SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 12-131 SR
DATE: 20121011

RE: HAROLD GEORGE ELDERS

Plaintiff

and

MUNICIPAL PROPERTY ASSESSMENT CORPORATION

Defendant

and

MUNICIPALITY OF WEST GREY

Defendant

BEFORE: CONLAN J.

COUNSEL:
Harold George Elders, in person
Carl B. Davis, for the Defendant, MPAC
Stephen T. Brogden, for the Defendant, Municipality of West Grey

E N D O R S E M E N T

[ 1 ] The Defendant, Municipality of West Grey (“West Grey”), moves to have this action dismissed on the ground that the Court lacks jurisdiction. The motion was heard in Owen Sound on October 5, 2012. The Court reserved its decision.

[ 2 ] The Defendant, Municipal Property Assessment Corporation (“MPAC”), agrees with the relief sought by West Grey.

[ 3 ] The Plaintiff, Harold George Elders (“Mr. Elders”), obviously resists the motion.

[ 4 ] Mr. Elders has had a Statement of Claim issued against the Defendants. He seeks a declaration that supplemental property assessment change notices for the years 2009 through 2011 are “invalid and of no force and effect”, among other relief.

[ 5 ] The position of West Grey is that Mr. Elders is complaining that the reassessment of his golf course property was done improperly; that whether the reassessment was done properly is necessarily tied to whether the value of the land is incorrect; that, therefore, this matter falls within section 40(1) (a)(i) of the Assessment Act , R.S.O. 1990, chapter A.31, as amended (the “ Act ”); and as a result this action is barred under section 46(1.1) of the Act . MPAC concurs.

[ 6 ] Mr. Elders opened his oral submissions on the motion by saying that his case is based on the argument that the MPAC assessor “did not do his job”. He submits that this Court action is permitted under section 46(1) of the Act . He argues that his claim does not fall within section 40(1) and specifically not section 40(1) (a)(i) because he does not know whether the value of the land in question is correct or not.

[ 7 ] I have considered carefully the submissions of the parties. I have reviewed the Statement of Claim, the relevant sections of the Act , the Motion Record filed by West Grey, West Grey’s Factum, West Grey’s Book of Authorities, MPAC’s Factum, MPAC’s Book of Authorities and Supplementary Book of Authorities, Mr. Elders’ Factum and Mr. Elders’ Book of Authorities.

[ 8 ] The materials filed and the oral submissions were well done in this matter. I commend the parties and counsel, particularly Mr. Elders who as a self-represented litigant did a very competent job and was succinct and professional in his representations to the Court.

[ 9 ] Unfortunately for Mr. Elders, I have decided that the motion must succeed. The motion is granted. This Court orders that the action is dismissed.

[ 10 ] The Assessment Review Board (“ARB”) is a specialized tribunal with a wide array of powers and authority. It has exclusive jurisdiction over several matters outlined in section 40(1) (a) of the Act , including the issue of whether (i) “the current value of the person’s land or another person’s land is incorrect”.

[ 11 ] Any person against whom land is assessed may apply to the Superior Court of Justice for determination of any matter relating to the assessment – section 46(1) of the Act . “Any person against whom land is assessed” includes Mr. Elders.

[ 12 ] But no Court application is allowed for the determination of a matter that could be the subject of an appeal to the ARB under section 40(1) of the Act – section 46(1.1) .

[ 13 ] I conclude that the declaratory relief sought by Mr. Elders in his Statement of Claim calls for the determination of a matter that could be the subject of an appeal to the ARB under section 40(1)(a)(i), and thus, this Court has no jurisdiction to deal with Mr. Elders’ action: section 46(1.1) . The subject matter of this litigation falls within the exclusive purview of the ARB. It matters not that this is an action commenced by Statement of Claim rather than an application commenced by Notice of Application. A litigant cannot circumvent section 46(1.1) simply by commencing an action rather than an application.

[ 14 ] The decision of Killeen J. sitting as the Divisional Court in Alcorn v. Bayham , 2002 CarswellOnt 3809 , is binding authority. The Act “is a self-contained code for assessment issues and if an aggrieved landowner is unhappy with his or her assessment and consequential taxes, that landowner must seek a remedy under the Act and not elsewhere” – paragraph 18. A landowner’s right to try to correct his/her assessment is “exclusively set out in s. 40 and related sections of the Assessment Act and the courts have no power outside the framework of the Act to grant any sort of remedy to [the landowner] or anyone else similarly situated” – paragraph 23.

