the remaining multi-residential tower, for a total of 331 assessments. The assessment for the original property was adjusted to $0.
[3] Drewlo appealed what MPAC had done with respect to these now 331 assessments to the Assessment Review Board (the “Board”), which upheld MPAC’s actions.
[4] On leave of this court, Drewlo appeals the Board’s decision, arguing that the Board misinterpreted, ignored, or misapplied s. 33(1) of the Act, and improperly ignored MPAC’s deliberate misdescription of the land in its first assessment, which calls into question MPAC’s legitimate ability to assess the property at 750 Capulet Lane with the omits in October. Drewlo also argues that in the process, the Board deprived Drewlo of procedural fairness by not inviting its submissions on the issue it decided was determinative, and by preferring other facts to the facts that Drewlo endorsed.
[5] For the following reasons I would dismiss Drewlo’s appeal.
Standard of review
[6] Appeals are only allowed to this court from the Board on questions of law, pursuant to s. 43.1 of the Act. Questions of law examine what the correct legal test is, and questions of fact examine what took place between the parties; questions of mixed fact and law involve whether facts satisfy the legal test: Municipal Property Assessment Corporation v. County of Wellington, 2023 ONSC 591 (Div. Ct.), at paras. 42-43. The application of a legal test to the facts, and the Board’s factual findings are not subject to appellate review absent an extricable error of law: Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507 (Div. Ct.), 157 O.R. (3d) 337, at para. 25, aff’d 2022 ONCA 446, leave to appeal granted and appeal heard and reserved November 15, 2023, [2022] S.C.C.A. No. 310; Oliver v. Brant Mutual Insurance Co., 2018 ONSC 3716 (Div. Ct.), at para. 17.
[7] On this statutory appeal from the decision of a tribunal, the standard of review is correctness. Accordingly, this court is free to substitute its opinion for that of the administrative decision maker: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 37. The Supreme Court of Canada has recently also confirmed correctness as the standard of review on appeal matters involving issues of procedural fairness: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328, at paras. 26-29.
Facts
[8] Facts in the case were filed before the Board in an Agreed Statement of Facts (“ASF”). MPAC and Drewlo also each filed an additional affidavit, Drewlo from Paul Goulet, and MPAC from Louis Biscaro.
[9] Drewlo is a property developer and owns 750 Capulet Lane in London, Ontario (the “Property”). The Property was originally vacant land, for which MPAC had assessed a value of $2,602,000 for the 2018 tax year, which had been returned on the assessment roll in December 2017. Drewlo constructed three residential apartment towers on the Property, each of which contained 165 units. Construction was completed in mid-2018.
[10] On December 6, 2018, Drewlo registered Middlesex Standard Condominium Corporation No. 912 (the “condo plan”). The condo plan converted two of the three towers into residential condominium parcels and common property. They became 790 Capulet Lane and 810 Capulet Lane. The remaining tower stayed as a multi-residential building in December 2018, as 750 Capulet Lane. On December 11, 2018, the 2019 tax roll for London was returned, and contained only the assessed value of the vacant land on the Property, which was the same as for 2018.
[11] The three towers on the Property had never yet been assessed for the tax roll. A valuation for the Property and the three towers was first completed January 10, 2019 by Louis Biscaro, a property valuation specialist for MPAC. Biscaro provided evidence that May 1, 2019 was the first available date to issue omitted assessments for the 2019 tax year. His affidavit explained that the Property continued to be assessed as multi-residential to reflect its use as a residential rental property in 2018 and because the individual rolls for the condo units had not yet been created.
[12] Paul Goulet is the municipal tax consultant for Drewlo. Between October 2, 2018 and March 7, 2019 he was in contact with MPAC concerning the conversion of the Property into condo units, and to provide information for MPAC’s use with respect to the condo units. By March 9, 2019, Biscaro confirmed to Goulet that Drewlo had provided sufficient data for MPAC’s purposes.
[13] On May 8, 2019, MPAC served notice of an omit (the “May omit”) against the Property that did not yet refer to the condo plan. That assessment was retroactive to January 1, 2019, and assessed the total value of the Property, as three multi-residential apartment towers on a single parcel of land, at a total of $68,410,000. The May omit added the value of the towers to the property assessment. The City of London levied taxes based on the May omit in the amount of $1,407,320.90, and Drewlo paid those taxes.
