COURT FILE NO.: CV-19-00000223-0000
DATE: 20220628
ONTARIO
SUPERIOR COURT OF JUSTICE
(North Bay, Ontario)
BETWEEN:
Near North Enviro-Education Centre
Applicant
– and –
Municipal Property Assessment Corporation and The Corporation of the Village of Sundridge
Respondents
Roberto D. Aburto and Michelle J.T. Cicchino, Counsel for the Applicant
Sarah W. Corman and Hilary A. Brown, Counsel for the Defendant, Municipal Property Assessment Corporation
The Respondent Corporation of the Village of Sundridge not participating
HEARD: June 1, 2022
REASONS FOR JUDGMENT
E.j. KOke J.
Introduction
The applicant, Near North Enviro-Education Centre (“NNEEC” or the “Centre”) is a non-profit institution that is a registered charity subject to the Not-for-Profit Corporations Act, 2010 (Ontario) (the "ONCA”). It has its headquarters in a specially designed “environmentally sustainable” building located at 140 Main Street in the rural village of Sundridge, Ontario (population less than 1000).
A review of NNEEC’s website professes that it serves as “a catalyst for businesses, government agencies, universities, schools, students, and individuals to find and generate leaders aligned with three pillars essential to the viability of our rural communities” under the heading, “What is the Near North Enviro-Education Centre?”. The three “pillars” are identified as (1) “Environmental Sustainability”, (2) “Economic Security”, and (3) “Social Diversity”.
NNEEC’s Mission is described as follows on the website: “Our Mission is to help empower rural communities to become models for sustainable living by providing access to education, information and hands-on learning opportunities focused on these pillars”. The website states that its Vision and Values “is to inspire vibrant rural communities now and in the future through our values of innovation, engagement, respect and accountability”. The website goes on to explain,
NNEEC is:
• a hub for year-round leadership education and research on topics, including sustainability, stewardship, renewable energy, building construction, agriculture, and health;
• a partner for universities, colleges and other academic institutions;
• a community network and think tank for building and promoting leadership in matters related to environmental sustainability, economic security, and social diversity; and
• a resource for companies, government agencies, trade associations, faculty, researchers, students and the public.
Issue
- At issue in this application is whether NNEEC may benefit from the taxation exemption in the Ontario Assessment Act, R.S.O. 1990, c. A.31 that applies to “land owned, used and occupied solely by a non-profit philanthropic, religious or educational seminary of learning …”. The relevant section states:
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 solely by a non-profit philanthropic, religious or educational seminary of learning or land leased and occupied by any of them if the land would be exempt from taxation if it was occupied by the owner. This paragraph applies only to buildings and up to 50 acres of land.
NNEEC seeks a declaration that its property in Sundridge is exempt from taxation on the basis that the activities it carries out and sponsors are such that its primary focus constitutes an “educational seminary of learning”. It seeks this exemption for the years 2019 and thereafter. It is understood that NNEEC was required to suspend some of its activities in the years 2020 and 2021 and the parties’ focus on this application has been on the use of the land in 2019.
The respondent, the Municipal Property Assessment Corporation (“MPAC”), contests the application. While there is no dispute about the quality of the services offered by the applicant, or that NNEEC is a non-profit philanthropic institution, MPAC takes the position that the services that NNEEC provides are such that they do not render its primary purpose educational, noting in particular that there is no structured program of study.
Having read the materials and authorities relied on by the parties, and after hearing their able submissions, I conclude that NNEEC is properly characterized as an educational seminary of learning for tax-exemption purposes, and that the application must therefore succeed. My reasons follow.
The Applicant’s Evidence
Almost all of the factual material in this application is provided through the affidavit of Jocelyn Palm, the exhibits thereto, her cross-examination and her responses to undertakings. Ms. Palm is a director and president of NNEEC and has held this position since NNEEC commenced its operations in 2017.
Ms. Palm has a long history of volunteerism and activism with not-for-profit organizations. Some of her experiences include being the first national executive director of the Royal Lifesaving Society Canada, which is a Canadian registered charity that works to prevent water-related injuries through various programs across Canada. She is also the former president of the Ontario Camps Association and the Camping Association and Professional Society of Camp Directors. She has been involved with Women’s College Hospital for over 25 years, and as Event & Project Coordinator she has provided leadership and support to numerous events and initiatives at the hospital. Ms. Palm’s philanthropic and community related endeavours were recognized through her appointment to the Order of Canada on December 30, 2012.
Ms. Palm described NNEEC’s mission, as stated in its Letters Patent as follows:
a) To establish, maintain and operate an educational centre that will provide instruction on environmental topics, including sustainability, stewardship, renewable energy, building construction, agriculture and health.
b) To preserve, conserve and protect the environment by carrying out projects that benefit the public and provide sustainable means of achieving economic growth and regeneration.
Ms. Palm stated that NNEEC’s primary purpose has always been to establish, maintain and operate an education centre that will provide instruction on environmental topics, including sustainability, stewardship, renewable energy, building construction, agriculture and health.
She described how the rural context of the Village of Sundridge imposes challenges and places additional operating constraints on facilities like NNEEC. Rural areas struggle with population decline, migration of youth to urban areas, an aging population, lack of immigrants, low levels of skills and earning, lack of services and aging infrastructure. For example, a centre like NNEEC would be able to provide more robust programming in a large city core like downtown Toronto than in the Village of Sundridge because of the numerous resources available in a larger urban centre.
