COURT FILE NO.: CV-11-5011-00

DATE: 2012 12 10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

CLEAR CHANNEL OUTDOOR COMPANY CANADA, formerly CLEAR CHANNEL OUTDOOR COMPANY CANADA II

J. Bradford Nixon, David G. Fleet

for the Applicant

Applicant

• and -

MUNICIPAL PROPERTY ASSESSMENT CORPORATION, THE CORPORATION OF THE CITY OF MISSISSAUGA and GREATER TORONTO AIRPORTS AUTHORITY

Brad Teichmann, Chris Tanzola for the Respondent City of Mississauga

Shawn Douglas for the Respondent MPAC

Mary Paterson for the Respondent GTAA

Respondents

HEARD: November 14, 15, 16, 2012

REASONS FOR JUDGMENT

Snowie J.

[1] The issue before the Court is a singular one: whether or not the applicant, Clear Channel, is an assessable tenant of the Crown at the Toronto International Airport, (the GTAA, also known as the Airport, also known as Pearson Airport). The position of the applicant is that it is not.

[2] Since 2004, Clear Channel has held a non-exclusive licence from the Greater Toronto Airport Authority (known as the GTAA) to the common areas at Pearson Airport under which it is authorized to install, service and maintain (for a licensing fee) the GTAA’s advertising displays at Pearson Airport. Under the terms of the Licence Agreement between the Applicant and the GTAA, the GTAA controls all aspects of Clear Channel’s business as the licensee managing the GTAA airport advertising. This includes almost complete control by the GTAA over the premises on which advertising may be displayed, the content of advertising copy, its permitted locations and the rates which may be charged to advertisers. In order to facilitate such a service, Clear Channel has non-inclusive access to parts of the land and buildings located at Pearson Airport. Such access is limited solely for the purpose of managing the GTAA’s advertising displays as licensee and subject to the complete control and regulation by the GTAA. These facts are not disputed. It must be noted that by an amendment in 2005, there are two exclusive licensed areas: the Jetbridges and Fixed Links, however, the GTAA continues to have total control of these areas as well.

[3] Section 1 (21) of the Licensing Agreement between Clear Channel and the GTAA defines “Common Areas” as follows:

“Common Areas” means those common areas and facilities which serve the Terminal Buildings or any part thereof and which are from time to time designated by the Licensor for the common use and enjoyment of the Licensee and other licensees and may or may not be available to the general public in the Terminal Buildings (and their respective employees, agents, customers and invitees) or any part thereof, including and also, access roads, driveways, entrances and exits, sidewalks, ramps, landscaped areas, stairways, escalators, elevators, passageways, mechanical and electrical rooms, garbage facilities, delivery facilities including common loading and receiving facilities, fire protection and detection equipment, security equipment, first aid and information facilities and washrooms. The Common Areas do not include access roads, driveways, entrances and exits intended exclusively for or as part of any Hotel or Office Building and do not include any Parking Garage or Parking Areas. (Bolding is mine)

[4] Section 1 (44) of the Agreement defines “Licensed Premises” as follows:

“Licensed Premises” means all of the Locations together; a reference in this License to the Licensed Premises” shall be a reference, as the context requires, to the relevant Location or Locations comprising the Licensed Premises.

[5] Section 1 (49) of the Agreement defines “Location” as follows:

“Location” means any individual “footprint” or space within which an Advertising Display is located in any of the Terminal Buildings or outdoor location in close proximity to those locations identified in Schedule A and to be licensed to the Licensee pursuant to this licence and “Locations” means the aggregate of each such Location. The purpose of Schedule A is to show the approximate position and configuration of the Locations and Schedule A is not intended as a representation of any kind as to the precise size or dimensions of the Locations as determined the Licensor from time to time. (Bolding is mine)

[6] Section 2.1 of the Licensing Agreement reads as follows:

