SCC File No. 36403 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF ALBERTA) BETWEEN: THE CITY OF EDMONTON APPELLANT (Appellant) - and - EDMONTON EAST (CAPILANO) SHOPPING CENTRES LIMITED (AS REPRESENTED BY AEC INTERNATIONAL INC.) RESPONDENT (Respondent) - and- THE ASSESSMENT REVIEW BOARD FOR THE CITY OF EDMONTON BRITISH COLUMBIA ASSESSMENT AUTHORITY ATTORNEY GENERAL OF BRITISH COLUMBIA INTERVENERS
______FACTUM OF THE RESPONDENT, EDMONTON EAST (CAPILANO) SHOPPING CENTRES LIMITED (AS REPRESENTED BY AEC INTERNATIONAL INC.) (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada) ______
Wilson Laycraft Gowling Lafleur Henderson LLP Barristers and Solicitors Barristers and Solicitors 333 - 11th Avenue S.W., Suite 1601 160 Elgin Street, Suite 2600 Calgary, AB T2R 1L9 Ottawa, Ontario K1P 1C3 Telephone: (403) 290-1601 Telephone: (613) 786-0171 Facsimile: (403) 290-0828 Facsimile: (613) 788-3587 Email: [email protected] Email: [email protected] Gilbert J. Ludwig, Q.C Jeffrey W. Beedell Counsel for the Respondent, Ottawa Agent for Counsel for the Respondent, Edmonton East (Capilano) Shopping Centres Edmonton East (Capilano) Shopping Limited (as represented by AEC Centres Limited (as represented by International Inc.) AEC International Inc.)
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City of Edmonton McAnsh Law 9th Floor, Chancery Hall Barristers and Solicitors 3 Sir Winston Churchill Square 44 Chestnut Street Edmonton, AB T5J 2C3 Ottawa, ON K1S 1A1 Telephone: (780) 496-7200 Telephone: (613) 294-1156 Facsimile: (780) 496-7267 Facsimile: (613) 482-5177 Email: [email protected] Email: [email protected] Cameron J. Ashmore Scott McAnsh Counsel for the Appellant, Ottawa Agent for Counsel for the Appellant, City of Edmonton City of Edmonton
Emery Jamieson Gowling Lafleur Henderson LLP Barristers and Solicitors Barristers and Solicitors 10235 - 101 Street, Suite 1700 160 Elgin Street, Suite 2600 Edmonton, AB T5J 3G1 Ottawa, Ontario K1P 1C3 Telephone: (780) 970-6279 Telephone: (613) 786-8695 Facsimile: (780) 420-6277 Facsimile: (613) 788-3509 Email: [email protected] Email: [email protected] Katharine L. Hurlburt D. Lynne Watt Counsel for the Intervener, Ottawa Agent for Counsel for the Intervener, Assessment Review Board for the City of Assessment Review Board for the City of Edmonton Edmonton
Crease Harman & Company Supreme Advocacy LLP Barristers and Solicitors Barristers and Solicitors 1070 Douglas Street, 8th Floor 340 Gilmour Street, Suite 100 Victoria, BC V8W 2S8 Ottawa, ON K2P 0R3 Telephone: (250) 388-5421 Telephone: (613) 695-8855 Facsimile: (250) 388-4294 Facsimile: (613) 695-8580 Email: [email protected] Email [email protected] R. Bruce Hallsor Marie-France Major Colin G. Simkus Ottawa Agent for Counsel for the Intervener, Counsel for the Intervener, British Columbia Assessment Authority British Columbia Assessment Authority
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Attorney General of British Columbia Burke-Robertson 1301 - 865 Hornby Street Barristers & Solicitors Vancouver, BC V6Z 2G3 441 MacLaren Street, Suite 200 Telephone: (604) 660-3093 Ottawa, ON K2P 2H3 Facsimile: (604) 660-6797 Telephone: (613) 236-9665 Facsimile: (613) 235-4430 Sarah Bevan Email: [email protected] Counsel for the Intervener, Attorney General of British Columbia Robert E. Houston, Q.C. Ottawa Agent for Counsel for the Intervener, Attorney General of British Columbia
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TABLE OF CONTENTS
PART I – OVERVIEW AND FACTS...... 1 A. OVERVIEW ...... 1 i. Overview of Respondent’s Position...... 1 ii. Decisions in the Courts Below ...... 4 a) Court of Queen’s Bench...... 4 b) Court of Appeal...... 5 B. FACTS ...... 6 i Capilano’s Complaint ...... 6 ii. City Assessor Threatens to Seek an Increase ...... 6 iii. The Hearing ...... 7 PART II – RESPONDENT’S POSITION WITH RESPECT TO APPELLANT’S PROPOSED QUESTIONS ...... 8 A. Standard of Review: Does a statutory appeal provision rebut the presumption of reasonableness when a tribunal is interpreting its home statute or a closely related statute? ...... 8 B. Standard of Review: In determining whether legislative intent rebuts the presumption of reasonableness, how should the statutory appeal clause and other factors be considered? ...... 9 C. Assessment Law Policy: Did the tribunal have the jurisdiction to decide that the underlying policies of fairness and equity allow a tribunal to increase a property assessment at the request of a municipality? ...... 10 PART III – STATEMENT OF ARGUMENT ...... 11 A. STANDARD OF REVIEW ...... 11 i. Contextual Approach Should Not Be Curtailed...... 11 ii. Standard of Review Analysis ...... 12 a) Statutory Right of Appeal ...... 13 b) The ARB is Not an Expert Tribunal ...... 13 c) The Presumption of Expertise is Rebutted ...... 15 d) Deference to a Tribunal that Lacks Institutional Independence ...... 18 e) Purpose of the Assessment Appeal Provisions of the MGA ...... 20 f) The Nature of the Question ...... 21 g) What is the Significance of a Statutory Appeal Clause? ...... 21 h) Is Shared Jurisdiction of Tribunals and Courts an Exception to the Presumption of Reasonableness? ...... 23 i) Legislative Intent on Questions of Importance ...... 25
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iii. No One Factor Should Be Privileged Over Others in the Contextual Approach .. 25 iv. True Jurisdictional Questions: Another Exception to the Presumption of Reasonableness ...... 26 B. ON THE MERITS: THE CARB’S INTERPRETATION IS UNREASONABLE: THE CITY COULD NOT CROSS-APPEAL AND THE BOARD COULD NOT INCREASE THE ASSESSMENT ...... 28 i. The New System ...... 30 a) Only an Assessed Person or Taxpayer May Complain ...... 30 b) Limits on Subject Matter of the Appeal & Jurisdiction of the Board ...... 30 c) Section 9(1) of MRAC ...... 31 d) Municipality Cannot Change Assessment During the Appeal Process (ss. 305(5)) ...... 32 e) Statutory Appeal Clause (ss. 470 (5)) - Test for Leave to Appeal ...... 32 ii. An Assessment Cannot Be Amended as a Result of a Change of Opinion of Value (s. 305) ...... 33 iii. The City Did Not File a Complaint. It is Not a Complainant ...... 38 C. CONCLUSION ...... 39 PART IV – COSTS ...... 40 PART V – ORDERS SOUGHT ...... 40 PART VI – TABLE OF AUTHORITIES ...... 41 PART VII – STATUTORY PROVISIONS ...... 46
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PART I – OVERVIEW AND FACTS
A. OVERVIEW i. Overview of Respondent’s Position
In sum, without administrative tribunals, the rule of law in the modern regulatory state would falter and fail. Tribunals offer flexible, swift and relevant justice. In an age when access to justice is increasingly lacking, they help to fill the gap. And there is no going back.
Yet the rise of administrative tribunals posed a problem. How could we have all the benefits of tribunal justice, and still maintain the rule of law? How, it was asked, could the public be sure that government-appointed tribunal members would hold fair hearings and stay within the ambit of their administrative powers? Would the gains made in the long fight for rights and fair adjudication before the courts be lost when appointed board members – accountable to no one but the government they hoped would re-appoint them – decide the rights and wrongs of peoples’ disputes with each other and with the state?1
1. This appeal raises two issues: A.) What standard of review applies to a decision of an Assessment Review Board (“ARB”) on questions of law or jurisdiction where there is a statutory right of appeal, and, if reasonableness is the presumptive standard, is the presumption rebutted by a contextual analysis in this case? Secondary to that question, should any one factor in the contextual analysis be privileged over other factors? and B.) Under the Alberta Municipal Government Act2, does an ARB have authority or jurisdiction to allow the municipality to act as a de facto complainant?
2. On the first question, the Supreme Court of Canada (“SCC”) has stated that a presumption of reasonableness applies when an expert administrative tribunal interprets its home statute, but has left open the suggestion that a contextual analysis may rebut the presumption. In the unusual circumstances of this case, a contextual analysis for standard of review was required. The nature of the question required the interpretation of new legislative provisions as applied to and by a non-expert Board which was in its first year
1 The Right Honourable Beverley McLachlin, P.C. Chief Justice of Canada, Administrative Tribunals and the Courts: An Evolutionary Relationship, (Speech given at 6th Annual Conference of the Council of Canadian Administrative Tribunals, Toronto, Ontario, 27 May 2013) [unpublished] [Respondent’s Book of Authorities (“RBOA”), Tab 62]. 2 Municipal Government Act, RSA 2000, c M-26 [MGA] [Respondent’s Factum, Part VII, Pages 47-71].
2 of operation. The Alberta Court of Appeal (“ABCA”) correctly recognized the intent of the Legislature to preserve the court’s appellate role on important legal questions answered by the Board where hundreds of equivalent lay Boards share the same jurisdiction over questions of valuation and taxation in Alberta.
3. On the second question, the MGA gives no authority to an assessment review board to allow a municipality to act as a complainant or cross-appellant. The Alberta regime is similar to the federal Income Tax regime in which the Federal Court of Appeal has consistently found that the absence of authority conferred by the Income Tax Act3 precludes participation as a complainant or cross-appellant by the Minister in a taxpayer’s appeal. Both courts in Alberta recognized the Board’s treatment of the issue was fundamentally in error, and the absence of any transparency or intelligibility to the decision was fatal. The Board itself recognized its error and reversed position in the year subsequent4. The decision of the ARB is incorrect and fails to meet the standard of reasonableness in any event.
4. The legal issue is whether the Board could increase the taxpayer’s assessment at the City’s request. With respect to a contextual analysis for standard of review, key features of the question and the legal and factual matrix are as follows:
a. The question demands a “yes” or “no” answer and is a pure question of law, answerable outside the particular factual matrix of the case, and with broad-ranging implications for the Alberta municipal taxation complaint scheme as a whole; the decision does not require the exercise of a policy laden discretion;
b. The Board did not have legal expertise; though it recognized the jurisdictional nature of the question posed to it, it did not address relevant arguments in its reasons, or provide any legal analysis for its decision; and
3 Income Tax Act, RSC 1985, c 1 (5th Supp). 4 AEC International Inc. v The City of Edmonton, 2012 ECARB 1064 at paras 36-41 [AEC International 2012] [RBOA, Tab 2].
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c. The legislative scheme itself suggests a less deferential approach. The legislation, as amended in 2010, removed the former intermediate appeal body (the Municipal Government Board (“MGB”)), which reviewed Board decisions de novo and owing no deference, in favour of a single level of appeal to the courts on questions of law of importance and of jurisdiction, after leave to appeal had been granted. This, while perhaps not determinative, is a strong indication that the Legislature intended the courts to intervene, particularly where the legislation required no expert qualifications for tribunal members and no institutional independence from the taxing authority itself.
5. While this Court has found a presumption of deference when an expert tribunal is operating under its “home” statute, that presumption is properly rebutted in this case. Given the of lack expertise of the Board, or justification, transparency or intelligibility of the reasons, the Courts below had no option but to quash the decision and send it back for rehearing in accordance with its direction.