[ 15 ] Mr. Elders is the precise landowner being described in those paragraphs. He is unhappy with his reassessment. He is trying to correct it.

[ 16 ] In the very recent decision of Perell J. in Brown v. The Municipality Property Assessment Corp. (Region 14), 2012 , ONSC 5400 dated September 25, 2012 (S.C.J.), the Plaintiff’s pleading alleged that MPAC “purposefully or negligently failed to properly assess her properties” – paragraph 15. Justice Perell ultimately concluded that the Court did not have jurisdiction over the subject matter of the Plaintiff’s action – paragraph 44.

[ 17 ] Mr. Elders is, like the Plaintiff in Brown, supra , alleging that MPAC failed to properly reassess his golf course property by, for example, failing to do things that were allegedly promised such as obtaining financials for the property and visiting the property for an inspection.

[ 18 ] Mr. Elders relies on the decision of Harvison Young J. sitting as the Divisional Court in Municipal Property Assessment Corporation v. Spadina Ave 93-99 , 2010 ONSC 6179 . Mr. Elders made specific reference in his oral submissions to paragraph 8 of that decision and the words “the issue under appeal turns on the narrow question of whether the issue of the ‘omitted assessment’ is one of liability for assessment and taxation, or if it relates, in essence, to issues of quantum of the assessment in issue”. Mr. Elders submits that his claim is not about quantum, and thus, the Court has jurisdiction.

[ 19 ] I disagree. There is no question that Mr. Elders is liable to pay taxes on the golf course property. Liability is not the issue. The issue, as Mr. Elders himself described it, is whether the assessor did his job properly. That is no different than saying that MPAC failed to properly reassess the property, just like in Brown, supra . It is part and parcel of Mr. Elders being unhappy with his reassessment and the consequential taxes, just like the aggrieved landowner described by Killeen J. in Alcorn, supra . Otherwise, it makes no sense that Mr. Elders seeks in his Statement of Claim a refund of the taxes paid pursuant to the notices in question.

[ 20 ] This is not an exercise in semantics. A litigant cannot avoid the meaning and intention of section 46(1.1) of the Act by calling a duck a partridge. There is simply no other common sense interpretation of the relief sought in Mr. Elders’ Statement of Claim other than to say that it concerns the determination of whether the current value of Mr. Elders’ golf course property is incorrect – section 40(1)(a)(i), a matter within the exclusive jurisdiction of the ARB. Otherwise, why are we here? Surely, Mr. Elders would not be asking for a Court declaration that the notices in question are invalid if he thought that they resulted in a correct assessment of the current value of his golf course property.

[ 21 ] Mr. Elders also relies on the decision of Belobaba J. in East of Bay (2003) Development Corp. v. Toronto (City) , 2010 ONSC 3337 , 2010 CarswellOnt 3880 (S.C.J.) . With respect, that decision is not helpful to the issue that this Court must decide. In that case, jurisdiction of the Court was not at issue. In that case, the Justice found as a fact that the wrongful conduct of the MPAC assessor which led to the invalid Omitted Property Assessment Notices was deliberate and intentional and not oversight or negligence – paragraphs 27 and 28. There are no similar allegations made by Mr. Elders in his Statement of Claim or in his submissions, written and oral, on this motion. The East of Bay decision is simply not instructive on the issue before this Court in this case.

[ 22 ] By virtue of sections 46(1.1) and 40(1) (a)(i) of the Act , this Court has no jurisdiction over the subject matter of Mr. Elders’ action. The motion brought by West Grey is granted. The action is dismissed.

[ 23 ] If the parties cannot resolve the issue of costs, I will receive written submissions within these parameters. The written submissions shall not exceed two pages in length, typed and double-spaced, excluding any Bill of Costs, Costs Outline and/or Offer to Settle. West Grey and MPAC are to serve and file their written submissions by 4:00 p.m. on Friday, October 26, 2012. Mr. Elders shall serve and file his written submissions by 4:00 p.m. on Friday, November 2, 2012. There shall be no reply submissions.

Conlan J.

DATE: October 11, 2012

COURT FILE NO.: 12-131 SR
DATE: 20121011

SUPERIOR COURT OF JUSTICE - ONTARIO RE: HAROLD GEORGE ELDERS and MUNICIPAL PROPERTY ASSESSMENT CORPORATION and MUNICIPALITY OF WEST GREY BEFORE: CONLAN J. COUNSEL: Harold George Elders, in person Carl B. Davis, for the defendant, MPAC Stephen T. Brogden, for the Defendant, Municipality of West Grey ENDORSEMENT Conlan J.

DATE: October 11, 2012