Ms. Palm explained how the challenges resulting from its location in a rural area necessitates that the education provided by NNEEC often extends beyond traditional classroom learning. The programs and activities carried out by or sponsored by NNEEC are led almost exclusively by volunteers or instructors and experts employed by other institutions (i.e., universities and high schools), and much of the learning is hands-on and experiential. Curriculum materials for the programs are often developed by and adopted from third party sources as well. The goal is to achieve a minimal degree of proficiency of environmental strategies in the Village and surrounding area by all members and participants of NNEEC’s programs.
Ms. Palm explained that in order to achieve these goals NNEEC has provided or served as a catalyst in providing a wide variety of services to the rural community. These services include providing a setting for the instruction of local Grade 11 secondary students to obtain a credit in a Grade 11 Environmental Science class. NNEEC has compiled approximately 15 lesson plans on environmental and sustainability topics which can be used for teaching high school students. In partnership with Wilfrid Laurier University, NNEEC has been able to provide educational support to students enrolled in their third year of Geography and Environmental Studies. Laurentian University assisted in the design and integration of the Main Street building and property, and university students at the McEwan School of Architecture have been provided with the opportunity to learn how sustainable buildings are designed through a hands-on experience by analyzing the property.
Ms. Palm described how NNEEC has also sponsored weekend sessions on specific topics relating to the environment and sustainability. These weekend sessions have students, instructors, and follow a curriculum.
Ms. Palm explained that NNEEC sponsors an annual Climate Change Symposium. Leadership and instruction at these symposiums have included a Nobel Laureate and the Executive Director of Indigenous Clean Energy and Senior Director of Climate and Policy. Presentations have included presentations from the Severn Sound Environmental Association. Risk Sciences International gave a presentation on Climate Change and Economic Security.
To educate the community on issues specific to rural areas NNEEC has hosted a cultural anthropologist who gave a presentation titled “Profiting from the Environment”, which focused on opportunities that exist through the responsible and sustainable use of natural resources.
To accommodate community members who do not have the time or resources to dedicate to full day learning experiences, NNEEC offers a Community Workshop Series. These workshop series are designed to empower rural communities to become models for sustainable living by providing information, education, and hands-on learning.
NNEEC has also created an awareness in the community of the threat that the proliferation of phragmites pose to the region’s wetlands. According to Ms. Palm, phragmites are one of the most aggressive invasive species in the wetlands of North America. NNEEC has established the Phragmites Working Group, a group which is comprised of local community volunteers (“the Phrag Fighters”) who venture out to wetlands during the growing season and cut down and remove phragmites. Although there is no formal academic curriculum established for the program, the group meets every other week during the summer months and the participants receive instruction in the field from NNEEC, which also provides the equipment for removing the phragmites.
Ms. Palm believes it is critical that residents in rural Ontario understand sustainable growing methods suitable for their area so that they may grow healthy food for themselves and contribute to the local economy and environment as well. To this end, NNEEC sponsors a community garden learning initiative at a local off-site location.
NNEEC has joined the international community by becoming an active participant in the U.N. Climate Change Forest Study. This study is an initiative which is designed to monitor the effects of climate change on forests. One hectare of land in the Sundridge area has been divided into 25 quadrats which is the location of the study area. Under the leadership and direction of NNEEC, volunteers collect scientific data in this study area and provide this to researchers who use the information to determine the effect of climate change on forests and ways of mitigating the negative impacts of climate change. Ms. Palm explained in her cross-examination that there are approximately 40 participants in this program, which takes place year-round. The participants aid in forest monitoring and receive instruction from NNEEC in areas such as species identification.
Ms. Palm explained that NNEEC operates a “Community Adventure Program” for children during the summer months. She explained that in addition to offering fun and recreational experiences this program, which operates much like a summer camp, includes a significant component of environmental education. Children learn about geology, rocks, how to use microscopes, soil profiles, conduct science experiments, wilderness survival, eco-construction design and building, climate change, and solar cooking.
NNEEC also operates a swim instruction program. Ms. Palm explained that this instruction addresses the World Health Organization’s (“WHO”s) global issue respecting drowning. She explained that the WHO has recognized drowning as a world crisis. It is the third leading cause of unintentional injury and death worldwide. Rural areas with their abundance of streams and lakes present an increased risk of drowning. The swim lessons sponsored by NNEC follow established curriculums and offer a range of levels of instruction from basic swim instruction to lifeguard certification.
The Position of the Respondent
MPAC agrees that the only issue on this application is whether the property qualifies for an exemption pursuant to section 3(1), paragraph 5 of the Assessment Act, and submits that to qualify for the exemption the applicant must demonstrate that the primary purpose for which the property is used and occupied is as a “seminary of learning”.
MPAC breaks down the basis for its objections to the application into the following 5 categories:
(1) NNEEC does not operate as a “bona fide” educational institution
In paragraph 3 of its factum MPAC submits that to qualify as a “seminary of learning”, a property must primarily be used as “a bona fide school” that has “students, physical facilities, teachers or instructors [and] a curriculum designed to further the advancement in life of those in attendance so that they might better pursue their vocation or life’s work”. Also, there must be a “structured curriculum leading to a specific target”.