6. In 2010, Alberta dramatically changed the MGA and associated regulations regarding property tax assessment complaints. The new statutory scheme includes strict limits and rules on the complaint procedure, disclosure and a prohibition against hearing issues not identified by the taxpayer on the complaint form. It also bestows on each municipality the power to appoint the tribunal that reviews its own assessments - all members in the case of the Local Assessment Review Board (“LARB”) and the majority in the case of the Composite Assessment Review Board (“CARB”). These are collectively referred to as the ARB.
7. In this case Capilano, the owner of a shopping centre in Edmonton, complained to the ARB about its property tax assessment in the 2011 taxation year. At the ARB, Edmonton’s assessor asked the ARB to increase the assessment based on its change of opinion as to the categorization or class of the shopping centre. The 2010 amendment to s. 305 of the MGA meant that the City was now specifically precluded from making changes to the assessment once an appeal was underway. The assessor could not change
4 the roll pursuant to s. 305, but asked the Board to find that the assessment should be increased in the context of the complaint.
8. At the outset of the Board hearing, Capilano objected that the City was trying to create a brand new assessment, rather than defending the assessment it had prepared. It objected that the City’s actions offended ss. 305(5) of the MGA. There were no prior board or court decisions dealing with the question of whether an assessor could seek an increase in the context of a taxpayer’s complaint under the new regime established by the amended MGA.
9. The Board recognized Capilano’s objections in its reasons for decision, but did not deal with them. The Board increased the assessment without any discussion or determination of its authority to do so under the new provisions of the MGA.
10. In this case an extricable legal question about the extent of the Board’s jurisdiction was at issue in a new statutory scheme. The Alberta Courts followed the direction of the Legislature set out in ss. 470.1(2) of the MGA, and remitted back to the Board with the Court’s opinion on the question of law and jurisdiction. ii. Decisions in the Courts Below
a) Court of Queen’s Bench
11. The Queen’s Bench appeal judge framed the issue as whether the Board erred in deciding on an assessment that was not the subject of the complaint before it, and in doing so, permitted the City to act as a de facto complainant which the legislation expressly does not permit.5
12. The question was described as jurisdictional in nature, resulting in a standard of review of correctness. The Queen’s Bench appeal judge noted that there was no privative clause; the nature of the question was related to the Board’s authority to hear the complaint of a different assessment than that had been rendered by the City. Rooke ACJ found that the Board lacked expertise in determining jurisdiction in contrast to the
5 Edmonton East (Capilano) Shopping Centres Ltd. v Edmonton (City), 2013 ABQB 526 at para 17 [Capilano 2013] [Appellant’s Record, Page 36].
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Court’s expertise, and that, while the purpose of the legislative scheme may support some deference, overall the factors provided for a correctness standard.6
13. Rooke ACJ found that under the new legislation, the City could not act as a de facto appellant, and that the Board erred in law in allowing the City’s request.7 The Board’s decision was cancelled and the matter remitted it to a new panel of the Board for a hearing de novo.8
b) Court of Appeal
14. The City appealed. The ABCA applied a contextual analysis identifying six factors, or “signals” in determining that in these circumstances a correctness standard of review applied:
a. the presence of the statutory right of appeal indicated legislative intent to have the courts play a role in the assessment appeal process;
b. the remedies that the Court could grant on an appeal as set out in the legislation indicated that the Board was bound to follow the Court’s directions on questions of law or jurisdiction;
c. the legislative requirement that a party first obtain leave signalled the Legislature’s intent to have significant legal questions reviewed on a correctness standard;
d. the ARB’s particular expertise was in the valuation of property and that statutory interpretation was not at the core of the board’s expertise. The leave provisions in the legislation recognized the expertise of the superior courts’ interpretation of taxation statutes;
e. the existence of the right of appeal was in keeping with the principle that taxpayers were entitled to have their liability to government determined by ordinary courts; and
6 Ibid at paras 29-31 [Appellant’s Record, Pages 38-39]. 7 Ibid at para 59 [Appellant’s Record, Page 45]. 8 Ibid at paras 2-3 [Appellant’s Record, Page 32].
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f. under the new regime, there are multiple tribunals involved in the assessment process across Alberta, and given the nature of the question before the Court, there was a need for judicial intervention to ensure coherence.9
15. On the merits of the issue, the ABCA also concluded that the statute, considered as a whole, disclosed the intention to permit complaints by the taxpayer only, and that upon filing a complaint, the assessment is fixed until the board renders its decision. The Court held that the legislated complaint procedure does not allow for the municipality to mount a cross-complaint and seek to increase the assessment.10
B. FACTS i Capilano’s Complaint
16. Pursuant to s. 460 of the MGA, Capilano filed a complaint regarding the 2011 assessment of the property located in Edmonton commonly referred to as Capilano Mall. The assessed value complained against was $31,328,500. The Complaint form established the issues or matters to be adjudicated by the ARB: the assessed value to be in excess of any reasonable estimate of actual market value.11
17. On June 6, 2011, Capilano disclosed its documentary evidence, summary of the testimonial evidence, and written argument. Capilano had not, either on its complaint form or in its initial filing with the ARB, raised as an issue either the rental rate attributed to its anchor tenant or the classification of Capilano Mall.12 ii. City Assessor Threatens to Seek an Increase
18. Prior to the City’s disclosure, which was due 14 days prior to the hearing pursuant to ss. 8(2)(b) of Matters Relating to Assessment Complaints Regulation,13 a new assessor, who had not previously been involved with Capilano advised that if the complaint was
9 Edmonton East (Capilano) Shopping Centres Limited v Edmonton (City), 2015 ABCA 85 at paras 24-30 [Capilano 2015] [Appellant’s Record, Pages 59-61]. 10 Ibid at para 40 [Appellant’s Record, Page 63]. 11 Assessment Review Board Complaint [Appellant’s Record, Pages 157-159]. 12 Ibid [Appellant’s Record, Page 162]. 13 Matters Relating to Assessment Complaint Regulation, Alta Reg 310/2009, s 8(2)(b) [MRAC] [Respondent’s Factum, Part VII, Pages 119-120].
7 not withdrawn the City would ask the ARB to increase the assessment.14 Capilano did not withdraw its complaint.
19. In the City’s filing 14 days before the hearing, the City made application to the ARB for a 44% increase in the assessment.15
20. The requested increase was prompted by the assessor changing the categorization of the Capilano Mall from a “Community Centre” to a “Power Centre”, based solely on the fact that in 2006 the mall entrance directly into the Wal-Mart store had been closed.16
21. In the prior year’s appeal of the same property, the owner pointed to the 2006 closing off of the Wal-Mart store as being detrimental to other retail centres located in that area of the mall. This is recorded in the 2010 decision of the ARB, which was reproduced in the City’s materials before the Board. In that year the City’s position was that Capilano was properly classified as a community shopping centre.17 In the year following the Board’s decision (2013), the City attempted again to assess the mall as a “Power Centre”. This was appealed and the Board rejected the City’s categorization.18 The Mall had previously been and was restored to being properly assessed as a “Community Centre” despite the City’s attempts to re-characterize the class of the shopping centre. iii. The Hearing
22. The complaint proceeded to hearing before the ARB July 18, 2011. Capilano raised as a preliminary issue that:
a. The City’s filing (Exhibit R-1) did not meet the requirements of the MGA and that the information should be removed or little weight given to it; and
14 Assessment Review Board Complaint [Appellant’s Record, Pages 157-159]. 15 Exhibit C-2, Page 3 [Appellant’s Record, Page 162]. 16 Exhibit R-1, Pages 1, 19, 27 [Appellant’s Record, Pages 176, 186] [Respondent’s Record, Page 18]; Exhibit C-2, Page 48 [Respondent’s Record, Page 13]. 17 Reasons of the Edmonton Assessment Review Board at para 3 [Appellant’s Record, Page 6]. 18 AEC International 2012, supra note 4 at paras 35-41[RBOA, Tab 2].
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b. The City, in changing the categorization of the Mall had essentially prepared a “new assessment” in contravention of ss. 305(5) of the MGA.19
23. The agent objected that the case he faced was completely different than the case for which he prepared. The ARB in its Decision declined to rule on these issues but instead decided to place “appropriate weight on the evidence presented”20. No reasons were provided for that decision. The ARB did not consider the legal implications of s. 305, and the prohibition against changing an assessment once it was under complaint, or whether it had jurisdiction to entertain an application for an increase, and if so in what circumstances.21 It did reference the question in its decision, then failed to answer it.
24. The CARB proceeded to hear the complaint, found in favour of the City, and increased the assessment by $9,467,000, to $40,795,500. The City’s evidence contained no market evidence as to rental rates that might be applicable to the Wal-Mart store, whether as a “Power Centre” or a “Community Centre”. The only evidence of rental rates was in Capilano’s materials.22
25. Notably, in the following tax year the ARB rejected the City’s contention that Capilano was a “Power Centre”.23
PART II – RESPONDENT’S POSITION WITH RESPECT TO APPELLANT’S PROPOSED QUESTIONS
A. Standard of Review: Does a statutory appeal provision rebut the presumption of reasonableness when a tribunal is interpreting its home statute or a closely related statute?
Position: This Court’s jurisprudence is clear that the presumption of deference may still be rebutted by contextual analysis. The contextual approach to
19 Reasons of the Edmonton Assessment Review Board at Page 2 [Appellant’s Record, Page 2]; Exhibit C-2, Pages 50, 62 [Respondent’s Record, Pages 15-16]. 20 Reasons of the Edmonton Assessment Review Board at Page 2 [Appellant’s Record, Page 2]. 21 Ibid at Page 2 [Appellant’s Record, Page 2]; Exhibit C-2, Pages 50, 62 [Respondent’s Record, Pages 15- 16]. 22 Reasons of the Edmonton Assessment Review Board at Page 8 [Appellant’s Record, Page 8]; Exhibit C-2, at Pages 18-20, 48-50, 62 [Respondent’s Record, Pages 11-18]. 23 AEC International 2012, supra note 4 at paras 35-41 [RBOA, Tab 2].
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determining the standard of review may be necessary in limited circumstances, even where a tribunal interprets its home statute. The presence of a statutory right of appeal is an important indicia of legislative intent. It was appropriate for the ABCA to consider this as a factor inter alia in its contextual analysis. This statutory appeal clause, in the context of the legislative scheme as a whole, where the court has a legislated, supervisory role over a myriad of non expert, non independently appointed tribunals, rebuts the presumption of deference.
B. Standard of Review: In determining whether legislative intent rebuts the presumption of reasonableness, how should the statutory appeal clause and other factors be considered?
Position: a) The statutory appeal clause, while just one of the 6 factors considered by the ABCA in determining standard of review, represents a specific intent of the Legislature that certain matters be decided by the Court, and is a factor that the Court must take into account in determining whether a presumption of deference is rebutted.
b) The presumption of tribunal expertise should not be privileged over other factors in the contextual analysis (i.e. the nature of the question and the purpose of the statutory scheme). The ARB is not expert on questions of law or jurisdiction. At the time, the ARB was operating under a new legislative regime. The ARB is a lay tribunal. Training of ARB members consisted of a 2-day course. The legal question at issue had not been previously considered by the ARB or the judiciary. The ARB gave no apparent consideration of the legal basis for the decision, such that the decision itself does not demonstrate any expertise.
c) The question of whether the City can act as an appellant before the ARB will have wide ranging implications to assessment practice in Alberta where there can be as many ARBs as there are municipalities. There are really only two potential answers to the question of whether the Board can increase an assessment at the request of the City in the context of a
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taxpayer’s complaint: yes, or no. It was a question going to the jurisdiction. This is not a case where the decision is policy laden and discretionary, when two diametrically opposite results to the same issue could be defended as reasonable. As the same sections were the subject of interpretation by the MGB, the CARB, and the LARB, and arose in the context of taxation, the contextual analysis leading to correctness was sound.
