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 CENRES LIMITED
Respondent (Respondent)
-and-
THE ASSESSMENT REVIEW BOARD FOR THE CITY OF EDMONTON
Intervenor (Respondent)
FACTUM OF THE CITY OF EDMONTON, APPELLANT (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada)
City of Edmonton – Law Branch McAnsh Law 9th floor, Chancery Hall 44 Chestnut Street 3 Sir Winston Churchill Square Ottawa, ON K1S 1A1 Edmonton, AB T5J 2C3 Phone: (780) Phone: (613)294-1156 Fax: (780) 496-7267 Fax: (613) 482-5177 Email: [email protected] Email: [email protected]
Cameron Ashmore Scott McAnsh Counsel for the Appellant, Ottawa Agent for Counsel for the Appellant, City of Edmonton City of Edmonton
COPIES TO:
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 Centres Limited (as represented by AEC International Limited (as represented by AEC International Inc.) Inc.)
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 Intervenor, Ottawa Agent for Counsel for the Intervenor, Assessment Review Board for the City of Assessment Review Board for the City of Edmonton Edmonton i
Table of Contents
PART I: OVERVIEW OF APPEAL AND FACTS
Overview ...... 1
Statement of Facts ...... 2
PART II: STATEMENT OF ISSUES ...... 4
PART III: STATEMENT OF ARGUMENT ...... 4
Issue I - Does a statutory appeal provision rebut the presumption of reasonableness when a tribunal is interpreting its home statute or a closely related statute? ...... 6
A Statutory Appeal Clause Does Not Rebut the Presumption of Reasonableness ...... 8
The Intent of the Legislature is Grounded in the Presumption of Reasonableness ...... 11
Issue II - In determining whether legislative intent rebuts the presumption of reasonableness, how should the statutory appeal clause and other factors be considered? ...... 14
The Existing Categories of Correctness ...... 15
Questions of Central Importance / Competing Jurisdictional Lines ...... 16
Questions of Shared Jurisdiction - The New Category Since Dunsmuir ...... 17
Questions of Jurisdiction- An Unnecessary Category of Correctness: ...... 17
The Contextual Approach - A Search for Expertise ...... 20
Contrasting the Approach of the Alberta Court of Appeal ...... 21 ii
Other Factors Ignored by the Court of Appeal...... 26
Issue III - 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? ...... 28
The Policies of Correctness, Fairness and Equity ...... 30
The Implied Reasons of the Tribunal ...... 32
The Amendment to Section 305 ...... 34
Contrasting the Policy Perspective of the Court of Appeal ...... 36
Conclusion ...... 39
PART IV: SUBMISSION ON COSTS ...... 40
PART V: ORDER SOUGHT ...... 40
PART VI: AUTHORITIES ...... 41
PART VII: STATUTES AND REGULATIONS ...... 47
Municipal Government Act, RSA 2000, c M-26, ss. 1, 285, 293, 304, 305, 322.1, 324, 454.2, 454.3, 456, 460, 460.1, 464, 465, 467, 468, 470, 476.1, 470.1 and 477 ...... 48
Municipal Government Act, RSA 2000, c M-26, as it appeared prior to January 1, 2010, ss. 305 and 467 ...... 77
Matters Relating to Assessment and Taxation Regulation, Alta. Reg. 220/2004, ss. 2, 4, and 10 ...... 78
Matters Relating to Assessment Complaints Regulation, Alta. Reg. 310/2009, ss. 9, 13, 17, and 49 ...... 82 1
Part I - Overview of Appeal and Facts
Overview
1. Recently, the Alberta Court of Appeal (“ABCA”) held that the City of Edmonton Assessment Review Board (“Tribunal”)1 incorrectly interpreted its authority under the Municipal Government Act (“MGA”)2 to increase a property assessment.3 The ABCA decided that a statutory appeal clause in the Tribunal’s home statute rebutted the well- established presumption that, unless the question falls within one of four categories to which a correctness standard of review applies, the standard of review is reasonableness. The ABCA found that analyzing a statutory appeal clause in this fashion was an addition to, or variation of, the four “presumptive” categories of correctness.4 The ABCA Decision fundamentally alters the standard of review analysis and abandons deference for tribunals subject to a statutory right of appeal. The ABCA Decision demonstrates that clarification and guidance is required from this honourable Court on the level of deference that is owed to a tribunal subject to a statutory appeal clause and on the interpretation of assessment legislation.
2. Three questions arise out of the ABCA Decision. First, does a statutory right of appeal within a tribunal’s home statute rebut the presumption of reasonableness? Second, how should the construction of a statutory appeal clause, and other contextual factors, guide the standard of review analysis? Third, what role should fairness and equity play in the interpretation of assessment legislation?
3. The City of Edmonton (“City”) submits that the courts below incorrectly reversed the Tribunal’s determination that it had the ability to increase an assessment.5 Further, the City submits that the courts failed to fully acknowledge the expertise of the Tribunal and wrongly applied a correctness standard of review. Additionally, the ABCA incorrectly
1 Assessment Review Board Decision No 0098 56/11, dated August 2, 2011 (“Tribunal Decision”) [Appellant’s Record, Tab 1]. 2 Municipal Government Act, RSA 2000, c M-26 [Factum, Part VII, Page 48]. 3 Edmonton East (Capilano) Shopping Centres Ltd v Edmonton (City), 2015 ABCA 85 (“ABCA Decision”), 2013 [Appellant’s Record, Tab 6]. 4 Ibid at para 24. 5 Ibid at para 40; Edmonton East (Capilano) Shopping Centres Ltd v Edmonton (City), 2013 ABQB 526 (“ABQB Decision”) [Appellant’s Record, Tab 4]. 2
interpreted the Tribunal’s home statute according to its own policy considerations and downplayed the established policies of correct, fair, and equitable assessments, the cornerstones of assessment legislation.6
Statement of Facts:
4. The Respondent, Edmonton East (Capilano) Shopping Centers Limited (“Capilano”), was the owner of Capilano Mall in Edmonton. Capilano filed a complaint regarding the mall’s 2011 property assessment through an agent, AEC International Inc.7 The complaint, made pursuant to section 460(5) of the MGA,8 was regarding the “assessment amount”.
5. Upon reviewing Capilano’s evidence, a City assessor discovered an error in the assessment and determined that the rental rate applied to a portion of the property was too low and needed to be increased.9 The assessor informed Capilano’s agent by telephone of the City’s intention to recommend an increase to the Tribunal.10 Shortly thereafter, the City filed its disclosure making its recommendation. Capilano filed a lengthy rebuttal document.
6. At the Tribunal hearing, Capilano objected to the City’s request for an increase but acknowledged the Tribunal’s authority to increase an assessment.11 Capilano was offered, but declined, an adjournment to allow the submission of additional documentation.12 Instead, Capilano simply requested that the Tribunal weigh the relevant evidence in accordance with the objection.13 The Tribunal heard evidence about
6 ABCA Decision, supra note 3 at para 39 [Appellant’s Record, Tab 6]. 7 Complaint Form [Appellant’s Record, Tab 11]. 8 MGA, supra note 2 [Factum, Part VII, Page 48]. 9 Transcript of the Tribunal Decision (“Transcript”) page 156, line 9 to page 157, line 9; page 247, line 4 to page 249, line 3 [Appellant’s Record, Tab 10, pages 115, 116, 126 to 128]. 10 Transcript, Ibid at page 149, line 6 to page 150, line 16 [Appellant’s Record, Tab 10. page 108]. 11 Transcript, Ibid at page 12, lines 17-19 and page 325, lines 14-17 [Appellant’s Record, Tab 10, pages 85, 154]. 12 Transcript, Ibid at page 20, lines 9 to 24 [Appellant’s Record, Tab 10, page 87]. 13 Transcript, Ibid at page 5, lines 3-6 [Appellant’s Record, Tab 10, page 78]. 3
how the assessment amount was incorrect from both parties, including the City’s corresponding recommendation to increase the assessment.14
7. The Tribunal decided that the assessment should be increased based on the evidence. The extent of the increase was less than what the City recommended.15
8. Capilano sought leave to appeal the decision of the Tribunal pursuant to section 470 of the MGA. The Alberta Court of Queen’s Bench (“ABQB”), in granting leave,16 applied the reasonableness standard of review, recognizing that the question involved the Tribunal’s interpretation of its home statute. Leave was granted on the following grounds:
● Is the Board entitled to proceed on a new assessment supplanting the original assessment which was the subject of the complaint?; and ● Can the City be a de facto appellant/applicant before the Tribunal, and in what circumstances? 9. At the subsequent appeal, the ABQB allowed the appeal and remitted the matter back to the Tribunal for a rehearing.17 The ABQB viewed the question as jurisdictional and applied a standard of review of correctness. The City appealed the determination that this was a jurisdictional question to the ABCA.
10. The ABCA denied the City’s appeal and held that the Tribunal should not have allowed the City to argue for an increase in the assessment amount, regardless of whether the evidence supported an increase. In denying the appeal, the ABCA determined that the standard of review was correctness based on the presence of a statutory appeal clause and a contextual analysis.18
14 Transcript, supra note 9 [Appellant’s Record, Tab 10]. 15 Tribunal Decision, supra note 1, page 8 [Appellant’s Record, Tab 1]. 16 Edmonton East (Capilano) Shopping Centres Limited (AEC International Inc) v Edmonton (City), 2012 ABQB 445 (“Leave Decision”) [Appellant’s Record, Tab 2]. 17 ABQB Decision, supra note 5 [Appellant’s Record, Tab 5]. 18 ABCA Decision, supra note 3 at paras 11 to 32 [Appellant’s Record, Tab 6]. 4
Part II - Statement of Issues Issue 1 - 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: The existence of a statutory appeal clause should not rebut the presumption of reasonableness when a tribunal is interpreting a statute within its expertise.
Issue 2 - 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 contextual analysis is rarely required and should be limited to examining the expertise of a tribunal.
Issue 3 - 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 Tribunal should not be prohibited from increasing an assessment, even when the increase is based on the recommendation of a municipality.
Part III - Statement of Argument Introduction:
11. For decades, legislatures have delegated decision making power over significant and complex matters to administrative tribunals. Most tribunals are more familiar with the policies and legislation applicable to their area of specialization and make decisions within their expertise far more often than the courts. As observed by Professor Hogg:
The last 100 years have seen a great increase in the number of administrative tribunals in Canada (and elsewhere), to the point that administrative tribunals undoubtedly decide more cases and probably dispose of more dollars than do the ordinary courts... Some of the reasons for this preference can be identified. First is the desire for a specialist body: specially qualified personnel can be appointed to a tribunal, and those who do not start off specially qualified can acquire experience and expertise in the field of regulation (whether it be labour relations, marketing of agricultural products, transportation, broadcasting, liquor licensing, or whatever).19
12. As tribunals become greater in number and more diverse in scope, the legislatures and the courts have maintained a dialogue, which could be termed a dispute, about when, and to
19 PW Hogg, Constitutional Law of Canada, 5th ed Vol. 1 (Toronto: Thomson Reuters Canada Limited, 2007) at pp 7-43 & 7-44 [Book of Authorities, Tab 74]. 5
what extent, courts should intervene in tribunal decisions. Initially, the courts gave little deference to tribunals. Legislatures, in an attempt to limit judicial intervention, responded by enacting privative clauses. Eventually, to determine the level of deference owed by courts, this Court endorsed a pragmatic and functional approach, which slowly evolved into the standard of review analysis adopted in Dunsmuir.20
13. Throughout these developments, the common and significant theme permeating the caselaw is the expertise of the tribunal. Early on, the courts recognized that the expertise of a tribunal is an important factor in determining the level of deference. Recent cases have taken tribunal expertise a step further and established two related presumptions: the presumption of expertise when a tribunal is working within its legislated area of specialization, and the presumption of reasonableness when a tribunal is interpreting its home statute or a statute closely connected to its function.21
14. The City submits that recent decisions of this Court demonstrate a subtle shift in thinking which increasingly recognizes that legislatures, in delegating decision making authority to specialized tribunals, clearly intend that expert tribunals be given significant deference within their area of expertise. This shift in thinking recognizes the importance of specialized tribunals within our democratic system and their place in enforcing the rule of law. To preserve the true intentions of the legislatures, this Court appears to have adjusted its focus, ensuring that courts defer to the unique perspective that tribunals bring to the interpretation of legislation within a specialized area.
