No reason to doubt board’s conclusion that air rights were not land

Ontario civil | Appeal

LEAVE TO APPEAL

No reason to doubt board’s conclusion that air rights were not land

Motion by taxpayer to set aside decision refusing leave to appeal two Assessment Review Board decisions. Appellants owned various parcels of land in downtown Toronto. Current value was assessed including appellants’ rights to use above airspace for development. Board decided air rights were not land, so appellants were not eligible for sub-classification as vacant land, even though appellants had been so entitled before. Appellants argued that, in refusing leave, judge applied wrong test and failed to follow recent Supreme Court of Canada decision in Toronto Transit Commission v. Toronto (City) (1971), 18 D.L.R. (3d) 68 (S.C.C.). Motion dismissed. While parts of decision were confusing, as a whole, it was clear judge recognized threshold was lower than “wrong or probably wrong” and found there was no reason to doubt board’s conclusion air rights were not land. Judge heard lengthy submissions on TTC case and clearly explained why it did not compel board to find air rights were land. There was no jurisdictional error.

Exchange Tower Ltd. v. Municipal Property Assessment Corp. (Mar. 21, 2012, Ont. S.C.J. (Div. Ct.), Aston, Pepall and Lauwers JJ., File No. 320/10; 321/10) 213 A.C.W.S. (3d) 539 (6 pp.).

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