C. Assessment Law Policy: Did the tribunal have the jurisdiction to decide that the underlying policies of fairness and equity allow a tribunal to increase a property assessment at the request of a municipality?
Position: a) The MGA provides that only an assessed person or taxpayer may make a complaint. It does not grant a municipality a right to appeal an assessment, unlike legislation in some other jurisdictions.24 Allowing the City to seek an increase before the Board would circumvent this prohibition.
b) The legislative changes to the MGA in 2010 resulted in shorter timelines for appeals, removed the second level of appeal to the MGB (to which formerly, both the City and the taxpayer could appeal, and where the MGB granted no deference to the local board below), restricted the scope of complaints to matters disclosed on the complaint form, and specifically precluded the assessor from changing the assessment once an appeal was commenced. When viewed as a whole, the legislature expressed a clear intent that the complaint should belong to the taxpayer alone.
c) The Alberta model is consistent with the income tax regime, in which the Courts have consistently found that a taxpayer’s appeal cannot result in
24 Canadian Assessment Legislative Framework [RBOA, Tab 64]; see also Assessment Act, RSBC 1996, c 20 s 32 [RBOA, Tab 65]; Assessment Act RSO 1990 c A.31 s 40 [RBOA, Tab 67]; and Assessment Act, RSNS 1989, c 23 s 62(2) [RBOA, Tab 66].
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an increased assessment precisely because the Income Tax Act, like the MGA, does not give the Minster a right of appeal.25
d) No unfairness or inequity results if the Board cannot entertain requests by the taxing authority to increase the assessment. Assessment in Alberta is an annual cycle. Any mid term changes in opinion of value can be implemented in the following year. Allowing the Municipality to cross- appeal would have a chilling effect on complaints and would create uncertainty. Certainty in tax liability is a valid policy objective.
PART III – STATEMENT OF ARGUMENT
A. STANDARD OF REVIEW
26. This Court should confirm the availability of the contextual approach in determining the standard of review and also confirm that the ABCA did not err by weighing all relevant factors in determining that the correctness standard applied. i. Contextual Approach Should Not Be Curtailed
27. Courts should not be precluded or unduly discouraged from undertaking a contextual analysis for standard of review solely on the basis that a tribunal is interpreting its enabling statute. As Deschamps J. commented in dissent in Smith v Alliance Pipeline Ltd., when a decision-maker does not have particular familiarity with its home statute, and no other precedent-based category of question attracting a standard of reasonableness applies, then a standard of review analysis should be undertaken in order to make a contextually sensitive decision on the proper standard.26
28. Where the court is not satisfied that the standard of review has been determined by precedent, the contextual approach is required in order to establish the standard of
25 Canada v Last, 2014 FCA 129 [Appellant’s Book of Authorities (“ABOA”), Tab 18]; Harris v Canada (Minister of National Revenue - M.N.R.), [1965] 2 Ex CR 653; aff’d on other grounds, [1966] SCR 489 [RBOA, Tab 27]. 26 Smith v Alliance Pipeline Ltd., 2011 SCC 7 at para 80 [Smith v Alliance Pipeline] [RBOA, Tab 51]; citing Dunsmuir at paras 62-64 [ABOA, Tab 34].
12 review. The contextual approach can also rebut the presumption of deference to a “legislated specialist” in appropriate circumstances.27
29. This Court, in Dunsmuir, relied on context when it stated that “[w]hat is needed is a test that offers guidance, is not formalistic or artificial, and permits review where justice requires it, but not otherwise, and that the “analysis must be contextual””.28
30. This Court has endorsed that a contextual analysis may rebut the presumption of reasonableness for questions involving the interpretation of a home statute.29 ii. Standard of Review Analysis
31. The Appellant is inviting this Court to discard the pragmatic and functional analysis. To do so without any regard to the context would make any statutory right of appeal and every privative clause redundant and contrary to the principles of statutory interpretation.30 Rather, as “guardians of the rule of law”31, this Court has instructed that the determination of the standard of review is an exercise of legislative intent requiring a contextualized approach.32
32. In Dunsmuir, this Court held that the first step in determining the standard of review is to ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question.33 In this case, the QB Chambers Judge was not satisfied that the existing jurisprudence had resolved the degree of deference. As a result, the Chambers Judge performed a contextual analysis. The ABCA, while recognizing that categories of questions to which correctness applied play a role in the analytical framework, similarly determined that a mechanical and formalistic approach to standard of review could lose
27 McLean v British Columbia (Securities Commission), 2013 SCC 67 at para 22 [McLean] [RBOA, Tab 34]. 28 Dunsmuir v New Brunswick, 2008 SCC 9 at paras 43 and 64 [Dunsmuir] [ABOA, Tab 21]. 29 Rogers Communication Inc. v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35; [2012] 2 SCR 283 at para 16 [RBOA, Tab 47]. 30 R. Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014) at p. 211 [RBOA, Tab 74]. 31 National Corn Grows Assn. v Canada (Import Tribunal), [1990] 2 SCR 1324 at para 5 [RBOA, Tab 36]. 32 Dunsmuir, supra note 28 at paras 30, 64 [RBOA, Tab 21]; Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982 at para 26 [Pushpanathan] [RBOA, Tab 45]. 33 Dunsmuir, supra note 28 at para 62 [RBOA, Tab 21].
13 sight of the subtlety of the underlying issues in any given case. A standard of review analysis must remain sensitive to the statutory and factual context. This case demonstrated the appropriate engagement of a contextual analysis for an important question of law arising in a new legislative scheme where the expertise of the Board is not in play. As such, the Courts below engaged in a standard of review analysis.
a) Statutory Right of Appeal
33. The MGA provides for an appeal on questions of law and jurisdiction, with leave of the court. An appeal on pure questions of law of importance is a clear expression of legislative intent of a more searching standard of review and to have the courts ensure the boards are properly interpreting the law34. There is no privative clause in respect of the decisions of an assessment review board (unlike in Dunsmuir35and Saguenay36).
b) The ARB is Not an Expert Tribunal
34. The CARB is a lay tribunal possessing no relative expertise on the interpretation of statutes that is superior to that of the courts. The CARB came into existence with amendments to the MGA in 2010. The CARB had established no body of jurisprudence with respect to the issue that was before it under the new regime. The Board did not engage in an analysis of its jurisdiction, notwithstanding that the issue was directly raised by Capilano. Its decision was silent on the issue.
35. Assessing the relative expertise of a decision-maker involves three considerations: (i) the expertise of the tribunal; (ii) the court’s own expertise relative to that of the tribunal; and (iii) the nature of the issue before the tribunal relative to the tribunal’s expertise.37
34 Pushpanathan, supra note 32 at para 20 [RBOA, Tab 45]. 35 Dunsmuir, supra note 28 at para 67 [RBOA, Tab 21]. 36 Mouvement laique québécois v Saguenay (City), 2015 SCC 16 at para 43 [Saguenay] [RBOA, Tab 35]. 37 Dr. Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 19 at para 28 [Dr. Q] [RBOA, Tab 20].
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36. Greater deference is appropriate where a tribunal engages its expertise, which is not the case here.38 Moreover, the question of jurisdiction under the new legislative regime had not previously been adjudicated upon. Thus, where new legislation is in place and where no expertise has been developed on the issue, less deference is warranted.39 A total lack of reasons also suggests no deference be given.40
37. Expertise commands deference when the expert is coherent. Expertise loses any right to deference when it is not defensible.41 The views of administrative decision- makers, even ones in specialized areas, are not likely to be upheld by reviewing courts unless the issues are accompanied by reasoned explanations.42
38. The MGB under the prior regime heard all assessment appeals from local boards dispensed across the province de novo, granted no deference and reconsidered all the facts of a complaint. Accordingly, the case law generally recognized a level of institutional expertise on the part of the MGB in dealing with questions of law. In the current regime, there is no longer a provincially appointed appellate tribunal with such jurisdiction (like the MGB) and the appeals come directly from the first level. The ABCA was entirely cognizant of the new regime, recognizing the courts will play a vital role on questions of law and jurisdiction for which leave to appeal has been granted.
39. In the absence of reasons, searching for implicit reasons is problematic. As Professor Paul Daly commented, this Court’s comments in Alberta Teachers that the Court should look to reasons that could have been (i.e., implicit reasons) has created situations where lower courts are reluctant to intervene even in cases where the
38 Alberta (Workers Compensation Board) v Appeals Commission, 2005 ABCA 276 at para 36 [RBOA, Tab 4]; citing Dr. Q, supra note 37 at para 28 [RBOA, Tab 20]; see also Pezim v British Columbia (Superintendent of Brokers), [1994] 2 SCR 557 at para 63 [ABOA, Tab 54]; see also Lymburner v Nova Scotia (Health and Wellness), 2016 NSSC 23 at paras 36-38 [RBOA, Tab 32]. 39 Island Press Ltd. v Prince Edward Island (Information and Privacy Commissioner), 2004 PESCTD 69 at paras 13-14 [RBOA, Tab 28]. 40 Alliance Pipeline Ltd. v Alberta (Minister of Municipal Affairs), 2006 ABCA 9 at para 38 [Alliance Pipeline] [RBOA, Tab 5];see also Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 13 and 22 [RBOA, Tab 39]. 41 The Honourable R.P. Kerans, Standard of Review Employed by Appellate Courts, Edmonton, Canada: Juriliber Limited, (1994) at 17 [RBOA, Tab 58]; Spinks v Alberta (Law Enforcement Review Board, 2011 ABCA 162 at para 17 [RBOA, Tab 53]. 42 Wilson v Atomic Energy of Canada Ltd., 2015 FCA 17 at para 82 [ABOA, Tab 71].
15 administrative decision lacks a detailed interpretation of the issues at stake.43 He comments: “While I am comfortable with the proposition that deference should be given to decision-makers on the application of statutory interpretations principles like the rule of lenity, it is surely stretching things too far to defer to them where they evidently have not even considered the principles at stake” [emphasis in original].
40. Furthermore, the questions in the within matter do not raise issues of tax policy or property tax assessment, but rather whether the applicable legislation has been correctly interpreted and applied by the CARB. Accordingly, the Court possesses greater expertise in these matters than the CARB.44
c) The Presumption of Expertise is Rebutted
41. Like any presumption, the presumption of tribunal expertise is rebuttable. Where a legislature did not intend to create a tribunal with particular expertise in statutory interpretation, that tribunal will not have any greater expertise than a court and its decision will be reviewed with less deference.
42. Assessing tribunal expertise is a search for legislative intent.45 In circumstances where the tribunal is comprised of lay members with no special expertise in the tribunal’s area of practice, the legislative intent reflects less deference on questions of statutory interpretation.46
43. In Tervita Corp. v Canada (Commissioner of Competition),47 this Court held that an appeal provision can indicate a clear intention that an administrative decision must be
43 Daly, Paul, “A Snapshot of What’s Wrong with Canadian Administrative Law: MPSEP v Tran, 2015 FCA 236” Administrative Law Matters Blog, Nov 13, 2015
16 reviewed on a correctness standard. Prior to the MGA revisions, a decision of a local board was subject to a de novo appeal before the MGB. No deference was owed to the local board at that time and nothing in the MGA suggests a more deferential approach.
44. There are clear instances where legislatures have endowed tribunals with considerable expertise. Federal tribunals responsible for regulating matters such as energy, transportation or communications have consistently been found to carry with them the expertise implying a legislative intent for deference.48 Assessment Review Boards by their nature, do not require such expertise. Courts have noted specifically that assessment review tribunals are comprised of lay people with no specialization in issues of tax assessment:49
Thus, boards of revision are freed from conducting their hearings along the formal lines reserved for the courts and are given a considerable measure of comparative latitude in the interests of accessible, speedy, and efficient decision making. This is especially so in light of the fact these are lay tribunals, drawn from the community and expected to bring their intelligence, knowledge, and experience, along with their judgment and sense of fairness, to the commonplace business of municipal taxation and municipal tax disputes.
