Board of Education for the City of Windsor and Windsor Roman

Catholic Separate School Board et al.

[Indexed as: Windsor (City) Board of Education v. Windsor Roman

Catholic Separate School Board]

24 O.R. (3d) 62

[1995] O.J. No. 1689

Court File No. 457D

Ontario Court (General Division), Divisional Court,

White, Moldaver and McDermid JJ.

June 9, 1995

Municipal law -- Taxation -- Error-correcting jurisdiction of municipal council under s. 109(1) of Education Act limited to ratepayers who by law are required to be on assessment list under s. 16(1) of Assessment Act -- Assessment list under s. 16(1) should be confined to Roman Catholic inhabitants -- Council has no jurisdiction under s. 109(1) to pass resolution redirecting taxes of publicly traded corporations from one school board to another -- Assessment Act, R.S.O. 1990, c. A.31, s. 16(1) -- Education Act, R.S.O. 1990, c. E.2, s. 109(1).

After the respondent separate school board examined the assessment roll returned on February 28, 1990, its members concluded that a number of publicly traded corporations had been shown on the roll for the 1990 taxation year as being 100 per cent public, thereby depriving the separate school board of assessments properly due to it, and that a number of private corporations had, by error, been shown as 100 per cent public, when they should have been shown as separate. The separate school board applied to the Municipal Council for the City of Windsor (the "Council") under what is now s. 109 of the Education Act "to correct the school support direction of publicly traded corporations and subsidiaries". The Council passed a resolution pursuant to s. 109(1) "to correct errors on the school support direction for the year 1990 by correctly dividing the school taxes of certain publicly-traded corporations", ordering that "the total sum of the correction", $717,477, "be deducted from the Board of Education's transfer payments for the year 1995 and transferred to the Roman Catholic Separate School Board". All parties conceded that only $560,485 of the $717,477 figure was attributable to alleged errors concerning publicly traded corporations, and that the balance was attributable to private corporations whose school support had allegedly been improperly designated as public instead of separate.

The applicant brought an application for judicial review to quash the resolution.

Held, the application should be allowed.

Section 109(1) of the Education Act allows the council of any municipality to redirect the school taxes of ratepayers who, through mistake or inadvertence, have been shown on "the list prepared by the assessment commissioner under s. 16 of the Assessment Act either as a supporter of separate schools or as a supporter of public schools". Section 16 directs the assessment commissioner to prepare a list showing "the school support of every inhabitant who is entitled to direct taxes for school support purposes". Publicly traded corporations are not "inhabitants entitled to direct taxes". The Education Act mandates that the taxes derived from these corporations be divided proportionately between the separate and public school boards. The Council's error-correcting jurisdiction under s. 109(1) is limited to a consideration of those ratepayers who, by law, are required to be on the s. 16(1) Assessment Act list.

The list prepared pursuant to s. 16(1) should be confined to Roman Catholic inhabitants. It is only Roman Catholic individuals, partners, shareholders in private corporations and tenants who have been enfranchised to direct their taxes for school support purposes.

Section 40 of the Assessment Act provides a complete remedy designed to deal with the very type of problem which the separate board encountered in this case.

The Council would likely have had the necessary jurisdiction under s. 109(1) of the Education Act to rectify the distribution of tax moneys attributable to the private corporations, as these corporations should have been included on the s. 16(1) Assessment Act list. However, the Council's purported attempt to redistribute the $156,992 in issue could not be allowed to stand. First, the impugned resolution did not segregate the $156,992 in tax moneys ascribed to private corporations from the $560,485 attributable to publicly traded corporations. Instead, it lumped the two together and referenced the entire amount of $717,477 to publicly traded corporations. It did not lie with the court to rewrite the resolution. Secondly, s. 109(1) of the Education Act allows the Council to correct errors, but only after due inquiry and notice. Although the two boards received notice of the s. 109(1) inquiry, no such notice was given to the private corporations directly affected. Such notice was essential and the Council's failure to provide for it amounted to a fundamental breach of the rules of natural justice and procedural fairness.