MPAC argues that the activities sponsored and carried out by NNEEC do not qualify the institution as a “seminary of learning” based on the above definition. It points out that NEEC does not have regular groups of students, teachers, classrooms, exams or a curriculum that is designed to systematically impart knowledge or develop a skill. The programming does not lead to a specific educational target and NNEEC does not issue any certificates or licenses to its participants or attendees. Rather, the school groups and university students who visit the NNEEC do so as part of their own educational institution’s curriculum and are not led by a NNEEC teacher. Also, these students do not attend NNEEC on a continuing basis.
(2) The Community Workshop Series, Annual Symposium on Climate Change and other weekend and evening seminars, workshops etc. do not constitute bona fide educational experiences.
- The respondent raises many of the same issues with respect to these initiatives as it does in the previous section. It points out that the Workshop Series are one-off series which are open to members of the public, but do not have students, instructors or follow a curriculum. Also, there are no certificates or exams at the end of these sessions, and the sessions are run by external volunteers, not NNEEC instructors. The annual symposium features presentations and talks by outside speakers and experts, not instructors of the NNEEC. Also, participants are not students of NNEEC, but rather are members of the public.
(3) The Primary Purpose of the summer Community Adventure Program is not educational
- With respect to this program, MPAC points out that it takes place at the Glen Bernard Lake which is located across the road from the Centre, and the swimming lessons are not run by an employee of NNEEC. It agrees that the pre-school level swimming classes provide instruction up to the bronze star level Also, notwithstanding that it includes a component of environmental education among its activities, its primary purpose is most accurately described as recreational.
(4) Many of the activities of NNEEC occur at off-site locations
MPAC objects to the fact that some of the programs conducted by NNEEC like the community learning garden, the U.N. Climate Change Forest Study, and the Phragmites Working Group take place at locations away from the property at 140 Main St. It agrees that the participants in these programs use meeting space at the Centre for their meetings and information sessions. Also, there is no formal course, curriculum, or lesson plan for these programs.
(5) NNEEC hosts community and recreational events which are not educational
- The NNEEC property is used at times to host community and recreational events which, according to MPAC cannot be classified as education. For example, NNEEC opened an ice cream shop (“Almaguin Scoops”), at the Centre for three months in the summer of 2019 as a fundraiser for the Centre. It also hosted “The Taste of Almaguin” at the Centre in October 2019, which was an event for local farmers and chefs to promote culinary tourism in the Almaguin highlands and a fundraising event for the Community Learning Garden. It also held a plant sale in June 2019 and four “Rooting for the Raptors” evenings on its premises during the Toronto Raptors’ championship run.
Discussion
Relevant Statutory Interpretive Principles
Counsel for both parties addressed the interpretative principles which apply to an exemption in a taxing statute such as the Assessment Act.
In the recent case of London Jewish Community Village v The Municipal Property Assessment Corporation, Region 23 et al, 2020 ONSC 6794 (“London Community Village”), Leach J. dealt with an application brought under paragraph 5 of s. 3(1) of the Assessment Act. In her decision she undertakes a comprehensive review of the statutory principles which apply to tax-related legislative provisions, and particularly insofar as the legislated exemptions from assessment and taxation are concerned. I accept her findings and agree that they apply to the issues before the Court in this case. I have taken the liberty of summarizing her review of these principles in the following paragraphs:
I Statutory Interpretation – General Principles
- Leach J. quotes with approval “the modern principle” set out by Elmer Driedger in the 1973 edition of his text, Construction of Statutes. Referring to this modern principle, Leach states:
17(b) Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
London Community Village, par.17(b)
II Statutory Interpretation – Tax Legislation
- Leach J. states that the interpretation of fiscal/tax legislation has evolved and should now be undertaken in accordance with the principles set out in the Supreme Court’s direction in Stubart Investments Ltd. v. R. (1984), 1984 20 (SCC), 84 D.T.C. 6305 (S.C.C.), at p. 6323. In particular, she states:
18(c) i The Supreme Court of Canada declared that the view that fiscal legislation was merely a revenue-raising mechanism was no longer tenable. In the hands of modern government, taxation and exemption from taxation have become sophisticated and important tools to promote various economic and social policies and objectives.
18(c) ii In keeping with that new appreciation, fiscal/tax legislation was to be interpreted in the same manner as other legislation, in an effort to discern and give effect to the intention of the legislature. Words found in tax statutes accordingly are no longer confined to a strict literal interpretation, but are also read in their entire context, having regard to the legislative purpose and scheme. In other words, fiscal/tax legislation, like all legislation, henceforth was to be read and interpreted by courts in accordance with the "modern principle" or approach to statutory interpretation articulated by Driedger. Going forward, Canadian courts interpreting tax legislation, including provisions creating tax exemptions, were to rely on the same principles and techniques used to interpret other kinds of legislation.
London Community Village, at par. 18(c)
III Statutory Interpretation – The Assessment Act (Section 3 Exemptions)
- The general principles emanating from the caselaw which are applicable to par. 5 of s. 3(1) are summarized by Leach J. at par. 19 of her decision as follows:
a) The general purpose of the Assessment Act is obvious. It is expressed in s.3(1) of the Act; i.e., "All real property in Ontario is liable to assessment and taxation". The purpose of s.3(1) is "to impose upon all real property in Ontario a general obligation to pay a property tax so that the government can meet its expenditures.