2.1 GRANT OF LICENCE

The Licensor hereby grants to the Licensee a non-exclusive licence to install, operate and maintain indoor Advertising Displays in the Common Areas of Terminal One, Terminal Two, the Hotel Reservation Boards in Terminal Three, Terminal and Outdoor Advertising Displays in the exterior Common Areas of Terminal One and Terminal Two for the purpose of exhibiting third party advertising at the Locations and on the terms and conditions of this Licence, and which locations are set out in Schedule A hereof. (Bolding is mine)

[7] Section 2.7 of the Licensing Agreement reads as follows:

2.7 COMMON AREAS

Subject to the terms of this Licence and to the Rules and Regulations (to the extent applicable to the Licensed Premises and the use thereof by the Licensee as contemplated hereunder), the Licensee shall have for itself and its officers, servants, agents and employees, and for the use of Persons having business with it and in connection with such business, and for the use of its customers the non-exclusive and non-transferable right (except as permitted by Section 6.1) to use, during such hours that the Terminal Buildings may be open for business as determined by the Licensor from time to time, in common with all others entitled thereto, the parts of Common Areas appropriate and intended for common use, for their proper and intended purposes.

[8] Section 4.1 (b) reads as follows:

4.1 GENERAL COVENANTS

The Licensee shall:

(b) not do, or permit to be done, any act in or about the Terminal Buildings, the Airport or the Lands which, in the Licensor’s reasonable opinion, (1) hinders or interrupts the flow of traffic to, in and from the Airport, the Terminal Buildings or the Licensed Premises, or (ii) in any way obstructs the free movement of persons doing business in the Airport, the Terminal Buildings or the Licensed Premises;

[9] Section 4.2 reads as follows:

4.2 INSTALLATION, MAINTENANCE AND REMOVAL OF ADVERTISING DISPLAYS

(1) The work connected with the installation, servicing and maintenance of the Advertising Displays and related equipment and other advertising material shall be carried on, under and in accordance with the control and direction of the Licensor and shall be done in all respects to its satisfaction and at the sole cost and expense of the Licensee.

(2) The Advertising Displays and related equipment and other advertising material shall at all times be in proper mechanical condition and be repaired at the sole cost and expense of the Licensee and the Licensee shall at all times carry out a proper and efficient system of inspection to ensure that the Advertising Displays are so maintained.

(3) All Locations, Advertising Displays and related equipment and other advertising material of the Licensee shall at all times be maintained in a neat and clean condition by the Licensee, all at the cost and expense of the Licensee and to the satisfaction of the Licensor.

(4) Except in the ordinary course of the Licensee’s business, no Advertising displays and related equipment and other advertising materials will be removed from the Licensed Premises during the currency of the Licence with the prior consent in writing from the Licensor, which consent shall not be unreasonably withheld. (Bolding is mine)

[10] Section 4.2 A reads as follows:

4.2A ADVERTISING COPY, RATES AND ADVERTISING AGREEMENTS WITH THIRD PARTIES

(1) All advertising copy or suitable facsimiles of such copy, whether in print, television, electronic or other media (collectively, “Advertising Material”), shall be referred to the Licensor’s Senior Manager, Concessions for each Advertising Display for approval prior to being placed or erected at or on the Licensed Premises, which approval may be arbitrarily withheld from time to time. If no response is received from the Senior Manager within five (5) Business Days of such Advertising Material being referred as aforesaid, approval by the Licensor in respect of such Advertising Material shall be deemed to not have been given. (Bolding is mine)

(2) The Licensee shall provide to the Licensor’s Senior Manager, Concessions on or before the Commencement Date, and on each anniversary thereafter, the most current copy of the Licensee’s Canadian Advertising Rates Data (CARD) catalogue in order for the Licensor to determine whether rates charged by the Licensee in respect of the Licensed Premises are reasonable. (Bolding is mine)

(3) The Licensor assumes no responsibility to honour any outstanding agreements between the Licensee and third parties which may be in existence at the end of the Licence, whether by effluxion of time or any other manner whatsoever, and the Licensee shall indemnify the Licensor, from any Claims of such third parties, for any such liability.