Statutes referred to

Assessment Act, R.S.O. 1990, c. A.31, ss. 1 "person", 14(4), 15, 16, 36(1), (2), 40(1)(c), (2), (9), (10), (11)

Education Act, R.S.O. 1980, c. 129, ss. 123, 126, 126a -- now R.S.O. 1990, c. E.2, ss. 109, 112, 113

Education Act, R.S.O. 1990, c. E.2, ss. 1 "separate school supporter", 106, 107, 108(1), (2), 109(1), 111, 112, 113, 230(1)

Education Statute Law Amendment Act, 1989, S.O. 1989, c. 65

Municipal Act, R.S.O. 1990, c. M.45, s. 373(1)

Municipal Elections Act, R.S.O. 1990, c. M.53, ss. 1 "separate school elector", 21

Ottawa-Carleton French-Language School Board Act, R.S.O. 1990, c. O.44, s. 17

APPLICATION for judicial review of a resolution of a municipal council.

Raymond G. Colautti and David M. Musyj, for applicant.

Paul L. Mullins, for respondent, Windsor Roman Catholic School Board.

P.T. Brode, for respondent, City of Windsor.

BY THE COURT: -- This application for judicial review concerns the scope of a municipal council's jurisdiction under s. 109(1) of the Education Act, R.S.0. 199O, c. E.2. That section reads:

109(1) If, after the return of the assessment roll, it appears to the council of any municipality that through mistake or inadvertence a ratepayer has been entered on the list prepared by the assessment commissioner under section 16 of the Assessment Act either as a supporter of separate schools or as a supporter of public schools, the council after due inquiry and notice may correct the error by directing the school taxes of the ratepayer to be paid to the proper school board, but the council is not competent to reverse the decision of the Assessment Review Board, the Ontario Municipal Board or a court on appeal.

Purporting to act under that provision, the Municipal Council for the City of Windsor ("Council") adopted the following resolution on May 30, 1994:

654/94. That the application of the Roman Catholic Separate School Board (Paul Mullins, Solicitor) pursuant to s. 109 of the Education Act to correct errors on the school support direction for the year 1990 by correctly dividing the school taxes of certain publicly traded corporations BE APPROVED and the total sum of the correction, in the amount of $717,477 be deducted from the Board of Education's transfer payments for the year 1995 and transferred to the Roman Catholic Separate School Board.

The Board of Education for the City of Windsor (the "public board") now seeks to quash this resolution on various grounds, broadly falling under two heads:

(a) that Council lacked the jurisdiction under s. 109(1) of the Education Act to pass the resolution; and

(b) that alternatively, if Council did have the necessary jurisdiction, it exceeded its jurisdiction by failing to comply with the rules of natural justice and procedural fairness in arriving at the decision to adopt the resolution.

Both the Windsor Roman Catholic Separate School Board (the "separate board") and the Corporation of the City of Windsor (the "City") have responded. Each has taken the position that Council possessed the necessary jurisdiction to pass the resolution in question and each has maintained that Council complied with the rules of natural justice and procedural fairness in the exercise of its jurisdiction.

Before dealing with the legal issues raised, it is necessary to briefly set out the background facts giving rise to the impugned resolution.

BACKGROUND FACTS

The City is responsible for the collection of property and business taxes within the City of Windsor. It collects taxes on behalf of the public board and the separate board.

Pursuant to s. 373(1) of the Municipal Act, R.S.O. 1990, c. M.45, both boards are required to determine the rates to be levied by the City to provide the sums required for elementary and secondary school purposes in a particular year. Once those rates have been determined, the boards are then required to specify the amount that is to be provided for the particular year by the application of those rates within the City. The City then strikes a mill rate and levies it against the ratepayers within its jurisdiction.

In determining the amount of the requisition to be levied in any particular year, a critical factor is the amount of the assessment assigned to the respective boards.

Prior to December of 1989, the assessment of publicly traded corporations was accredited exclusively to public school boards. This changed dramatically on December 14, 1989, when royal assent was given to the Education Statute Law Amendment Act, 1989, S.O. 1989, c. 65. That Act (sometimes referred to as the "full funding legislation") amended the Education Act, R.S.O. 1980, c. 129, in a number of significant ways, including the addition of s. 126a (now s. 113) to s. 126 (now s. 112).

Section 126a created a new scheme for the distribution of tax revenues derived from publicly traded corporations. After defining the term "public corporation" in s. 126a(1), s. 126a(3) provided:

126a(3) An assessment of a public corporation in a municipality shall be rated and assessed for separate school purposes in the same proportion to the total assessment of the public corporation in the municipality as the residential and farm assessment rated and assessed for separate school purposes in the municipality bears to the total residential and farm assessment in the municipality.