15. It is therefore crucial that courts remain focused on the expertise of tribunals and whether tribunals are acting within that expertise. The City submits that it is time this Court recognizes that a contextual analysis is rarely, and perhaps no longer, required when a tribunal is interpreting its home statute since every tribunal is a legislated specialist. At a minimum, to preserve tribunal expertise, the Court should clearly indicate that the presumption of reasonableness is robust, and that correctness should only be used in rare cases where a contextual analysis shows, in a clear and convincing way, that the expertise
20 Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 (“Dunsmuir”) [Book of Authorities, Tab 34]. 21 Alberta (Information and Privacy Commissioner) v Alberta Teachers Association, 2011 SCC 61 (“Alberta Teachers”) paras 1 and 39 [Book of Authorities, Tab 6]. 6
of a tribunal is not to be recognized. The courts should not use a contextual analysis to search for implied legislative intent, or to apply policy considerations not expressed in the legislation, to defeat the deference that is due to expert tribunals.
Issue 1: Does a statutory appeal provision rebut the presumption of reasonableness when a tribunal is interpreting its home statute or a closely related statute?
16. It is firmly established that courts must give adequate deference to a decision maker to ensure that the legislature’s decision to delegate the responsibility to answer certain questions to that decision maker is respected. The appropriate level of deference is usually associated with attempting to determine whether the legislature intended that the decision maker answer a question.22 Deference is accorded out of respect for the expertise and experience of the decision maker, and not necessarily because the decision maker is in the best position to answer a question.23
17. A standard of review analysis where there is a statutory appeal clause is based on administrative law principles.24 Administrative law principles have long acknowledged the importance of tribunal expertise, even when there is a statutory right of appeal. In Pezim,25 Justice Iacobucci stated that questions falling squarely within the expertise of a tribunal should be given deference, notwithstanding the existence of a statutory appeal clause.
Consequently, even where there is no privative clause and where there is a statutory right of appeal, the concept of the specialization of duties requires that deference be shown to decisions of specialized tribunals on matters which fall squarely within the tribunal's expertise.26
22 McLean v British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 SCR 895 (“McLean”) para 33 [Book of Authorities, Tab 49]; Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982 (“Pushpanathan”) at para 26 [Book of Authorities, Tab 56]. 23 Taub v Investment Dealers Assn. of Canada, 2009 ONCA 628 at paras 23 - 24 [Book of Authorities, Tab 65]. 24 Mouvement laïque québécois v Saguenay (City), 2015 SCC 16, [2015] 2 SCR 3 (“Saguenay”) para 38 [Book of Authorities, Tab 50]; Dr. Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 SCR 226 (“Dr. Q”) paras 17, 21, 27 and 36 [Book of Authorities, Tab 33]. 25 Pezim v British Columbia (Superintendent of Brokers), [1994] 2 SCR 557 (“Pezim”) [Book of Authorities, Tab 54]. 26 Ibid at para 66 [Book of Authorities, Tab 54]. 7
18. Later, for the full Court in Southam, Justice Iacobucci stated that where the legislature entrusts a matter to a tribunal, this forms a reason not to employ a standard of correctness even where there is a statutory appeal.
...[An] appeal from a decision of an expert tribunal is not exactly like appeal from a decision of a trial court. Presumably if Parliament entrusts a certain matter to a tribunal and not (initially at least) to the courts, it is because the tribunal enjoys some advantage that judges do not. For that reason alone, review of the decision of a tribunal should often be on a standard more deferential than correctness.27
19. Still later, Chief Justice McLachlin, for a unanimous Court in Dr. Q, outlined the various factors to look at to determine whether a tribunal has expertise, and reiterated that even where there is a statutory appeal clause, the expertise of a tribunal cannot be overlooked.
...Simply put, “whether because of the specialized knowledge of its decision- makers, special procedure, or non-judicial means of implementing the Act”, an administrative body called upon to answer a question that falls within its area of relative expertise will generally be entitled to greater curial deference.28
20. Very recently, the majority of this Court in Saguenay again recognized the importance of expertise, even where there is a statutory right of appeal, stating that, “the existence of a right to appeal with leave does not mean that the Tribunal’s specialized administrative nature can be disregarded".29
21. Only once in recent caselaw has this Court found that a statutory right of appeal was determinative of the standard of review. In Tervita,30 the majority of this Court determined that the wording of the statutory appeal clause was a clear signal from the legislature that the appeal be treated as an appeal from a lower court, and that this meant that no deference was warranted. This decision was based on the specific language in the appeal clause and not its mere presence. Justice Abella, in dissent, recognized that the existence of a statutory right of appeal was not one of the categories of correctness.
27 Canada (Director of Investigation and Research) v Southam Inc, [1997] 1 SCR 748 (“Southam”) para 55 [Book of Authorities, Tab 18]. 28 Dr. Q, supra note 24 para 29 [Book of Authorities, Tab 33]. 29 Saguenay, supra note 24 para 43 [Book of Authorities, Tab 50]. 30 Tervita Corp v Canada (Commissioner of Competition), 2015 SCC 3, [2015] 1 SCR 161 (“Tervita”) [Book of Authorities, Tab 66]. 8
It is true that this Court has recognized that certain categories of questions warrant a correctness review. Rothstein J. set them out in Alberta Teachers...Notably, a statutory right of appeal is not one of them.31
22. Accordingly, this Court has been consistent that the mere existence of a statutory appeal clause does not mean that the standard of review will be correctness. Deference was only rebutted in Tervita due to the unique wording of the appeal clause. The appeal clause in Tervita is clearly different from the Section 470 appeal clause in the MGA32.
A Statutory Appeal Clause Does Not Rebut the Presumption of Reasonableness
23. Since Alberta Teachers, the presumption of reasonableness has been endorsed in all decisions of this Court, including those resulting from a statutory appeal.33 In no case did this Court opine that the existence of a statutory appeal clause rebutted the presumption of reasonableness. The ABCA Decision, if correct, significantly weakens the presumption of reasonableness and arguably creates a new category of correctness.
24. Historically, the existence of a statutory appeal clause was an indication that the court could give less deference to decisions of a tribunal, which in some cases changed a standard of review from patent unreasonableness to reasonableness simpliciter.34 However, a statutory appeal clause alone never warranted a review on a correctness standard. More recently, instead of being viewed as a statement about deference, other reasons for appeal clauses have been recognized. For example, a statutory appeal clause may be used to limit or reduce the number of appeals brought before the courts.35 Appeal clauses may also be used to provide an alternative to judicial review, but with shorter limitation periods.36 In modern day drafting, statutory appeal clauses serve multiple
31 Ibid at paras 177 and 178. 32 MGA, supra note 2 at s 470 [Factum, Part VII, Page 73]. 33 McLean, supra note 22 [Book of Authorities, Tab 49]; Saguenay, supra note 24 [Book of Authorities, Tab 50]; Sattva Capital Corp. v Creston Moly Corp, 2014 SCC 53, [2014] 2 SCR 633 (“Sattva”) [Book of Authorities, Tab 60]. 34 Southam, supra note 27 at para 55 [Book of Authorities, Tab 18]. 35 Precision Drilling Corporation v Calgary (City), 2011 ABQB 503 at para 32 [Book of Authorities, Tab 55]. 36 Section 470(3) of the MGA allows appeals to be brought within 30 days [Factum, Part VII, Page 73]. Rule 3.15(2) of the Alberta Rules of Court AR 124/2010 provides a 6 month limitation to file for judicial review [Book of Authorities, Tab 85]. 9
purposes and interpreting them as signals about the level of deference the legislature intended may be seeing something that does not exist.
25. Where there is a statutory appeal clause, this Court has confirmed that the role of a court is based on administrative law principles which acknowledge that deference is due to tribunals.37 These principles recognize the importance of deferring to tribunals, even on some questions of law, to ensure that the expertise of the tribunal with respect to policy and the nuances of the legislation is not lost. Reasonableness is the standard that emphasizes the expertise of the tribunal as the executive decision maker.
26. Correctness, on the other hand, allows the courts to impose their own policy considerations and ignore the expertise of the tribunal. Courts have greater latitude to replace an expert tribunal’s view with their own views, thereby defeating the intention of the legislature to have matters decided by the tribunal. Effectively, the expertise of the tribunal, and its proficiency in understanding and applying the policies within its specialized area, would be diminished or lost. This results in a loss of both democratic and political accountability.38
27. To hold, as the ABCA did, that the existence of a statutory right of appeal rebuts the presumption of reasonableness significantly erodes the deference established in the caselaw and leads to additional uncertainty in the standard of review analysis. As legislation continues to grow in complexity and scope, courts hearing statutory appeals and judicial reviews are faced with increasingly complex legislative regimes, and, accordingly, the recognition of tribunal expertise needs to keep pace. Downplaying tribunal expertise represents a pronounced diversion from the course that this Court has set since Pezim. The dissent of Justice Abella in Tervita speaks wisely to this issue:
...Through cases like McLean… and Alberta Teachers, judges and lawyers engaging in judicial review proceedings came to believe, rightly and reasonably, that the jurisprudence of this Court had developed into a presumption that regardless of the presence or absence of either a right of appeal or a privative
37 Saguenay, supra note 24 [Book of Authorities, Tab 50]; Dr. Q, supra note 24 [Book of Authorities, Tab 33]. 38 Green, Andrew, “Can There Be Too Much Context in Administrative Law? Setting the Standard of Review in Canadian Administrative Law” (28 December 2013) 47(2) UBC Law Review at page 17 [Book of Authorities, Tab 78]. 10
clause — that is notwithstanding legislative wording — when a tribunal is interpreting its home statute, reasonableness applies.39
28. The ABCA Decision has already created uncertainty and confusion in Alberta. Since Dunsmuir, Alberta caselaw has developed in accordance with this Court’s guidance that assessment tribunals interpreting their home statute should be reviewed on a reasonableness standard.40 Since the ABCA Decision, however, some courts have applied the standard of correctness to decisions of assessment tribunals,41 while others have distinguished the ABCA Decision and applied the standard of reasonableness.42 There are also assessment cases which, while not having to fully decide the standard of review, express uncertainty.43 There is also uncertainty in other legal contexts where the ABCA has either agreed with, or distinguished, the ABCA Decision.44 This confusion and uncertainty must be remedied to again give predictability to the standard of review analysis.
29. Outside of Alberta, while most assessment jurisdictions across Canada have some form of statutory appeal clause, and many of those clauses are limited to questions of law or jurisdiction,45 there is also a lack of consistency in the standard of review.46 These other jurisdictions will also benefit from the guidance of this Court.