b) However, that purpose is not an absolute one. Section 3(1) of the Assessment Act expressly provides that the general purpose is "subject to the following exemptions from taxation". As noted above, twenty-nine exemptions follow, including exemptions for churches, public education institutions, public hospitals, houses of refuge, various charitable institutions, small theatres and large non-profit theatres. Many of the organizations listed in the exemption paragraphs perform activities which are of great benefit either to discrete groups of disadvantaged persons or to society as a whole. The clear implication of these exemptions is that while there is a substantial public interest in the generation of revenue through the taxation of real property, in the context of the real property covered by these exemptions, that public interest is outweighed by the public interest in giving relief from property taxation to certain organizations.
c) It nevertheless must be remembered that it was not the Legislature's intention to grant tax exemptions to all worthwhile charitable institutions, and courts accordingly must scrutinize exemption applications carefully. A charitable institution may carry out worthwhile and commendable work, and still not be entitled to an exemption from municipal assessment and taxation. In relation to applications for an exemption pursuant to s.3(1) of the Assessment Act, supra, the quality of work undertaken by an applicant is not the issue. In coming to its conclusions, a court accordingly should not be influenced by the sympathy it might feel for the laudatory aims and commendable activities of the organization requesting a s.3(1) exemption, or the difficulties that organization might face in obtaining funding for the tax liability if the exemption is not granted.
d) Where a court must interpret one of the exemptions provided for in s.3(1) of the Assessment Act, supra, the interpretive exercise comes down to a determination of the scope of the exemption. That interpretative process is informed by an appreciation that the exemptions reflect the legislature's assessment of the competing policy considerations identified in the preceding sub-paragraph. It is also informed by ordinary principles of statutory interpretation requiring that legislation should be interpreted in a manner consistent with the plain meaning of its words, and that every word in a statute is to be given meaning; i.e., that "when a court considers the grammatical and ordinary sense of a provision", it bears in mind that "the legislator does not speak in vain".
e) The test for determining whether an exemption should be granted accordingly is whether the primary purpose of the institution claiming the exemption comes within the words defining the exemption in the Assessment Act, supra. This is true with respect to section 3 of the Assessment Act generally. It is also true with respect to the interpretation of the specific exemptions set out in section 3 of the Act. That "primary purpose" test is well established in the jurisprudence of this province and requires an objective determination of the principal purpose for which land is used and occupied, which must be distinguished from others that are incidental to it. [emphasis added]
f) Where a court must interpret one of the exemptions provided for in s.3(1) of the Assessment Act, supra, reading the legislative provisions of that exemption in context includes having regard to the wording of other exemptions provided for in s.3(1).
g) The law is clear that, when a taxpayer claims an exemption from taxation, that taxpayer has the onus of showing that the situation comes clearly within the terms of the exemption clause in the relevant statute; i.e., because every exemption from otherwise applicable taxation throws an additional burden on the rest of the community. A person claiming an exemption, pursuant to any paragraph of s.3(1) of the Assessment Act, supra, accordingly has the onus or burden of establishing that a subject property is exempt from taxation.
h) In relation to what constitutes a “non-profit philanthropic, religious or educational “seminary of learning”, within the meaning of paragraph 5 of s.3(1) of the Assessment Act, supra:
i. A "seminary of learning" is not a term of art. It is simply a place of education; a place which is fundamentally devoted to teaching subjects or skills.
See Worldwide Evangelization Crusade (Canada) v. Beamsville (Village), 1959 21 (SCC), [1960] S.C.R. 49, at paragraph 6; Emmanuel Convalescent Foundation v. Whitchurch (Township), 1967 331 (ON SC), [1967] 2 O.R. 487 (H.C.), at paragraph 1, affirmed 1967 225 (ON CA), [1967] 2 O.R. 676 (C.A.); and Childreach Centre v. Ontario (Regional Assessment Commissioner), [2000] O.J. No. 5039 (S.C.J.), at paragraphs 52-53.
ii. For property to be used solely as a "seminary of learning" for purposes of the exemption, subjective intention, (for example, as expressed in a corporation's stated objects), is neither conclusive nor sufficient. Determining the availability of the objection otherwise would depend purely on the corporation's unilaterally drafted statement of intentions; e.g., in the drafting of its corporate objects. There must not only be an intention to use the property for the purpose of a seminary of learning, but the persons in attendance at the property must have dedicated themselves to that purpose, with all profits from use of the property being used for the seminary of learning on that property. Whether a property is used as a seminary of learning accordingly is determined by its primary use, and that is determined by an objective test rather than a subjective test. In each case, courts consider the actual use of land to determine its principal use; not the idea or stated objects of its owners or users.
See Inter-varsity Christian Fellowship of Canada v. Muskoka Assessment Commissioner (1979), 1979 1733 (ON SC), 23 O.R. (2d) 589 (H.C.), at p.593; Associated Gospel Churches v. Ontario Regional Assessment Commissioner, Region No. 13, (1979), 9 M.P.L.R. 287 (Ont.Div.Ct.), at paragraphs 11 and 15; Religious Hospitallers of St Joseph Housing Corp. v. Ontario Regional Assessment Commissioner, Region 1, supra, at paragraph 11; and Childreach Centre v. Ontario (Regional Assessment Commissioner), supra, at paragraphs 54-55.
London Community Village, at par. 19
Analysis
The question before the Court is whether the primary purpose of NNEEC, determined objectively, is that of a Seminary of Learning.
In Anglican Church of Canada, Diocese of Toronto Camps v Municipal Property Assessment Corp, Region No 16, 2004, CarswellOnt 4484 at paragraph 11, the Ontario Court of Appeal cited the primary purpose test with approval. It also confirmed that the primary purpose was to be determined objectively and was to be distinguished from other purposes incidental to it.