As a result of this amendment, the property and business tax assessment of publicly traded corporations was to be shared between public and separate school boards, in proportion to the residential and farm assessment which each board was entitled to in any given municipality.

It was, of course, necessary that the changes mandated by s. 126a(3) be reflected in the assessment rolls. To that end, s. 126a(5) provided:

126a(5) The assessment commissioner shall enter the public corporation on the assessment roll to be next returned as a separate school supporter with respect to the proportion of its assessment in the municipality determined by subsection (3) and the remainder of the assessment of the public corporation shall be separately entered and assessed for public school purposes.

Since the changes made by s. 126a were to take effect immediately, this meant that the 1989 assessment roll had to reflect the proportionate assessment now attributable to publicly traded corporations. This created problems because s. 36(1) of the Assessment Act, R.S.O. 1990, c. A.31, directed that the annual assessment rolls were to be returned to the clerk of the municipality by "no later than the third Tuesday following the first day of December in the year in which the assessment is made".

As a result, for the 1990 taxation year, an extension of the time for the return of the assessment rolls was granted pursuant to s. 36(2) of the Assessment Act and the assessment rolls were ultimately returned on February 28, 1990.

Section 40(1)(c) of the Assessment Act provided that any person, including a school board, could complain in writing to the Assessment Review Board that "he, she, it or another person was wrongly placed on or omitted from the roll in respect of school support". However, s. 40(2) required that any such complaint "be delivered or mailed to the regional registrar of the Assessment Review Board within twenty-one days after the assessment roll is required to be returned or within twenty-one days after the roll is returned, whichever is later".

For the purposes of the case at hand, this meant that if either school board wished to register a s. 40(1)(c) complaint, such a complaint would have to be delivered or mailed to the regional registrar by no later than March 20, 1990, that is, 21 days after the February 28 return of the assessment roll.

Based on the affidavit material filed, it would appear that after the separate board had had an opportunity to study the assessment roll returned on February 28, 1990, its members concluded that (a) a number of publicly traded corporations had been shown on the roll for the 1990 taxation year as being 100 per cent public, thereby depriving the separate board of assessment properly due to it, and (b) that a number of private corporations had, by error, been shown as 100 per cent public, when they should have been shown as separate. (It should here be noted that pursuant to s. 112 of the Education Act, partnerships and private corporations composed, in whole or in part, of Roman Catholic partners and shareholders respectively, could require the whole or a portion of their assessment to be entered, rated and assessed for separate school purposes.)

By the time the separate board discovered these alleged errors, the 21-day complaint period for assessment review had long since passed.

As a result, on November 12, 1991, the separate board made an application to Council pursuant to s. 123 of the Education Act (now s. 109) "to correct the school support direction of publicly traded corporations and subsidiaries" (see affidavit of Robert Duerno, Application Record of the Public Board, ex. D, p. 55). (We note at this juncture that the application referred only to alleged errors concerning publicly-traded corporations and not private corporations.)

For reasons which need not be elaborated upon, the hearing of the s. 109 application before Council did not occur until May 30, 1994. Suffice it to say that in the interim, despite efforts by both boards to resolve their differences, the negotiations proved unsuccessful.

At the hearing on May 30, 1994, counsel for the public board raised a number of objections going to the jurisdiction of Council to entertain the separate board's application. These arguments were rejected and Council ultimately adopted the resolution which forms the subject matter of this application. For convenience sake, that resolution is again reproduced:

the total sum of the correction, in the amount of $717,477 BE DEDUCTED from the Board of Education's transfer payments for the year 1995 and transferred to the Roman Catholic Separate School Board.

On the face of this resolution, the dollar amount of $717,477 is said to represent the amount of school taxes of "certain publicly traded corporations" for the year 1990 which, but for error, should have been directed to the separate board. In fact, based upon the material before Council, it was conceded by all parties that only $560,485 of the $717,477 figure was attributable to alleged errors concerning publicly traded corporations. The balance, namely, $156,992 was attributable to private corporations whose school support had allegedly been improperly designated as public instead of separate.

