Ontario Cancer Treatment and Research Foundation v. Ottawa (City) et al., (1998) 106 O.A.C. 253 (CA)

• Judge: Finlayson, Osborne and Labrosse, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 12, 1998
• Jurisdiction: Ontario
• Citations: (1998), 106 O.A.C. 253 (CA)

Ont. Cancer Treatment v. Ottawa (1998), 106 O.A.C. 253 (CA)

MLB headnote and full text

Temp. Cite: [1998] O.A.C. TBEd. MR.015

The Ontario Cancer Treatment and Research Foundation (applicant/respondent) v. The Corporation of the City of Ottawa, The Regional Municipality of Ottawa-Carleton and The Hydro-Electric Commission of the City of Ottawa (respondents/appellant)

(C22850)

Indexed As: Ontario Cancer Treatment and Research Foundation v. Ottawa (City) et al.

Ontario Court of Appeal

Finlayson, Osborne and Labrosse, JJ.A.

February 12, 1998.

Summary:

The Ontario Cancer Treatment and Research Foundation (the "Foundation") was exempt from payment of taxes under s. 16 of the Cancer Act, R.S.O. 1990, c. C-1. At issue was whether the Foundation was exempt from payment of a development charge (DC) under the Development Charges Act, R.S.O. 1990, c. D-9, which became payable when the Foundation obtained a building permit for the expansion of a cancer treatment facility in Ottawa.

The Ontario Court (General Division) held that the DC was a tax and the Foundation was exempt from payment. The Hydro-Electric Commission of the City of Ottawa appealed the decision respecting the hydro component of the DC.

The Ontario Court of Appeal, Finlayson, J.A., dissenting, affirmed that the DC was a tax and dismissed the appeal.

Municipal Law - Topic 2145

Municipal taxation or levies - Develop­ment charges - Liability for - The Ontario Can­cer Treatment and Research Founda­tion (the "Foundation") was exempt from pay­ment of taxes under s. 16 of the Cancer Act (Ont.) - At issue was whether the Foundation was exempt from payment of a development charge (DC) under the Development Charges Act (Ont.), which became payable when the Foundation obtained a building permit for the expan­sion of a cancer treatment facility in Ottawa - The trial judge held that the DC was a tax and the Foundation was exempt from payment - Ottawa Hydro appealed the decision respecting the hydro compo­nent of the DC - The Ontario Court of Appeal affirmed that the DC was a tax and dismissed the appeal.

Municipal Law - Topic 2145

Municipal taxation or levies - Develop­ment charges - Liability for - Section 16 of the Cancer Act (Ont.) provided that the Cancer Foundation was exempt from pay­ment of taxes - Section 3(6) of the Devel­opment Charges Act (Ont.) (DCA) pro­vided that no land was exempt from a development charge by reason only that it was exempt from taxation under s. 3 of the Assessment Act (Ont.) - Section 49 of the DCA pro­vided that in the event of a con­flict be­tween the DCA and any other Act, the DCA prevailed - The Ontario Court of Appeal held that: s. 16 of the Cancer Act and s. 3(6) of the DCA were not incon­sistent; the Foundation was not required to pay development charges under the DCA because it claimed its exemption under s. 16 of the Cancer Act, not s. 3 of the As­sessment Act - See paragraphs 53 to 56.

Cases Noticed:

New Mount Sinai Hospital v. Toronto (City), [1973] 3 S.C.R. 541, appld. [para. 2].

Ontario Home Builders' Association v. Board of Education of York Region et al., [1996] 2 S.C.R. 929; 93 O.A.C. 241, appld. [para. 2].

Sudbury (Regional Municipality) Develop­ment Charges By-law 91-150, Re (1993), 30 O.M.B.R. 210, refd to. [para. 5].

Palisade Properties (1985) Ltd. v. Surrey (District) (1991), 5 M.P.L.R.(2d) 206 (B.C.S.C.), refd to. [para. 30].

Sorokolit and Regional Municipality of Peel, Re (1977), 16 O.R.(2d) 607 (Div. Ct.), refd to. [para. 30].

Ontario Home Builders' Association v. Board of Education of York Region et al. (1994), 69 O.A.C. 216; 17 O.R.(3d) 103 (C.A.), appld. [para. 31].

Lawson v. Interior Tree Fruit and Veg­etable Committee of Direction, [1931] S.C.R. 357, refd to. [para. 37].

Reference as to Powers to Levy Rates on Foreign Legations, [1943] S.C.R. 208, refd to. [para. 38].

British Columbia v. Esquimault (A.G.) and Nanaimo Railway Co. (1949), [1950] A.C. 87 (P.C.), refd to. [para. 45].

International Aviation Terminals Inc. v. Richmond (Township) (1992), 11 B.C.A.C. 278; 9 M.P.L.R.(2d) 1 (B.C.C.A.), refd to. [para. 51, footnote 1].

College d'arts appliqués de technologie La Cité collégiale v. Ottawa (City) (1994), 20 O.R.(3d) 541 (Gen. Div.), folld. [para. 56].

Northwestern Utilities Ltd. v. Edmonton, [1929] 2 D.L.R. 4 (S.C.C.), refd to. [para. 83].

Victoria & Grey Trust Co. et al. and City of North Bay, Re (1984), 44 O.R.(2d) 795 (H.C.J.), ref to. [para. 84].

Guarantee Trust Co. of Canada v. Quality Steels (Canada) Ltd. et al., [1953] O.R. 434 (H.C.J.), refd to. [para. 84].

Ontario Home Builders' Association v. Board of Education of York Region et al. (1993), 62 O.A.C. 321; 13 O.R.(3d) 493 (Div. Ct.), refd to. [para. 88].

Cariboo College v. Kamloops (City) (1982), 18 M.P.L.R. 85 (B.C.S.C.), refd to. [para. 98].

Statutes Noticed:

Cancer Act, R.S.O. 1990, c. C-1, sect. 16 [para. 53].

Development Charges Act, R.S.O. 1990, c. D-9, sect. 1, sect. 3(1), sect. 3(3), sect. 3(6), sect. 9, sect. 11, sect. 12, sect. 16(1), sect. 17, sect. 19(a), sect. 19(c), sect. 49 [para. 7].

Authors and Works Noticed:

Bleckman, S.J., ed., Canada Energy Law Service (1997), vol. 1, p. 4-9 [para. 83].

Bonbright, J., et al., Principles of Public Utility Rates (1988), pp. 6, 22 [para. 81]; c. 10 [para. 82].

Hogg, Peter, The Constitutional Law of Canada (3rd Ed. 1994), pp. 29-17, 30-16.1 [para. 84].

La Forest, The Allocation of Taxing Power Under the Canadian Constitution (1967), p. 58 [para. 38].

Mascarin, John, Annotation to Ontario Home Builders' Association v. Board of Education of York Region et al. (1996), 35 M.P.L.R.(2d) 1, generally [para. 49].

Slack, Enid, and Bird, Richard, Financing Urban Growth Through Development Charges (1991), 39 Can. Tax J. 1,288, p. 1,300 [para. 51, footnote 1].

Counsel:

Guy J. Pratte, for the appellant;

Charles T. Hackland and Wayne J. Brynaert, for the respondent.

This appeal was heard on September 4 and 5, 1997, by Finlayson, Osborne and Labrosse, JJ.A., of the Ontario Court of Appeal. The decision of the Court of Appeal was released on February 12, 1998, and the following opinions were filed:

Osborne, J.A. (Labrosse, J.A., concurring) - see paragraphs 1 to 57;

Finlayson, J.A., dissenting - see para­graphs 58 to 102.