39 Tervita, supra note 30 para 170 [Book of Authorities, Tab 66]. 40 Examples include Genesis Land Development Corp v Calgary (City), 2014 ABQB 57 at para 30 [Book of Authorities, Tab 39]; Globexx Properties Inc v Edmonton (City), 2012 ABQB 651 at para 11 [Book of Authorities, Tab 40]; Alberta (Minister of Municipal Affairs) v Access Pipeline Inc, 2011 ABQB 144 at paras 39 and 40 [Book of Authorities, Tab 7];TransCanada Keystone Pipeline Ltd Partnership v Alberta (Designated Linear Assessor), 2011 ABQB 460 at para 49 [Book of Authorities, Tab 67]; Associated Developers Ltd v Edmonton (City), 2011 ABQB 592 at para 53 and 56 [Book of Authorities, Tab 10]; Boardwalk Reit LLP v Edmonton (City), 2008 ABCA 220 at para 34 [Book of Authorities, Tab 12]; Calgary (City) v Alberta (Municipal Government Board), 2008 ABCA 187 at para 23 (“Calgary”) [Book of Authorities, Tab 14]. 41 Canadian Natural Resources Limited and Trident Exploration Corp v Red Deer (County), 2015 ABQB 220 para 21 [Book of Authorities, Tab 23]. 42 1544560 Alberta Ltd v Edmonton (City), 2015 ABQB 520 at paras 36 & 37 [Book of Authorities, Tab 1]. 43 Altus Group Limited v Calgary (City), 2015 ABCA 86 at para 11 [Book of Authorities, Tab 8]; 908118 Alberta Ltd v Calgary (City), 2015 ABQB 681 at para 25 [Book of Authorities, Tab 2]. 44 In FortisAlberta Inc. v Alberta (Utilities Commission), 2015 ABCA 295 para 95 [Book of Authorities, Tab 38], the ABCA distinguishes the case; In Stewart v Elk Valley Coal Corporation, 2015 ABCA 225 at para 59 [Book of Authorities, Tab 63], the Court of Appeal indicated that it was in agreement with the core of the ABCA Decision and again applies a wide ranging contextual analysis. 45 Assessment Act, RSBC 1996, c 20 (“BC Act”), ss. 64(1), 65(1), 65(9) [Book of Authorities, Tab 86]; The Cities Act, SS 2002, c C-11.1 (“SK Act”), s. 216 [Book of Authorities, Tab 93]; Municipal Board Act, SS 1988-89, c M-23.2, s 33.1 [Book of Authorities, Tab 91]; The Municipal Assessment Act, CCSM, c M- 11
The Intent of the Legislature is Grounded in the Presumption of Reasonableness
30. As noted, tribunal expertise has always been a central consideration in determining the standard of review. Tribunal expertise was one factor in the search for legislative intent under the pragmatic and functional approach first established by this Court in Bibeault47 and more fully explained later in Pushpanathan.48 Both the purpose of the legislation and the nature of the question had to be considered in conjunction with expertise under the pragmatic and functional approach. Of all the factors considered, expertise was often cited as the most significant. For example, the reasoning of Justice Iacobucci in Southam, which was reiterated by this Court in Pushpanathan,49 focused on the importance of tribunal expertise: Expertise, which in this case overlaps with the purpose of the statute that the tribunal administers, is the most important of the factors that a court must consider in settling on a standard of review.50
31. Notwithstanding the recognition of the importance of tribunal expertise in the pragmatic and functional approach, the use of four factors in the approach allowed it to be highly flexible and adaptable to the multitude of tribunals across Canada. Unfortunately, it was so flexible that courts could easily alter the approach to create results oriented reasoning. As one commentator outlined:
[It] was exactly the complexity of the former contextual approach and the freedom it provided to judges to pick the standard of review they preferred that
226 (“MN Act”), ss. 56(1), 56(4), 63(1), and 63(5) [Book of Authorities, Tab 94]; Assessment Act, RSO 1990, c A.31 (“ON Act”), ss. 43(1), and 43.1 [Book of Authorities, Tab 88]; Assessment Act, RSNB 1973, c A-14 (“NB Act”), ss. 37(1), 37(4), and 37(8) [Book of Authorities, Tab 87]; Assessment Act, RSNS 1989, c 23 (“NS Act”), s. 87 [Book of Authorities, Tab 89]; Utility and Review Board Act, SNS 1992, c 11, ss. 30, and 31 [Book of Authorities, Tab 95]; Real Property Assessment Act, RSPEI 1988, c R-4 (PEI Act”), s. 33 [Book of Authorities, Tab 92]; Assessment Act, SNL 2006, c A-18.1 (“NL Act”), s. 39(3) [Book of Authorities, Tab 90]. 46 See for example: Weyerhaeuser Co v Nanaimo/Cowichan Assessor, Area No. 04, 2010 BCCA 46, at paras 37 – 47 (reasonableness) [Book of Authorities, Tab 70]; 959630 Alberta Inc v Regina (City), 2010 SKCA 136 at para 4 (correctness) [Book of Authorities, Tab 3]; Winnipeg (City) Assessor v Hill-Everest Holdings Ltd., 2009 MBCA 57 at paras 12 – 13 (correctness) [Book of Authorities, Tab 72]; Schrader (Re), 2010 NSCA 90 at para 11 (reasonableness) [Book of Authorities, Tab 61]; Labatt Brewing Co v St John's (City), 2011 NLCA 75 at para 35 (correctness) [Book of Authorities, Tab 45]. 47 U.E.S., Local 298 v Bibeault, [1988] 2 SCR 1048 (“Bibeault”) at paras 116 - 127 [Book of Authorities, Tab 68]. 48 Pushpanathan, supra note 22 at paras 29 - 38 [Book of Authorities, Tab 56]. 49 Ibid at para 36. 50 Southam, supra note 27 para 50 [Book of Authorities, Tab 18]. 12
led the Court to attempt to simplify the choice of standards through categorization.51
32. The pragmatic and functional approach allowed the courts, either intentionally or unwittingly, to apply their own policy preferences in determining which standard of review to apply.52 Additionally, since different justices may place different weight on the four factors considered in the approach, the outcome was unpredictable.53 Further, what one justice may view as clear evidence of legislative intent, another might reject as irrelevant or ambiguous. Under the pragmatic and functional approach, a case could turn on whether the parties and the courts correctly identified, interpreted, and weighed all the factors in the search for legislative intent.54 Often the expertise of the tribunal was overlooked or lost.
33. The problems with the pragmatic and functional approach were discussed in caselaw and academic articles55 and, ultimately, this Court issued its seminal decision in Dunsmuir. In Dunsmuir, Justice Binnie indicated that the unpredictable nature of the pragmatic and functional approach meant that more time and expense was being spent on arguments relating to the standard of review than was warranted.56 Justices LeBel and Bastarche, for the majority, clearly articulated the intention of this Court to move away from the pragmatic and functional approach:
The Court has moved from a highly formalistic, artificial “jurisdiction” test that could easily be manipulated, to a highly contextual “functional” test that provides great flexibility but little real on-the-ground guidance, and offers too many standards of review. What is needed is a test that offers guidance, is not formalistic or artificial, and permits review where justice requires it, but not otherwise. A simpler test is needed.57
51 Green, supra note 38 at page 4 [Book of Authorities, Tab 78]. 52 Ibid at pages 5, 9 and 34. 53 Ibid at page 27. 54 A discussion of having this same issue imported into the contextual analysis is found in Daly, Paul, “Dunsmuir’s Flaws Exposed: Recent Decisions on Standard of Review” (2012) 58: 2 MacGill L.J. 483-587 at para 30-31 [Book of Authorities, Tab 76]. 55 A summary of the discussions can be found in Lewans, Matthew, “Deference and Reasonableness since Dunsmuir”, (2012) 38 Queen’s L.J. 59-98 at para 20-23 [Book of Authorities, Tab 79]. 56 Dunsmuir, supra note 20 para 133 [Book of Authorities, Tab 34]. 57 Ibid at para 43. 13
34. In simplifying the standard of review analysis, Dunsmuir again recognized the importance of expertise by restating that a tribunal operating in a discrete and specialized administrative regime was usually entitled to deference.58 The Court also reiterated that those frequently working within an administrative regime are often in a better position than the courts to understand the policy considerations and interpret legislation in accordance with those policies.59
35. Expertise was again endorsed, and expanded upon, by this Court in Alberta Teachers where Justice Rothstein, for the majority, stated that there is an assumption that when an administrative tribunal is constituted, it has specialized expertise in the assigned subject matter.
Through the creation of administrative tribunals, legislatures confer decision- making authority on certain matters to decision makers who are assumed to have specialized expertise with the assigned subject matter. Courts owe deference to administrative decisions within the area of decision-making authority conferred to such tribunals.60
36. It was this logic, and the continued recognition of the principles flowing from Dunsmuir, that led this Court to the conclusion that, where a tribunal is interpreting its home statute, there is a rebuttable presumption that the legislature intended the courts to give deference to the tribunal’s decision:
unless the situation is exceptional, and we have not seen such a situation since Dunsmuir, the interpretation by the tribunal of “its own statute or statutes closely connected to its function, with which it will have particular familiarity” should be presumed to be a question of statutory interpretation subject to deference on judicial review.61
37. The common theme through Pezim, Pushpanathan, Dunsmuir, and more recently Alberta Teachers, is the importance of the recognition of a tribunal’s expertise and the tribunal’s proficiency in understanding the underlying policies associated with related legislation. Legislatures deliberately set up expert tribunals and intend to have these tribunals settle
58 Ibid at para 54. 59 Ibid at para 49; also see Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339 at para 25 [Book of Authorities, Tab 16]. 60 Alberta Teachers, supra note 21 para 1 [Book of Authorities, Tab 6]. 61 Ibid at para 34. 14
disputes, subject only to the rights of judicial review or statutory appeal. If legislative intent is the polar star, it is now recognized that a legislature’s decision to create a specialized expert tribunal clearly signals that intent, and deference is therefore warranted when the tribunal acts. The polar star of legislative intent is acknowledged and grounded within the presumption of reasonableness itself.
38. The City therefore submits that it is necessary, in order to ensure consistency in the determination of standard of review across Canada and to preserve the deference that is due to expert tribunals, that this Court confirm that the mere existence of a statutory right of appeal is not sufficient to rebut the well-established presumption of reasonableness and that it does not represent a new category of correctness. To hold otherwise would be a significant step back from this Court’s recognition of the increasing importance of specialized tribunals to the rule of law.
Issue 2: In determining whether legislative intent rebuts the presumption of reasonableness, how should the statutory appeal clause and other factors be considered? 39. This Court’s decision in Dunsmuir provided a roadmap for courts to follow to determine the appropriate level of deference to be applied in reviewing a tribunal’s decision. First, a court should consider the existing jurisprudence to see whether the standard of review has already been determined.62 Where jurisprudence is not clear, the court should presume that a tribunal has expertise over its assigned subject matter. If a tribunal is interpreting its home statute, or a statute closely connected to its function, the presumption of reasonableness applies.63 The presumptions of expertise and reasonableness ensure that tribunals, which are often the most familiar with a discrete area of law and the policy considerations important to the interpretation of statutes within their expertise, are paid sufficient deference by the courts. As discussed above, legislative intent is grounded in the presumption of reasonableness.
62 Dunsmuir, supra note 20 para 62 [Book of Authorities, Tab 34]. 63 Alberta Teachers, supra note 21 paras 1 and 39 [Book of Authorities, Tab 6]. 15
40. However, this Court has also recognized that, notwithstanding tribunal expertise, there are categories of questions where the presumption of reasonableness is rebutted.64 The categories create an element of predictability and consistency in the standard of review analysis and acknowledge that there are questions that are outside the expertise of a tribunal or that are better answered by the courts.
41. In addition to the categories of correctness, until now, this Court has held that the presumption of reasonableness can be rebutted through a contextual analysis.65 It is not entirely clear, however, when a court should resort to a contextual analysis or whether a contextual analysis requires a court to embark on a full pragmatic and functional approach. If courts have free reign to use the pragmatic and functional approach to find a reason to disregard the deference that is due to a specialized tribunal then, over time, the problems that plagued that approach will reappear. As one commentator put it, too heavy a reliance on the contextual analysis may lead to different tribunals being treated differently:
...Canada could end up with a balkanized system of administrative law, in which different principles apply depending on the subject matter of the decision maker’s jurisdiction, even where the relevant legal frameworks are substantially similar. 66
42. The City therefore submits that this Court should make it clear that the presumption of reasonableness is strong and the circumstances where it can be rebutted are narrow. Further, it should be made clear that a full pragmatic and functional approach is no longer necessary and that the only relevant contextual factor is tribunal expertise.
The Existing Categories of Correctness
43. In Dunsmuir, each category of correctness identifies a type of question where the standard of correctness is necessary. Notwithstanding that the list of categories was not specifically closed,67 the reasoning in Dunsmuir and subsequent cases suggests that the
64 Dunsmuir, supra note 20 paras 58 to 61 [Book of Authorities, Tab 34]. 65 McLean, supra note 22 at para 22 [Book of Authorities, Tab 49]. 66 Daly, supra note 54 at para 31 [Book of Authorities, Tab 76]. 67 For example the ABCA in the ABCA Decision attempted to establish a new category of correctness when a statutory appeal clause exists. The federal Court of Appeal in Wilson v Atomic Energy of Canada Limited, 2015 FCA 17 [Book of Authorities, Tab 71] (scheduled before this Court in early 2016) appears to argue for a second new category based on conflicting lines of authority. 16
use of categories would minimize, and eventually eliminate, the need to perform a full pragmatic and functional analysis. New categories will be rare and only found where it is determined that the legislature intended that the court, and not the tribunal, answer a question. An examination of each category of correctness reveals that most, if not all, situations where a pragmatic and functional approach should have led a court to a standard of correctness are already captured. As noted above, the existence of a statutory appeal clause should not create a new category of correctness.
Questions of Central Importance / Competing Jurisdictional Lines 44. The first category of correctness includes questions of law that are of central importance to the legal system and outside the expertise of the tribunal. Under the pragmatic and functional approach, these questions were identified by looking at three related factors: the nature of the question, the expertise of the tribunal and the purpose of the statute as a whole. Questions that impact the administration of justice as a whole require uniform and consistent answers.68 This Court, in Pushpanathan, acknowledged that there are some questions of law that are highly generalized and outside the expertise of a tribunal and this category captures those questions:
In the usual case, however, the broader the propositions asserted, and the further the implications of such decisions stray from the core expertise of the tribunal, the less likelihood that deference will be shown. Without an implied or express legislative intent to the contrary as manifested in the criteria above, legislatures should be assumed to have left highly generalized propositions of law to courts.69
45. Similar to highly generalized questions, are constitutional questions. Constitutional questions also require a correctness standard since the impact of the answer is broad. Further, these questions are associated with the role of section 96 courts as interpreters of the constitution.70
46. Questions regarding jurisdictional lines between two or more competing tribunals also attract a correctness standard. The correctness standard ensures that legislative intent is not frustrated by the wrong tribunal taking jurisdiction over a question that the legislature
68 Dunsmuir, supra note 20 at para 60 [Book of Authorities, Tab 34]. 69 Pushpanathan, supra note 22 at para 38 [Book of Authorities, Tab 56]. 70 Nova Scotia (Workers’ Compensation Board) v Martin, 2003 SCC 54, [2003] 2 SCR 504 at paras 29 - 31 [Book of Authorities, Tab 53]. 17
intended a different tribunal deal with.71 Under the pragmatic and functional approach, questions of competing jurisdiction would have been identified by looking at the nature of the question, the purpose of each piece of enabling legislation, and the relative expertise of each tribunal.