45. The MGA covers practically every aspect of local government. Several boards operate pursuant to the MGA, and it cannot be assumed that an ARB has expertise with respect to the entire MGA merely because it is given authority to hear certain assessment complaints.50
46. In Canada (Citizenship and Immigration) v Khosa, Rothstein J., in dissent, noted that the rationale behind the common law standard of review analysis is to give effect to legislative intent, and that recognizing expertise as a free-standing basis for deference on questions that reviewing courts are normally considered to be expert departs from the search for legislative intent that governs this area. Should the legislature believe that an administrative decision-maker possesses superior expertise on questions that are normally
48 Carroll, supra note 45 at para 20 [RBOA, Tab 13]. 49 Preston Crossing Properties Inc. v Saskatoon (City), 2006 SKCA 63 at para 46 [RBOA, Tab 43]. 50 Boardwalk, supra note 44 at para 24 [RBOA, Tab 9].
17 within the traditional bailiwick of courts (law, jurisdiction, fraud, natural justice, etc.), it can express this by enacting a privative clause.51
47. The Court, in the instant case is better placed to decide whether the MGA allows a municipality to make a complaint. There is no requirement that the ARB have legal education or counsel. The education requirements for members of the ARB on the topic of statutory interpretation and jurisdiction was a minor sub-topic of their 2-day course.52
48. The Ministerial Order provides that Members of an Assessment Review Board are only required to achieve a passing grade53 in two courses: Administrative Law II and Principles of Assessment I. Among the many topics considered in the 2-day course include ‘What is administrative law?’ and ‘The Concept of Jurisdiction’.54 This suggests a tribunal more in the nature of lay than expert.
49. The ARB is not in the nature of a policy laden discretionary tribunal whose members are required to bring with them expertise in complex and technical areas such as policy formulation, competition, economics, transportation, energy or law.55 A tribunal’s composition can engender it with considerable experience, allowing it the knowledge to better interpret legislation in discrete areas of expertise.56 Deference may be granted to a tribunal interpreting its home statute where the impugned provision is scientific or technical and falls with the tribunal’s core area of expertise.57
50. Moreover, as Justice Deschamps pointed out in dissenting reasons in Smith v Alliance Pipeline, the decision-maker might not necessarily have more expertise than the
51 Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras 93 and 95 [RBOA, Tab 11]. 52 Boardwalk, supra note 44 at para 24 [RBOA, Tab 9]; Ministerial Order No. L:050/10, June 4, 2010 [MO L:050/10] [RBOA, Tab 63]. 53 MO L:050/10, supra note 52 at para 2 [RBOA, Tab 63]. 54 MO L:050/10, supra note 52 at Schedule 2 [RBOA, Tab 63]. 55 Southam Inc. v Canada (Director of Investigation and Research, Competition Act), [1997] 1 SCR 748 at paras 51-52 [Southam] [ABOA, Tab 18]; see also Competition Tribunal Act, RSC 1985, c 19 (2nd Supp) at s 3 [RBOA, Tab 68]. 56 Pasiechnyk v Saskatchewan (Workers Compensation Board), [1997] 2 SCR 890 at para 36 [RBOA, Tab 42]; The Workers’ Compensation Act, 1979, SS 1979, c W-17.1, s 13-15 [RBOA, Tab 70]. 57 Alliance Pipeline, supra note 40 at para 40 [RBOA, Tab 5]; citing Mattel, supra note 44 at paras 32-33 [RBOA, Tab 12]; see also Barrie, supra note 44 at para 14 [RBOA, Tab 7].
18 reviewing court relative to the question at issue. An analysis of the enabling statute can disclose whether a tribunal has particular expertise relative to the Court.
… Such intent cannot simply be presumed from the creation of an administrative body by the legislature. Rather, courts should look to the jurisprudence or to the enabling statute to determine whether it is established in a satisfactory manner that the decision-maker actually has a particular familiarity – or put another way, particular expertise or experience relative to a court – with respect to interpreting its home statute Court.58 [emphasis added]
51. A tribunal intended to be selected from members from the community at large, without the requirement for professional qualifications, is logically in the nature of lay rather than expert in statutory interpretation. The legislature provided the check and balance by preserving important questions of law for the courts.
52. The New Brunswick Court of Appeal spoke to the issue in its standard of review analysis in Small v New Brunswick Liquor Corporation:59
[18] … The second factor [expertise] was circumscribed by a presumption of expertise and is still referred to in the jurisprudence when discussing whether correctness is the applicable standard of review. This explains why a lay tribunal, such as the Appeals Tribunal, established under the Workplace Health, Safety and Compensation Commission Act, S.N.B. 1994, c. W-14, and which involve a question of law, are not accorded deference (see Canada Post Corporation v. Carroll, 2012 NBCA 18, 383 N.B.R. (2d) 326).
53. The ARB’s analysis of ss. 460 and 305 of the MGA and 9(1) of MRAC is non existent. A reviewing Court can only guess as to its interpretation. The Board dealt only with a new value for the roll, without addressing its ability to do so.
d) Deference to a Tribunal that Lacks Institutional Independence
54. The ABCA decision recognizes the new myriad of lay tribunals appointed across the province to review municipal taxation matters. The fact that the legislation provides no guarantee of institutional independence should also inform the consideration of their expertise.
58 Smith v Alliance Pipeline, supra at note 26 at para 100 [RBOA, Tab 51]. 59 Small v New Brunswick Liquor Corporation, 2012 NBCA 53 at para 18 [RBOA, Tab 50].
19
55. There is no common law guarantee of independence for ARBs in Alberta. Members are primarily appointed by the municipality who impose the tax.
56. The ABCA, in Altus Group Limited v Calgary (City), found that common law guarantees of independence as contemplated in Matsqui60 for ARBs have been ousted by ss. 454.1 and 454.2 of the MGA.61 Those provisions entirely delegate to the municipality the authority to enact bylaws regarding appointment of persons to the ARB62.
57. The loss of the common law guarantees of independence should be considered in the context of whether or not the tribunal is expert and to the degree of deference to be afforded to its legal determinations.
58. Professor Green posits that as decisions move towards generalized legal knowledge (away from specialized knowledge or expertise), the value of the correctness standard of review relative to reasonableness increases63. Similarly, as tribunal independence decreases, the relative value of the correctness standard increases.
59. Understanding the degree of tribunal independence assists in considering whether a decision really fits into a presumptive category of reasonableness or correctness review. Prof. Green notes that the categorical approach to standard of review in favour of a reasonableness review may result in errors “when the court actually has greater expertise in interpreting the particular provision of the home or closely related statute, or where the decision would benefit from greater independence …”64
60. The presumption of tribunal expertise must also be informed by an understanding of the degree of their institutional independence. It is sound policy for the Courts to
60 Canadian Pacific Ltd. v Matsqui Indian Band, [1995] 1 SCR 3 at paras 73-87 [Matsqui] [RBOA, Tab 17]. 61 Altus Group Limited v Calgary (City), 2015 ABCA 86 at para 45 [Altus] [RBOA, Tab 6]. 62 For example, City of Grand Prairie, Bylaw C-1249 and summary, Assessment Review Board (bylaw is undated) [RBOA, Tab 71]; Town of Banff, bylaw 148-14, To Provide for the Establishment of Assessment Review Boards for the Town of Banff (April 26, 2010) [RBOA, Tab 72]; and the Village of Consort, bylaw No. A764, Regional Assessment Review Board Bylaw (bylaw is undated) [RBOA, Tab 73]. 63 Green, Andrew, “Can There Be Too Much Context in Administrative Law? Setting the Standard of Review in Canadian Administrative Law”, (2014) 47 UBC L Rev 443-494 at paras 34-35 [ABOA, Tab 78]. 64 Ibid, at para 85 [ABOA, Tab 78].
20 provide a supervisory role on questions of law determined by a myriad of tribunals in these circumstances.65
e) Purpose of the Assessment Appeal Provisions of the MGA
61. Deference will generally be owed where the decision-maker’s enabling statute requires the consideration of a range of remedial choices or administrative responses, engages policy issues or involves the balancing of multiple sets of interests.66 This is not the case for the ARBs, especially in determining the meaning of the MGA.
62. In Alliance Pipeline, the ABCA noted that in the context of a tax assessment, both the taxpayer and the municipality are entitled to a correct interpretation of the MGA to ensure their rights are protected.67
63. The purpose of a complaint regime is to provide access to a hearing for complainants.68
64. The purpose of the 2010 MGA amendments was to improve the assessment complaints process, ameliorate lengthy appeals, duplicative processes, inconsistent decisions, lack of access to information, inconsistent board member qualifications, and lack of accountability, and to ensure a well-managed, fair, and efficient system in which taxpayers have confidence.69
65. The City argues that the scheme’s primary function is to ensure a “fair, correct, and equitable assessment” such that it should be entitled to seek an increased assessment in the context of a taxpayer complaint. Here, the assessor told Capilano’s agent that if the complaint was not withdrawn it would seek an increase. Clearly the assessor was sufficiently satisfied with the original assessment at that time.
65 Capilano 2015, supra note 9 at para 30 [Appellant’s Record, Page 61]. 66 Dr. Q, supra note 37 at para 31[RBOA, Tab 20]. 67 Alliance Pipeline, supra note 40 at para 40 [RBOA, Tab 5]; see also Barrie supra note 44 at para 14 [RBOA, Tab 7]. 68 City of Calgary v Municipal Government Board, Gaspar Szenter Holdings et al (19 November 2007), Calgary 0701-04629 (Q.B.) at Page 11 [RBOA, Tab 18]. 69 Alberta, Legislative Assembly, “Hansard”, 27th Leg, 2nd Sess No. 27 (April 21, 2009) at 735 (Raymond Danyluk) [ABOA, Tab 81].
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f) The Nature of the Question
66. The question that was put squarely before the CARB was whether the CARB had the power to hear, in essence, a cross-complaint by the City. The taxpayer raised the issue, complaining that City was advancing a totally new assessment, in result circumventing the legislation.70
67. This was question of law relating to the jurisdiction of the CARB. It is a question which demands either “yes” or “no” as an answer and does not require the consideration of other factors. The question is answerable outside of the particular factual matrix of this case. Further, the outcome of the question has wide-ranging implications for the Alberta municipal taxation complaint scheme, as it will determine whether a complainant can be faced with an increase to its assessment once it files an appeal.
68. While this Court has commented on the rarity of true jurisdictional questions71, the definition of jurisdictional questions as those which “explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter” remains.72
69. This raised a question of law going to the jurisdiction of the CARB: whether in light of the new sections of the MGA, the CARB had the power to sanction an entirely new assessment of the Mall.
70. In Alberta Teachers, the majority of the SCC chose not to define what a true question of jurisdiction was, but indicated that deciding the issue absent jurisprudence on point would be a natural extension of the analytical approach set out in Dunsmuir.73
g) What is the Significance of a Statutory Appeal Clause?
71. A statutory right of appeal is an expression of legislative intent. The ABCA recognized legislative intent is the “polar star” of the standard of review analysis, and
70 Transcripts of the hearing before the Edmonton ARB, July 18, 2011 at Pages 11-14 [Appellant’s Record, Pages 84-87] [Respondent’s Record, Page 10]. 71 Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at paras 33-34 [Alberta Teachers] [RBOA, Tab 3]. 72 Dunsmuir, supra note 28 at para 59 [RBOA, Tab 21]; Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53 at para 18 [ABOA, Tab 15]; see also United Taxi Drivers’ Fellowship of Southern Alberta v Calgary (City), 2004 SCC 19 at para 5 [RBOA, Tab 54]. 73 Alberta Teachers, supra note 71 at paras 39, 42 and 61 [RBOA, Tab 3].