LEGAL ANALYSIS

Although the applicant public board raised a number of separate and distinct issues concerning the jurisdiction of Council to pass the disputed resolution, we consider it unnecessary to deal with the vast majority of these issues. Instead, we have chosen to focus our attention on the two issues which we consider to be fundamental. The first relates to the jurisdiction of Council, under s. 109(1) of the Education Act, to correct alleged errors concerning publicly traded corporations; the second, to the procedure which Council adopted in arriving at its decision to correct errors concerning the private corporations.

Issue I

Did

the City have the jurisdiction under s. 109(1) of the Education Act to correct errors by directing that school taxes derived from publicly-traded corporations be paid to the proper school board?

We begin our analysis by reproducing s. 109(1) of the Education Act:

While by no means a model of clarity, it can be safely concluded that s. 109(1) allows the council of any municipality to redirect the school taxes of ratepayers, who, through mistake or inadvertence, have been shown on "the list prepared by the assessment commissioner under section 16 of the Assessment Act either as a supporter of separate schools or as a supporter of public schools". From this, it is apparent that the "error correcting" jurisdiction of council is limited in scope. The section does not cloak council with the authority to correct errors attributable to the improper categorization of ratepayers in general. Instead, it specifically focuses council's attention on those ratepayers who, through mistake or inadvertence, have been incorrectly shown on the s. 16 Assessment Act list as supporters of separate schools or public schools.

It follows, therefore, that in order to determine the scope of council's "error correcting" jurisdiction under s. 109(1), it is first necessary to determine what category of ratepayer the s. 16 Assessment Act is meant to include. The answer to this is found in s. 16(1) of the Assessment Act. It reads:

16(1) The assessment commissioner shall, in each year, prepare a list showing the school support of every inhabitant who is entitled to direct taxes for school support purposes for each municipality or locality in the commissioner's assessment region and shall deliver the list to the secretary of each school board in the municipality or the locality on or before the 30th day of September in each year.

(Emphasis added)

The plain wording of this provision reveals that the legislature did not intend the s. 16(1) list to include the school support of every ratepayer. Instead, the list was meant to show only the school support of those inhabitants "entitled to direct taxes for school support purposes".

That being so, it becomes necessary to determine whether publicly traded corporations can be categorized as "inhabitants entitled to direct".

We have no hesitation in concluding that they cannot. As of December 1989, s. 126a(3) (now s. 113(3)) of the Education Act mandated that the taxes derived from these corporations be divided proportionately between the separate and public school boards.

In view of this, it is our opinion that the names of those corporations should never have found their way onto the s. 16(1) Assessment Act list. The fact that the Assessment Commissioner may, through inadvertence or mistake, have erred in the preparation of this list by including such corporations cannot be used by Council as a means for enhancing the scope of its s. 109(1) jurisdiction.

We are all of the view that Council's "error-correcting" jurisdiction under that provision is limited to a consideration of those ratepayers who, by law, are required to be on the s. 16(1) Assessment Act list. Council had no jurisdiction to consider ratepayers who, by law, should never have been shown on the list.

Given that publicly traded corporations fall into this latter category, we are of the view that Council exceeded its jurisdiction when it purported, by way of resolution, to re-direct publicly traded corporate tax moneys from one board to the other.

This alone would be sufficient to dispose of Issue 1.

However, during the course of argument, we were advised by counsel for the respondents that it has been a long-standing practice prevalent throughout this province, for assessment commissioners to include, on the s. 16(1) Assessment Act list, the name and school support of every ratepayer in the commissioner's municipality or locale. If this is so, and we have no reason to believe otherwise, we think that this practice is wrong and it should be discontinued.

Under the present system, all taxes, other than those derived from publicly traded corporations, are directed to the public schools unless an inhabitant takes the active step of directing his, her or its taxes to the separate schools.

Section 230(1) of the Education Act defines the term "public school supporter" to mean "a ratepayer who is not a separate school supporter".

Section 1 of the Education Act defines a "separate school supporter" as follows:

"separate school supporter" means a Roman Catholic ratepayer,

(a) in respect of whom notice of school support has been given in accordance with section 106 and notice of withdrawal of support has not been given under section 107,

(b) who is shown as a separate school supporter on the school support list as prepared or revised by the assessment commissioner under section 16 of the Assessment Act, or

(c) who is declared to be a separate school supporter as a result of a final decision rendered in proceedings commenced under the Assessment Act.

and includes the Roman Catholic spouse of such ratepayer;

In view of these provisions, it seems apparent to us that it is only Roman Catholic inhabitants who are entitled to direct their taxes to separate schools. We are further of the view that the word "inhabitants" in s. 16(1) of the Assessment Act includes Roman Catholic individuals, partners, shareholders in private corporations and tenants (see ss. 106, 111 and 112 of the Education Act). It is these inhabitants and these inhabitants alone who have been enfranchised to direct their taxes for school support purposes.

