



COURT OF APPEAL FOR ONTARIO

CITATION:
Omers Realty
    Corporation v. Ontario (Finance), 2012 ONCA 400

DATE: 20120612

DOCKET: C54775, C54776, C54777 and C54778

Rosenberg, MacPherson and Cronk JJ.A.

IN THE MATTER OF the
Land Transfer Tax Act
,
    R.S.O., c. L.6, as amended

BETWEEN

Omers Realty Corporation, Omers Administration
    Corporation and Price Waterhouse Coopers Inc.

Appellants/ Respondents in Appeal

and

The Minister of Finance

Respondent/Appellant in Appeal

Sara Blake, Lori Patyk, and Ananthan Sinnadurai, for the
    appellant

Joseph M. Steiner, for the respondents

Heard: June 7, 2012

On appeal from the judgment of Justice Thomas R. Lederer
    of the Superior Court of Justice, dated November 16, 2011.

ENDORSEMENT

[1]

The Ontario Minister of Finance appeals from the judgment of Lederer J.
    of the Superior Court of Justice dated November 16, 2011, holding that the
    Ontario Municipal Employees Retirement System (OMERS) Board and two of its subsidiaries
    were Crown agencies and therefore did not have to pay taxes under the
Land
    Transfer Tax Act
, R.S.O. 1990, c. L.6 (the 
LTTA
).

[2]

The appellant contends that the motion judge erred in two respects: (1)
    in finding that OMERS was a Crown agency within the meaning of the
Crown
    Agency Act
, R.S.O. 1990, c. C. 48 (the 
CAA
); and (2) in finding
    that OMERS subsidiaries, Shoppers World Brampton Holdings Inc. and OMERS
    Realty Corporation, which invested in commercial real estate, were Crown
    agencies within the meaning of the
CAA
.

[3]

We do not accept these submissions. On both issues, we explicitly
    endorse the analysis and conclusions of the motion judge, including his
    analysis of the relevant statutes, regulations, directives and case law.

[4]

On the first issue, the motion judge correctly focussed on the
    Governments
de jure
control of the OMERS Board and, in our view,
    correctly concluded that at the material time, the OMERS Board was a Crown
    agency.

[5]

On the second issue, again after a careful review of the relevant
    statutes, directives and case law, the motion judge concluded:

[T]he statutory scheme exempts Crown agencies, in this case the
    OMERS Board, from having to pay land transfer tax. The scheme recognized that
    the OMERS Board could act through subsidiaries and allowed for subsidiaries
    that held real estate to be wholly-owned. It would be inconsistent with the
    scheme to find that these subsidiaries were not Crown agencies and, thus,
    remove the benefit to which the OMERS Board would otherwise be entitled.

We agree with this analysis and conclusion.

[6]

Finally, we note that the application judges conclusion is consistent
    with the position the Minister took from at least 1984 to 1999. In a series of
    formal responses to requests from OMERS, the Minister confirmed, in 1984, 1988,
    1991 and 1995, that the OMERS Board and its subsidiaries were Crown agencies
    for the purposes of the
LTTA
. Typical of these responses was the
    letter from the Ministry on March 9, 1995:

We have now completed our review of this file and wish to
    confirm that we are satisfied that the Ontario Municipal Employees Retirement
    System is indeed a Crown agency and any corporation, such as OMERS Realty
    Corporation, that is wholly owned by them would also be deemed to be a Crown
    agency for purposes of the Land Transfer Tax Act.

[7]

In addition, when the Government decided to change its policy in this
    domain, it did so by enacting a law that expressly provided that OMERS was no
    longer a Crown agency: see
Ontario Municipal Employees Retirement System
    Act
, S.O. 2006, c. 2.

[8]

The appeal is dismissed. The respondents are entitled to their costs of
    the appeal fixed at $30,000, inclusive of disbursements and all applicable
    taxes.

M.
    Rosenberg J.A.

J.C.
    MacPherson J.A.

E.A.
    Cronk J.A.