(4) The Licensor reserves the right to develop and implement other advertising concepts at the Terminal Buildings and the Airport, and grant in connection therewith such other advertising concessions to other persons without complaint or interference by the Licensee. The Licensee will be given the option to implement the newly proposed concept before the licensor grants other persons the right to implement such a new concept. (Bolding is mine)

(5) The Licensor reserves the right to grant licences, rights of way or privileges in the nature of way finding signage, airline, tenant concessionaire and other signage rights or easements to others on, over, under, through, in front of or across the Locations, provided however that such rights or privileges will not damage or disrupt or disrupt permanently the equipment of the Licensee, and will not impose any cost upon the Licensee. (Bolding and underlining is mine)

(6) The Licensee acknowledges and agrees that it is important and fundamental to the efficient and responsible operation of the Terminal Buildings and the Airport for the Licensor to strictly control all advertising at the Terminal Buildings and the Airport. Accordingly, the Licensee agrees that the Licensee shall not exhibit any form of advertising, in print, electronic, video, audio or other media or means, in any part of the Licensed Premises, Terminal Buildings or Airport with the prior written consent of the Licensor as to form, location, content, terms or expression, which consent may be arbitrarily withheld. (Bolding is mine)

[11] Section 5.14 (b) reads as follows:

5.14 LICENSOR’S CONTROL

(1) The Airport and the Terminal Buildings are and will be at all times subject to the exclusive control and management of the Licensor. Without limiting the generality of the foregoing, the Licensor: (Bolding is mine)

(b) may do such other things on the Lands, in the Terminal Buildings, or the Airport or in the Licensed premises as the Licensor, in the use of good business judgment determines to be advisable; (Bolding is mine)

[12] Section 5.16 reads as follows:

5.16 OPERATION OF COMMON AREAS

(1) All Common Areas shall be subject at all times to the exclusive control and management of the Licensor. The Licensor shall be entitled to operate and police the same, to change the area and location thereof, to employ all personnel and to make all rules and regulations necessary for the proper operation and maintenance thereof, and to do such other acts with respect thereto as the Licensor, acting reasonably, shall determine to be advisable; provided, however, that the Licensee, unless deprived by reasons beyond the Licensor’s control, shall always have the use of such of the Common Areas as are reasonably necessary for the use and enjoyment of the Licensed Premises.(Bolding is mine)

[13] Clear Channel has never been separately assessed as taxable by the Municipal Property Assessment Corporation (also known as MPAC) nor taxed by the respondent, City of Mississauga, until the fall of 2011 at which time MPAC unilaterally and retroactively assessed GTAA’s advertising displays to Clear Channel as part of an overall assessment of the Airport. Clear Channel was officially notified of the taxation upon receiving the assessment notices from MPAC for the 2009 and the 2012 taxation years each in the amount of $367,409, 000.00. It was subsequently determined that the quantums of these assessments were incorrect and new assessments were issued amending the assessed values to $84,700,000.00.

[14] The 2009 Property Assessment Change Notice alleged that it was issued in relation to changes made to a property that were not part of the previous assessments. These facts proved incorrect. Despite this error new assessments were then issued converting the existing assessment of the advertised displays at the airport from tax exempt in the name of the GTAA to taxable status in the name of Clear Channel. MPAC claims now that the applicant, Clear Channel, is assessable as taxable by virtue of s. 18(1) of the Assessment Act, R.S.O. 1990, Ch. A.31, as a tenant of the Crown.

[15] Section 18(1) of the Assessment Act provides as follows:

Despite paragraph 1 of subsection 3 (1),

(a) the tenant of land owned by the Crown shall be assessed in respect of the land as though the tenant were the owner if rent or any valuable consideration is paid in respect of land; and

(b) an owner of land in which the Crown has an interest shall be assessed in respect of the land as though a person other than the Crown held the Crown’s interest.

[16] Pearson Airport (the GTAA) is Crown land owned by the Canadian Federal Government. The GTAA occupies and maintains the airport as a tenant pursuant to the GTAA Crown Ground Lease. All of the land at the airport is assessed to the GTAA but for those portions assessed to tenants under s. 18(1) of the Act. An existing clear example of a tenant would be: Tim Hortons.

