The Municipal Property Assessment Corporation et al, 2015 ONSC 7963
COURT FILE NO.: CV-13-647-00
DATE: 20151218
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Young Patients’ Family Support Services of Southeastern Ontario Inc., Applicant
AND
The Municipal Property Assessment Corporation
and The Corporation of the City of Kingston, Respondents
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: James L. McDonald, for the Applicant
Karey Lunau, for the Respondent MPAC
No one appearing for the City of Kingston
HEARD: November 12, 2015
ENDORSEMENT
Nature of the Case
[1] The applicant, known also as “Almost Home”, applies for an exemption from municipal taxation on its real property on the basis that its primary purpose and function, which is not in dispute, is to provide support to families of sick and ailing children travelling long distances for treatment in Kingston hospitals.
Law
[2] This application is governed by the Assessment Act, R.S.O. 1990, Chapter A.31, as amended. The governing section, and the exemption relied on, are as follows:
3 (1) All real property in Ontario is liable to assessment and taxation, subject to the following exemptions from taxation: …
- Land owned, used and occupied by a non-profit philanthropic corporation for the purpose of a house of refuge, … the care of children or a similar purpose but excluding land used for the purpose of a day care centre.
[3] There is no dispute that the land in question is owned, used and occupied by Almost Home and that it is a non-profit philanthropic corporation. The following legal principles were also not in dispute. The actual operation of the organization will determine its purpose as opposed to its corporate objectives. The purpose must be the “primary purpose” of Almost Home. The exemption provision must be read in its statutory context having regard to the ordinary and grammatical meaning of the words used, the scheme and object of the statute, and the intention of the legislature.
Issues
[4] The issues then are whether Almost Home: (1) provides for the care of children or has a similar purpose; or (2) is a house of refuge or has a similar purpose.
Facts and Analysis
Issue One - Care of Children or Similar Purpose
[5] In the opening paragraph above, I noted the primary purpose of Almost Home. That wording was provided by Almost Home and MPAC agreed with it.
[6] In Diocese of Toronto Camps Anglican Church of Canada v. Ontario Property Assessment Corporation et al. (2004), 2004 34918 (ON CA), 191 O.A.C. 278 (C.A.) at para. 21, the court noted that “care of children” in the context of section 3(1)11 refers to “the physical aspects of the care of children such as protection, shelter, medical care, and nourishment.”
[7] Almost Home’s Guest Manual, which is given to the persons using its service to explain the actual operation, states “Our primary mission is to offer a home-away-from-home at affordable costs to families whose children are receiving medical treatment in Kingston.” At no time does the care of the sick child, or his or her siblings, ever shift from the parents to Almost Home. To the contrary, the Guest Manual notes that “Staff and volunteers cannot accept responsibility for children staying at Almost Home.” Further, the applicant does not provide any childcare or even babysitting services and does not feed the children. At best it facilitates and assists parents in meeting the physical aspects of the care of their children.
[8] If the indirect benefit afforded to children by Almost Home qualified it for this exemption, it would make many other specific exemptions in the Act, such as Boy Scouts and Girl Guides, redundant.
[9] I am unable to grant Almost Home an exemption on the basis that it provides for the care of children. Further, there is nothing in its primary purpose that is substantially similar to providing for the care of children.
Issue Two - House of Refuge or Similar Purpose
Ordinary and Grammatical Meaning
[10] Almost Home notes that its staff and volunteers are valuable resources to assist the families using its services to connect with other services, and they provide empathetic ears and friendly faces when the families need them the most. MPAC concedes that Almost Home supports families by talking with them daily and acting as a community resource. The property provides a supportive environment to the families using its facility. MPAC also adopts the following additional summary regarding the purpose of Almost Home, as set out in its own factum:
Almost Home’s goals are to lessen the financial burden and stress that threatened families faced with a child undergoing either in- or out-patient treatment away from their own homes. It aims to allow families to function as normally as possible; family members are able to be close to their children, and parents are saved the exhaustion and sleepless nights in the hospital. It provides a place where parents and children can be together as a family, reassure one another, and talk about their experiences: a “Ronald McDonald kind of house” for Kingston.