[14] Later in the year, MPAC created 331 new roll numbers, which were approved for use as of September 23, 2019. Of these, 330 were for the newly created condos. A “remainder roll” was created for the remaining tower at 750 Capulet that had not been converted into condos. According to Biscaro, MPAC made 330 omits against the condo units and a further omit against the remaining tower as a multi-residential property on September 24, 2019. It served notice of the 331 omits to Drewlo by letters issued October 8, 2019 (the “October omits”), shortly after October 1, 2019, which had been the next available date to issue omits. The October omits were made effective January 1, 2019.
[15] The October omits amended the assessment roll for the 2019 taxation year, by adding 330 condominium properties to the roll and showing a new assessment roll number for the remaining multi-residential tower. The total value of the assessment for the 331 properties was $83,904,500, made up of a total of $62,527,000 for the 330 condominiums and $21,377,500 for the new multi-residential tower property. The October omits are the subject of this appeal.
[16] According to Biscaro, at the time MPAC dealt with the October omits, September 24, 2019, MPAC reduced the assessment on the May omit, involving the original roll number on the Property, to $0, pursuant to s. 32(1.1) of the Act (the “October correction”). The next available date for issuing amendments to the tax roll was October 22, 2019. Notice of the correction was issued to Drewlo on October 29, 2019. At the same time as the assessed value of the Property was reduced to $0, the 331 new roll numbers went forward.
[17] By a December 1, 2020 order of the Board, Drewlo’s 331 appeals of the October omits were combined into a single proceeding that was heard April 7, 2021. The Board’s decision and Reasons were issued on June 24, 2022.
The decision of the Board
[18] After considering the factual background, the Board properly stated that the issue on the appeal before it was whether MPAC had the authority to issue the October omits under s. 33 of the Act, which requires that land liable to assessment have been omitted in whole or in part. That issue required a determination of whether the condo plan had created “new land” that had not previously been assessed.
[19] The Board reviewed jurisprudence and noted that s. 33 cannot be used to reassess land for which a current value has already been assessed. The Board observed that in the circumstances of this case, the May omit had merely changed the current value of the Property based on the construction of three towers. The Board then went on to hold that MPAC had the jurisdiction to correct the legal description of land resulting from the creation of new lands, and then to use s. 33 to add the new lands and their assessments to the roll.
[20] The Board held that this all hinged on whether the registration of the condo plan created new lands to be added to the assessment roll. If not, then there would be no omission on the assessment roll to correct.
[21] After considering various sections of the Act, the Board concluded that land which is subject to assessment is “land/real property/real estate/property to which a right of ownership applies.” Severance creates new parcels to be assessed separately against each owner. Then, based on provisions in the Condominium Act, the Board held that condo units were real property, and therefore “land” under the Act. The registration of a condo plan created new rights of ownership for each unit, which is a separate parcel for the purpose of municipal assessment and taxation. The severance occasioned by the registration of the condo plan also created a new property in the third multi-residential tower, which required assessment under a new roll number.
[22] Accordingly, the registration of a condo plan did create new “lands” that obligated MPAC to resort to the use of s. 33 of the Act, to “correct” the omitted lands. Drewlo’s appeal was dismissed.
Grounds of appeal
[23] Drewlo raises what it defines as issues relating to procedural fairness and legal errors in the Board decision.
[24] With respect to procedural fairness issues, Drewlo submits that the Board erred:
a. By deciding the substantive issue before it on a novel basis that was not pleaded, raised, or argued by any party before it; and
b. By failing to address legal issues and evidence presented by Drewlo and by failing to follow or refer to the agreed statement of facts.
[25] With respect to legal issues, Drewlo submits that the Board erred by:
a. Misinterpreting the word “land” in s. 33(1) of the Act;
b. Not considering the second component of the two-part conjunctive test set out in s. 33(1) of the Act;
c. Not considering or applying limits on assessments that can be made pursuant to s. 33(1) of the Act; and
d. Not considering the evidence that MPAC had intentionally omitted the correct legal description of the Property from its first 2019 assessment of the Property.
Discussion
Section 33(1) of the Assessment Act
[26] Section 33(1) of the Act sets out how lands that are omitted from assessment are to be dealt with to correct the tax roll during the tax year and is central to the grounds of appeal. I include its relevant provisions:
33(1) The following rules apply if land liable to assessment has been in whole or in part omitted from the tax roll for the current year or for all or part of either or both of the last two preceding years, and no taxes have been levied for the assessment omitted:
The assessment corporation shall make any assessment necessary to correct the omission.