Questions of Shared Jurisdiction - The New Category Since Dunsmuir
47. A new category of correctness, relating to shared jurisdiction between the courts and a tribunal, appears to have been established by this Court in Rogers Communication.72 Although similar to the category of competing jurisdictional lines between tribunals, this category recognizes a situation where both the court and a tribunal could answer the same legal question at first instance.73 It appears that when a legislature indicates that both a court and a tribunal are intended to answer the same legal question at first instance, no deference is warranted.74 Questions of Jurisdiction - An Unnecessary Category of Correctness
48. The final category of correctness includes true questions of jurisdiction or vires. This Court has long struggled to create an adequate definition of jurisdiction. In CUPE, this Court recognized the difficulty in determining what is and what is not a jurisdictional question.75 In Pushpanathan, this Court used a circular definition when it stated that a jurisdictional error is simply one to which the correctness standard should apply.76
71 Regina Police Assn Inc v Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 SCR 360 at para 34 - 35 [Book of Authorities, Tab 57]. 72 Rogers Communications Inc v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 SCR 283 [Book of Authorities, Tab 59]. 73 Also see McLean supra note 22 at para 24 [Book of Authorities, Tab 49] where this Court clarified that both the Court and a tribunal would have to be interpreting the same legal question at first instance for this category to apply. 74 The decision of this Court in Tervita, supra note 30 [Book of Authorities, Tab 66] is a second example of shared jurisdiction although in a different context where the statutory appeal clause said to treat the appeal as if it came from a lower court. 75 C.U.P.E. v N.B. Liquor Corporation, [1979] 2 SCR 227 (“CUPE”) at page 233 [Book of Authorities, Tab 31]. 76 Pushpanathan, supra note 22 at para 28 [Book of Authorities, Tab 56]. 18
49. In Dunsmuir, this Court confirmed that questions of jurisdiction are rare and necessarily narrow.77 The Court also described jurisdiction as whether a statutory grant of power gives a tribunal the power to decide. However, the Court did not expressly indicate why an expert tribunal, where there are no competing jurisdictional lines, should not be given deference when interpreting the scope of its own statutory mandate. Similar to applying the reasonableness standard when an expert tribunal is interpreting questions of law within its core area of expertise, a reasonableness standard should apply when an expert tribunal is determining which questions it has the authority to answer.
50. In Alberta Teachers, Justice Rothstein, for the majority, questioned whether it was helpful or necessary to have jurisdictional questions as a category of correctness.78 It is recognized that every action taken by a tribunal requires an express or implied interpretation of the tribunal's home statute.79 Since a determination of a tribunal’s mandate is simply an exercise of statutory interpretation, there is no reason to ignore the expertise that a tribunal brings to that exercise.
51. The English Courts appear to have long ago removed the distinction between jurisdictional errors and other errors of law.80 The Supreme Court of the United States recently eliminated the mirage of jurisdictional questions.81 Since Alberta Teachers, this Court, and others, have questioned the existence of jurisdictional questions and been forced to determine whether alleged questions of jurisdiction are simply questions of statutory interpretation of a decision maker’s home statute.82
77 Dunsmuir, supra note 20 at para 59 [Book of Authorities, Tab 34]; also see Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53 at para 18 (“Mowat”) [Book of Authorities, Tab 15]. 78 Alberta Teachers, supra note 21 at para 42 [Book of Authorities, Tab 6]. 79 Nolan v Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 SCR 678 (“Nolan”) at para 35 [Book of Authorities, Tab 52]. 80 Lumba v Secretary of State for the Home Department, [2011] UKSC 12 at para 66 [Book of Authorities, Tab 48] citing Anisminic Ltd. v Foreign Compensation Commission [1969] 2 AC 147. 81 City of Arlington, Texas, et al. v Federal Communications Commission et al 133 S.Ct. 1863 (2013) [Book of Authorities, Tab 26]. 82 Maclean supra note 22 at para 25 [Book of Authorities, Tab 51]; Celgene Corp. v Canada (Attorney General), 2011 SCC 1, [2011] 1 SCR 3 at paras. 33-34 [Book of Authorities, Tab 25]; Nolan supra note 79 paras 28-34 [Book of Authorities, Tab 52]; Mowat, supra note 77 at para 24 [Book of Authorities, Tab 15]; Isbister v Metis Settlements Appeal Tribunal, 2015 ABCA 164 at para 19 & 20 [Book of Authorities, Tab 43]; Canadian Broadcasting Corp v SODRAC 2003 Inc., 2015 SCC 57 at para 39 [Book of Authorities, Tab 21]. 19
52. In Dunsmuir, this Court described the entire standard of review analysis as an attempt to determine the authority given to a tribunal and whether the tribunal exceeded that authority.83 A determination of whether a tribunal had the authority to decide can occur both with respect to an unreasonable interpretation of the law or an unreasonable interpretation of the facts. If a tribunal unreasonably interprets a statute, whether or not it is about its jurisdiction, its decision should be overturned. However, Dunsmuir ensures that the expertise and policy considerations as to why a tribunal decided the question is not lost. The reasoning in Dunsmuir is equally applicable to a tribunal’s interpretation of its home statute to determine its statutory mandate or “jurisdiction”.
53. The City submits that the category of jurisdiction appears unnecessary. Accordingly, it may be time that this honorable Court eliminates the category and confirms that deference is owed when a tribunal is interpreting its home statute to determine its mandate. Removing jurisdiction from the categories of correctness will further simplify the standard of review analysis and eliminate the risk that the narrow concept of jurisdiction will continue to be inconsistently applied.
54. Importantly, it is not the concept of jurisdiction that is being questioned. Any time a tribunal makes a decision or takes an action which it was not authorized to take, that decision or action would be outside the tribunal’s jurisdiction. However, there is nothing special about an expert tribunal defining its authority through an interpretation of its home statute that requires that interpretation to be determined on a standard of correctness.
55. The case at bar is the perfect example of how questions relating to jurisdiction can continue to confuse both the parties and the courts. The ABQB determined that the question at issue was a jurisdictional question and therefore one to which a correctness standard should apply. The appeal to the ABCA focused on why the question was not jurisdictional and why the presumption of reasonableness should not have been rebutted. Notwithstanding that the appeal was about whether the question fell within the jurisdictional category of correctness, the ABCA created a new category of correctness
83 Dunsmuir, supra note 20 at para 29 [Book of Authorities, Tab 34]. 20
based upon the statutory appeal clause. At each level, the courts focused on the standard of review rather than on whether the Tribunal’s decision was reasonable. Eliminating the category of jurisdictional questions would have simplified the case, and rightfully lead to increased focus on the core issue instead of the standard of review.
The Contextual Approach - A Search for Expertise
56. Whether the category of jurisdiction exists or not, it is clear that the categories of correctness are already intended to replicate the results of a pragmatic and functional analysis. It is acknowledged that the categories of correctness are still young and have not been fully considered by the courts. However, given the presumption of reasonableness and the extent of the categories of correctness, the need to undertake a contextual approach is rare and perhaps no longer necessary where a tribunal is interpreting its home statute.
57. A brief examination of the four factors in the pragmatic and functional approach reveals that when a tribunal is interpreting its home statute, an exhaustive review of each of the factors is no longer necessary. The nature of the question (statutory interpretation) will be within the tribunal’s expertise when it is interpreting its home statute. While the presence of a privative clause may confirm that deference is warranted, the absence of one or the existence of a statutory appeal clause, as argued above, is not determinative that a correctness standard should apply. As outlined above, the two remaining factors, the expertise of the tribunal and the purpose of the statute, are already interrelated with expertise being the most important factor.
58. Expertise is the deciding factor and it is recognized in the presumption of reasonableness itself. If a contextual analysis is required, it should be limited to searching for direct evidence of legislative intent to rebut the expertise of the tribunal and, therefore, the presumption of reasonableness.
59. Existing caselaw already provides guidance about the nature of a contextual approach focused on expertise. For example, institutional expertise, which is gained by the 21
repeated application of the objectives set out in legislation, must be respected.84 If there is a discrete administrative regime or specialized knowledge, especially when that knowledge is outside the general knowledge of most judges, deference is warranted.85 Expert qualifications and having a role in policy development are also factors to be considered.86 Focusing solely on whether a legislature created a tribunal that has expertise that deserves deference, will ensure the intent of the legislature is achieved.
60. The standard of review analysis, and any contextual approach, must therefore center on the existing categories of correctness and the expertise of the tribunal. In doing so this achieves the goals of a less expensive, more predictable, and more efficient system of administrative review. Many of the problems associated with a full pragmatic and functional approach will no longer arise87 and legislative intent will be respected. The focus of administrative review will continue to be based on legislative intent, with that intent illustrated by the decision of the legislature to create an expert tribunal.
Contrasting the Approach of the Alberta Court of Appeal
61. The ABCA Decision illustrates the risks associated with an unconstrained contextual analysis. The ABCA used the contextual analysis to insert its own policy considerations into the interpretation of the legislation, relying on implied legislative intent. The ABCA’s failure to focus on the expertise of the tribunal, if adopted or repeated in other contexts, could lead to a return of the pitfalls associated with the pragmatic and functional approach.88
62. The ABCA determined that the 2010 amendments to the MGA to replace an appeal to the Municipal Government Board (“MGB”) with an appeal to the courts was “a strong
84 Law Society of New Brunswick v Ryan, 2003 SCC 20, [2003] 1 SCR 247 at para 33 [Book of Authorities, Tab 46]; Canada (Deputy Minister of National Revenue) v Mattel Canada Inc, 2001 SCC 36, [2001] 2 SCR 100 at para 30 (“Mattel”) [Book of Authorities, Tab 17]; 85 Pushpanathan, supra note 22 at para 32 [Book of Authorities, Tab 56]. 86 Dr. Q, supra note 24 at para 29 [Book of Authorities, Tab 33]; Mattel, supra note 84 at para 28 [Book of Authorities, Tab 17]. 87 Green, supra note 38 [Book of Authorities, Tab 78]. 88 Shawn Fluker, associate professor from the University of Calgary stated that the decision significantly alters the relationship between the superior courts and administrative tribunals in Alberta. Shaun Fluker, “Where Are We Going on Standard of Review in Alberta”, online: The University of Calgary Faculty of Law Blog on Developments in Alberta Law http://ablawg.ca [Book of Authorities, Tab 77]. 22
indication that the legislature intended the superior courts to have a significant and direct role in the interpretation of the taxing statute”.89 This finding of implied legislative intent, however, ignores the legislature’s intention to eliminate a level of appeal that was repetitive and inefficient.90 The amendments were intended to create an efficient and fast system of appeals, as evidenced, for example, by the new requirement that complaints must be heard and decided by the tribunal by the end of the year.91 While the ABCA suggests that an appeal to the courts may go beyond the issues normally considered by the Tribunal,92 it fails to provide an example of how such an appeal would work given that Section 470.1 of the MGA makes the statutory appeal an appeal on the record.
63. The ABCA also parsed the statutory appeal clause and determined that since leave may only be granted for questions of “sufficient importance”, such questions, which are of importance to the municipal taxation system as a whole, are similar to questions of central importance to the legal system.93 Even assuming that questions of sufficient importance are those that affect the municipal taxation system as a whole, these questions are unlikely to affect the administration of justice as a whole94 and are not automatically outside the expertise of the tribunal.
64. The legislature created the Tribunal as an expert tribunal to oversee the subject matter of assessment. Accordingly, it must be assumed that the legislature wanted questions related to assessment and the assessment regime, and which fall squarely within the expertise of the Tribunal, to be handled at first instance by the Tribunal. As recognized
89 ABCA Decision supra note 3 at para 24 [Appellant’s Record, Tab 6] 90 Alberta Hansard April 21, 2009, page 735 [Book of Authorities, Tab 81]. 91 MGA, supra note 2 at s 468 [Factum, Part VII, Page 72]. 92 ABCA Decision, supra note 3 at para 26 [Appellant’s Record, Tab 6]. In Alberta Teachers, supra note 21 at para 23 [Book of Authorities, Tab 6], this Court indicates that judicial review will typically not be granted when a matter was not raised before the tribunal. There is no reason to apply different reasoning to statutory appeals. 93 ABCA Decision, supra note 3 at para 27 [Appellant’s Record, Tab 6]. By stating that a question must be of importance to the municipal taxation system as a whole, the ABCA may have illustrated its own lack of expertise since taxation and assessment are separate concepts, and are found in different Parts of the MGA. 94 McLean, supra note 22 at para 27 [Book of Authorities, Tab 49]; also see the comments from Justice Rothstein and Modaver in Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34, [2013 2 SCR 34 (“Irving Pulp and Paper”) at para 66 [Book of Authorities, Tab 29]. 23
in Dunsmuir, a question must be both of central importance to the legal system and outside the adjudicator's expertise before a standard of correctness can be applied.95
65. A requirement to obtain leave has not factored into any of the cases that have recently come before this Court in the standard of review analysis.96 For example, in Sattva,97 this Court examined a similar leave provision and applied a standard of reasonableness, without mentioning the leave requirement, since the question did not fall within the existing categories of correctness. This Court also held that a matter could be of sufficient importance solely because there was a large monetary amount at stake.