[11] MPAC adds the following summary about the people who use Almost Home:
Approximately 50% of Almost Home’s families are dealing with premature babies, who are in-patients for three to four months. The other 50% are children with cancer, injuries from motor vehicle and other accidents, or other illnesses requiring specialized care not available in local communities.
[12] The term ‘house of refuge’ is developed through the case law relying substantially on dictionary definitions. In Thunder Bay Seaway Non-Profit Apartments v. Municipal Property Assessment Corp., [2006] O.J. No. 900 (S.C.J.) starting at para. 52, the breadth of the dictionary based definitions of “refuge” is examined leading the court to conclude in para. 55 that “[a] place of refuge has broad meaning.” Included in the definitions noted was “[s]helter or protection from danger or trouble; succour sought by or rendered to a person” (Shorter Oxford English Dictionary, Third Edition). “Succour” is generally understood to mean assistance and support in times of hardship and distress (see the Concise Oxford English Dictionary, 11th Edition). Indeed the word “distress” plays prominently in the definition of “refuge”. “Shelter from danger, distress or difficulty” was a definition noted in the above Thunder Bay Seaway case, at paragraphs 52 and 53, and in Optimism Place Second Stage Residences v. Stratford (City), 1992 7732 (ON SC), [1992] O.J. No. 2512 at page 5 third full paragraph. Although worded differently, it is also found in Buenavista on the Rideau v. Regional Assessment Commissioner, Region No. 2, 1996 11792 (ON SC), [1996] O.J. No. 1341 (Div. Ct.) at the second paragraph on page 6. “Distress” was not separately defined by the parties, but is generally understood to include a feeling of extreme worry or anxiety, a state of desperate need, a painful situation (for example, see the on-line definitions in the Cambridge English Dictionary and the Merriam-Webster dictionaries, and the Concise Oxford English Dictionary, 11th Edition). MPAC does not dispute in its factum that the definition of “house of refuge” includes a house which provides refuge from distress or difficulty.
[13] I am not persuaded by MPAC’s argument that Almost Home does not qualify for the exemption because it offers no physical protection to the people using its service. It is putting emphasis on one aspect of the definition of refuge more than others. Further, protection as a determining factor was discounted by the Divisional Court in Thunder Bay Seaway Non-Profit Apartments v. Municipal Property Assessment Corp., [2007] O.J. No. 680 (Div.Ct.) at paragraphs 17, 18, and 27.
[14] Given the above, having regard to the ordinary and grammatical meaning of the words used, I find that Almost Home’s primary purpose is a shelter from trouble, a sanctuary from the storms and perils of life, namely the stress that threatened families face being forced away from their own homes to undergo either in- or out-patient treatment for a seriously ill child. Almost Home provides assistance and support to these families in times of hardship and distress. I am satisfied that Almost Home fits within the meaning of “house of refuge”.
Scheme and Object of the Statute
[15] The inquiry does not end with the ordinary and grammatical meaning of the words. The exemption provision must also be read in its statutory context having regard to the scheme and object of the statute, and the intention of the legislature. Regarding the former, the objective of the Assessment Act is to create a tax base used by municipalities to raise revenues to pay for municipal services, while also serving as a tool for economic and social policy by providing tax exemptions and tax relief. By legislative design, not every laudable and worthwhile organization gets a property tax exemption. Regarding the scope of any exemption, the court must look at the other exemptions or tax relief such that “house of refuge” is not interpreted so broadly as to make them redundant.