22 applied it in the instant case. It is recognized that the presence of a statutory right of appeal alone does not mean that standard of review is determined differently than in judicial review proceedings.74
72. A statutory appeal clause may be viewed as a corollary of a privative clause. If a privative clause is indicative of legislative intent for greater deference, then a statutory appeal clause demonstrates legislative intent for less deference. This was precisely the reasoning expressed in Pushpanathan, where the Court commented that the presence of a clause in an Act permitting appeals is a factor that suggests a “more searching standard of review” in comparison to Acts which provide for a full privative clause.75
73. In Dunsmuir, Binnie J in dissent, stated as follows with respect to statutory appeal clauses:
[163] However, privative clauses cannot totally shield an administrative body from review. Parliament, or a legislature, cannot have intended that the body would be protected were it to overstep its delegated powers. Moreover, if such a body is asked to interpret laws in respect of which it does not have expertise, the constitutional responsibility of the superior courts as guardians of the rule of law compels them to insure that laws falling outside an administrative body’s core expertise are interpreted correctly. This reduced deference insures that laws of general application, such as the Constitution, the common law and the Civil Code, are interpreted correctly and consistently. Consistency of the law is of prime societal importance. Finally, deference is not owed on questions of law where Parliament or a legislature has provided for a statutory right of review on such questions.76 [emphasis added]
74. The majority in Dunsmuir did not identify a statutory right of review as “requiring” a correctness standard; however, a statutory right of review can be a relevant consideration in the standard of review analysis.77
74 Saguenay, supra note 36 at paras 38-44 [RBOA, Tab 35]. 75 Pushpanathan, supra note 32 at para 30 [RBOA, Tab 45]. 76 Dunsmuir, supra note 28 at para 163 [RBOA, Tab 21]. 77 Teplitsky, Martin, Q.C. “Standard of Review of Administrative Adjudication: ‘What a tangled web we weave’” (2013) 32 Adv J No. 1, 3-11 at para 24 (It has been argued that where a right of appeal is provided, questions of law should attract a standard of correctness: “In exercising its supervisory role, if a privative clause is present, interpretations of the tribunal’s home and closely related statutes should receive deferential review through the reasonableness standard. All other questions of law should be reviewed for correctness”) [RBOA, Tab 60].
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h) Is Shared Jurisdiction of Tribunals and Courts an Exception to the Presumption of Reasonableness?
75. This Court has recognized that instances will arise in which two or more tribunals may be faced with the interpretation of the same statutory provisions. Alberta’s complaint regime involves multiple tribunals across the province who must abide by the assessment provisions of the MGA and the complaint rules set out in MRAC.
76. There are two tribunals appointed in each of the numerous municipalities in Alberta when assessment complaints arise. The LARBs hear residential complaints with three or less dwelling units, farmland complaints, and complaints about tax notices other than property tax notices, for example business tax complaints. The CARBs hear property complaints about any properties not assigned to the LARB, for example non-residential properties. A third tribunal, the MGB hears assessment complaints about linear property.78 All of these tribunals throughout the province are governed by the same legislative provisions that were being interpreted by the Court.
77. The majority in Dunsmuir further confirmed that questions regarding jurisdictional lines, or the “shared space”, between two or more competing tribunals have been subject to review on a correctness standard.79
78. When it comes to matters of liability for assessment and taxation the courts in Alberta have also taken a concurrent jurisdiction, whether a taxpayer has accessed the assessment tribunals or not.80 The ABCA recognized this in its contextual analysis.81
78 MGA, supra note 2 at s 460(11), 460.1 and 488 [Respondent’s Factum, Part VII, Pages 53-55 and 62-63]. 79 Dunsmuir, supra note 28 at para 61 [RBOA, Tab 21]. 80 Barron v Foothills (Municipal District No. 31), [1984] AJ No. 750 (CA) [RBOA, Tab 8]; Sommers v Edmonton (City), [1978] AJ No. 590 (CA) [RBOA, Tab 52]; Royal Canadian Legion Norwood (Alberta) Branch 178 v Edmonton (City), [1992] AJ No. 644 (QB) varied on other grounds [1994] AJ No. 40 (CA) [RBOA, Tab 48]; Alliance Pipeline, supra note 40 [RBOA, Tab 5]. 81 The Appellant seeks to make a distinction between the interpretation of taxing statutes and property assessment statues. There is a long line of history from this Court developing interpretive principles for tax matters in the context of municipal property assessment cases. For example consider Québec (Communauté urbaine) v Corp. Notre-Dame de Bon-Secours, [1994] 3 SCR 31; Abel Skiver Farm Corp. v Sainte-Foy (Town), [1983] 1 SCR 403; Matsqui, supra note 60; Pearce v Calgary (City), [1915] 54 SCR; and in the Privy Council Bennett & White (Calgary) Ltd. v Sugar City (District) (No. 5) [1951] AC 786.
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79. Where the Court of Queen’s Bench rules on property assessment matters directly, those decisions are reviewed by the ABCA on a correctness standard. It would be inconsistent for the ABCA to hold the Court of Queen’s Bench to a correctness standard on property tax liability, and defer to conflicting interpretations of the assessment tribunals on the same statutory provisions.82
80. The ABCA has historically played an important role in matters of taxation. Recently, the Court was asked to resolve an issue concerning inconsistent ARB decisions on tax liability reviewed on the reasonableness standard. This problem was discussed by the ABCA in Altus, issued the same day as the decision in the case at bar:
[23] Canadian courts and commentators have noted the difficulty in accepting two conflicting interpretations by the same administrative tribunal as reasonable. In the context of a public statute, the rule of law and the boundaries of administrative discretion arguably cannot be served in the face of arbitrary, opposite interpretations of the law.
[24] For example, in Novaquest Finishing Inc v Abdoulrab, 95 Admin LR (4th) 121 at para 48, while the decision did not turn on this issue, Juriansz J.A. observed:
From a common sense perspective, it is difficult to accept that two truly contradictory interpretations of the same statutory provision can both be upheld as reasonable. If two interpretations of the same statutory provision are truly contradictory, it is difficult to envisage that they both would fall within the range of acceptable outcomes. More importantly, it seems incompatible with the rule of law that two contradictory interpretations of the same provision of a public statute, by which citizens order their lives, could both be accepted as reasonable.83
81. The same reasoning is consistently applied in the municipal planning context by the ABCA, which recently applied a correctness standard to review of a zoning by-law on the basis that it is “untenable that planning legislation means one thing in one municipality and something else in another”.84 This principle is addressed in the ABCA analysis on standard of review in the instant case.
82 Altus, supra note 61 at paras 16-45 [RBOA, Tab 6]. 83 Ibid at paras 23-24 [RBOA, Tab 6]. 84 Young v Okotoks (town of), 2015 ABCA 345 at para 5 [RBOA, Tab 57]; World Health Edmonton Inc. v Edmonton (City), 2015 ABCA 377 at para 9 [RBOA, Tab 56].
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i) Legislative Intent on Questions of Importance
82. The ABCA found that the issue in this case was one of significant importance to the entire assessment complaint regime, which affects each municipality and each municipal taxpayer in Alberta. It is a question that requires uniform and consistent answers.
83. To the extent that an appeal may only be sought in respect of important questions of law or jurisdiction, there is an apparent legislative intent to give deference to the ARB on questions of fact and mixed fact and law. However the reservation of questions of law and jurisdiction “of sufficient importance” to the courts is made explicit in s. 470 of the MGA.
84. The ABCA recognized the new regime already builds in deference to decisions rendered by the ARB in the wording of the leave provisions. The additional requirement that the appeal be of “sufficient importance to merit an appeal” signals that the types of questions that are being reserved to the Court are those that the Legislature intended to be objectively important for jurisprudential purposes. Case law on this point provides that generally, there should be something unsettled about the question or the decision should have wide ranging implications in order to be reserve to the courts.85 These criteria are consistent with the historic issues to which a correctness standard applied. iii. No One Factor Should Be Privileged Over Others in the Contextual Approach
85. Tribunal expertise cannot be privileged over other aspects of the contextual analysis. The contextual analysis has been typically formulated as including matters previously discussed herein, and was properly considered by the ABCA in the context of the uniqueness of the MGA legislation. In the context of removing the de novo right of appeal to a provincial tribunal, only Alberta and Newfoundland have no independently appointed tribunal reviewing municipal assessments86. Every other jurisdiction in Canada
85 Eau Claire Market Inc. v Calgary (City), 2015 ABQB 131 at para 10 [RBOA, Tab 22]. 86 Loblaw Properties Limited v Mount Pearl (City), 2016 NLTD(G) 30 at paras 15-39 [RBOA, Tab 31] (A recent standard of review analysis involving expertise and independence of assessment tribunals).
26 provides either a two level appeal, or a provincially appointed expert tribunal adjudicating assessments province wide.
86. The City suggests expertise is the predominant factor. Not since Southam, which predates Dunsmuir, has this Court considered expertise to “the most important factor settling on a standard of review.87 Dunsmuir did not purport to privilege any single factor over others. Post-Dunsmuir analysis has typically focussed instead on the nature of the question as being a pre-eminent factor.88
87. A multiplicity of administrative tribunals operate in Canada under an array of legislative regimes. Reviewing courts must be able to look beyond the putative expertise of a tribunal where the circumstances suggest that a more searching review is required. iv. True Jurisdictional Questions: Another Exception to the Presumption of Reasonableness
88. This Court has held that questions of jurisdiction, although narrow in scope and limited in application, arise when the issue before a reviewing court is whether a tribunal had the authority to make the inquiry:
[59] Jurisdiction is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter.89
89. Dunsmuir defines jurisdictional questions narrowly but succinctly. Lower courts have been successfully able to pinpoint when a jurisdictional question arose. The legislature in Alberta expressly provided a right of appeal from the tribunal on questions of jurisdiction. The legislature intended the courts to oversee questions relating to the Board’s “power to decide”.
87 Southam, supra note 55 at para 50 [ABOA, Tab 18] (The Court noted that expertise “is the most important of the factors that a court must consider in settling on a standard of review”). 88 See, for example, Alberta Teachers, supra note 71 at para 44 [RBOA, Tab 3]; see also Saguenay, supra note 36 at para 36 [RBOA, Tab 35]. 89 Dunsmuir, supra note 28 at para 59 [RBOA, Tab 21].
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90. Notwithstanding Alberta Teachers, lower courts continue to find that the issue facing an impugned tribunal can be a question of jurisdiction.90 The ABCA in Shaw cited this Court’s decision in Canada (Canadian Human Rights Commission) v Canada (Attorney General) for the holding that questions of jurisdiction are those that “require a tribunal to explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter”.91 That definition of what constitutes a question of jurisdiction comes directly from Dunsmuir.
91. The nature of the question as jurisdictional remains a relevant consideration where contextual analysis is warranted. If compliance with legislative intent is the objective, some meaning must be ascribed to the inclusion of jurisdiction as reviewable by the courts in s. 470 of the MGA. The Dunsmuir definition of jurisdiction is consistent with the Alberta legislature’s purpose in enacting the section.
92. The lower Court’s decision in the case at bar agrees with the Respondent’s submissions.92 Rooke ACJ correctly held that “[t]he determination of jurisdiction is not a question of statutory interpretation, but of legislative intent”.93 The lower Court also noted that following this Court’s decision in Alberta Teachers, true jurisdictional questions will be rare, but that this Court did not eliminate those questions from consideration.
