W.A.S.O. Inc. v. Winnipeg Date:, 2012 MBCA 66

Citation: W.A.S.O. Inc. v. Winnipeg Date: 20120619 City Assessor, 2012 MBCA 66 Docket: AI 12-30-07752 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Scott Mr. Justice Michel A. Monnin Madam Justice Barbara M. Hamilton BETWEEN: W.A.S.O. INC. ) T. W. Hewett ) for the Appellant (Applicant) Respondent ) ) A. F. Hacault and ) R. A. McFadyen- and - ) for the Respondent ) ) Appeal heard andTHE ASSESSOR FOR THE CITY OF ) Decision pronounced:WINNIPEG ) June 12, 2012 ) (Respondent) Appellant ) Written reasons: ) June 19, 2012 MONNIN J.A. 1 This appeal is about the liability of the respondent, W.A.S.O.

Inc. (WASO), to pay real property taxes. Moreparticularly, it is about the meaning of the words “owned by” in s. 23(1)(

e) of The Municipal Assessment Act, C.C.S.M., c. M226 (theMAA): Exemption from school taxes 23(1) Subject to sections 25 and 26, real property is exempt from taxation for school purposes where the real property . . . . . (

e) is owned by or is held in trust for and is used by a charitable organization primarily for the purpose of giving relief or assistance toaged, indigent or sick persons, to a maximum exemption of 0.81 hectare; . . . . . 2 Relying on this court’s decision in Winnipeg City Assessor v.

Manitoba et al. (1997), (MB CA),115 Man.R. (2d) 189 (Chinese Cultural Centre), the motions judge found that WASO was exempt from paying school taxes by virtue ofa leasehold interest in the property it leased which satisfied the criterion of “ownership” under the above-noted section. 3 The Assessor for the City of Winnipeg (the Assessor) appealed that decision. Following an oral hearing, that appealwas dismissed with costs, with reasons to follow. These are the reasons.

4 Before us, the Assessor, as he did before the motions judge, argued that amendments made to ss. 23(1)(

h) and (

i) ofthe MAA in particular, as well as to other sections of the MAA, subsequent to the decision in the Chinese Cultural Centre case, make itclear that the Manitoba Legislature did not intend the words “owned ... or is … used by” in s. 23(1)(

e) to include the situation in which aperson or corporation has a leasehold interest in real property. 5 Notwithstanding the fact that the clause under which WASO was granted its exemption by the motions judge wasnot one of the amended clauses, the Assessor argues that under the modern principles of statutory

interpretation, this court should findthat by making the amendments that it did, the Legislature intended to amend all of the clauses contained in s. 23(1) of the MAA. Accordingly, this court should find that under s. 23(1)(

e) of the MAA, a leaseholder could no longer be found to be an owner and exemptfrom paying school taxes. 6 In coming to the conclusion that he did, the motions judge relied on what Steel J.A. wrote in St. Boniface GeneralHospital v. Winnipeg City Assessor, 2003 MBCA 87, 177 Man.R. (2d) 168, to then justify his reliance on the Chinese Cultural Centrecase. He stated in his reasons (at paras. 48-49): It seems clear that ss. 23(1)(

h) and (

i) were amended to address the decisions in the Cultural Centre and Y.M.C.A. cases. Interestingly,however, the Legislature also amended s. 23(1)(

f) by adding “held under leasehold title”. That subsection relates to land “used andoccupied by an association that is established for the benefit of soldiers, as defined in the Soldiers’ Taxation Relief Act, for thepurposes of the association, to a maximum exemption of 0.81 hectare”. That being the case, one must question why the Legislaturewould have decided to amend only certain of the subsections under s. 23(1) by adding the “leasehold title” provision. The only logicalconclusion I reach is that those were the only sections they intended to affect, leaving the “glaring lacuna” unfilled.

In that conclusion, Iadopt the comments of Steel, J.A., in St. Boniface General Hospital v. Winnipeg City Assessor (2003), 2003 MBCA 87 , 177Man.R. (2d) 168; 304 W.A.C. 168; 2003 MBCA 87, where she stated at para. 12: 12 Looking at the Municipal Assessment Act as a whole, I see that the legislature has been very specific in designating exemptions. ...Given these distinctions, I must assume that the drafters of the legislation had good reason for differentiating so specifically in this way.

I make the same assumption that the drafters of the legislation had good reason for amending some and not other sections of the MAAby clarifying the definition of “ownership” in some but not in all of the subsections. 7 We have not been persuaded that the motions judge erred in coming to the conclusion that he did for the reasonsnoted above. 8 In the Chinese Cultural Centre decision, this court said (at paras. 23, 27): To say the least, the Act is no example of clear or comprehensive draftsmanship.

In dealing with liability for taxation, it quite definitelyindicates an intent to provide exemption benefits to certain types of organizations, and it is easy to understand why such organizations aredesignated. On the other hand, however, the draftspersons have left glaring lacunas by totally failing to define such key concepts as“owner”. Counsel for the respondents acknowledged that there are holes in the legislation, but suggested that they be filled by this court. That,however, is not our function.

If a narrower meaning of owner of an interest in land is to be applied, then an amendment to the Act willbe required. As matters stand now, we are quite convinced that any reasonable person would understand that the Chinese CulturalCentre is, in fact, an occupier and an owner of an interest in land which, in the light of the use to which it is being put, should provide itwith an exemption from school tax. 9 What we said then still stands today. If the Legislature intended to remove the exemption provided to a leaseholderunder s. 23(1)(

e) of the MAA it should do so in a clear and unambiguous manner. It is not for this court to guess or surmise as to whatthe wishes of the legislators are. 10 The appeal is accordingly dismissed with costs. J.A. I agree: C.J.M.

I agree: J.A.