Kiwanis Club of Brantford v. Brantford (Township) and Regional Assessment Commissioner, Region No. 20, (1983) 1 O.A.C. 63 (DC)

• Judge: O'Leary, Krever and Steele, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: October 21, 1983
• Jurisdiction: Ontario
• Citations: (1983), 1 O.A.C. 63 (DC)

Kiwanis Club of Brantford v. Brantford (1983), 1 O.A.C. 63 (DC)

MLB headnote and full text

Kiwanis Club of Brantford v. Brantford, Corporation of the Township of and Regional Assessment Commissioner, Region No. 20

(No. 4370/81)

Indexed As: Kiwanis Club of Brantford v. Brantford (Township) and Regional Assessment Commissioner, Region No. 20

Ontario Divisional Court

O'Leary, Krever and Steele, JJ.

December 5, 1983.

Summary:

A service club leased lands and erected a building on them for club purposes. The issue was whether the building was exempt from taxation under s. 3(12) of the Assessment Act, R.S.O. 1980, c. 31. The trial judge held that the building was not exempt. The club appealed.

The Ontario Divisional Court allowed the appeal and held that the building was exempt from taxation.

Landlord and Tenant - Topic 8203

Fixtures and personalty - Fixture - What constitutes - The Ontario Divisional Court stated that a building erected by a tenant on leased land was generally not a fixture and could be owned by the tenant separate from the ownership of the land - The court referred to the lease to determine the question - See paragraphs 2 to 4, 7 to 10.

Real Property Tax - Topic 1565

Persons and property liable to assessment - Real property - Defined - The Ontario Divisional Court held that a building erected and owned by a tenant on leased land constituted "real property" for purposes of the Assessment Act, R.S.O. 1980, c. 31 - See paragraphs 10 to 11.

Real Property Tax - Topic 6051

Exemptions - Charitable purposes - General - A charitable organization (service club) leased land and erected a building on it for club purposes - The lease provided that the building was owned by the tenant - S. 3(12) of the Assessment Act exempted land of charitable institutions from taxation - The Ontario Divisional Court held that the building was exempt from taxation under s. 3(12), because it constituted "real property" within the meaning of the Act - See paragraphs 6, 10 to 11.

Words and Phrases

Real property - The Ontario Divisional Court held that the words "real property" in s. 3 of the Assessment Act, R.S.O. 1980, c. 31, included a building erected and owned by a tenant on leased land - See paragraphs 6, 10 to 11.

Cases Noticed:

Devine v. Callery (1917), O.L.R. 505, appld. [para. 3].

Corbett v. Hill (1870), 9 L.R. Eq. 671, appld. [para. 4].

Mediacom Inc. v. City of Toronto et al., 38 O.R.(2d) 257, appld. [para. 6].

Floyd et al. v. Heska et al., 16 O.R.(2d) 12, consd. [para. 6].

Statutes Noticed:

Assessment Act, R.S.O. 1980, c. 31, sect. 3(1) [para. 1]; sect. 3(12) [paras. 1, 11].

Counsel:

J.M.A. Lefebvre, for the appellant;

P.D. Amey, for the respondents.

This appeal was heard before O'Leary, Krever and Steele, JJ., of the Ontario Divisional Court, on October 21, 1983. The decision of the Divisional Court was delivered by Steele, J., on December 5, 1983.