It follows therefore, in our opinion, that the list prepared pursuant to s. 16(1) should be confined to Roman Catholic inhabitants. Furthermore, we believe that this interpretation of the s. 16(1) list dovetails with our analysis of Council's "error correcting" jurisdiction under s. 109(1) of the Education Act.

In this regard, we note at the outset that s. 109(1) finds its place in Part IV of the Education Act, entitled "ROMAN CATHOLIC SEPARATE SCHOOLS".

Furthermore, it will be recalled that under s. 109(1), Council is entitled to redirect tax moneys to one board or the other, where, through mistake or inadvertence, a ratepayer has been entered on the s. 16(1) list "either as a supporter of separate schools or as a supporter of public schools" (emphasis added). In other words, where for example, council is satisfied, after notice and due inquiry, that a Roman Catholic inhabitant is in fact a separate school supporter but that, through mistake or inadvertence, he, she or it has been shown on the s. 16(1) school support list as a public school supporter, council may rectify the error and redirect the school taxes to the proper board. That, in our view, is the kind of situation envisaged by s. 109(1), for which council has been provided curative powers.

Our conclusion that the s. 16(1) list should be limited to Roman Catholic inhabitants is supported in several additional ways.

First, we note s. 16(2) and (3) of the Assessment Act. They provide:

16(2) Subject to subsection (3), the list referred to in subsection (1) shall be prepared on the basis of information contained in the enumeration, including updates thereto under subsection 15(6), that has been completed by the assessment commissioner on or before the 30th day of September in that year.

(3) Any person may apply to the assessment commissioner to have that person's name included or altered in the assessment roll as a separate school supporter, if the person is a Roman Catholic, or a public school supporter and the assessment commissioner may make the addition or alteration.

These provisions make it apparent that save and except for the additions and alterations sought by persons under s. 16(3) (which, by virtue of the definition of "person" in s. 1 of the Assessment Act, include private corporations and partnerships), the assessment commissioner is to prepare the s. 16(1) list on the basis of information contained in the enumeration.

Section 15 of the Assessment Act speaks to the subject of "enumerations". In particular, s. 15(4) states that the enumeration taken under s. 15 "shall be the enumeration referred to in the Municipal Elections Act".

Section 21 of the Municipal Elections Act, R.S.O. 1990, c. M.53, sets out the information which must be contained in the enumeration list. That provision provides:

21. An assessment commissioner shall, on or before the 31st day of July in an election year, from the latest enumeration and from data received from other sources, compile for each polling subdivision in each municipality and locality in the assessment region an enumeration list containing the name and address of each person who meets the requirements for an elector under subsection 13(1) or subsection 14(1) and such list shall signify opposite the name of an elector,

(a) who does not reside in the municipality, that he or she does not so reside;

(b) who is enumerated as a Roman Catholic separate school supporter, that he or she is a separate school elector;

(c) who is a Roman Catholic and the spouse of a Roman Catholic separate school supporter, that such spouse is a separate school elector;

(d) who is enumerated as a separate school elector in accordance with the Education Act, that he or she is a separate school elector;

(e) who is an owner or tenant of land in the municipality, that he or she is such an owner or tenant;

(f) who is a separate school elector or a public school elector, that the elector has chosen to vote to elect members of the French-language section, or the English-language section, of a board under Part XIII of the Education Act;

(g) who is an elector for Roman Catholic or public sector of The Ottawa-Carleton French-language School Board under the Ottawa-Carleton French-Language School Board Act, that the elector is such an elector.

Section 1 of the same Act defines a "separate school elector" as follows:

"separate school elector" means an elector who is a Roman Catholic separate school supporter or who is a Roman Catholic and the spouse of such supporter and any person entitled to be a separate school elector under the Education Act . . .