[17] The Assessment Act requires an annual preparation of an assessment roll for each municipality in Ontario. The assessment roll identifies the owner of each property and its current value assessment. For 2009 and 2012, as in other years, the Airport was assessed to the GTAA on its own roll number as a tenant of the Crown.

[18] The current value assessed to the GTAA includes current value attributable to the signage or advertising displays.

[19] Section 3(1) of the Assessment Act provides that all real property in Ontario is liable to assessment and taxation subject to certain enumerated exemptions.

[20] Land owned or leased by a designated Airport Authority is conditionally exempt from taxation (but not exempt from assessment) pursuant to Section 3(1)(24) of the Assessment Act subject to compliance with requirements referenced therein.

[21] The GTAA is a designated airport authority, pursuant to the Assessment Act.

[22] Section 3(1) paragraph (24)(iv) of the Assessment Act requires the GTA to make payment in lieu of taxation to the local municipality, in this case, the City of Mississauga, in order to maintain the exemption, however, “the exemption [from taxation] does not apply to any portion of the land leased by a tenant other than a designated Airport Authority to whom Section 18 applies”.

[23] It is Clear Channel’s position that it is not now nor has it ever been a tenant of the Crown as no interest in land passes to it pursuant to its licensing agreement with the GTAA and therefore its interest as a licensee of the GTAA is not assessable nor taxable.

[24] I find that from the evidence that Clear Channel:

1. does not have a right of exclusive possession for their particular uses of any land at the airport. The GTAA “reserves the right to grant licences, rights of way or privileges in the nature of way finding signage, airline, tenant concessionaire and other signage rights or easements to others on, over, under, through, in front of or across locations” ( s. 4.2A(5) of the Licensing Agreement) installed, service or maintained by Clear Channel. The GTAA’s controls over Clear Channel do compromise Clear Channel’s ability to carry out its business.

2. does not have any of the ‘normal’ rights or obligations of a ‘tenant’ of any land at the airport.

3. does not have any demonstrated intention to create an estate in land;

4. is not an ‘occupant’ of premises at the airport, as Clear Channel has no control of the premises. Exclusive control remains with the GTAA.

5. has no person(s) present at the Airport; and

6. has no infrastructure at the airport.

[25] It is also clear from the evidence that:

1. the GTAA regulates (dictates) the rates that Clear Channel charges;

2. the GTAA can tell Clear Channel to remove and/or move signs and expect immediate compliance by Clear Channel;

3. Clear Channel has no interest in the land;

4. the signage is transient not permanent and always requires the approval of the GTAA and that approval can even be “arbitrarily withheld” with respect to content; and

5. the parties entered into and intended to enter into a Licensing Agreement not a Leasing Agreement and reiterated this relationship within the actual agreement.

[26] Section 10.9 defines “Relationship” as follows:

10.9 RELATIONSHIP

Nothing contained in this Licence nor any acts of the Licensor or the Licensee shall be deemed to constitute the Licensor and the Licensee partners, joint ventures or principal and agent, or to create any relationship between the Licensor and the Licensee other than the relationship of Licensor and Licensee.

(1) the locations are random and in flux at the whim/pleasure of the GTAA and in fact the evidence is that the locations are often moved at the request of the GTAA.

(2) Clear Channel has no control of the premises or put in another way the GTAA retains total control of the Premises

(3) no rent as such, is charged.

[27] In Gottardo Properties (Dome) Inc. et al v. Corporation of City of Toronto et. al., 1998 CanLII 6184 (ON CA), [1998] 162 DLR (4th) 574 (C.A.).

Laskin J.A. writing for the majority stated at para. 50:

[50] Lord Russell emphasized in Westminster at p. 326 that paramount occupancy depends on the “position and rights of the parties in the premises in question” and on “the purpose of the occupation”. The court must determine which of the two competing occupants had the greater business interest in using the land. Three main considerations bear on this determination: first, an occupant’s physical presence on the land, second, any controls imposed by one occupant on the other occupant’s use of the land and the purpose and effect of those controls and third, the relative significance of the activities carried out on the land to the primary business of each of the competing occupants.