66. The ABCA also failed to recognize that the requirement to obtain leave may not be a statement of legislative intent about deference, but rather an attempt to limit the number of appeals to the courts.98 By focusing on the requirement to obtain leave, the ABCA used statutory language to override the deference due to an expert tribunal when the purpose of such language may have nothing to do with expertise or deference.99
67. Next, the ABCA identified the Tribunal’s expertise as relating to the categorization and valuation of property, not statutory interpretation. This, however, reverts to the view that has been rejected by this Court that tribunals should be given no deference on issues of statutory interpretation. In CN Railway, while discussing expertise, this Court confirmed that issues involving statutory interpretation do not automatically fall into a category of correctness:
In this case, the Governor in Council was interpreting the CTA, legislation closely related to its economic regulation review function. This issue of statutory interpretation does not fall within any of the categories of questions to which a correctness review applies. As such, the applicable standard of review is reasonableness100
95 Dunsmuir, supra note 20 at paras 55, 60 [Book of Authorities, Tab 34]. 96 Sattva, supra note 33 [Book of Authorities, Tab 60]; Saguenay, supra note 24 [Book of Authorities, Tab 50]; McLean, supra note 22 [Book of Authorities, Tab 49]. 97 Sattva, supra note 33 at para 106 [Book of Authorities, Tab 60]. 98 Precision Drilling, supra note 35 [Book of Authorities, Tab 55]. 99 Dr. Q, supra note 24 at para 22 [Book of Authorities, Tab 33]; Tervita, supra note 30 at para 179 [Book of Authorities, Tab 66]. 100 Canadian National Railway Co v Canada (Attorney General), 2014 SCC 40, [2014] 2 SCR 135 (“CN Railway”) at para 62 [Book of Authorities, Tab 22]. 24
68. A restrictive view of tribunal expertise has been repeatedly rejected by this Court.101 In VIA Rail.102 this Court cited with approval the dissenting reasons of Justice Bastarache in Barrie Public Utilities v Canadian Cable Television Assn:
the broad policy context of a specialized agency infuses the exercise of statutory interpretation such that application of the enabling statute is no longer a matter of ‘pure statutory interpretation’. When its enabling legislation is in issue, a specialized agency will be better equipped than a court103
69. Assessment review boards are not simply “categorizing and valuing property”.104 Assessment review boards are legislated to apply the MGA, and its regulations, and have the responsibility of understanding and following all of the policies and intricacies associated with the legislative regime.105 Assessment review boards understand and apply concepts that are foreign to the courts, and receive training on these concepts and how they relate to the legislation. Interpreting the legislation is inseparable from the function of assessment review boards.
70. The ABCA also stated, without providing authority, that there is “a general democratic principle that taxpayers are entitled to have their liability to the government decided by the ordinary courts”.106 This statement was made despite the acknowledgement that assessment tribunals have existed for generations.107 This is an example of a court using a contextual analysis to impose policy considerations not found in the legislation.
71. Finally, the ABCA noted that, as there are multiple tribunals within the Alberta assessment regime, the court must apply a correctness standard to ensure consistent decisions on matters of law. Consistency is clearly a central consideration for the ABCA
101 See for example McLean, supra note 22 at para 30 [Book of Authorities, Tab 49]. 102 Council of Canadians with Disabilities v VIA Rail Canada Inc., 2007 SCC 15 (“VIA Rail”) at para 92 [Book of Authorities, Tab 30]. 103 Barrie Public Utilities v Canadian Cable Television Assn, 2003 SCC 28, [2003] 1 SCR 476 at para 86 [Book of Authorities, Tab 11]. 104 ABCA Decision, supra note 3 at para 28 [Appellant’s Record, Tab 6]. 105 MGA, supra note 2 at s 467 [Factum, Part VII, Page 72]. 106 ABCA Decision, supra note 3 at para 29 [Appellant’s Record, Tab 6]. This Court in Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2, [2012] 1 SCR 5 at para. 16, reviewed a municipal taxing bylaw and applied a standard similar to reasonableness [Book of Authorities, Tab 24]. In this case no mention there was no mention that the subject matter of the bylaw, being taxation, changed the standard of review analysis. 107 ABCA Decision, supra note 3 at para 29 [Appellant’s Record, Tab 6]. 25
since it is also cited, in other contexts, as a reason not to give deference to other types of tribunals in Alberta.108
72. While consistency in the law is a laudable goal, the argument for such consistency can apply whether there are multiple tribunals, a single tribunal with multiple panels, independent arbitrators, or various other administrative decision makers. In reality, this is a veiled call for all decisions of law to be reviewed on correctness, and for the courts to treat tribunals as if they were lower courts. Administrative tribunals are not bound by the rules of stare decisis.109 Under the reasonableness standard, it is possible that two different panels from the same tribunal may have different interpretations of the same statute as long as they are both reasonable. In Alliance Pipelines, a similar concern was raised that, without judicial oversight, contradictory decisions of arbitration committees could stand. Justice Fish, for the majority of the Court, stated:
I am unable to share the respondent’s concern. In Dunsmuir, the Court stated that questions of law that are not of central importance to the legal system “may be compatible with a reasonableness standard” (para. 55), and added that “[t]here is nothing unprincipled in the fact that some questions of law will be decided on [this] basis” (para. 56; see also Toronto (City) v. C.U.P.E., at para. 71). Indeed, the standard of reasonableness, even prior to Dunsmuir, has always been “based on the idea that there might be multiple valid interpretations of a statutory provision or answers to a legal dispute” such that “courts ought not to interfere where the tribunal’s decision is rationally supported” (Dunsmuir, at para. 41).110
73. In Domtar, for a unanimous Court, Justice L’Heureux-Dubé indicated that consistency of decision making and the rule of law cannot be determinative of tribunal expertise.
In my opinion, there is a real risk that superior courts, by exercising review for inconsistency, may be transformed into genuine appellate jurisdictions. Far from being neutral, the concept of consistency is an elusive parameter which, varying depending on the objective sought, may distort the very nature of judicial review. The arbitrariness which the judicial sanction is designed to remedy may, thus, become the result.111
108 see for example Focaccia Holdings Ltd v Parkland Beach (Summer Village Subdivision and Development Appeal Board), 2014 ABCA 132 at para 9 [Book of Authorities, Tab 37]. 109 Domtar Inc v Québec, [1993] 2 SCR 756 at para 799 [Book of Authorities, Tab 32]. 110 Smith v Alliance Pipelines, 2011 SCC 7, [2011] 1 SCR 160 (“Alliance Pipelines”) at paras 38 - 39 [Book of Authorities, Tab 62]. 111 Domtar, supra, note 109, at page 796 [Book of Authorities, Tab 32]. 26
74. It is the expertise of a tribunal that is important and not the fact that there are multiple tribunals which may, or may not, have differing interpretations of the legislation. The ABCA also ignored the additional safeguard that is already built into the standard of reasonableness to protect consistency in decision making. While a tribunal is free to depart from what is otherwise a consistent line of authority, the standard of reasonableness requires them to explain their reasons for doing so.112
Other Factors Ignored by the Court of Appeal
75. The City submits that the broad considerations examined by the ABCA went far beyond what is required to be examined under a contextual approach. The problems with the ABCA’s approach is best illustrated by examining the factors related to expertise that were not considered by the ABCA, all of which indicate deference.
76. The Tribunal is an expert in assessment and assessment law.113 The Tribunal is created under Part 11 of the MGA and there are numerous indicators of its expertise throughout. For example, assessment review board members must be trained before they can sit on the tribunal.114 The required training is the same province wide and is set by the Minister of Municipal Affairs (“Minister”). The required training is comprehensive and includes training on the principles of assessment, assessment law, and administrative law. Further, each composite assessment review board requires a provincially appointed member to chair each hearing. Provincially appointed chairs increase provincial oversight, knowledge sharing, and consistency between separate panels sitting in different municipalities.115 Currently, provincial members are drawn from the MGB, the tribunal responsible for hearing appeals from assessment review boards prior to the amendments
112 Irving Pulp and Paper, supra note 94 at para 78 [Book of Authorities, Tab 29]. 113 This is acknowledged in the ABCA Decision, supra note 3 para 17 [Appellant’s Record, Tab 6]. 114 MGA, supra note 2 at s 454.3 [Factum, Part VII, Page 67]; Matters Relating to Assessment Complaints Regulation AR 310/2009 (“MRAC”), at s 49(2) [Factum, Part VII, Page 87]; Ministerial Order M:050/10, effective: June 4, 2010 (in place at time of tribunal decision) [Book of Authorities, Tab 83] and Ministerial Order M:001/14, effective July 22, 2014 (in place for 2015) [Book of Authorities, Tab 84];. 115 MGA, supra note 2 at s 454.2 [Factum, Part VII, Page 66]; also see Hansard, supra, note 90 [Book of Authorities, Tab 81] which states that changes were made to the MGA to achieve consistent decisions while providing some Provincial oversight. 27
to the MGA. Many of the provincially appointed members have had a long tenure of hearing assessment complaints.116
77. Additionally, the MGA allows municipalities to create shared tribunals leading to shared knowledge between municipalities.117 Further, decisions are required to be sent to the Minister which again increases consistency and demonstrates provincial oversight.118 Many assessment review boards also have an element of institutional expertise from having heard a large number of complaints. Finally, a tribunal can obtain independent legal advice if desired.119
78. Further, while an assessment review board appears, at first glance, to be an adjudicative board, it also has inquisitorial and oversight powers. For example, a tribunal can refer any assessment (whether under appeal or not) to the Minister for investigation.120 A tribunal can also require any witness to appear before it or order the production of additional documents.121 Further, a tribunal can determine the admissibility, relevance and weight of any evidence. Tribunal members also routinely ask questions of the parties at a hearing and place witnesses under oath.122 All of these factors indicate that the tribunal is not simply an adjudicative panel, rather it has a mandate to act as a watchdog relating not only to the interests of the parties to a dispute but to all taxpayers within the municipal tax base.
79. The ABCA failed to consider each of the foregoing factors relating to the Tribunal’s expertise. In contrast, the ABCA focused on broad considerations that gave it wide latitude to apply a correctness standard, thereby defeating the Tribunal’s expertise and the legislature’s intent. The ABCA Decision illustrates the importance of ensuring that the
116 Some MGB members were first appointed and have been hearing assessment appeals since 2004 including the sitting chair; Orders in Council, 119/2010, 47/2008, 612/2005, 94/2004, Authority MGA s 486 [Book of Authorities, Tab 82] 117 MGA, supra note 2 at s 456 [Factum, Part VII, Page 67]. 118 MRAC, supra note 114 at s 13(2) [Factum, Part VII, Page 84]. 119 MRAC, supra note 114 at s 17 [Factum, Part VII, Page 86]. 120 MGA, supra note 2 at s 476.1 [Factum, Part VII, Page 76]. 121 MGA, supra note 2 at s 465 [Factum, Part VII, Page 71]; Also see Transcript, supra note 9 at page 230, line 3 to 15, page 235, line 9 to 25 [Appellant’s Record, Tab 10, page 117, 122] where the City acknowledges to the Tribunal that they can order additional material if they needed the information. 122 MGA, supra note 2 at s 464 [Factum, Part VII, page 71]; See the Transcript, supra note 9 [Appellant’s Record, Tab 10, page 125 to 128] for examples of Tribunal members asking questions. 28
focus of a contextual analysis must remain on expertise. This case provides this Court with an opportunity to confirm that expertise remains the most important factor in the standard of review analysis, and that any contextual analysis should be limited to looking at factors related to expertise. Courts should no longer attempt to circumvent tribunal expertise by stating that tribunals have limited expertise in statutory interpretation or by inserting their own policy preferences into the interpretation of legislation.
ISSUE 3: 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? 80. The ABQB and the ABCA determined that the Tribunal stepped outside of its jurisdiction when it decided to increase the assessment of the property. The City submits, notwithstanding that the category of jurisdiction appears unnecessary, that the Tribunal was within its jurisdiction when it increased the assessment and that the appropriate standard of review is reasonableness.
81. This case revolves around Section 467(1) of the MGA which allows an assessment review board to change an assessment roll:
467(1) An assessment review board may, with respect to any matter referred to in section 460(5), make a change to an assessment roll or tax roll or decide that no change is required.