The issue before Harvison Young J. (as she was then) in the 2007 decision Keewaydin Camps Corporation Canada v Temagami (Municipality), 2007 15800 (ON SC) (“Keewaydin Camps”) was whether the primary purpose and focus of a summer camp program conducted by the applicant was educational (as required by para. 5 of s.3(1) of the Assessment Act), or recreational. The parties agreed that for the camp to fall within the term “seminary of learning”, the primary purpose must be educational.
In reviewing the case law Harvison Young J. noted that there are a number of considerations or factors that run through the cases. She identified these factors as follows: (a) the stated objectives of the institution; (b) the objectives of the participants; (c) the type of use of the land in question; (d) the centrality of the educational aspects; and (e) the structure of the program. She commented that these five factors were not meant to be exhaustive, nor are they rigid categories, but they inform the ultimate determination. She then proceeded to analyze the case before her in relation to these factors.
I will consider these same factors in determining whether NNEEC’s primary purpose is that of a “seminary of learning”.
(a) The Stated Objectives of the Institution
Harvison Young J. held that the stated objectives of the institution claiming the exemption in par. 5 of sec. 3(1) of the Assessment Act should point to a focused educational agenda.
On its website NNEEC states that it seeks to “provide access to education, information and hands-on learning opportunities” and to serve as a “hub for year-round leadership education and research on topics, including sustainability, stewardship, renewable energy, building construction, agriculture, and health”, and to “partner with universities, colleges and other academic institutions”.
Its mission, as stated in its Letters Patent is as follows:
a) To establish, maintain and operate an educational centre that will provide instruction on environmental topics, including sustainability, stewardship, renewable energy, building construction, agriculture, and health.
b) To preserve, conserve and protect the environment by carrying out projects that benefit the public and provide sustainable means of achieving economic growth and regeneration.
In my view, NNEEC’s Mission Statement as set out in its website and in its Letters Patent articulate such a focused educational agenda. In coming to this conclusion, I note that both the workshops it sponsors and the projects it undertakes in the community invariably include a significant instructional component.
Harvison Young J. submits that if it is established that the institution points to a focused educational agenda, the question arises next as to whether the objectives are of a recognizable type of educational agenda and whether they are they sufficiently specific?
Harvison Young J. found that her review of the caselaw reveals that a range of instructional agendas have been recognized by the courts as educational. She states at par. 19 of Keewaydin that these agendas include religious instruction, social and cultural instruction, vocational training, and training in flying.
In Societa Unita and Town of Gravenhurst, (1975) 1977 1201 (ON SC), 16 O.R. (2d) 785 (“Societa Unita”) the court was required to determine whether a children’s camp established for children of Italian origin was entitled to a tax exemption on the basis that it constituted a “seminary of learning”.
The stated objectives of the institution were:
a) To unite morally and materially, in a common bond of mutual fraternity, peace, love and respect, all the Italian immigrants residing in the Province of Ontario;
b) To promote and provide facilities for educational, recreational, athletic, cultural and religious activities;
c) To promote an atmosphere of friendship and of moral assistance among the members of the community generally and in particular those of Italian origin and where possible and necessary to provide material assistance;
d) To assist the members of the community generally, and in particular those of Italian origin, to adapt themselves to life in Canada and to promote such courses of instruction and other programs which may be considered beneficial;
e) To grant student aids to deserving children and to invest any funds not immediately required for its objects in investments authorized by law for the investment of trust funds;
f) To engage in undertakings of a charitable nature in the community; and
g) In furtherance of the foregoing objects to establish, maintain and conduct a camp in the Township of Gravenhurst (formerly in the Township of Ryde) comprising the whole of Lots 26 and 27 and part of Lot 25 in the 9th Concession.
- The court in Societa Unita found that the camp qualified as a “seminary of learning” and was therefore entitled to the exemption on the basis that its agenda provided for social and cultural instruction. Lerner J. commented at p. 790 that:
The words "seminary of learning" in the context of this section have been given wide meaning. Learning is not confined to the acquisition of skills necessary to earn a livelihood. Training in the Italian language, folklore, customs, religious background and history as set out in the camp programme is part of "learning". Such learning is intended to make better citizens through a comprehension of their background, the understanding of which leads to tolerance in the same way as training in religious pursuits was discussed by Mr. Justice Cartwright in the Worldwide Evangelization case. Turning again to the programme, the teaching of the Italian language, history, geography, folklore and religion is interspersed with the usual activities associated with a summer camp in order to make this "learning" process attractive to children who participate in this camp atmosphere.
In my view the agenda which NNEEC purports to put forth constitutes a recognizable educational agenda within the context of s.3(5) of the Assessment Act. As in the Societa Unita case, the object of the agenda is to make more informed citizens of the people who participate in its programs, in NNEEC’s case by increasing their knowledge about their environment in areas such as sustainability, stewardship, renewable energy, building construction, agriculture and horticulture and health.
Harvison Young J. suggests that in the context of the institution’s objectives, the question also arises as to whether the objectives are sufficiently specific to constitute a seminary of learning. In my view they are.
The Supreme Court has held that the term “seminary of learning” has no fixed legal meaning. It is a term of art, and its primary meaning is simply “a place of education”. (See Worldwide Evangelization Crusade (Canada) v. Beamsville (Village of), 1959 21 (SCC), S.C.R. 49 (“Worldwide Evangelization”).