If the land is located in a municipality, the clerk of the municipality shall alter the tax roll upon receiving notice of the change, and the municipality shall levy and collect the taxes that would have been payable if the assessment had not been omitted.
[27] In the interpretation of this provision, as in the Act as a whole, there are two competing primary objectives: correctness and finality. To ensure that the tax burden is equitably distributed, the assessment roll must be correct. Fairness to the taxpayer requires some finality, to ensure a stable and reliable tax base: Toronto (City) v. Municipal Property Assessment Corporation, 2013 ONSC 6137, 315 O.A.C. 279 (Div. Ct.), at para. 30 (“Shane B”).
[28] This provision does not confer a general authority to review all errors in the valuation of property but is aimed at correcting a situation where some or all of a property was omitted from the assessment roll: Shane B, at para. 44.
“Land”
[29] Drewlo complains that the Board erred in its interpretation of the words “land liable to assessment” in s. 33(1) of the Act. It argues that the May omit had already assessed the Property as three newly-constructed apartment towers, and that therefore MPAC could not properly issue omits for the 330 converted condo units and one apartment tower, which are simply different legal ways of describing the Property.
[30] Drewlo submits that in Magee v. Municipal Property Assessment Corporation, 2010 ONSC 6498, [2010] O.J. No. 5619 (Div. Ct.), at para. 9, this court held that “land liable to assessment” in s. 33(1) of the Act meant only physical land and improvements, and not land “whose description has been omitted from the description of the property in the assessment or tax roll.” But “land” in Magee referred only to “physical land and improvements” because it was only the assessment of a golf course on rural properties that was at issue in that case. The legal description of the land did not change.
[31] In the same paragraph of Magee, the court emphasized that s. 33(1) refers to land liable for assessment that has been omitted from the tax roll, and not land whose description has been omitted from the tax roll. The comparison fails in the circumstances of this case, where the Board correctly concluded that provisions in the Act and the Condominium Act created new “land” in the condo units and the remaining tower that must be assessed as separate properties with their own assessment roll numbers. In this circumstance, s. 33(1) could be used, as the condo units and remaining tower were land that had been omitted from the roll.
[32] Drewlo further likens this case to East of Bay (2003) Development Corp. v. Municipal Property Assessment Corp., 2011 ONSC 242 (Div. Ct.), 79 M.P.L.R (4th) 303 (“East of Bay”), in which MPAC sought to use the omit power to reassess condominium units and was refused by the court. However, the facts in East of Bay are distinguishable from this case and highlight how MPAC acted properly here. In East of Bay, the court held that when a plan of condominium was already accounted for in the roll, and MPAC had already put a nominal value on the condo units in order to buy time to offer proper assessments because of a staffing shortage, the units could not be said to have been “omitted”. Here, the October omits were the first assessment of the newly created condominium units in the Property, as opposed to the three multi-residential towers, as observed by the Board at para. 28 of its decision.
[33] In a similar vein, Drewlo refers to Re Beaver Lumber Co Ltd. and City of Ottawa, 1976 621 (ON SC), [1976] O.J. No. 2115 (Div. Ct.), 12 O.R. (2d) 314, in which it was held that MPAC had no authority to use the omit power to correct the assessment of land that had been assessed, but at a value that, through error, was too low. No land had been omitted; it was just undervalued, and therefore s. 33(1) was inapplicable. Again, that authority is distinguishable from this case, where the registration of the condominium plan did not simply increase the value of property but created 331 new properties.
[34] Moreover, the Board’s conclusion is reinforced by a recent decision of this court. In Toronto (City) v. Craft Kingsmen Rail Corp., 2023 ONSC 292 (Div. Ct.), 165 O.R. (3d) 561, the issue was whether air parcels could be considered “land” and subject to assessment. At para. 41 of the decision, the court held that the word “land” in the Act should have the same meaning as in such legislation as the Land Titles Act and the Land Transfer Tax Act, and concluded that any land that is conveyed, registered, or severed should also be deemed to be assessable and taxable land. In the same way in the circumstances of this case, under the Condominium Act, 1998, S.O. 1998, c. 19, new parcels are created by registration of the condo plan and become lands that were omitted and need to be assessed and added to the roll.
