) ) MUNICIPAL PROPERTY ASSESSMENT CORPORATION Applicant – v. –, 2013 ONSC 2388

CITATION : Municipal Property Assessment Corporation v. Snab Holdings Limited, 2013 ONSC 2388 DIVISIONAL COURT FILE NO.: 590/12 DATE: 20130422 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SWINTON, POMERANCE AND LEDERER JJ. BETWEEN: ) ) MUNICIPAL PROPERTY ASSESSMENT CORPORATION Applicant – and – SNAB HOLDINGS LIMITED, TOWN OF FORT ERIE and ASSESSMENT REVIEW BOARD Respondents )) )) )) )) )))) Donald G. Mitchell , for the Applicant John L.

O’Kane , for the Respondent, Town of Fort Erie Megan Peck, for the Respondent, Assessment Review Board ) ) ) HEARD at Toronto: April 22, 2013 pomerance j. (orally) [ 1 ] This is an application for judicial review of a decision made by the Assessment Review Board. On an initial appeal, the Board upheld tax assessments made in relation to the subject properties. Thereafter, one of the parties asked the Board to review its decision upholding the assessments. The Chair of the Board reviewed the decision and directed that a rehearing take place. She subsequently affirmed that decision.

MPAC now seeks judicial review of the decision directing a rehearing. [ 2 ] We are of the view that this is not a proper case for judicial review. It is more properly brought as an appeal under s. 43.1 of the Assessment Act, R.S.O. 1990, c. A.31.

Section 43.1 reads as follows: 43.1 An appeal lies from the Assessment Review Board to the Divisional Court, with leave of the Divisional Court, on a question of law. [ 3 ]

Section 43.1 clearly applies to this case. The decision to direct a rehearing is a decision of the Assessment Review Board and it concerns a determination made under the Assessment Act . The language of s. 43.1 is sufficiently broad to cover review decisions made by the Board. [ 4 ] The applicant argued that the decision was not made under the Assessment Act but rather under the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. The SPPA provided the statutory basis for the rules applied by the Board in reviewing its decision. That alone does not make it a decision under the SPPA .

In substance, the decision remained a decision of the Board under the Assessment Act . The decision of Turnbull J. in Niagara Falls (City) v. Lundy’s Lane Portfolio Inc. 2010 ONSC 3495 is distinguishable. In that case, the decision at issue was made under the Municipal Act, which does not provide for a statutory right of appeal to the Divisional Court. Given the existence of a statutory right of appeal, we decline to exercise our jurisdiction to conduct a judicial review. This is important in order to preserve the Court’s gate-keeping function. The effect of allowing a judicial review would be to circumvent

the statutory leave requirement set out in s. 43.1 . [ 5 ] In light of our decision, and in the interests of judicial economy, counsel for the applicant was invited to seek leave to extend time to appeal and leave to appeal. We heard those submissions, along with submissions on the merits of the appeal. [ 6 ] Rule 149 of the Board provides for a review of a decision or a rehearing if there is an arguable case that the Board violated the rules of natural justice or procedural fairness.

In her May 25, 2012 decision, the Chair of the Board concluded that there was an arguable case that there was a violation of procedural fairness because key evidence of the landowner, SNAP Holdings Ltd., was excluded by the Board in its December 22, 2011 decision. [ 7 ] The Chair erred in law in finding a violation of procedural fairness. The Board did not exclude the evidence. It admitted the evidence (see Exhibit 8) and it chose to give “no weight” to the opinion evidence of value because the broker who prepared the opinion was not available for cross-examination.

The weight to be accorded evidence was a matter for the Board. There was no denial of procedural fairness in the Board’s hearing. As the Chair erred in her application of Rule 149, an extension of time to appeal is granted, leave to appeal is granted, the appeal is allowed and the decision for rehearing is set aside. SWINTON J. [ 8 ] I have endorsed the Application Record on behalf of the panel, “This application is converted to a motion for leave to appeal and an appeal. For oral reasons delivered today, leave to appeal is granted. The appeal is allowed, and the rehearing decision is set aside.

No costs are sought and none are awarded.” POMERANCE J. SWINTON J. LEDERER J. Date of Reasons for Judgment: April 22, 2013 Date of Release: May 1, 2013 CITATION : Municipal Property Assessment Corporation v. Snab Holdings Limited, 2013 ONSC 2388 DIVISIONAL COURT FILE NO.: 590/12 DATE: 20130422 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SWINTON, POMERANCE AND LEDERER JJ. BETWEEN:

MUNICIPAL PROPERTY ASSESSMENT CORPORATION Applicant – and – SNAB HOLDINGS LIMITED, TOWN OF FORT ERIE and ASSESSMENT REVIEW BOARD Respondents ORAL REASONS FOR JUDGMENT POMERANCE J. Date of Reasons for Judgment: April 22, 2013 Date of Release: May 1, 2013