The court in Worldwide Evangelization held that it is not necessary for an educational institution to “approximate” the type of instruction given in universities, nor is necessary to have a formal curriculum for an institution to constitute a place of education.
In Worldwide Evangelization the objectives of the camp in question were designed to train missionaries for work overseas. The activities and programs conducted by the Institution were described at p. 20 in the decision of the Supreme Court as follows:
While there is no fixed curriculum, the staff and all students each morning, for two and a half hours, attend a meeting for Scripture reading and general religious discussion, including the application of the lessons of the Scriptures to practical daily problems of living and working, particularly with relation to missionary work in foreign fields. During the rest of the day the students are given instruction in dietetics, cooking, sewing, motor mechanics and carpentry, a knowledge of such skills being considered necessary to enable them to successfully carry on their work as missionaries in foreign fields under primitive conditions. The minimum length of time the students are required to attend at the institution is six months and the maximum two years. There are no examinations and the length of time the students attend depends on the discretion of the staff, the students being allowed to leave and enter missionary work when the staff feel that they are qualified to do so. The institution is financed by voluntary contributions. The students do not pay any fees or make any payment for board and lodging. The staff do not receive any salaries.
In Worldwide Evangelization the Supreme Court concluded that the institution fit within the definition of a “seminary of learning” and was entitled to the exemption.
In my view, the court in Worldwide Evangelization recognized that a considerable degree of flexibility exists in determining the specific types of instruction which entitle an institution to qualify as a “seminary of learning”.
Ms. Palm has described the various programs which comprise NNEEC’s agenda. In my view, almost all of the activities and programs carried out by NNEEC, whether these are carried out directly or whether NNEEC acts as a catalyst by sponsoring and organizing such activities and programs, are directed to and are designed to fulfill NNEEC’s objectives of providing the participants in its programs with an education in environmental sustainability.
In conclusion, albeit NNEEC carries out its objectives in diverse ways, the objectives are sufficiently specific to constitute and be recognized as a “seminary of learning”.
Furthermore, for the above reasons I cannot accept the first and second bases of respondent’s objections that NNEEC does not operate as a bona fide educational institution or as a “seminary of learning” because it does not have regular “students, physical facilities, teachers or instructors [and] a curriculum designed to further the advancement in life of those in attendance so that they might better pursue their vocation or life’s work”. In my view, the above cases make it clear that a considerable degree of flexibility is acceptable, both with respect to the educational programs and the administration thereof. This issue will receive further consideration below.
One other concern raised by the respondent is that there are not more days devoted to in-house workshop and symposium education programs. Ms. Palm explained that the NNEEC building is open Monday to Friday, year-round and receives many visitors to the building. She estimates that she alone provided approximately 25 tours of the building in 2019, many of them focusing on the environmentally sustainable architectural features of the building. Considerable time is also devoted to planning and administration of the programs, both for the indoor learning initiatives and those that take place off-site.
I agree that if an institution seeks to qualify as a seminary of learning it must invest a certain threshold of time into its learning activities and programs. Given the fact that NNEEC had only been operating for several years in 2019, and that it must provide its educational services with limited resources and rely on volunteers for leadership and instruction, I am not surprised that its onsite programming has not been more robust. However, when I consider the totality of its programs, both those which are conducted onsite and offsite, and that the administration of the programs takes place at the Centre, I believe that the requisite threshold of educational programs has been met.
In conclusion, I find that a consideration of this factor supports the position of the applicant.
(b) The Objectives of the Participants
In my view, almost all of the participants who attend and engage in the activities and functions of NNEEC do so for the purpose of increasing their knowledge of the environment and learning how to respond to their environment in ways that are sustainable and responsible. This includes those persons who participate in the Phragmites Working Group, the high school or university students who attend as part of their school curriculum, the attendees at the weekend topical sessions, community workshop series and symposia, the students in the learn to swim program, and the participants in the Community Garden initiative and the U.N. Climate Change Study program.
The respondent’s third basis of its objections to the application is that the primary purpose of the Community Adventure Program cannot accurately be described as educational.
I agree that there are some activities and programs whose primary purpose, when viewed independently, cannot be considered to be educational.
Like the respondent, I am not convinced on the evidence before me that the environmental education which is provided to the children at the Community Adventure Program is sufficiently central to their camp experience to constitute the camp as an educational “seminary of learning”. The NNEEC website describes the program as providing “action packed, fun filled days for ages six to fourteen”. The program “includes swimming, sports, crafts, games, canoeing, environmental education, archery and high ropes”.
Also, I am not convinced on the evidence that the parents who enroll their children in the summer community adventure program do so primarily for the purpose of encouraging and instilling environmental values, knowledge and commitment in their children.
However, in my view, it is not necessary that every activity or program carried out by a “seminary of learning” is designed to directly fulfill the primary purpose of the institution which is claiming the exemption. There can be secondary or ancillary purposes included in the overall program, provided of course that such purposes complement and are compatible with the primary purpose. (See Windsor Flying Club v Ontario Regional Assessment Commissioner, Region No. 27, 2000 CarswellOnt 2130, [2000] O.J. No. 2353 [Windsor Flying Club] at para. 2).
NNEEC’s property is situated directly across the road from Lake Bernard, a lake which is popular with swimmers. Therefore, it is entirely reasonable for NNEEC to sponsor a summer program for children and include therein a strong component of environmental education, including swimming lessons.