[35] Drewlo’s argument fails because, as the Board explained, its registration of the condo plan created 330 new condo properties and a new roll number for the third tower. The registration of the condo plan, once accounted for, created 331 new parcels of land for tax purposes, each of which then became liable for assessment and taxation. The Condominium Act, in s. 15(1), states that each condominium unit “constitutes a parcel for the purpose of municipal assessment,” and in s. 1 makes clear that all units “are held in fee simple by the owners.” Thus, as found by the Board (at para. 44), the individual condominium units are “real property” with new and unique rights of ownership.
[36] The Board correctly held (at para. 45), that Drewlo’s registration of the condo plan for the Property was more than just a change in the description of the land. Rather:
Clearly, new “lands” were created, which were omitted on the Assessment Roll for the 2019 tax year. Therefore, s. 33 of the Act clearly obligated MPAC to make the further September 2019 assessments [viz., the “October omits”] to correct the omission respecting this property.
A point of procedural fairness
[37] Drewlo also complains that it was denied procedural fairness because the Board focused in its decision on whether new lands were created, and made reference to the Condominium Act, “which neither party had raised, and regarding which the parties were not invited to make further submissions.” Drewlo asserts that this was a violation of the audi alteram partem rule.
[38] In fact, however, the Condominium Act, and its use as authority to create new individually taxable parcels of land, had been specifically referenced in paras. 19 and 20 (and their attendant footnotes) of MPAC’s submissions to the Board. In its own factum to the Board, at para. 4, Drewlo acknowledged its awareness that the condo plan would affect the “legal status” of an MPAC assessment. Drewlo was on notice that the effect of the Condominium Act was a live issue before the Board and had the opportunity to address it.
[39] The audi alteram partem rule must take into account a particular tribunal’s “expertise and the body of jurisprudence that has developed around its area of expertise”: Knoll North America Corp. v. Adams, 2010 ONSC 3005 (Div. Ct.), 104 O.R. (3d) 297, at paras. 28-31; Girouard v. Canada (Attorney General), 2020 FCA 129, 449 D.L.R. (4th) 679, at paras. 97-98; IWA v. Consolidated Bathurst Packaging Ltd., 1990 132 (SCC), [1990] 1 S.C.R. 282, 68 D.L.R. (4th) 524, at para. 93. With respect to the use of s. 33(1) by MPAC as an accepted tool when properties are converted to condominium units, see, for example, National Car Rental (Canada) Inc. v. Municipal Property Assessment Corporation, Region 15, 2022 53352 (ON ARB), at paras. 109-110. The operation of the Condominium Act in the context of the Act must have been in the contemplation of these parties in the circumstances of this case.
[40] This ground of appeal, along with its procedural fairness component, must fail.
Taxes have been levied
[41] Drewlo next submits that the Board improperly made no reference to and no finding on the second part of the two-part conjunctive test in s. 33(1), which requires that “no taxes have been levied for the assessment omitted.” Drewlo points out that taxes had been levied and paid on the Property prior to the October omits. In that circumstance, Drewlo argues that the Act did not permit the making of the October omits by MPAC and that the Board erred by not making such a finding. If land is truly omitted within the meaning of s. 33(1) of the Act, then there can have been no taxes levied against the Property, which will have been, after all, omitted. Here, though, Drewlo had already paid significant taxes on the Property.
[42] However, the taxes that Drewlo had paid were for three multi-residential apartment towers on the Property, as assessed on the roll number in the May omit. The registration of the condo plan created 330 new condo properties to be assessed and added to the roll and resulted in a severance of those units from the Property, and a new tax roll number being assigned to the single remaining multi-residential tower. Because of the registration of the condo plan, on September 23 and 24, 2019, 331 new properties were created, only one of which (the tower) had yet been assessed or taxed, and that was done as part of another roll number. Indeed, on September 24, 2019, MPAC, pursuant to s. 32(1.1) of the Act, corrected the value of the Property assessed in the May omit – a different legal entity than the new 331 properties created by the registration of the condo plan – to $0. The 331 properties created by the condo plan had not been taxed and s. 33(1) was available to correct the omission.
October 8 or October 29?
[43] But Drewlo here argues another point of procedural fairness, that the Board erred in using in its decision dates provided by Biscaro in the affidavit submitted to the Board by MPAC, rather than dates drawn from the ASF. On Drewlo’s argument, had the dates from the ASF been used, it would have shown that taxes had in fact been levied on the Property before the October omits, which would mean that the October omits were unlawfully made.