82. The lower courts framed the appeal as a question about whether the City could act as a de facto appellant. Importantly, however, the City merely ensured that the Tribunal had all the information it needed to comply with its core function of determining the correct, fair and equitable assessment for the property. Ultimately, based on the evidence, the Tribunal determined that it was necessary to increase the property assessment to ensure that it was correct, fair and equitable.123
83. There is no question that the Tribunal has the power to “change” an assessment either increasing or decreasing it. A property owner can ask, and has asked, for their own
123 This illustrates one of the difficulties with the pragmatic and functional approach where the way in which a court decides to frame the nature of a question may lead to a different outcome. 29
property assessment to be increased.124 Further, since section 460(3) enables any taxpayer or assessed person to make a complaint about any property,125 a residential or commercial property owner can, for example, appeal the assessment of a neighboring, or competing, property and request that it be increased.126
84. In Alberta, since a municipality typically owns land within the municipality, the municipality itself is an assessed person that can file a complaint.127 However, a municipality will rarely, if ever, file a complaint to change an assessment. The MGA provides municipalities with more expedient, practical, and efficient routes to change an assessment, including correcting errors in assessments pursuant to section 305(1),128 or presenting evidence to the tribunal of the correct, fair and equitable assessment. If a municipality were required to file a complaint every time there was an error in an assessment, an inefficient complaint system, contrary to the legislative intent, would ensue.
85. Establishing the fair, equitable and correct assessment of a property is a core function of the Tribunal129 and the one most commonly exercised. Most complaints heard by the Tribunal involve a property’s assessed value. An assessment may be unfair, inequitable and incorrect because it is either too high or too low. Accordingly, the Tribunal must be able to “change” an assessment by either decreasing or increasing it in order to carry out its legislated function. The legislation grants the Tribunal the authority to enter on this path of analysis and this question does not fall within the narrow category of jurisdiction, regardless of whether it still exists.
124 As examples, Zanoni v City of Edmonton, 2014 ECARB 00735 [Book of Authorities, Tab 73] and Robinson v. City of Edmonton, 2014 ELARB 00410 [Book of Authorities, Tab 58]. 125 Calgary, supra note 40 at paras 35-37 [Book of Authorities, Tab 14]. 126 In every jurisdiction but New Brunswick assessment legislation appears to allow people to complain about properties they do not own. 127 MGA, supra, note 2 at s. 304 [Factum, Part VII, Page 57]; In many provinces, the ability of a municipality to complain is expressly provided for, while in others the right of a municipality to complain, similar to Alberta, is based on the municipality’s status as an assessed person. 128 MGA, supra note 2 at s 305(1) [Factum, Part VII, Page 61]. 129 MGA, supra note 2 at s 467(3) [Factum, Part VII, Page 72]. 30
The Policies of Correctness, Fairness and Equity
86. Reasonableness requires a respectful appreciation that a specialized tribunal may render a decision that, notwithstanding that it may seem counter-intuitive to the courts, falls within the range of reasonable outcomes.130 The Tribunal, based on the policies and wording of the legislation, undertook an analysis and increased the assessment. The Tribunal’s decision was based on a consideration of the underlying policies, both implicit and explicit, that it must ensure that the assessments brought before it are fair, equitable, and correct. The policies of fair, equitable, and correct assessments ensure that each taxpayer shares the tax burden equally.
87. The legislature expressly outlined the policies of fairness and equity in the MGA and they are the foundation of the Tribunal’s decision making authority.131 As early as 1880, this Court, in Jonas v Gilbert, established that assessment and taxation legislation is to be construed as creating a fair and equitable system unless the legislation clearly indicates otherwise:
Unless the legislative authority otherwise ordains, everybody having property or doing business in the country is entitled to assume that taxation shall be fair and equal, and that no one class of individuals, or one species of property, shall be unequally or unduly assessed.132
88. The common policies of fairness and equity have been carried forward by the courts, and into the property assessment regime, throughout Canada.133 The BC Court of Appeal, in Bramalea for example, confirmed that Jonas v Gilbert “laid down the law in Canada concerning the taxpayer’s right to equitable treatment in the assessment process”.134 Further, the BC Court of Appeal observed that the common law presumption that taxing
130 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 at para 13 [Book of Authorities, Tab 51]. 131 MGA, supra note 2 at s 467(3) [Factum, Part VII, Page 72]. 132 Jonas v Gilbert (1881), 5 SCR 356 at 366 [Book of Authorities, Tab 44] 133 BC Act, supra note 45, ss. 38 and 57 [Book of Authorities, Tab 86]; SK Act, supra note 45, ss. 163(f.1), 165(5), 210(1), 210(3), 226(1), 226(2) and 226(3.1) [Book of Authorities, Tab 93]; MN Act, supra note 45, ss. 17(16), 18, 54(3), and 60(2) [Book of Authorities, Tab 94]; ON Act, supra note 45, s. 44 [Book of Authorities, Tab 88]; NS Act, supra note 45, s. 42 [Book of Authorities, Tab 89]; PEI Act, supra note 45, ss. 1(1)(f) and 3 [Book of Authorities, Tab 92]; and NL Act, supra note 45, ss. 2(a), 17 and 37 [Book of Authorities, Tab 90]. 134 British Columbia (Assessor for Area 9 - Vancouver) v Bramalea Ltd. (1990), 52 BCLR (2d) 218, 76 DLR (4th) 53 (C.A.) at 4 [Book of Authorities, Tab 13]. 31
authorities are required to deal fairly and equitably with taxpayers had been reinforced by BC’s property assessment legislation.135
89. As with British Columbia, the Alberta legislature expressly incorporated the policies of fairness and equity into its property assessment and appeal regimes. For example, section 293(1) of the MGA requires a City assessor to apply the valuation standards “in a fair and equitable manner”. Section 476.1 allows the Tribunal to refer any assessment “that it considers unfair and inequitable” to the Minister for investigation. Section 324 allows the Minister to quash any assessment that it does not consider to be fair and equitable. The decision making provisions relating to the Tribunal, sections 467(1) and 467(3),136 also expressly require the Tribunal to consider fairness and equity. Finally, by allowing any assessed person or taxpayer to initiate a complaint about any property, the policies of fairness and equity are further maintained.137 Clearly the legislative intent, or polar star, of Alberta’s assessment and assessment complaint provisions is based on the fair and equitable assessment of property.
90. Further, the legislation incorporates an additional policy consideration, that assessments be correct and at market value. The definition of market value is outlined in section 1 of the MGA and the requirement that properties be assessed at market value is found in the Matters Relating to Assessment and Taxation Regulation (“MRAT”).138 The policy of correct and market value assessments is also common to most assessment regimes throughout Canada.139
91. All of these fundamental policies were enunciated and affirmed by the ABCA in Lougheed Tomasson Inc v Calgary (City of), where it stated:
135 Ibid, at 4. 136 MGA, supra note 2 at ss 293, 324, 467, 476.1 [Factum, Part VII, Pages 55, 64, 72, 76]. 137 Calgary, supra note 40 at para 23 & 36 [Book of Authorities, Tab 14]. 138 MGA, supra note 2 at s 1 [Factum, Part VII, Page 50]; Matters Relating to Assessment and Taxation Regulation, Alta Reg 220/2004, ss. 2 & 4 [Factum, Part VII, Page 78]. 139 BC Act, supra note 45, ss. 19(1), 19(2), 19(13), 57(1), and 57(4) [Book of Authorities, Tab 86]; SK Act, supra note 45, ss. 163(f.1), 163(f.2) and 226(1) [Book of Authorities, Tab 93]; MN Act, supra note 45, ss. 1(1) and 54(3) [Book of Authorities, Tab 94]; ON Act, supra note 45, ss. 1(1), 19 and 44(3) [Book of Authorities, Tab 88]; NS Act, supra note 45, s. 42 [Book of Authorities, Tab 89]; PEI Act, supra note 45, ss. 1(1)(f) and 3 [Book of authorities, Tab 92]; NL Act, supra note 45, ss. 2(a), 17 and 37 [Book of Authorities, Tab 90]. 32
...In interpreting the Legislature’s intention..., one must bear in mind that this Court has affirmed on more than one occasion that, under Alberta’s municipal taxation legislation, a taxpayer is entitled to an assessment that is both equitable and correct. Any interpretation which would have this result of compromising one of the fundamental principles underlying municipal taxation in Canada, namely, fair and equitable treatment of property owners, would need to be stated in clear and unambiguous language.140
The Implied Reasons of the Tribunal 92. While the Tribunal’s reasons do not expressly reference the foregoing policy considerations and legislative provisions to explain its decision to increase the assessment, this is hardly surprising. Capilano expressly acknowledged the Tribunal’s authority to increase an assessment and only asked the Tribunal to determine whether the assessment should be increased through the weighting of evidence.141 Further, regardless of any written reasons the Tribunal provided, any decision as to its ability to increase an assessment is implied.142 There is a long history of decisions of the Tribunal, and its predecessors, recognizing its authority to increase an assessment.143 As stated by this Court in Alberta Teachers:
Indeed, in the circumstances here, it is safe to assume that the numerous and consistent reasons in these decisions would have been the reasons of the adjudicator in this case.144
93. A review of prior tribunal and court decisions interpreting sections 305 and 467, and the reasons that could have been given by this Tribunal, demonstrates the reasonableness of
140 Lougheed Tomasson Inc v Calgary (City of), 2000 ABCA 81 at paras 9 & 10 [Book of Authorities, Tab 47]. 141 Transcript, supra note 13. 142 Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 63 [Book of Authorities, Tab 5]; Alberta Teachers, supra note 21 at para 50 [Book of Authorities, Tab 6]; A discussion of the Court’s acceptance of implied reasons, and how the Court has adopted many of the concepts from Professor David Dyzenhaus can be found in Bilson, Beth, “Developments in Labour Law: The 2011-2012 Term: More Dyzenhaus than Dicey,” The Supreme Court Law Review (2012), 59 SCLR (2d) 249-276 at paras 52 to 58 [Book of Authorities, Tab 75]. 143 TAAG International v City of Edmonton, MGB BO 137/00 [Book of Authorities, Tab 64]; Haring v Yellowhead County, MGB DL 016/02 [Book of Authorities, Tab 42]; Golub v The City of Edmonton, MGB BO 092/02 [Book of Authorities, Tab 41]; FHR Real Estate Corp v Municipality of Jasper, MGB BO 051/05 [Book of Authorities, Tab 36]; Colliers International Realty Advisors Inc. v The City of Edmonton, ECARB 2012-002258 [Book of Authorities, Tab 28]; Altus Group v The City of Edmonton, 2013 ECARB 01109 [Book of Authorities, Tab 9]. 144 Alberta Teachers, supra note 21 at para 56 [Book of Authorities, Tab 6] 33
the Tribunal Decision. The most comprehensive example of such reasons is found in Army & Navy, a decision of the MGB.145 In Army & Navy, the MGB held that both an assessment review board and the MGB could change an assessment by either increasing or decreasing it, stating that:
The Act does not use the words too high or too low but rather uses the words "make a complaint about an assessment" and "make a change to an assessment". It appears the legislators purposely left out the words high and low. To interpret change to mean only confirm or lower an assessment would not achieve the intent of the Act, that is, current, correct, fair and equitable assessments. The MGB applies a plain meaning to the term "change". "Change" can mean an increase or a decrease.
94. Further, in Ag Pro Grain Management Services Ltd v Lacombe (County of),146 the ABQB considered whether the MGB could increase an assessment and, partly adopting the reasoning in Army & Navy, determined that the authority given to the MGB must be interpreted as having sufficient breadth to ensure that the policy considerations at play can be achieved.
95. In the ABCA Decision, the ABCA indicated that there have been amendments to the MGA since the Army & Navy and Ag Pro decisions. However, the ABCA failed to recognize that section 467(1) of the MGA, which establishes the decision making power of the Tribunal, was not substantively amended.147 This Court, in United Taxi Drivers’ Fellowship of Southern Alberta v Calgary (City),148 stated that if a legislature intends to change the existing state of the law, it will do so expressly:
It is well established that the legislature is presumed not to alter the law by implication: Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 395. Rather, where it intends to depart from prevailing law, the legislature will do so expressly.
145 Edmonton (City) v Army & Navy Department Store Ltd., [2002] A.M.G.B.O. No. 12693 (“Army & Navy”) [Book of Authorities, Tab 35] (appeal dismissed as moot by Hillier J. in Army & Navy Departments Stores Ltd v Edmonton (City), 2003 ABQB 656 (not reproduced)) 146 Ag Pro Grain Management Services Ltd. v Lacombe (County of), 2006 ABQB 351 (“Ag Pro”) at paras 25 to 31 [Book of Authorities, Tab 4]. 147 MGA, supra note 2 at s 467 old [Factum, Part VII, Page 77]; MGA, supra note 2 at s 467 new [Factum, Part VII, Page 72] 148 United Taxi Drivers’ Fellowship of Southern Alberta v Calgary (City), 2004 SCC 19, [2004] 1 SCR 485 at para 11 [Book of Authorities, Tab 69]. 34
96. Ag Pro and Army & Navy represented the state of the law at the time the MGA was amended. If the legislature, in amending the MGA, intended to stop the Tribunal from being able to increase an assessment it would have expressly restricted this ability. The legislature could have amended section 467(1) by simply replacing the word “change” with “lower” or by adding the words “but not increase an assessment”. Unless an express change is made, amendments are not presumed to change the state of the law. Further, there is no express provision that a tribunal cannot act on a recommendation from a municipality, or on its own accord, to increase an assessment that is incorrect, unfair, or inequitable.