Similarly, when viewed independently, the purpose of Almaguin Scoops is not educational. However, I view it as an acceptable ancillary use. After all, the proceeds from the sale of the ice cream support the Centre. Similarly, I find that the “The Taste of Almaguin” event complements the efforts of the Community Garden initiative and I note that the proceeds from this event are also used to support the Centre.
Similarly, I find that the four “Root for the Raptors” evenings hosted by NNEEC do not in any way detract from or overwhelm the primary educational purpose of NNEEC. If anything, such events serve as a useful public relations initiative and provide an opportunity for members of the community to become acquainted with NNEEC’s facilities and programs.
In conclusion, I find that most people who participate in the programs and activities sponsored by NNEEC do so for the purpose of increasing their knowledge about the environment and become better acquainted with sustainable methods of interacting with it. The programs and activities which I have listed above as secondary, or ancillary are both complementary and supportive of the primary purpose of the institution, which remains educational.
I find that a consideration of this factor also supports the applicant’s position.
(c) Type of Activity/Use of Land
With respect to the consideration which should be given to this factor, Harvison Young J. states at paragraph 25 of the Keewaydin Camps decision that “probably the most important factor is the proportion between the activities that are geared towards fulfilling the organization’s stated educational objective, versus other activities”.
My review of NNEEC’s activities and programs above have led me to the conclusion that a majority of the initiatives carried out by the applicant are geared to fulfilling NNEEC’s educational objective. Also, the programs which I have identified as ancillary or secondary do not detract in any way from this central objective, if anything they support the central objective.
The fourth basis for the respondent’s objections to this application is that many of the activities of NNEEC occur at off-site locations.
These off-site programs to which MCAP objects include the Community Adventure Program and the swimming lessons which take place at Lake Bernard across the road, the clean up efforts carried out by the Phragmite Working Group which take place at local wetlands, the gardening by the participants in the Community Learning Garden which occurs at a lot several blocks from the Centre, and the collection and monitoring of data by the participants in the U.N. Climate Change Forest Study.
In my view, the primary purpose test, as it is applied in relation to s.3(5) of the Assessment Act, does not require that all the activities which comprise the primary purpose take place on the subject property. The application of the test focuses on the purpose of the institution which is seeking the exemption. (See London Community Village, at para. 19(e); Buenavista on the Rideau v. Ontario Regional Assessment Commissioner, Region No. 2 (1996) 29 O.R. (3rd) 272 (Div. Ct.) at p. 276. In my view, the fact that some of NNEEC’s programs and activities are conducted off-site does not detract from the central educational nature or purpose of the institution. In the circumstances of this case, the subject property is used for conducting workshops, seminars and lectures, symposiums, high school classes, sustainable architecture demonstrations, all of which contribute to the primary educational purpose of the institution. With respect to the off-site activities, the property at 140 Main St. continues to serve as the centre of administration and organization for these programs.
In conclusion, notwithstanding that some of the educational initiatives of NNEEC are carried out at offsite locations, this does not detract from the primary educational focus or purpose of NNEEC as an institution.
I find that a consideration of this factor supports the applicant’s position.
(d) The Centrality of the Educational Aspects
With respect to this factor, Harvison Young J. states at par. 29 of the Keewaydin Camps decision that “closely connected to the preceding factors is the question of whether the camp creates an environment where attendees are deeply immersed in a program that seeks to fulfill the type of educational objective created for them, or whether, conversely, the educational aspects are simply a by-product of the environment”.
I have indicated above that with only a few exceptions, such as the ancillary and secondary programs, the activities and programs sponsored or carried out by NNEEC are directly related to its educational objectives.
A consideration of this factor also supports the applicant’s position.
(e) Structure
- With respect to a consideration of this factor, Harvison Young J. states the following at par. 33 of the Keewaydin Camps decision:
Therefore, while there is no formal structure required for the purpose of qualifying as "educational", it seems that the program should nevertheless have some kind of structure, insofar as the intensity of the educational experience. That is, the activities undertaken, and the type of environment fostered must have coherence and a specific target. The structure does not have to have cognizable features such as a certificate of completion or exams, but there still has to be something that holds the experience together. For instance, learning to fly a plane, as in Windsor Flying Club, or learning to partake in running a ship at sea requires undertaking fairly rigorous training, based on specialized technical knowledge.
A consideration of this factor is related to the objections that NNEEC does not operate as a bona fide educational institution.
MPAC submits that the application should not succeed because NNEEC does not have students who attend on a regular basis. Rather it hosts high school or university student groups on an irregular basis on what the respondent refers to as “field trips”. Also, it does not have paid instructors who use structured curriculum materials and lesson plans which they themselves prepare. Furthermore, it does not have classrooms but rather hosts attendees and participants in conference rooms or at offsite locations where NNEEC conducts some of its programs. It does not have examinations and it does not grant degrees.
The indicia which the respondent submits are required in order for an institution to qualify as a “seminar of learning” appear to be adopted from the court’s decision in Windsor Flying Club where Brockenshire J., adopting the dicta in an earlier Divisional Court decision, states at paragraph 3:
- “Seminary of learning” is a phrase adopted many years ago in Ontario's Assessment Act. Our Divisional Court, in Seafarers Training Institute v. Twp. of Williamsburg (1982), 1982 2186 (ON SC), 39 O.R. (2d) 370 (Div. Ct,) echoing decisions in the Supreme Court of Canada and our Court of Appeal, defines "seminary" as simply a place of education. After reviewing several authorities, it went on to deal with "education", and concluded, at p. 376; that;
"If a place has students, physical facilities, teachers or instructors, a curriculum designed to further the advancement in life of those in attendance so that they might better pursue their vocation or life's work; it should be held to be an institution (seminary) for educational purposes."