[44] Biscaro indicated that September 24, 2019 was the date on which MPAC both made the October correction and amended the assessment roll to add the new condo units and the remainder tower to it and give their current assessed value. Drewlo argues that the Board should have accepted the “issue dates” on the face of the notices of assessment issued by MPAC to Drewlo with respect to the October omits (October 8, 2019) and the October correction (October 29, 2019), which were referenced in the ASF.
[45] Drewlo points to ss. 39.1(1.2), 39.1(3), 40(5), and 40(8) of the Act, which specify that the “issuance date” is the date for calculating certain limitation periods for various actions to be taken under the Act. Drewlo therefore submits that it is the issuance dates that mattered, and not the date that the Board did use, September 24, 2019. Based on this fact, the October omits preceded the October correction, meaning that the property’s assessment had not been corrected to $0 yet at the time that the condo omits were issued. The result is that the same land would have been assessed twice, and taxes already paid upon it. This would also mean that the land had not, in fact, been omitted, so s. 33(1) could not validly be used for the October omits.
[46] I would reject this argument. The Board did not err in law or act unfairly when it focused on the September 24, 2019 date.
[47] Drewlo argues that the Board erred in deviating from the ASF without giving reasons, and that it “is unfair to completely ignore the parties’ shared understanding of the facts.” This argument is surprising in the face of affidavits provided by each party before the Board to advance their own factual positions in addition to the ASF. Biscaro’s facts supplemented, but did not replace the agreed upon facts, just as did Goulet’s in his affidavit.
[48] But once again, even on Drewlo’s argument, assessments were provided for the condo units and the remaining multi-residential tower on their new roll numbers on October 8, 2019, and a correction was made to the Property’s assessment on its own roll number on October 29, 2019. As the assessments of the condo units and remaining tower involve properties that are legally distinct from the Property, on distinct roll numbers, there could be no double assessment.
[49] As a taxpayer, Drewlo’s method of determining operative dates understandably focuses on issuance dates in provisions that start the clock running on deadlines for taxpayer response to MPAC conduct. But there is no reason to accept those provisions as defining the operative date on which assessments take effect. Assessments take effect on the date that MPAC enters information into the assessment roll, not on the date that notice is provided to the taxpayer: Act, ss. 33(1), 32(1.1), 35(1).
[50] The facts on which this ground of appeal is based were all before the Board, which had the discretion as to the facts that it relied upon. The Board did rely on facts from the ASF, but with respect to various dates that it considered material, it chose to rely on the dates provided in the Biscaro affidavit. It was entitled to do so.
[51] The Board understandably did not refer to Drewlo’s argument about “no taxes have been levied,” because the Board’s holding about the creation of new properties for assessment and tax purposes meant that no taxes could yet have been levied on the condominium units or the remaining tower, which were, by operation of law, new properties with new roll numbers. That justified the use of. s. 33(1). Moreover, the Board permissibly derived its dates of actions taken by MPAC from evidence that was before it, and found that September 24, 2019, was the operative date for the October correction and the October omits.
[52] This ground of appeal, including its procedural fairness argument, fails.
The ruling in Shane B
[53] Drewlo submits that if MPAC had the authority to issue the October omits, then the Board erred in not following the decision in Shane B, which held that omits can only correct an omission, they do not confer on MPAC the authority to reassess land that already has a current assessment.
[54] Drewlo points to the decision in Shane B (Toronto (City) v. Municipal Property Assessment Corporation, 2013 ONSC 6137, 315 O.A.C. 279 (Div. Ct.)), in which this court answered “no” to the question whether MPAC or the Board could use omitted assessment powers to “alter the property’s current value if there has been no physical change to the property?” On Drewlo’s argument, if MPAC had the authority to issue omits for the new condo units, the precedent of Shane B required that the same total market value be maintained, as nothing in the physical description of the Property had changed since the May omit.
[55] Shane B involved the severance of portions of tax-exempt properties belonging to a church and a school, and the sale of the severed parcels to a private owner for development. Thus, the Shane B decision properly dealt with s. 33(3) of the Act, which is concerned with an alteration in the status of a property from being tax exempt to requiring the payment of taxes. At para. 37, the court held that MPAC was limited by the provision to correcting the tax status as it was only the taxable status that had been omitted, and not the assessment. MPAC was not entitled to correct the current values, because the properties had already been assessed, even if at the time the property could not be taxed.