[28] Analysis

1. Clear Channel has no real physical presence on the land. They simply install, service and maintain the signage locations approved by the GTAA. Clear Channel is a service provider for the GTAA.

2. The GTAA maintains total control of the premises. As such, Clear Channel is subject to the GTAA’s control.

3. The GTAA’s occupation and rights are paramount, and therefore Clear Channel’s occupation of the particular locations is always subordinate (in particular see para(s). 4.2 & 4.2A of the Licensing Agreement.

[29] In Gottardo, Laskin, J. stated:

[40] The principle of paramount occupancy holds that when two persons occupy or use the same land at the same time accessibility depends on who has the paramount occupancy or use of the land for its business. Thus the primary issue in this case is who had the paramount business occupancy or use of the SkyBoxes, the licensees or Stadco?

[41] The main authority establishing the principle that paramount use governs accessibility when two rival or competing occupants claim to use the same land at the same time is the decision of the House of Lords in Westminster City Council v. Southern Railway Company and Others, [1936] 2 All E.R. 322 (H.L.), in which Lord Russell stated at 326-7:

Where there is no rival claimant to the occupancy, no difficulty can arise; but in certain cases there may be a rival occupancy in some person who, to some extent may have occupancy rights over the premises. The question in every such case must be one of fact, viz., whose position in relation to occupation is paramount, and whose position in relation to occupation is subordinate; but, in my opinion, the question must be considered and answered in regard to the position and rights of the parties in the premises in question, and in regard to the purpose of the occupation of those premises. In other words, in the present case, the question must be not who is in paramount occupation of the station, within whose confines the premises in question are situate; but who is in paramount occupation of the particular premises in question.

[42] The statute in question in the Westminster case expressly required the court to choose between rival occupants. But Lord Russell’s analysis was derived from general rating law and has been applied to assessment legislation comparable to s. 7 of the Ontario Act. Ryde on Rating, relying on the Westminster case, endorses the principle of paramount occupancy at p. 63:

It often happens that there are two persons concerned with the use of land, and the question arises which of the two is the rateable occupier. For instance, where parts of a larger hereditament are appropriated or let out to others, it may have to be decided whether the “landlord” or the “tenant” is rateable; and this is particularly important in the case of dwelling houses. It is often said that the occupation which is rateable is that which is the “paramount” occupation of the two competing occupations.

[43] Underlying this principle of paramount occupancy is the proposition that only one occupant of the land can be assessed for business assessment at any one time. The proposition is not immediately evident in the language of s. 7(1). But whether driven by the established case law on paramount use or by concerns about double taxation because business assessment is based on the assessed value of the land occupied, all parties to this appeal agreed that the court had to choose between the licensees and Stadco. One or the other could be liable for business assessment under s. 7 (1) of the Act, but not both. I therefore turn to consider who had the paramount business occupancy.

[30] All of the land at the airport is assessed to the GTAA, but for those portions assessed to tenants under Section 18(1) of the Assessment Act. In Shell - Mex and BP Ltd. v Manchester Garages Ltd., [1971] 1 W.L.R. 612 at p. 615, Lord Denning stated:

I turn therefore, to the point: was this transaction a licence or a tenancy? This does not depend on the label which is put on it. It depends on the nature of the transaction itself: see Addiscome Garden Estates Ltd. v Crabbe. Broadly speaking, we have to see whether it is a personal privilege given to a person, in which case it is a licence, or whether it grants an interest in land, in which case it is a tenancy. At one time it used to be thought that exclusive possession was a decisive factor, but that is not so. It depends on broader considerations altogether. Primarily on whether it is personal in its nature or not: see Errington v Errington and Woods. [1952] 1 All ER 149, [1952] 1 KB 902