[16] MPAC argued that if Almost Home meets the definition of a house of refuge, every geared to income residence, as well as entities like group homes and rooming houses whom already receive partial tax relief, would qualify for a full exemption. This argument was addressed by the Divisional Court decision in the Thunder Bay Seaway decision at para. 28 as follows:
The danger lies in casting the net too widely so that all geared-to-income housing is brought under the exemption to the detriment of the municipal tax base. This institution [a transitional home for alcoholics and people with drug dependencies] can be differentiated from subsidized housing offered by other charitable institutions in that:
The tenants do not have any right to remain on the premises. They are not there under a lease. Their tenancy is at will under a licence which may be revoked at any time.
Residency is time limited. The general rule is that one may not remain for more than a year although extensions are possible for up to two years.
The no-drug/alcohol policy differs from that which might be included in an apartment lease in that it is enforceable by a mandatory drug/alcohol test and immediate expulsion for an infraction.
[17] Residency at Almost Home is also time limited, as it is related to the medical care of children temporarily and necessarily away from their own homes. The evidence is that the extent of the stay can vary depending on circumstances, but generally do not last nearly as along as at the facility in Thunder Bay Seaway. As in that case, the use of Almost Home is under licence, not a tenancy. Further, the licence comes with some restrictions, including per the Guest Manual a no alcohol policy, the breach of which could result in immediate dismissal from the house. In my view Almost Home can be differentiated from subsidized housing offered by other charitable institutions and does not make other forms of tax relief redundant.
Intention of the Legislature/Ronald McDonald House
[18] MPAC relies on the case of Wequedong Lodge (Thunder Bay) v. Thunder Bay (City), 2015 ONSC 2600. There the court found that the primary purpose of the lodge was to provide temporary accommodation and transportation to individuals receiving necessary health care away from their home. While the lodge has a similar purpose to Almost Home in some respects, there was no suggestion that the stress to the families and illnesses faced were akin to those experienced by those using Almost Home. Regardless, the exemption requested and denied was not based on the lodge being a house of refuge, but rather on it being an entity providing for relief of the poor (a section 3(1)12 exemption), and it is distinguishable on that basis.
[19] There is agreement in this case that the purpose and function of Almost Home is “like” a Ronald McDonald House (“RMH”). The tax treatment of these RMHs was addressed by counsel in the context of trying to discern the intention of the legislature. Two RMHs were noted to already be exempt from tax. However, this was by way of special legislative enactments, confirmed by municipal by-law, and not by a ruling under section 3(1)11 as is being sought here.
[20] MPAC argued that if Almost Home, being a similar entity to the RMHs, obtains a section 3(1)11 exemption, then the legislative exemptions the RMHs received would be redundant. It sees this as a recognition by the legislature that these homes are not otherwise entitled to an exemption under section 3(1)11. However, there was no evidence before me as to why the two RMHs decided to go the legislative route rather than apply under section 3(1)11. It does not follow that because the RMHs went first and were successful, an exemption for Almost Home in taking a different route is precluded. Further along these lines, I note that the two separate private member’s bills indicate that the RMHs operate “to provide temporary lodging to families for seriously ill children receiving medical treatment from … [area] hospitals”. This is identical to Almost Home. It was on that basis that the legislature found it was “appropriate to grant” the exemptions. I cannot see how this shows an intention by the legislature that homes of this type should be denied exemptions.
Summary
[21] I find that the applicant, also known as Almost Home, qualifies for an exemption under section 3(1)11 of the Act as a house of refuge. As such, there is no need to address whether Almost Home has a similar purpose to a house of refuge.
Decision
[22] Application granted. The parties have already agreed that there shall be no order as to costs.
Mr. Justice Timothy Minnema
Date: December 18, 2015
COURT FILE NO.: CV-13-647-00
DATE: 20151218
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Young Patients’ Family Support Services of Southeastern Ontario Inc., Applicant
AND
The Municipal Property Assessment Corporation and The Corporation of the City of Kingston, Respondents
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: James L. McDonald, for the Applicant
Karey Lunau, for the Respondent MPAC
No one appearing for the City of Kingston
EndorsemenT
Mr. Justice Timothy Minnema
Released: December 18, 2015