93. In Canadian Broadcasting Corp. v SODRAC, the Court did not rule out the existence of true jurisdictional questions, but said they will only arise in “exceptional” circumstances.94
90 See, for example, Lac La Biche (County) v Lac La Biche (Subdivision and Development Appeal Board), 2014 ABCA 305 at paras 11-26 [RBOA, Tab 29]; see also Shaw v Alberta (Utilities Commission), 2012 ABCA 378 at paras 23-30 [Shaw] [RBOA, Tab 49]; and Lysohirka v British Columbia (Workers Compensation Board), 2012 BCCA 457 at paras 26 and 41-43 [RBOA, Tab 33]; and Fraser Health Authority v Workers’ Compensation Appeal Tribunal, 2014 BCCA 499 at paras 30-62 [RBOA, Tab 26]. SCC appeal heard January 14, 2016 and judgment under reserve in SCC file no. 36300. 91 Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53 at para 18 [ABOA, Tab 15]. 92 Capilano 2013, supra note 5 at paras 18-31 [Appellant’s Record, Pages 36-39]. 93 Ibid at para 27 [Appellant’s Record, Page 37-38]. 94 Canadian Broadcasting Corp. v SODRAC 2003 Inc., 2015 SCC 57 at para 39 [ABOA, Tab 21].
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94. The exception to the presumption of reasonableness on narrow questions of jurisdiction is sound where it appears to mirror the legislative intent.
B. ON THE MERITS: THE CARB’S INTERPRETATION IS UNREASONABLE: THE CITY COULD NOT CROSS-APPEAL AND THE BOARD COULD NOT INCREASE THE ASSESSMENT
95. The ABCA properly used the contextual analysis to find that the standard of review should be correctness. For the reasons noted above, the decision of the CARB in this case cannot stand, even if reasonableness is the standard. First, as discussed above, the CARB did not provide any rationale for its interpretation. Second, applying the principles set out by this Court in Canada (Canadian Human Rights Commission)95 and McLean96, there is only one interpretation possible: the City cannot be a complainant or a cross-appellant in an appeal of an assessment.
96. In Canada (Canadian Human Rights Commission), this Court held that where the expertise of the tribunal was engaged, the standard of review of a jurisdictional question was reasonableness. Nevertheless, in determining whether the tribunal’s interpretation of its constituting statute was reasonable, the Court stated that the Driedger approach applied: “the object is to seek the intent of Parliament by reading the words of the provision in their entire context and according to their grammatical and ordinary sense, harmoniously with the scheme and object of the Act and the intention of Parliament.”97 In that case, the SCC held that the tribunal’s interpretation was unreasonable.
97. In Alberta Teachers,98 Binnie J writing also for Deschamps J opined that the application of the Driedger principles of statutory interpretation required a very intensive review:
[85] What then is involved in a “reasonableness” review of a tribunal’s interpretation of its home statute? The Dunsmuir majority said that “[t]ribunals have a margin of appreciation within the range of acceptable and rational
95 Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53 at para 34 and 64 [RBOA, Tab 10]. 96 McLean, supra note 27 at para 38 [RBOA, Tab 33]. 97 Canadian (Canadian Human Rights Commission) v Canada (Attorney General), supra note 91 at para 33 [RBOA, Tab 10]. 98 Alberta Teachers, supra note 71 at paras 85-87 [RBOA, Tab 3].
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solutions” (para. 47). It is clear that “the range of acceptable and rational solutions” is context specific and varies with the circumstances including the nature of the issue under review. In CHRC, the reviewing court was called on to judicially review a tribunal’s decision that its home statute gave it the statutory power to award costs. On appeal, the Court applied a “reasonableness” standard (referring at several points to the issue being within the “core function and expertise of the Tribunal”, e.g., at para. 25). The reasonableness analysis nevertheless followed the well-worn path of Driedger’s golden rule and Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 (E.A. Driedger, Construction of Statutes (2nd ed. 1983). In other words, the intensity of scrutiny was not far removed from a correctness analysis, in my respectful opinion, just as was the case in Dunsmuir itself. [emphasis added]
98. In McLean, this Court re-iterated that the reasonableness standard of review on a jurisdictional question required the application of the “ordinary tools of statutory interpretation” and that notwithstanding the deference owed, only one interpretation may be possible:
[38] It will not always be the case that a particular provision permits multiple reasonable interpretations. Where the ordinary tools of statutory interpretation lead to a single reasonable interpretation and the administrative decision maker adopts a different interpretation, its interpretation will necessarily be unreasonable – no degree of deference can justify its acceptance: see, e.g. Dunsmuir, at para. 75: Mowatt, at para. 34. In those cases, the “range of reasonable outcomes” (Canada (Citizenship and Immigration) v Khosa, [2009] 1 S.C.R. 339, at para. 4) will necessarily be limited to a single reasonable interpretation – and the administrative decision maker must adopt it.
99. This is such a case. The question is one of pure law that demands a “yes” or “no” answer. The issue does not engage any expertise and is not discretionary or policy laden. Following the normal principles of statutory interpretation, only one interpretation is possible and the MGA does not allow the City to complain or be a cross-appellant on a taxpayer-initiated appeal of an assessment.
100. In this case, both Courts properly undertook a purposive analysis of the Alberta assessment and taxation legislation as a whole, as required by the Driedger approach, and determined that a streamlined, pleadings driven, issue orientated system did not contemplate an assessor being able to act as a complainant. The new s. 305 was indicative of the legislative intent that the assessor could not increase the assessment during an appeal. Further, the assessor could not assess on one basis, then switch and
30 defend on another. The ABCA subsequently reinforced that principle in Wood Buffalo.99 While the MGA allowed for amendments to correct errors in limited circumstances, this section was not intended to create avenue for changes in opinion of value. They were to be dealt with in the subsequent year. i. The New System
101. The MGA covers 197 associated Regulations. Assessment of Property is covered in Part 9 of the MGA. Assessment Complaints to the ARB are covered in Part 11 of the MGA. Relevant provisions of the MGA are summarized below.
a) Only an Assessed Person or Taxpayer May Complain
102. Only an assessed person or taxpayer may complain to the ARB.100 There is no longer a provision permitting a Municipality to file a complaint. The complaint system is adversarial. The complainant and the municipality are the only parties to a complaint.
b) Limits on Subject Matter of the Appeal & Jurisdiction of the Board
103. Requirements for making a complaint: The MGA provides a pleadings-driven complaint process. The issues are defined by the complaint form. A person making a complaint about an assessment must do so in accordance with s. 460 of the MGA. The complainant must identify the basis for its complaint by indicating what information shown on an assessment notice is incorrect, in what respect that information is incorrect, what the correct information is, and the requested assessed value.101
104. Jurisdiction to Hear Complaints: The ARB has jurisdiction to hear property assessment complaints concerning discrete matters outlined in s. 460 of the MGA including: (i) description of a property of business; (ii) an assessment; (iii) an assessment class; (iv) an assessment sub-class; (v) the type of property; and (vi) the type of improvement.102
99 Canadian Natural Resources Limited v Wood Buffalo (Regional Municipality), 2014 ABCA 195 at paras 17-27 [RBOA, Tab 16]. 100 MGA, supra note 2 s 460(3) [Respondent’s Factum, Part VII, Page 53]. 101 Ibid s 460(7) [Respondent’s Factum, Part VII, Page 54]. 102 Ibid s 460 and 460.1(2) [Respondent’s Factum, Part VII, Pages 53-55].
31
105. Disclosure of evidence for assessment complaints: The complainant must file its evidence in support of the complaint at least 42 days prior to the hearing. The Municipality must file its evidence in response at least 14 days prior to the hearing.103 This is when the municipality’s evidence for the new classification of the property was filed and exchanged.
106. Prohibition on hearing matters and evidence not disclosed: The CARB must not hear a matter that is not disclosed on the complaint form and that was not disclosed in accordance. The CARB cannot hear evidence that was not disclosed in accordance with the regulation.104
c) Section 9(1) of MRAC
107. The City of Edmonton’s own practise supports that the complaint system in Alberta is pleadings driven. Section 9(1) of MRAC provides:
9(1) A composite assessment review board must not hear any matter in support of an issue that is not identified on the complaint form.
108. The City’s submission that assessment review boards in Alberta are of an inquisitorial nature is not founded either in the legislation or in practice. Alberta is an adversarial appeal system defined strictly by the matters raised in the complaint form.
109. Composite Assessment Review Boards in Edmonton, at the behest of the Appellant City, have refused to hear issues about vacancy rates105, whether the area of a property was correct106 and even if an assessment was equitable107. The focus is entirely
103 MRAC, supra note 12, s 8(2) [Respondent’s Factum, Part VII, Pages 119-120]. 104 MRAC, supra note 12, s 9(1) and 9(2) [Respondent’s Factum, Part VII, Page 120]. 105 Edmonton ARB Decision 0098 139/11 (24 August 2011) at Pages 2 and 3 [RBOA, Tab 23] (In Edmonton ARB Decision 0098 139/11, the City objected to the ARB hearing an issue related to vacancy. The Board described the position of the City as follows: “The Respondent then raised a second preliminary issue. Mr. Ashmore stated that evidence which had been disclosed in support of an assertion by Mr. Cohen, that an incorrect vacancy rate had been applied to the subject property, was not properly before the board as it violated s. 9(1) of the Matters Relating to Assessment Complaints Regulation, AR 310/2009 [MRAC]. … The Respondent’s position was that s. 9(1) of MRAC prohibits the board from hearing any matter not identified on the complaint form.” The decision of the ARB was not to hear the vacancy issue, as it had not been identified on the complaint form.) [RBOA, Tab 23]. 106 See Edmonton ARB Decision 0098 174/10 (4 August 2010) (where the ARB refused to hear the issue of adjusting the area of a property) [RBOA, Tab 24].
32 on the issues raised in the complaint form, and not on the overall assessment per se as implied in the Appellant’s Factum.
d) Municipality Cannot Change Assessment During the Appeal Process (ss. 305(5))
110. In addition to changes to the structure of the appeal process, in 2010 the Legislature enacted changes to s. 305 of the MGA regarding “Corrections to the Roll”. Prior to the 2010 amendments, there was no prohibition on amendments by the Municipality in the course of the assessment complaint process. The 2010 amendments added such a prohibition—ss. 305(5).108
e) Statutory Appeal Clause (ss. 470 (5)) - Test for Leave to Appeal
111. The Chambers Judge, reviewing numerous authorities on the issue before him, found:
[44] Section 305 of the MGA does not permit the assessment roll to be amended and only provides for it to be “correct[ed]” where there is “an error, omission or mis-description” none of which are applicable here (s. 305(1)(5) of the MGA). Under s. 305(5), even where, in addition to a correction, a “change” is made, it must not be made until a decision of the Board. Again that did not happen here.
[52] I agree. A CARB may increase an assessment, but only within the context of the complaint filed by the taxpayer, not as an attempt by the municipality to do indirectly what it cannot do directly - complain about an assessment to the Board.109
112. Judicial consideration of the Board’s authority to “make a change” prior to the impugned decision can be summarized as follows:
a. On the plain meaning of “change”, the former MGB had statutory authority to increase an assessment, but only in a manner that meets strict
107 Edmonton ARB Decision 0098 115/10 (28 July 2010) at page 2, (Likewise, in Edmonton ARB Decision No. 0098 115/10, the ARB refused to hear the issue of whether an assessment was equitable. The Complainant had sought to introduce that the assessment was inequitable when compared to other properties. The Board denied hearing the equity argument, as it was not identified on the complaint form) [RBOA, Tab 25]. 108 MGA, supra note 2 s 305(5) [Respondent’s Factum, Part VII, Pages 48-49]. 109 Capilano 2013, supra note 5 at paras 44 and 52 [Appellant’s Record, Tab 4 at pages 41 and 43].