While not in and of itself conclusive, it can safely be said that the only "school support" information which s. 21 of the Municipal Elections Act seeks is information from Roman Catholics concerning separate school support. That being so, it follows that the s. 16(1) Assessment Act list, which is to be prepared (subject to s. 16(3)) on the basis of information contained in the enumeration, is only meant to show the school support of Roman Catholic inhabitants.

Secondly, in support of our conclusion that the s. 16(1) list is to be restricted to Roman Catholic inhabitants, we note s. 14(4) of the Assessment Act. That provision provides:

14(4) In the preparation of the assessment roll, the assessment commissioner, in determining the names and school support of those persons entitled to direct taxes for school support purposes, shall be guided by the index books provided for in the Education Act, by the applications for direction of school taxes received and approved by the assessment commissioner under section 16 of this Act and by the notices received under section 112 of the Education Act and section 17 of the Ottawa-Carleton French-Language School Board Act.

In this section, as in s. 16(1), the words "entitled to direct taxes for school support purposes" are found. However, s. 14(4) deals with the assessment roll and in particular, the sources which the assessment commissioner must look to in determining the names and school support of those persons who are "entitled to direct taxes for school support purposes".

A consideration of.the sources referred to in s. 14(4) proves instructive.

The first of these is the index books provided for in the Education Act. Section 108 of that Act prescribes the content of these books. In particular, s-ss. (1) and (2) provide:

108(1) The clerk of every municipality shall keep entered in an index book (Form I) and in alphabetical order, the name of every person who has given to the clerk, or to any former clerk of the municipality, notice in writing that such person is a Roman Catholic and a supporter of a separate school in or contiguous to the municipality, as provided by sections 106, 111 and 112 or by former Acts respecting separate schools.

(2) The clerk shall enter opposite the name, in a column for that purpose, the date on which the notice was received, and in a third column opposite the name any notice by such person of withdrawal from supporting a separate school, as provided by section 107, or by any such other Act, with the date of the withdrawal, or any disallowance of the notice by the Assessment Review Board, the Ontario Municipal Board or a court, with the date of the disallowance.

Again, while not conclusive, it is apparent that these books are concerned only with Roman Catholic separate school supporters who have either directed that their taxes go to support the separate school system under ss. 106, 111 or 112 of the Education Act, or those who have withdrawn such support under s. 107 of the same Act.

The second of these guide-posts is "the applications for direction of school taxes received and approved by the assessment commissioner under section 16 of this Act". These are the applications referred to in s. 16(3) of the Assessment Act, reproduced in full earlier in these reasons.

While it is true that the section refers to the inclusion or alteration in the assessment roll of both separate school supporters and public school supporters, these applications can certainly serve as a source from which the assessment commissioner may determine the names and school support of Roman Catholics, who, as we have already seen, stand alone in their entitlement to direct taxes for school support.

The third of these sources is "the notices received under section 112 of the Education Act and section 17 of the Ottawa-Carleton French-Language School Board Act".

Section 112 of the Education Act deals with the entitlement of partnerships and private corporations to have the whole or any part of their assessments entered, rated and assessed for separate school purposes, so long as some or all of the shareholders of the private corporation are Roman Catholic or, in the case of partnerships, some or all of the partners are Roman Catholic. This again would suggest that the phrase "entitled to direct taxes for school support purposes", is meant to apply only to Roman Catholics. (Parenthetically, we note that by virtue of s. 112(2) of the Education Act, that provision does not apply to publicly traded corporations.)

As for s. 17 of the Ottawa-Carleton French-Language School Board Act, R.S.O. 1990, c. O.44, it is little more than a restatement of the provisions found in s. 112 of the Education Act, contextually related to private corporations and partnerships governed by the Ottawa-Carleton French-Language School Board Act.

In our view, the foregoing analysis serves only to reinforce our conclusion that the s. 16(1) Assessment Act list is only meant to include the names and school support of Roman Catholic inhabitants and no one else.

It may be suggested that the interpretations which we have placed on s. 16(1) of the Assessment Act, and s. 109(1) of the Education Act are unduly restrictive and have the effect of leaving school boards without a remedy in cases like the one at hand, where mistakes have allegedly been made concerning the proper distribution of tax moneys. We do not accept this suggestion.

In our view, s. 40 of the Assessment Act provides a complete remedy designed to deal with the very type of problem which the separate board encountered in this case. In particular, we have in mind s. 40(1), (9), (10) and (11) which provide:

40(1) Any person, including a municipality or a school board, may complain in writing to the Assessment Review Board that he, she, it or another person,

(a) was assessed too high or too low;

(b) was wrongly placed on or omitted from the assessment roll;

. . . . .