[31] The issue before this Court is: whether or not Clear Channel, the applicant, is an assessable tenant of the Crown at Pearson airport? The Assessment Act defines “tenant” to include “an occupant and the person in possession other than the owner”. Section 18(1) of The Assessment Act mandates assessment of a tenant’s interest “if rent or any valuable consideration is paid in respect of land”. In the case of Stinson v The Township of Middleton, 1949 CanLII 88 (ON CA), [1949] O.R. 237 (C.A.) at p. 252, Mr. Justice Laidlaw stated:

They do not conclusively determine the question now before the Court, but they provide some rules by which we may be guided to a certain extent, and which I briefly state in my own words as follows:

(1) There was a substantial difference between the class of cases where a person is permitted to occupy premises and the class where a person is required to occupy them for the performance of his services or occupies them in order to their performance or because the occupation is conducive to that purpose. In cases of the latter class, apart from special circumstances, the occupation of the premises is considered in law to be the occupation of the master and not that of the servant.

(2) The fact of payment of a sum in the nature of rent by a person entitled to the physical possession or use of premises, and whether the payment be by deduction from wages or otherwise, does not conclusively determine that such person is in possession of the premises as a tenant.

(3) To be an “occupant” of the premises, as that word is understood in law, a person must have control of them. (bolding mine)

(4) A privilege or mere licence to use premises does not necessarily include the right to exclusive possession of them, and such a privilege or licence does not ordinarily confer on the grantee any estate or interest in them.

[32] The burden of proof is on MPAC and the Corporation of the City of Mississauga to demonstrate that, Clear Channel, falls within the provisions of the Assessment Act establishing liability for taxable assessment. (Re. Saga Canadian Management Services Ltd. and City of Ottawa et al., 1977 CanLII 1382 (ON SC), [1977] 77 D.L.R. 341, 16 O.R. (2d) 65 at p. 67.

[33] The agreement between the applicant and the GTAA clearly limits the “business” of the applicant to: the installation, service and maintenance of advertising signage, primarily indoor signage, such as advertising on plasma screens, baggage carts and telephone screens, et cetera, at Pearson Airport. Additionally, many of these advertising tools have a primary and secondary use as well. For example:

(1) The baggage carts, telephones are there for the convenience of the passengers as a primary purpose.

(2) The Plasma Screens that convey advertising and current news casts are entertainment and/or information of the passengers as a primary purpose.

(3) The Jetbridges and Fixed Links are there for the use of the passengers to access and depart the airplanes as their primary purpose.

[34] The facts are also clear on the face of the Licensing Agreement that all advertising is totally controlled by the GTAA, and that the advertising is in transient locations at the pleasure of the GTAA.

[35] There is no rent paid as such by Clear Channel to the GTAA. The evidence is undisputed that the GTAA receives the vast majority of the gross revenue from said advertising revenue, and that Clear Channel pays all the operating expenses out of the remaining funds before Clear Channel receives any income at all.

[36] Lord Russell of Killowen in the case of Westminister City Council v Southern Railway Company and Others, [1936] 2 All E.R. 322 at page 327 stated as follows:

The general principle applicable to the cases where persons occupy parts of a larger hereditament seems to be that if the owner of the hereditament (being also in occupation by himself or his servants) retains to himself general control over the occupied parts, the owner will be treated as being in rateable occupation; if he retains to himself no control, the occupiers of the various parts will be treated as in rateable occupation of those parts.

[37] He went on to state at page 328:

In truth the effect of the alleged control upon the question of rateable occupation must depend upon the facts in every case,; and in my opinion in each case the degree of the control must be examined, and the examination must be directed to the extent to which its exercise would interfere with the enjoyment by the occupant of the premises in his possession for the purposes for which he occupies them, or would be inconsistent with his enjoyment of them to the substantial exclusion of all other persons.

[38] Reviewing all the evidence I find that GTAA’s business use of the premises was paramount and Clear Channel’s use is subordinate as such. Clear Channel is not liable for taxable assessment under s. 18(1) of the Assessment Act.