33
requirements for procedural fairness (Ag Pro Grain Management Services Ltd. v Lacombe (County)). This decision related to the statutory regime prior to the 2010 amendments, where both parties had a right of appeal to the MGB. It was a case where property and costs were missed in the assessment and prior to the provision that precludes amendments to the roll once a complaint has been filed (305(5)).110
b. The word “change” implies both an upward and downward adjustment, but only a taxpayer or assessed person can make a complaint—the complaint belongs to the taxpayer, not the municipality. The Municipality can only defend the assessed amount as correct (Canadian Natural Resources Ltd. v Wood Buffalo (Regional Municipality)).111
113. The jurisdiction of the Board to make a “change” to an assessment has to be read in the clear decision making context of the Board’s decision making powers from complaints filed pursuant to ss. 460(5). A complaint can only relate to particular items: (a) the property description, (b) the name of an assessed person, (c) an assessment, and (d) an assessment class, etc. The term “make a change” had to be broad enough to encompass this complete list of “asks”. Make a change does just that—gives the Board authority to address the specific request in each complaint. It was not intended to bestow appellate rights on the assessor. ii. An Assessment Cannot Be Amended as a Result of a Change of Opinion of Value (s. 305)
114. Pursuant to s. 305 of the MGA, the Assessor may amend the roll in the event of discovery of an “error, omission, or misdescription” in the information contained in the roll. The Chambers Judge commented that this is akin to a “slip rule”, and found that the
110 Ag Pro Grain Management Services Ltd. v Lacombe (County), 2006 ABQB 351 at para 31 [Ag Pro] [ABOA, Tab 4]. 111 Canadian Natural Resources Ltd. v Wood Buffalo (Regional Municipality), 2012 ABQB 177 at para 166 [Wood Buffalo]; [RBOA, Tab 15].
34
“question of whether Capilano is a “community shopping centre” or a “power centre” does not fall within this section”.112
115. Similarly, Justice Michalyshyn, in granting Capilano leave to appeal, found that “there is little if any evidence the City’s new assessment came about as a result of an error”.113
116. The plain and ordinary meaning of “discovered” is to find out information that was not previously known.114
117. It is clear in the present case that the attempt to change the assessment by the assessor did not arise from a “discovery”. The facts relating to the Wal-Mart sealing off the mall entrance were already well known to the assessor prior to issuing the assessment. The decision of Rooke ACJ correctly recognizes the distinction between an “error, omission or misdescription” and a different “opinion” of value.
118. This omission by the Board to determine the s. 305 issue is particularly problematic because Capilano specifically argued that the assessor could not create an entirely different assessment.
119. Subsection 305(5) is drafted such that no change advocated by the assessor should be made until after the ARB renders a decision. The Assessor cannot complain against its own assessment. Case law has considered the fairness of such a prospect in several jurisdictions.
120. The threat of an increase for the purpose of dissuading the taxpayer from carrying forward with a complaint is a recognized concern. While a municipality is entitled to file evidence, the current regime prescribes the issues to those raised in the complaint form, and the Assessor’s role is that of defending the assessment complained of, and not appealing it. This was precisely the conclusion reached by Madame Justice Sulyma in Wood Buffalo, where she stated in obiter that:
112 Capilano 2013, supra note 5 at para 42 [Appellant’s Record, Page 41]. 113 Edmonton East (Capilano) Shopping Centres Limited (AEC) International Inc.) v Edmonton (City), 2012 ABQB 445 at para 41[Appellant’s Record, Page 19]. 114 Encarta World English Dictionary, 1999, sub verbo “discover” [RBOA, Tab 61].
35
A complaint belongs to the taxpayer, not the Municipality. It gives the taxpayer an opportunity to demonstrate what the correct number should be… The Municipality cannot then come in and ask the CARB to change the assessment to an altogether different number; it can only defend the assessed amount as correct.115
121. Wood Buffalo, cited favorably from Les Immeubles B.P. Ltee v Ville D’Anjou, wherein it is stated:
21. I find it very difficult to conceive that the Legislature, in providing a procedure of review in favor of dissatisfied ratepayers, would have intended that these ratepayers could find themselves penalized for having exercised their rights by having to face a discussion of other immovable which were not entered on the roll and in respect of which the municipality might not even have had a right to complain had the ratepayers not filed complaints. Such a procedure, apart from the obvious abuses which it could invite, would certainly enlarge the scope of review available to municipalities beyond what is granted to them in s. 66 and it would almost certainly discourage some ratepayers from exercising the rights granted to them under that section.116
122. Looking broadly at the complaint procedures set out in the MGA, it is useful to note there are specific provisions for dealing with amended assessments, including: (i) ss. 309(1)(c), 60-day review period; and (ii) ss. 468(2), which extends the time for a decision.117
123. Considered together, these procedures suggest that a fair process should afford full rights and timelines to both parties in dealing with any amendments made to an assessment. In the context of the procedural regime established in the MGA, it is impossible to interpret ss. 305(5) as allowing a municipality to ignore relevant timelines and restrictions on the power to correct by maintaining it through an appeal.
124. The City’s fundamental shift in their approach to the valuation of Capilano Mall effectively created a new assessment. It made the assessor the appellant at the last minute. This triggered the fundamental jurisdictional issue before the Court.118
115 Wood Buffalo, supra note 111 at para 166 [RBOA, Tab 15]. 116 Les Immeubles B.P. Ltee v Ville D’Anjou, [1978] JQ No 278 (Sup Ct) at para 21 [RBOA, Tab 30]. 117 MGA, supra note 2 s 468(2) ) [Respondent’s Factum, Part VII, Pages 57-58]. 118 MRAC, supra note 12 s 8(2)(c) [Respondent’s Factum, Part VII, Pages 119-120].
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125. As the Court of Appeal in New Brunswick (Executive Director of Assessment) v Ganong Bros Ltd. stated:
129. … This leads one to ask whether the Appeal Board is permitted to arrive at a property value that is greater than the amount set out in the Notice of Assessment. In my view, there is only one answer to that question - no. It would be a mockery of the provincial assessment system if the Director were permitted to resist a property owner’s right to appeal an assessment to the Appeal Board by adducing evidence that supports a value greater than that set out in the Notice of Assessment and for the Appeal Board to possess the authority to fix the value at the higher amount. The purpose of the legislation is to provide property owners with a meaningful right of appeal from an assessment that the Director is prepared to defend, not to provide the Director with a weapon to discourage otherwise potentially valid appeals to the Appeal Board.119
130. I am not suggesting that the Director cannot adduce evidence supporting an assessed value greater than the assessed amount. What is objectionable is the possibility that the property owner could lose his or her appeal and be faced with a value determination greater than the one that had been appealed. Accordingly, should the Appeal Board rule, for example, that Mr. Glen’s appraisal evidence is preferable to that of Mr. Lawrence’s, the Board may not fix a value greater than that set out in each of the Notices of Assessment in question. (Robertson, J.A.)
126. Since Capilano, the ABCA has had occasion to rule directly on the question of whether an assessor can completely change position in defending his assessment. While Rooke ACJ did not have the benefit of the ABCA decision in Wood Buffalo, it is compelling authority on that very point. The case involved the new disclosure requirements of the post 2010 MGA. The Court found:
The central purpose of taxpayer information rights is to provide taxpayers with information about the preparation of their tax assessments. In deciding whether to make a complaint and, if so, on what grounds, the taxpayer must know what it can rely upon. Reliance is defeated if the Municipality is permitted to defend a tax assessment on a basis different from that disclosed before the complaint was brought ...120 [emphasis added]
119 New Brunswick (Executive Director of Assessment) v Ganong Bros Ltd., 2004 NBCA 46 at paras 129- 130 [RBOA, Tab 36]. 120 Canadian Natural Resources Limited v Wood Buffalo (Regional Municipality), 2014 ABCA 195 at para 20 [RBOA, Tab 16].
37
127. In the present case, the assessor came to the hearing advocating a new assessment reclassifying the property. This was unfair to the taxpayer in much the same way as the new assessment theory in Wood Buffalo. The City assessor created a new case after the Complainant’s filing for which the taxpayer was completely unprepared. A taxpayer prosecuting a complaint is entitled to certainty that the case will be about the merits of the assessment on the roll, not about a new higher assessment proposed at the last minute by the assessor.
128. In Orange Properties Ltd v Winnipeg (City) Assessor121, the Manitoba Court of Appeal addressed the issue of when an assessor may seek an increase to an assessment under the Manitoba Municipal Assessment Act.122 When the property owner subsequently filed an appeal of the Board of Revision’s decision and not the assessor, the assessor then attempted to appeal the original assessment. The Court of Appeal found this to be improper. Looking at the whole of the Manitoba assessment statute, the Court stated:
It is only when the revision and appeal process is looked at as a comprehensive whole that it becomes clear that what the Legislature must have intended in sec. 56(4) was that the "full hearing" before the Municipal Board be confined to the issues and positions taken at the first round before the Board of Revision. It is the failure of the City assessor in this case to put the issue before the Board of Revision that disentitles the Municipal Board to grant the relief the assessor now seeks. Thus, the Municipal Board's responsibilities are confined in any other appeal to the matters properly placed before it which do not encompass a position wholly inconsistent with that taken before the Board of Revision. Fairness demands no less.123
129. The importance of the form of complaint in the context of a pleading was also discussed by the Saskatchewan Court of Appeal in Prince Albert (City) v Saskatchewan Assessment Management Agency, where it was found if pleadings were not paramount it would open up the ability of a party to attempt to advocate a change in its favor without having filed an appeal or cross appeal. The Court in Prince Albert found the appeal
121 Orange Properties Ltd v Winnipeg (City) Assessor, [1996] MJ No. 44 (CA) [Orange Properties] [RBOA, Tab 41]. 122 Manitoba Municipal Assessment Act, CCSM c M226, s 42-43 [RBOA, Tab 69]. 123 Orange Properties, supra note 122 at para 21 [RBOA, Tab 41]; see also Winnipeg (City) Assessor v W.R.E. Development Ltd., [1995] MJ No. 133 (CA) [RBOA, Tab 55]; see also 79912 Manitoba Ltd. v Winnipeg (City) Assessor, [1998] MJ No. 589 (CA) [RBOA, Tab 1]; see also New Holland Ltd. v Winnipeg (City) Assessor, 2000 MBCA 65 at para 9 [RBOA, Tab 38].
38 tribunal was correct in finding that its jurisdiction was limited to the taxpayer’s request for a reduction.124
130. If ss. 305(5) were to be interpreted so broadly as to permit a municipality to issue or seek a new assessment at any time, even after a complaint had been filed, there would be an inherent risk that an assessor could impose arbitrary increases at any point in the process. Such an interpretation would allow an assessor to circumvent the intent of the MGA in managing the assessment complaint process and would effectively allow the assessor to do implicitly what he/she is explicitly prohibited from doing—appealing an assessment roll under complaint by issuing a new assessment, on a new basis, which provides no period of review to the taxpayer.125
131. A review of the overall regime required that the new “opinion” of the assessor was only allowed to be implemented after the decision or in the subsequent year. This in fact was done, and the Board properly rejected the “Power Centre” approach, reversing the error made in the within case.126 iii. The City Did Not File a Complaint. It is Not a Complainant
132. As a statutory delegate, a municipal assessor is bound by a duty of fairness and should have no self-interest in a complaint itself.127
133. There is no legislative foundation to the City’s position that allows a conversion of the process of appeal to change the complainant or increase the taxpayers’ liability. The ABCA recognized s. 467(1), read in the context, does not permit upwards revision, and must be read in light of what the Board can “change”, as circumscribed by s. 460(5) (the matters which can be complained of), and s. 460(3) (only a taxpayer can complain). The City has no answer to the express reservation of the right of complaint to the taxpayer. Since only a taxpayer can complain, the City would be limited to “correcting” assessments about which a complaint has been filed. The ABCA noted this flaw in the
124 Prince Albert (City) v Saskatchewan Assessment Management Agency, 2009 SKCA 59 at paras 5-7 [Prince Albert] [RBOA, Tab 44]. 125 See Newterm Ltd. v St. John’s (City), [1991] NJ No. 261 (S.C.T.D.); 292 APR 49 at Pages 7-9 [RBOA, Tab 40]. 126 AEC International 2012, supra note 4 [RBOA, Tab 2]. 127 Boardwalk, supra note 44 at paras 159-163 [RBOA, Tab 9].