[56] Drewlo submits that this interpretation is consistent with Magee, in para. 9 of which the court distinguished between land and its legal description. But in my view, in these respects, Shane B is consistent with East of Bay and Re Beaver Lumber and is distinguishable from this case for the same reason. In the circumstances of this case, the condo plan created new land, land that therefore had been “omitted” and needed to be assessed. The Property had been fundamentally reconfigured by operation of law into 330 individual residential condo units and a single multi-residential tower. The May omit was with respect to a different legal property, a property that had not seen itself yet transformed for tax purposes into 331 new parcels.
[57] In East of Bay, the Divisional Court held that what prevented resort to s. 33(1) was the fact that separate roll numbers had already been assigned to each dwelling unit in the building (at para. 6). That is precisely where this case differs from East of Bay, and what permitted MPAC to issue the October omits here. New land had been created in September 2019 after the May omit, which altered the assessment roll by the addition of 331 new roll numbers and individual property descriptions that had to be accounted for.
[58] This ground of appeal fails.
Intentionality
[59] Drewlo argues that MPAC improperly used s. 33(1) to issue the October omits because it intentionally issued an incorrect assessment with the May omit. MPAC had long had ample information from Goulet about Drewlo’s condo plan with which to do a proper assessment in May 2019, and therefore it cannot have resort to the power to correct an omission that it deliberately created.
[60] Drewlo cannot succeed on this ground of appeal.
[61] Drewlo relies on the decision of the motion judge in East of Bay (2003) Development Corp. v. Toronto (City), 2010 ONSC 3337 (Sup. Ct.). In that decision, the motion judge held that s. 33(1) of the Act could not be used in a case where omissions “were not inadvertent but intentional” (at paras. 5-6 and 10). The motion judge held omits to be invalid and of no force and effect. However, as discussed above, the Divisional Court on appeal by MPAC held that the case did not turn on intentionality, but rather on the fact that all of the properties that were involved had already been assessed, and separate roll numbers had already been assigned to the 293 properties under consideration. In that circumstance, nothing had been omitted.
[62] This case turns on facts that have been repeatedly rehearsed in this decision. An assessment was issued against the roll number of the Property in the May omit, which, like the October correction to it, Drewlo has not appealed. In East of Bay, no omits could be issued against the 293 condo unit properties because they had already been assessed, so nothing was omitted. Here, no new roll numbers had even been created for the condo units and the remainder property before September 2019.
[63] As discussed above, when the 330 new condo units and the remainder property were created by operation of the Condominium Act, they were new land without any assessment, and MPAC, as s. 33(1) of the Act required it to do, issued omits against them to fill the gap, once they had been assigned roll numbers in the tax assessment roll. There is no legal identity between the roll for the Property and the new condo unit and remainder rolls, which would be required to give Drewlo’s argument traction.
[64] It is important to note that in paras. 35 and 36 of its decision, the Board acknowledged that MPAC’s issuance of both the May omit and the October omits required consideration. The Board identified that the issue raised by Drewlo was whether only the legal description of the land, as set out in the condo plan, had been omitted from the assessment roll, in which case the October omits would be improper. The Board properly held that the relevant question was “whether the registration of the condominium plan created new lands to be added to the Assessment Roll.” The Board went on to correctly answer this question in the affirmative.
[65] In Bona Building & Management Co. v. Municipal Property Assessment Corp., 2015 ONSC 7824, at para. 31, the Superior Court declined to follow the motion judge in East of Bay in a case where MPAC had not yet attributed any value to a hotel that had been completed on an assessed property, and about which MPAC was therefore permitted to issue an omit. Sheard J. held that MPAC was under no obligation to explain how or why a property was omitted from the tax rolls. In this case, the Board, having found that the condo units and the remaining tower were created as new properties pursuant to the registration of the condo plan, was under no obligation to determine the intentionality or otherwise involved in the May omit, which applied to a different property with a different roll number.
[66] This ground of appeal fails.
Disposition
[67] For the above reasons, the appeal is dismissed. On agreement of the parties, the appellant will pay costs of $2,500 each to the respondent MPAC and the respondent Corporation of the City of London, within 30 days.
A.D. Kurke J.
I agree _______________________________
S. O’Brien J.
I agree _______________________________
B. MacNeil J.
Released: February 8, 2024