Discrimination

[39] It is an undisputed fact that, except for the GTAA, indoor signs to date have not been assessed by MPAC and made taxable anywhere else in Ontario, including but not limited to the Ottawa Airport, the Eaton’s Center, nor Dundas Square. In the case before this court, MPAC has clearly treated one taxpayer (Clear Channel) differently from all others.

[40] As such, MPAC’s action is blatantly discriminatory, unfair and unequal, and must be quashed in any event.

[41] I agree with the words of Murray J. in Air Canada v Turner and Minister of Finance of British Columbia, 1984 CanLII 319 (BC SC), [1984] B.C.J. No. 2766 (B.C.S.C.) at para. 22, when he said:

In Jonas v. Gilbert (1881), 1881 CanLII 36 (SCC), 5 S.C.R. 356, Ritchie C.J.C. said at p. 366:

Unless the legislative authority otherwise ordains, everybody having property or doing business in the country is entitled to assume that taxation shall be fair and equal, and that no one class of individuals, or one species of property, shall be unequally or unduly assessed.

The principle was put in harsher terms in Reventlow-Criminil v. Streamstown, 1920 CanLII 482 (AB CA), 15 Alta. L.R. 204, [1920] 1 W.W.R. 577, 52 D.L.R. 266 (C.A.), where there was evidence of discrimination against aliens and non-residents. Beck J. dealt with the matter at pp. 588-89 as follows:

A careful consideration of the evidence with regard to the assessment of the land satisfies me that the assessment was a fraudulent one. The lands of non-residents were not only deliberately assessed at figures considerably in excess of those at which the lands of residents were assessed, but in addition to this the municipality gave to residents whose lands were cultivated and cropped a reduction of 25 per cent upon taxes in pursuance of sec. 196, clause 11.

I suppose the council thought it could so deal with the assessment and taxation, but, in my opinion, a deliberate use of legal machinery to bring about an unjust discrimination between different classes of ratepayers is a fraud.

On appeal to the Supreme Court of Canada, 1922 CanLII 32 (SCC), 63 S.C.R. 8, [1922] 2 W.W.R. 94, 65 D.L.R. 193, Idington J. concurred in the conclusion of Beck J. and said at p. 10:

... the assessment was fraudulent as showing discrimination between the valuation placed on the lands of resident and non-resident owners respectively.

It will be observed from the foregoing passages that the courts have used such terms as “capricious” “evasions of the law”, “deliberate determination to avoid the law”, “discrimination”, “maladministration”, “fraudulent” and so on. To these descriptions I would add the old fashioned word “unsporting”. I appreciate that assessments under taxing statutes are not meant to be sporting and cannot be set aside on that ground alone but in the case at bar the assessment before me clearly falls within the other descriptions I have cited and I have accordingly concluded it is illegal and must be quashed.

[42] It gets worse. MPAC, without ever reviewing the Licence Agreement between the parties, issued this taxation assessment against the plaintiff. This assessment was totally arbitrary on MPAC’s part.

[43] The applicant is not a tenant. No interest in land passes to Clear Channel unlike the case of Exchange Corporation v. City of Mississauga, GTAA, MPAC in the Divisional Court Decision, released November 28, 2012. Clear Channel is a true licensee. The said premises are subject at all times to the exclusive control and management of the GTAA (s. 5.16 of the Licensing agreement).

[44] I find that the applicant is not an occupant and/or tenant, or a person in possession. The applicant is simply a service providing licensee to the GTAA.

[45] As such, the applicant is not subject to taxation.

[46] Based upon all of the evidence this Court orders:

1. the quashing and the declaring null and void the 2009 omitted assessment and the 2012 regular assessment with respect to the assessment roll number for Clear Channel; and

2. the declaring that the advertising concession license held by Clear Channel does not qualify Clear Channel as a tenant pursuant to section 18(1) of the Assessment Act, and, therefore, Clear Channel has no assessable interest at the Airport.

COSTS

[47] Unless the parties can agree upon costs between themselves, each party may submit in writing written submissions of no longer than three pages re: costs by December 30, 2012.

Snowie J.

Released: December 10, 2012