39
City’s “equity” argument and was attuned to the legislative context and the balancing of interests reflected in the MGA. The City’s policy concerns are addressed by broad assessment making powers on an annual basis and information compelling powers provided therewith.
134. CARB does not possess any inherent powers. The only powers it can possess are those granted to it by statute.
135. The fact that administrative tribunals are bound by their enabling statutes is not a novel concept. In Canadian Broadcasting Corp. v Quebec (Police Commission), Beetz J. speaking for the Court confirmed the absence of inherent powers in a statutory tribunal.128
136. In Dunsmuir, this Court went further and found that a fundamental principle enshrined in the rule of law is that tribunals are confined to the powers granted to them by their statute. Justices Bastarache and LeBel state:
[29] Administrative powers are exercised by decision makers according to statutory regimes that are themselves confined. A decision maker may not exercise authority not specifically assigned to him or her. By acting in the absence of legal authority, [page 212] the decision maker transgresses the principle of the rule of law …129 [emphasis added]
C. CONCLUSION
137. As Binnie J. noted, when writing for the majority in Danyluk: “a judicial doctrine developed to serve the ends of justice should not be applied mechanically to work an injustice.”130
138. The ABCA recognized that a flexible approach to the analysis of factors contemplated in a contextual review can benefit the ends of justice. The Court recognized the requirement for a balance between efficient administration by a myriad of tribunals with a legislated mandate to ensure respect for the rule of law. The complete lack of
128 Canadian Broadcasting Corp. v Quebec (Police Commission), [1979] 2 SCR 618 [RBOA, Tab 14]. 129 Dunsmuir, supra note 28 at para 29 [RBOA, Tab 21]. 130 Danyluk v Ainsworth Technologies Inc., 2001 SCC 44 at para 1 [RBOA, Tab 19].
40 justification, transparency and intelligibility in the Board's decision on a fundamental question means the court's decision to send it back to a tribunal with direction is the right decision under any standard of review.
PART IV - COSTS
139. The Respondent seeks its costs throughout.
PART V-ORDERS SOUGHT
140. Dismissal of the Appeal with costs throughout. Decision to be remitted to the Board in accordance with direction of the Court.
ALL OF WIDeH IS RESPECTFULLY SUBlVllTTED
f~ Dated at the City of Calgary in the Province of Alberta this ~~ day of February, 2016. 41
PART VI – TABLE OF AUTHORITIES
Jurisprudence Cited At Paras
1. Edmonton Assessment Review Board Decision 0098 139/11 109 (24 August 2011)
2. Edmonton Assessment Review Board Decision 0098 174/10 109 (4 August 2010)
3. Edmonton Assessment Review Board Decision 0098 115/10 109 (28 July 2010)
4. 79912 Manitoba Ltd. v Winnipeg (City) Assessor, [1998] MJ No. 589 (CA) 128
5. AEC International Inc. v The City of Edmonton, 2012 ECARB 1064 3, 21, 25, 131
6. Alberta (Information and Privacy Commissioner) v Alberta Teachers’ 68, 70, 86, Association, 2011 SCC 61 90, 97
7. Alberta (Workers Compensation Board) v Appeals Commission, 36 2005 ABCA 276
8. Alliance Pipeline Ltd. v Alberta (Minister of Municipal Affairs), 36, 40, 49, 2006 ABCA 9; 376 AR 44 62, 78
9. Altus Group Limited v Calgary (City), 2015 ABCA 86 56, 79, 80
10. Barrie Public Utilities v Canadian Cable Television Assn, 2003 SCC 27 40, 49, 62
11. Barron v Foothills (Municipal District No. 31), [1984] AJ No. 750 (CA) 78
12. Boardwalk Reit LLP v Edmonton (City), 2008 ABCA 220 40, 45, 47, 132
13. Canada (Canadian Human Rights Commission) v Canada (Attorney 68, 90, General), 2011 SCC 53 95, 96
14. Canada (Citizenship and Immigration ) v Khosa, 2009 SCC 12 46, 98
15. Canada (Deputy Minister of National Revenue - M.N.R.) 40, 49 v Mattel Canada Inc., 2001 SCC 36
16. Canada Post Corporation v Carroll, 2012 NBCA 18 42, 44
17. Canadian Broadcasting Corp. v Quebec (Police Commission), 135 [1979] 2 SCR 618
42
18. Canadian Natural Resources Ltd. v Wood Buffalo (Regional 112, 120, 121 Municipality), 2012 ABQB 177
19. Canadian Natural Resources Limited v Wood Buffalo 100, 126, 127 (Regional Municipality), 2014 ABCA 195
20. Canadian Pacific Ltd. v Matsqui Indian Band, [1995] 1 SCR 3 56, 78
21. City of Calgary v Municipal Government Board, Gaspar Szenter 63 Holdings et al (19 November 2007), Calgary 0701-04629 (Q.B.)
22. Danyluk v Ainsworth Technologies Inc., 2001 SCC 44 137
23. Dr. Q v College of Physicians and Surgeons of British Columbia, 35, 36 2003 SCC 19
24. Dunsmuir v New Brunswick, 2008 SCC 9 29, 31, 32, 33, 33, 42, 68, 73, 74, 77, 86, 88, 89, 90, 91, 136
25. Eau Claire Market Inc. v Calgary (City), 2015 ABQB 131 84
26. Fraser Health Authority v Workers’ Compensation Appeal Tribunal, 90 2014 BCCA 499
27. Harris v Canada (Minister of National Revenue - M.N.R.), C c) [p 10] [1965] 2 Ex. C.R. 653; aff’d on other grounds, [1966] S.C.R. 489
28. Island Press Ltd. v Prince Edward Island (Information and Privacy 36 Commissioner) 2004 PESCTD 69
29. Lac La Biche (County) v Lac La Biche (Subdivision and Development 90 Appeal Board), 2014 ABCA 305
30. Les Immeubles B.P. Ltee v Ville D’Anjou, [1978] J.Q. No. 278 (Sup Ct); 121 (1978), 4 MPLR 1
31. Loblaw Properties Limited v Mount Pearl (City), 2016 NLTD(G) 30 85
32. Lymburner v Nova Scotia (Health and Wellness), 2016 NSSC 23 38
33. Lysohirka v British Columbia (Workers Compensation Board), 90 [2012] B.C.J. No. 2359
34. McLean v British Columbia (Securities Commission), 2013 SCC 67 28, 95, 98
35. Mouvement laique québécois v Saguenay (City), 2015 SCC 16 33, 71, 86
43
36. National Corn Growers Assn v Canada (Import Tribunal), [1990] 31 2 SCR 1324
37. New Brunswick (Executive Director of Assessment) v Ganong Bros Ltd., 125 2004 NBCA 46
38. New Holland Ltd. v Winnipeg (City) Assessor, [2000] 2000 MBCA 65 128
39. Newfoundland and Labrador Nurses’ Union v Newfoundland and 36 Labrador (Treasury Board), 2011 SCC 62
40. Newterm Ltd. v St. John’s (City), [1991] NJ No. 261 (S.C.T.D.); 130 292 APR 49
41. Orange Properties Ltd v Winnipeg (City) Assessor, 128 [1996] MJ No. 44 (CA)
42. Pasiechnyk v Saskatchewan (Workers Compensation Board), 49 [1997] 2 SCR 890
43. Preston Crossing Properties Inc. v Saskatoon (City), 2006 SKCA 63 44
44. Prince Albert (City) v Saskatchewan Assessment Management Agency, 129 2009 SKCA 59
45. Pushpanathan v Canada (Minister of Citizenship and Immigration), 31, 33, 72 [1998] 1 SCR 982
46. Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27 97
47. Rogers Communication Inc. v Society of Composers, Authors and 30 Music Publishers of Canada, [2012] 2 SCR 283
48. Royal Canadian Legion Norwood (Alberta) Branch 178 v Edmonton (City), 78 [1992] AJ No. 644 (QB) varied on other grounds [1994] AJ No. 40 (C.A.)
49. Shaw v Alberta (Utilities Commission), 2012 ABCA 378 90
50. Small v New Brunswick Liquor Corporation, 2012 NBCA 53 42, 52
51. Smith v Alliance Pipeline Ltd., 2011 SCC 7 27, 50
52. Sommers v Edmonton (City) [1978] AJ No. 590 (CA) 78
53. Spinks v Alberta (Law Enforcement Review Board, 2011 ABCA 162 37
54. United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 68 [2004] 1 S.C.R. 485
44
55. Winnipeg (City) Assessor v W.R.E. Developments Ltd., 128 [1995] MJ No. 133 (CA)
56. World Health Edmonton Inc. v Edmonton (City) 2015 ABCA 377 81
57. Young v Okotoks (town of), 2015 ABCA 345 81
Textbooks Cited at Paras
58. The Honourable R.P. Kerans, “Standard of Review Employed by 37 Appellate Courts”, (Edmonton, Canada: Juriliber Limited 1994)
59. R. Sullivan, Sullivan on the Construction of Statutes, 6th ed. 31 (Markham: LexisNexis, 2014)
Articles Cited at Paras
60. Daly, Paul. “A Snapshot of What’s Wrong with Canadian 39 Administrative Law: MPSEP v Tran, 2015 FCA 236” Administrative Law Matters Blog, Nov 13, 2015 (administrativelawmatters.com)
61. Teplitsky, Martin, Q.C. “Standard of Review of Administrative 74 Adjudication: ‘What a tangled web we weave’” Cited: (Summer 2013) 32 jv J. No. 1, 3-11
Other Publications Cited at Paras
62. Encarta World English Dictionary, 1999, sub verbo “discover” 116
63. The Right Honourable Beverley McLachlin, P.C. Chief Justice A. i. [p1] of Canada, Administrative Tribunals and the Courts: An Evolutionary Relationship, (Speech given at 6th Annual Conference of the Council of Canadian Administrative Tribunals, Toronto, Ontario, 27 May 2013) [unpublished]
64. Ministerial Order No., L:050/10, June 4, 2010 47, 48
Legislation Cited at Paras
65. Canadian Assessment Legislative Framework C a) [p 10]
66. Assessment Act, RSBC 1996, c 20 C a) [p 10]
67. Assessment Act, RSNS 1989, c 23 C a) [p 10]
68. Assessment Act RSO 1990 c A:31 C a) [p 10]
69. Competition Tribunal Act, RSC 1985, c 19 (2nd Supp) 49
45
70. Manitoba Municipal Assessment Act, CCSM c M226 128
71. The Workers’ Compensation Act, 1979, SS 1979, c. W-17.1 49
72. City of Grand Prairie, Bylaw C-1249 and summary, Assessment Review 56 Board (bylaw is undated)
73. Town of Banff, bylaw 148-14, To Provide for the Establishment of 56 Assessment Review Boards for the Town of Banff (April 26, 2010)
74. Village of Consort, bylaw No. A764, Regional Assessment Review Board 56 Bylaw (bylaw is undated)
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PART VII – STATUTORY PROVISIONS
Municipal Government Act, RSA 2000, c M-26, ss 305, 458, 460, 460.1, 462, 467, 468, 470, 470.1, 485, 486, 488, 504.
Municipal Government Act, RSA 2000, c M-26, as it appeared prior to January 1, 2010, ss 305, 488, 499, 506.
Municipal Government Act, RSA 2000, c M-26, version comparison, December 31, 2009 (left side page) to January 1, 2010 (right side page) s 305, Part 11 ss 453 - 484.1, Part 12 ss 485 -527.1.
Matters Relating to Assessment Complaints Regulation, Alta Reg 310/2009, ss 7, 8, 9.
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