97. The Tribunal’s decision to increase the assessment was based on the policies of ensuring correct, fair and equitable assessments and in accordance with the MGA, all of which is clearly within the expertise of the Tribunal. Increasing the assessment ensured that each taxpayer, including Capilano, would pay an equitable and fair share of the overall tax burden.
The Amendment to Section 305
98. The objective of correct, fair and equitable assessments is also evidenced by a municipality's ability to correct the assessment roll, and issue an amended assessment notice, when there is an error in an assessment. In Alberta, pursuant to Section 305, errors in assessments can be corrected until the end of the taxation year.149 Importantly, every jurisdiction allows a municipality (or an equivalent assessment authority) to correct errors either within or outside the complaint process.150
99. In 2010, Section 305(5) was added to the MGA.151 Pursuant to Section 305(5), a municipality cannot correct the assessment roll in respect of a property until after a
149 MGA, supra note 2 at s 305 [Factum, Part VII, Page 61]. 150 BC Act, supra note 45, ss. 10(2), 32(3), 32(4), 34 [Book of Authorities, Tab 86]; SK Act, supra note 45, ss. 188, and 197(3) [Book of Authorities, Tab 93]; MN Act, supra note 45, ss. 13(1), 14(1), 42(1), 43(2), and 43(3) [Book of Authorities, Tab 94]; ON Act, supra, ss. 19.1(6), 32(1), 32(1.1), and 40(1) [Book of Authorities, Tab 88]; NB Act, supra note 45, ss. 7.1(1), 21(1), 22, and 27 [Book of Authorities, Tab 87]; NS Act, supra note 45, ss. 45A(11), 57(1), 62(1), and 62(2) [Book of Authorities, Tab 89]; PEI Act, supra note 45, ss. 3(1), 18, 19, and 20 [Book of Authorities, Tab 92]; NL Act, supra note 45, ss. 22, 29, and 30 [Book of Authorities, Tab 90]. 151 MGA, supra note 2 at s. 305 (old) [Factum, Part VII, Page 77]; MGA, supra note 2 at s. 305 (new) [Factum, Part VII, Page 61]. 35
complaint about that property is either withdrawn or decided by the Tribunal. Before the ABCA, Capilano argued that Section 305(5) bars a municipality from fixing any errors once a complaint has been filed and stated that no error occurred. The ABCA essentially adopted Capilano’s position when it stated that there was “no room in the complaint procedure for a municipality to effectively mount a cross-complaint and seek an increase in the assessment”.152
100. The addition of Section 305(5), however, did not change the mandate of the Tribunal or the policies that the Tribunal needs to consider to perform its functions. Rather, in response to the MGB decision in Army & Navy, the legislature added Section 305(5) to prevent the multiplicity of proceedings that could occur if a second assessment notice, with a second complaint period, for a property is mailed when there is already an outstanding complaint about the property.153
101. Importantly, ‘error’ is not defined within the MGA. Accordingly, ‘error’ must be given its common everyday meaning. Black’s Law Dictionary defines ‘error’ as an “assertion or belief that does not conform to objective reality; a belief that what is false is true or that what is true is false”.154 Thus defined, an error in an assessment includes a situation where the assessment amount doesn’t correctly reflect market value. A restrictive definition of error as including only an assessment amount that is too high thwarts the requirement that a municipality assess each property correctly, fairly and equitably. The inability to correct all errors and increase assessment amounts undermines the legislature’s intent and the very policies of the legislation.
102. Both the ABQB and the ABCA appear to adopt a restrictive interpretation of ‘error’ and find, as a question of fact, that there was no error in the assessment.155 However, both the ABQB and the ABCA failed to recognize that Capilano, by filing a complaint about the assessment amount, also claimed that there was an error in the assessment. Capilano claimed that the error in the assessment amount was that it was too high while the City
152 ABCA Decision, supra note 3 para 40 [Appellant’s Record, Tab 6]. 153 Army & Navy, supra note 145 at paras 123 to 126 [Book of Authorities, Tab 35]. 154 Garner, Bryan A., Black’s Law Dictionary, 10th ed (United States of America: Thomas Reuters, 2009), pp 658-660 [Book of Authorities, Tab 80]. 155 ABQB Decision, supra note 5 at para 44 [Appellant’s Record, Tab 4]; ABCA Decision, supra note 3 at para 34 [Appellant’s Record, Tab 6] 36
claimed that it was too low. Both Capilano and the City agreed that there was an error and that the assessment amount did not represent the correct, fair and equitable value of the property. The legislative intent is that the Tribunal, based on the evidence, must determine whether there is an error in the assessment amount and what the correct, fair and equitable amount is.
103. If Capilano had not filed its complaint, the City could have issued an amended assessment notice under Section 305 correcting an error in the assessment until the end of the taxation year. An error in an assessment includes an assessment amount that is too low and not at market value. The ABCA Decision suggests that once a complaint is filed an increase cannot be made, even if an assessment is too low, inequitable and unfair. The ABCA’s reasoning, however, leads to an absurd outcome where a municipality can only correct an assessment that is too low when a complaint is not filed and results in an unequal distribution of the tax burden. In fact, a complainant could complain solely to ensure that no correction could be made by a municipality.
104. Further, a municipality can recommend an increase to an assessment because there is no restriction in the MGA that a municipality is limited to only defending the assessed amount. In addition to a municipality recommending an increase to an assessment, a municipality also often recommends that an assessment be decreased. A reasonable reading of the legislation allows the Tribunal, after considering all evidence about an assessment amount, to fully decide whether the assessment is correct, fair and equitable, and not simply to decide whether it is too high.
Contrasting the Policy Perspective of the Court of Appeal
105. The ABCA, rather than focusing on the established and legislated policies of correctness, fairness and equity, focused on entirely different policy objectives derived from income tax law.156 This is a return to the formalism of earlier decisions that did not acknowledge the expertise of a tribunal and that substituted one set of policies, in this case those understood and followed by the Tribunal, with another set as preferred by a court.
156 ABCA Decision, supra note 3 at paras 5, 38 and 39 [Appellant’s Record, Tab 6]. 37
106. The ABCA also failed to acknowledge that the fundamental policies underlying the MGA, and assessment legislation Canada wide, are entirely distinct from the policies underlying the Income Tax Act. The Tribunal must compare a property’s assessment, based on the physical condition and characteristics of that property, to those of other similar properties to ensure that a fair proportion of tax is paid. In contrast, income tax legislation is not based on equitable treatment but is instead highly individualized and complex. This Court, in Canada Trustco Mortgage Co v Canada, highlighted the underpinnings of income tax legislation:
There is no doubt today that all statutes, including the Income Tax Act, must be interpreted in a textual, contextual and purposive way.... The provisions of the Income Tax Act must be interpreted in order to achieve consistency, predictability and fairness so that taxpayers may manage their affairs intelligently. As stated at para. 45 of Shell Canada Ltd. v. Canada, 1999 CanLII 647 (SCC), [1999] 3 S.C.R. 622: [A]bsent a specific provision to the contrary, it is not the courts’ role to prevent taxpayers from relying on the sophisticated structure of their transactions, arranged in such a way that the particular provisions of the Act are met, on the basis that it would be inequitable to those taxpayers who have not chosen to structure their transactions that way. [Emphasis added.] The Income Tax Act is a compendium of highly detailed and often complex provisions. To send the courts on the search for some overarching policy and then to use such a policy to override the wording of the provisions of the Income Tax Act would inappropriately place the formulation of taxation policy in the hands of the judiciary, requiring judges to perform a task to which they are unaccustomed and for which they are not equipped.157
107. This Court, in Canada Trustco,158 noted that courts are unaccustomed and ill equipped to formulating policy and cautioned that courts should not search for an alternate overriding policy. The City therefore submits that the ABCA erroneously concluded that the Tribunal cannot increase an incorrect, unfair and inequitable assessment because “taxpayers are protected from retroactive increases in their tax liability”.159 No such policy underlies assessment legislation in Alberta. To the contrary, the MGA expressly
157 Canada Trustco Mortgage Co v Canada, 2005 SCC 54 at paras 11, 12, 41 [Book of Authorities, Tab 20]. 158 Ibid. 159 ABCA Decision, supra note 3 at para 39 [Appellant’s Record, Tab 6]. 38
contemplates that an assessment can be corrected until the end of the taxation year.160 Further, the implied policy goal of finality identified by the ABCA must defer to the express legislated and court sanctioned policies of correct, fair and equitable assessments. A judicially established policy borrowed from a different legislative regime must yield to a legislated policy, particularly when the judicial policy conflicts with, or effectively circumscribes, the legislated one.
108. In applying policies from income tax law, the ABCA also suggested that a municipality should wait until a subsequent year to correct an error or make a change to an assessment. Clear legislative intent, however, cannot be conveniently ignored or only achieved in a piecemeal fashion. The assessment provisions of the MGA express the legislative intent that both the City and the Tribunal ensure that assessments are correct, fair and equitable each year.161 Further, as the Tribunal knows, any attempt by the City to correct the assessment roll contrary to a decision of the Tribunal is prohibited and an attempt to avoid section 477 of the MGA.162
109. Additionally, the presumption against retroactive taxation found by the ABCA is based on distinguishable authorities. In CNG Producing Co v Alberta (Provincial Treasurer)163, the court considered the presumption against interference with vested rights. Nothing in the MGA suggests that an assessment is vested until either the lapsing of the tax year or a determination by the Tribunal.164 Similarly, the Federal Court of Appeal’s comments in Last v Canada,165 a case that involved the application of the policies in the Income Tax Act where the reassessment period had already lapsed, are of limited application.166
160 MGA, supra note 2 at s 305 [Factum, Part VII, Page 61]. 161 In Alberta, assessments are both required to be prepared each year pursuant to Section 285 of the MGA, supra note 2 [Factum, Part VII, Page 54] and they must also pass Provincial Quality standards pursuant to Section 322.1 of the MGA, supra note 2 [Factum, Part VII, Page 63] and Section 10 of MRAT, supra note 138 [Factum, Part VII, Page 81]. 162 MGA, supra note 2 at s 477 [Factum, Part VII, Page 76]; also see Army & Navy, supra note 145 at paras 123 to 125 [Book of Authorities, Tab 35]. 163 CNG Producing Co v Alberta (Provincial Treasurer), 2002 ABCA 207 [Book of Authorities, Tab 27]. 164 At the end of the tax year, Section 305 would not allow additional corrections to be made [Factum, Part VII, Page 61]. 165 Canada v Last, 2014 FCA 129 [Book of Authorities, Tab 19]. 166 The Income Tax Act, RSC 1985, c 1 is highly complicated with numerous rules and exceptions about when a reassessment can take place. It is outside the scope of this appeal to discuss these issues. 39
110. The ABCA also stated that the issue before the Tribunal was whether the assessment was too high. The ABCA appears to rely on Section 9(1) of the Matters Relating to Assessment Complaints Regulation167 which states that the Tribunal “must not hear any matter in support of an issue not identified on the complaint form”. First, whether an issue or matter should be heard by the Tribunal is a question of mixed law and fact and, therefore, entitled to significant deference. Second, leave to appeal on this issue was expressly denied in the Leave Decision.168 Third, section 460(5) of the MGA lists the matters which a complaint can be about and this includes “an assessment”.169 The only matter under complaint, as identified by Capilano on its complaint form, was the assessment amount.170 Accordingly, the assessment was directly in issue and any decision about the assessment amount clearly falls within the expertise of the Tribunal. In Army & Navy, the MGB also dealt with the argument about whether it could increase an assessment when the complaint about the assessment was that it was too low:
To preclude the assessment authority from responding to an argument that an assessment is too high with the opposite argument that it is too low would be restrictive, unfair and more importantly limit the ability of the ARB or MGB to achieve the fundamental principles of a current, correct, fair and equitable assessment. Thus, the reason for the provision of an opportunity for the complainant to provide a rebuttal to the response by the assessment authority.171
111. The ABCA Decision effectively prohibits the Tribunal from fulfilling its legislated mandate of ensuring fair, equitable and correct assessments. It also prohibits the Tribunal from reasonably interpreting its home statute in a way that results in an increase to an assessment. This illustrates the importance of giving deference to tribunals to ensure that the policies surrounding legislative regimes are achieved.