The primary purpose of the education provided in the Windsor Flying Club case was to teach students to fly an airplane. The primary purpose of the education in the Seafarers Training Institute case was to teach students to become qualified seafarers. In both cases the education is very specialized and leads to a defined goal. I agree that, given the nature and goal of the education in those two cases, the indicia referred to by the courts in the Windsor Flying Club and Seafarers Training Institute cases constitute necessary components of the educational programs provided by these institutions in order for them to qualify as “seminaries of learning”.
However, in my view, the indicia referred to by the respondent are not to be universally applied; rather they are case specific. Brockenshire J. does not suggest that these indicia must apply to every institution which seeks to qualify as a seminary of learning. In fact, he suggests the opposite. Immediately after referring to the above indicia as appropriate in the circumstances of the two cases referenced by him, he writes:
3…This definition was intended to be inclusive rather than exclusive and was given in the context of training for a particular trade. [emphasis added]
The respondent fails to consider the numerous cases which have adopted a more flexible approach, an approach which focuses on educational indicia which are consistent and compatible with the nature and objects of the institution which is seeking the exemption.
I have referred above to the Supreme Court of Canada decision in the Worldwide Evangelization case. The objectives of the education in this case were to train missionaries to work in the field. There was no fixed curriculum and following a daily morning time of devotion and general religious discussion, the participants were given instruction in such diverse topics as cooking, sewing, motor mechanics and carpentry. The program could be anywhere from six months to 24 months long, depending on the discretion of staff. The staff did not receive salaries and there were no examinations.
In that case, the Supreme Court held that the institution qualified as a seminary of learning and was therefore entitled to the exemption.
Similarly, in the Societa Unita case referred to above, the applicant operated a summer camp which interspersed the teaching of the Italian language, history, geography, folklore and religion with the usual outdoor activities associated with a camp. The court found that the applicant qualified as a “seminary of learning” and held that it was entitled to the exemption on the basis that it provided social and cultural instruction to children of Italian descent.
In considering whether an institution qualifies as a “seminary of learning” the following words of Cartwright J. in the Worldwide Evangelism case bear consideration:
In my opinion, the proper way to decide whether para. 5 is applicable is not to compare the appellant's method of instruction with that given in other institutions which undoubtedly fall within the description of "seminary of learning", but rather to inquire whether those in attendance do learn to fulfil better and more effectively the religious purpose to which they have dedicated themselves.
In my view, NNEEC’s programs have a structure which provides both coherence and a specific target. Whether the learning takes place experientially in the field or passively in the workshops and seminars, the target throughout is to increase the level of appreciation and knowledge by the participants in the programs about their natural environment, and to encourage and direct them to respond to their environment in responsible and sustainable ways.
For example, the Phragmites Working Group is engaged annually in the removal of an invasive plant species from the local wetlands. Scheduling of their activities, as well as direction and equipment is provided by NNEEC. The coherence comes from the fact that this program is related to the goal of responding in a constructive way to an environmental threat, the goal being to improve water quality by removing phragmites.
Similarly, the goal of the Community Learning Garden is to encourage food self sufficiency and environmentally friendly growing methods. As noted on NNEEC’s website:
The Community Learning Garden educates, inspires, and connects with a focus on producing food and herbs with environmentally sustainable, accessible means. We help grow regional awareness of the importance and benefits of locally, sustainably produced food. We encourage people to regionally source and grow their own food and teach about how-to’s and the benefits, including health, economic and environmental. NNEEC’s kitchen and conference facility offer ties with regional culinary field in this project.
In summary although NNEEC’s structure is not as formalized as that of a university or high school, in that its programming consists of workshops, weekend symposiums, lectures, experiential activities such as gardening and removing phragmites, I find that the structure is appropriate when one considers that the primary objective of NNEEC is to educate the local members of the community, many of whom are employed on weekdays and whose availability is necessarily limited to weekends, evenings etc.
In conclusion, it is my view that the structure which has been adopted by the applicant in fulfilling its goal of providing environmental education to the local Sundridge population, is appropriate in fulfilling this goal.
A consideration of this fifth and final factor also favours the applicant.
Decision
- For the above reasons, I find in favour of the applicant. Further thereto I declare that:
a) The Near North Enviro-Education Centre is a non-profit educational seminary of learning;
b) The Near North Enviro-Education Centre owns, uses, and occupies 140 Main Street, Sundridge bearing roll number 4948 000 004 11000 0000 and the property is exempt from property taxation from January 1, 2019, and thereafter;
c) The Corporation of the Village of Sundridge is to amend the assessment rolls for the property at 140 Main Street in such a way as to indicate that the land is exempt from taxation from January 1, 2019, onwards;
d) The Corporation of the Village of Sundridge is to refund all amounts collected as taxes for the property at 140 Main Street from January 1, 2019, onwards, together with interest at the prescribed rate;
Costs
- The parties have agreed that there are to be no costs payable with respect to this application and therefore there is no order as to costs.
E.J. Koke
Released: June 28, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Near North Enviro-Education Centre
Applicant
– and –
Municipal Property Assessment Corporation and The Corporation of the Village of Sundridge
Respondents
Respondents REASONS FOR JUDGMENT
E.J. Koke
Released: June 28, 2022