(9) Liability in respect of public or separate school support shall be determined in accordance with the circumstances existing at the time the complaint was made.

(10) Where it appears during the hearing that there are palpable errors in the assessment roll, if no alteration of assessed values is involved, the Board may correct the roll and, where alteration of assessed values is involved, the Board may extend the time for making complaints and the assessor may be or may be directed by the Board to be the complainant.

(11) After hearing the evidence and the submissions of the parties, the Board shall determine the matter and, in complaints involving value, shall determine the amount of the assessment.

In concluding that s. 40 of the Assessment Act provides a complete remedy, we have not ignored the s. 40(2) 21-day limitation period within which complaints must be made; nor have we ignored the affidavit evidence from the separate board in this case concerning its inability to conform to those time strictures. Sympathetic though we may be to that board's plight, this cannot be used as the yardstick by which to measure the jurisdiction of Council under s. 109(1) of the Education Act.

For all of these reasons, we have concluded that Council exceeded its jurisdiction when it purported, pursuant to s. 109(1) of the Education Act, to rectify the distribution of tax moneys emanating from publicly traded corporations. Issue I is therefore answered in the affirmative.

Issue II

Did

Council exceed its jurisdiction under s. 109(1) when it purported to correct errors concerning the distribution of tax moneys from various private corporations?

This aspect of the application relates to a number of private corporations listed in Sch. "E" in the affidavit of Robert Duerno: see Application Record of Public Board, p. 114. In his affidavit at para. 20, Mr. Duerno stated:

The amounts shown on Schedule "E" totalling $156,992.00 represents assessments which the Windsor Roman Catholic Separate School Board had claimed had switched assessments in 1989 from the public to the separate school board. (Application Record p. 30.)

Further information about these corporations is found in the affidavit of Robert Trudell. In para. 20 at p. 7 of the City Respondent's Record, he stated:

The Corporations as shown on part "E" are private and were by error shown as 100% public, when they should have been shown as separate.

Although the evidence is not entirely clear, we are prepared to assume for the purposes of this application that the private corporations in question were ones coming within the purview of s. 112 of the Education Act, such that they could, in whole or in part, direct their taxes to the separate school system.

That being so, in view of our earlier conclusions, these corporations should have been included on the s. 16(1) Assessment Act list. It follows, therefore, that Council would likely have had the necessary jurisdiction under s. 109(1) of the Education Act to rectify the distribution of tax moneys attributable to these corporations. (We are not prepared to conclude definitively that Council did have the necessary jurisdiction in view of submissions by the applicant public board to the effect that s. 109(1) was not meant to allow the separate board to apply in November of 1991 to rectify errors relating to 1990. We specifically refrain from deciding that issue.)

Despite our conclusion that Council may well have had the jurisdiction to deal with the private corporations, we are nonetheless of the view that Council's purported attempt to redistribute the $156,992 in issue cannot be allowed to stand. Our reasons are two-fold.

First, we note that the impugned resolution does not segregate the $156,992 in tax moneys ascribed to private corporations from the $560,485 attributable to publicly traded corporations. Instead, it lumps the two together and references the entire amount of $717,477 to publicly traded corporations.

Although counsel for the respondents attempted to characterize this flaw as a mere technicality, we have not been persuaded that it lies with us to, in effect, re-write the resolution.

Secondly, we note that s. 109(1) of the Education Act allows Council to correct errors, but only after due inquiry and notice.

The record before us indicates that although the two boards received notice of the s. 109(1) inquiry, no such notice was given to the private corporations directly affected. In our opinion, such notice was essential and Council's failure to provide for it amounted to a fundamental breach of the rules of natural justice and procedural fairness.

CONCLUSION

For all of these reasons, resolution 654/94 passed by the City of Windsor on May 30, 1994 is hereby quashed.

COSTS

In our view, this application has raised several novel points previously undecided. The dispute between the two school boards was generated, at least in part, by the "full funding" legislation enacted in December of 1989. Throughout, both boards have acted in good faith. The City has not asked for costs, and neither board has sought costs from it. Under all of the circumstances, we have concluded that there should be no order as to costs.

Application allowed.