Conclusion
112. The City submits that the ABCA ought to have recognized the expertise of the Tribunal and employed a standard of reasonableness. This Court should clarify that a statutory
167 MRAC, supra note 114 at s. 9 [Factum, Part VII, Page 83]. 168 Leave Decision, supra note 16 at para 69 [Appellant’s Record, Tab 2]. 169 MGA, supra note 2 at s 460(5) [Factum, Part VII, Page 68]. 170 Complaint Form [Appellant’s Record, Tab 11] 171 Army & Navy, supra note 145 at para 118 [Book of Authorities, Tab 35]. 40
appeal clause does not rebut the presumption of reasonableness, that there is no category of correctness created by a statutory appeal clause, and that a contextual analysis should be focused on the expertise of tribunals. The Tribunal decision ensured that Capilano’s final assessment was correct, fair and equitable. The Tribunal decision was, accordingly, reasonable and should be reinstated.
Part IV - Submission on Costs
113. Costs have been awarded against the Applicant at the ABQB and the ABCA. The application for leave at the Supreme Court of Canada ordered costs to be in the cause. The Applicant is seeking an order that costs be payable to the City in this Court and at each level below.
Part V - Order Sought
114. The Applicant requests that the ABCA Decision be overturned and that the Tribunal Decision be reinstated as establishing the fair, correct and equitable assessment for the property.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
Dated at the City of Edmonton in the Province of Alberta this ___ day of December, 2015.
______Scott McAnsh, as agent for Scott McAnsh, as agent for Cameron J. Ashmore Tanya L. Boutin, City of Edmonton Law Branch City of Edmonton Law Branch Counsel for the Appellant Counsel for the Appellant 41
PART VI – TABLE OF AUTHORIITIES
Jurisprudence Cited at Paragraphs
1544560 Alberta Ltd v Edmonton (City), 2015 ABQB 520 28
908118 Alberta Ltd v Calgary (City), 2015 ABQB 681 28
959630 Alberta Inc v Regina (City), 2010 SKCA 136 29
Ag Pro Grain Management Services Ltd v Lacombe (County of), 2006 ABQB 351 94, 95, 96
Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 SCR 559 92
Alberta (Information and Privacy Commissioner) v Alberta 13, 23, 35, 36, 37 Teachers’ Association, 2011 SCC 61, [2011] 3 SCR 654 39, 50, 51, 62, 92
Alberta (Minister of Municipal Affairs) v Access Pipeline Inc., 2011 ABQB 144 28
Altus Group Limited v Calgary (City), 2015 ABCA 86 28
Altus Group v The City of Edmonton, 2013 ECARB 01109 92
Anisminic Ltd v Foreign Compensation Commission, [1996] 2 AC 147 51
Army & Navy Department Stores Ltd. v Edmonton (City), 2003 ABQB 656 93
Associated Developers Ltd v Edmonton (City), 2011 ABQB 592 28
Barrie Public Utilities v Canadian Cable Television Assn, 2003 SCC 28, [2003] 1 SCR 476 68
Boardwalk Reit LLP v Edmonton (City), 2008 ABCA 220 28
British Columbia (Assessor for Area 9 - Vancouver) v Bramalea Ltd. (1990), 52 BCLR (2d) 218 (BCCA) 88
Calgary (City) v Alberta (Municipal Government Board), 2008 ABCA 187 28, 83, 89
Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53, [2011] 3 SCR 471 49, 51 42
Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 39 34
Canada (Deputy Minister of National Revenue) v Mattel Canada Inc., 2001 SCC 36, [2001] 2 SCR 100 59
Canada (Director of Investigation and Research) v Southam Inc, [1997] 1 SCR 748 18, 24, 30
Canada v Last, 2014 FCA 129 109
Canada Trustco Mortgage Co v Canada, 2005 SCC 54, [2005] 2 SCR 601 106, 107
Canadian Broadcasting Corp v SODRAC 2003 Inc., 2015 SCC 57 51
Canadian National Railway Co v Canada (Attorney General), 2014 SCC 40, [2014] 2 SCR 135 67
Canadian Natural Resources Limited and Trident Exploration Corp v Red Deer (County), 2015 ABQB 220 28
Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2, [2012] 1 SCR 5 70
Celgene Corp v Canada (Attorney General), 2011 SCC 1, [2011] 1 SCR 3 51
City of Arlington, Texas, et al. v Federal Communications Commission et al, 133 S.Ct. 1863 (2013) 51
CNG Producing Co v Alberta (Provincial Treasurer), 2002 ABCA 207 109
Colliers International Realty Advisors Inc v The City of Edmonton, ECARB 2012-002258 92
Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper Ltd, 2013 SCC 34, [2013] 2 SCR 458 63, 74
Council of Canadians with Disabilities v VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 SCR 650 68
C.U.P.E. v N.B. Liquor Corporation, [1979] 2 SCR 227 48
Domtar Inc v Québec, [1993] 2 SCR 756 72, 73
Dr. Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 SCR 226 17, 19, 25, 59, 66
43
Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 12, 28, 33, 34, 36, 37, 39 40, 43, 44, 49, 52, 64
Edmonton (City) v Army and Navy Department Store Ltd., 93, 94, 95, 96 [2002] A.M.G.B.O. No. 126 100, 108, 110
FHR Real Estate Corp v Municipality of Jasper, MGB BO 051/05 92
Focaccia Holdings Ltd v Parkland Beach (Summer Village Subdivision and Development Appeal Board), 2014 ABCA 132 71
FortisAlberta Inc v Alberta (Utilities Commission), 2015 ABCA 295 28
Genesis Land Development Corp v Calgary (City), 2014 ABQB 57 28
Globexx Properties Inc. v Edmonton (City), 2012 ABQB 651 28
Golub v The City of Edmonton, MGB BO 092/02 92
Haring v Yellowhead County, MGB No. DL 016/02 92
Isbister v Metis Settlements Appeal Tribunal, 2015 ABCA164 51
Jonas v Gilbert (1881), 5 SCR 356 87, 88
Labatt Brewing Co v St John's (City), 2011 NLCA 75 29
Law Society of New Brunswick v Ryan, 2003 SCC 20, [2003] 1 SCR 247 59
Lougheed Tomasson Inc v Calgary (City of), 2000 ABCA 81 91
Lumba v Secretary of State for the Home Department [2011] UKSC 12 51
McLean v British Columbia (Securities Commission), 16, 23, 41, 47 2013 SCC 67, [2013] 3 SCR 895 51, 63, 65, 68
Mouvement laïque québécois v Saguenay (City), 2015 SCC 16 17, 20, 25, 65
Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 86
Nolan v Kerry (Canada) Inc, 2009 SCC 39, [2009] 2 SCR 678 50, 51
Nova Scotia (Workers’ Compensation Board) v Martin, 2003 SCC 54, [2003] 2 SCR 504 45 44
Pezim v British Columbia (Superintendent of Brokers), [1994] 2 SCR 557 17, 27, 37
Precision Drilling Corporation v Calgary (City), 2011 ABQB 503 24, 66
Pushpanathan v Canada (Minister of Citizenship and Immigration), 16, 30, 37 [1998] 1 SCR 982 44, 48, 59
Regina Police Assn. Inc v Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 SCR 360 46
Robinson v City of Edmonton, 2014 ELARB 00410 83
Rogers Communications Inc v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 SCR 283 47
Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53, [2014] 2 SCR 633 23, 65
Schrader (Re), 2010 NSCA 90 29
Smith v Alliance Pipeline Ltd, 2011 SCC 7, [2011] 1 SCR 160 72
Stewart v Elk Valley Coal Corporation, 2015 ABCA 225 28
TAAG International v City of Edmonton, MGB BO 137/00 92
Taub v Investment Dealers Assn of Canada, 2009 ONCA 628 16
Tervita Corp v Canada (Commissioner of Competition), 21, 22, 27 2015 SCC 3, [2015] 1 SCR 161 47, 66
TransCanada Keystone Pipeline Ltd Partnership v Alberta (Designated Linear Assessor), 2011 ABQB 460 28
U.E.S., Local 298 v Bibeault, [1988] 2 S.C.R. 1048 30
United Taxi Drivers’ Fellowship of Southern Alberta v Calgary (City), 2004 SCC 19 95
Weyerhaeuser Co v Nanaimo/Cowichan Assessor, Area No. 04, 2010 BCCA 46 29
Wilson v Atomic Energy of Canada Limited. 2015 FCA 17 43
Winnipeg (City) Assessor v Hill-Everest Holdings Ltd, 2009 MBCA 57 29
Zanoni v City of Edmonton, 2014 ECARB 00735 83 45
Textbooks
P.W. Hogg, Constitutional Law of Canada, 5th ed. Vol. 1 (Toronto, Thomson Reuters Canada Limited, 2007), pp 225-226 11
Articles
Bilson, Beth, “Developments in Labour Law: The 2011-2012 Term: More Dyzenhaus than Dicey,” (2012) 59 SCLR (2d) 249-276 92
Daly, Paul, “Dunsmuir’s Flaws Exposed: Recent Decisions on Standard of Review,” (2012) 58: 2 MacGill L.J. 483-587 32, 41
Fluker, Shaun, “Where Are We Going on Standard of Review in Alberta,” The University of Calgary Faculty of LawBlog on Developments in Alberta Law Available online at http://ablawg.ca 61
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 26, 31, 32, 60
Lewans, Matthew, “Deference and Reasonableness since Dunsmuir,” (2012) 38 Queen’s L.J. 59-98 33
Other Publications
Bryan A. Garner, Black’s Law Dictionary, 10th ed (United States of America: Thomas Reuters, 2009), pp 658-66 101
Alberta Hansard, The 27th Legislature, 2d Sess, (April 21, 2009) 62, 76
Orders in Council, 119/2010, 47/2008, 612/2005, and 94/2004 76
Ministerial Order M:050/10, Effective: June 4, 2010 76
Ministerial Order M:001/14, Effective: July 22, 2014 76
Legislation
Alberta Rules of Court, AR 124/2010, Rule 3.15(2) 24
Assessment Act, RSBC 1996, c 20, ss. 10(2), 19(1), 19(2), 19(13), 32(3), 32(4), 34, 38, 57, 64(1), 65(1), and 65(9) 29, 88, 90, 98
46
Assessment Act, RSNB 1973, c A-14, ss. 7.1(1), 21(1), 22, 27, and 37 29, 98
Assessment Act, RSO 1990, c A.31, ss. 1(1), 19, 19.1(6), 32(1), 32(1.1), 40(1), 43(1), 43.1, and 44 29, 88, 90, 98
Assessment Act, RSNS 1989, c 23, ss. 42, 45A(11), 57(1), 62(1), 62(2), and 87 29, 88, 90, 98
Assessment Act, 2006, SNL 2006, c A-18.1, ss. 2(a), 17, 22, 29, 30, 37, and 39(3) 29, 88, 90, 98
Municipal Board Act, SS 1988-89, c M-23.2, s. 33.1 29
Real Property Assessment Act, RSPEI 1988, c R-4, ss. 1(1)(f), 3, 18, 19, 20, and 33 29, 88, 90, 98
The Cities Act, SS 2002, c C-11.1, ss. 163(f.1), 163(f.2), 165(5), 188, 197(3), 210(1), 210(3), 226(1), 226(2) and 226(3.1) 29, 88, 90, 98
The Municipal Assessment Act, CCSM, c M226, ss. 1(1), 13(1), 14(1), 17(16), 18, 42(1), 43(2), 43(3), 54(3), 56(1), 56(4), 60(2), 63(1), and 63(5) 29, 88, 90, 98
Utility and Review Board Act, SNS 1992, c 11, ss. 30, and 31 29 47
PART VII – STATUTORY PROVISIONS
Municipal Government Act, RSA 2000, c M-26, ss. 1, 285, 293, 304, 305, 322.1, 324, 454.2, 454.3, 456, 460, 460.1, 464, 465, 467, 468, 470, 476.1, 470.1 and 477.
Municipal Government Act, RSA 2000, c M-26, as it appeared prior to January 1, 2010, ss. 305 and 467.
Matters Relating to Assessment and Taxation Regulation, Alta. Reg. 220/2004, ss. 2, 4, and 10.
Matters Relating to Assessment Complaints Regulation, Alta. Reg. 310/2009, ss. 9, 13, 17, and 49. 48
Province of Alberta
MUNICIPAL GOVERNMENT ACT
Revised Statutes of Alberta 2000 Chapter M-26
Current as of July 1, 2015
Office Consolidation
© Published by Alberta Queen’s Printer
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RSA 2000 Section 1 MUNICIPAL GOVERNMENT ACT Chapter M-26
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows:
Interpretation 1(1) In this Act,
(a) “business” means
(i) a commercial, merchandising or industrial activity or undertaking,
(ii) a profession, trade, occupation, calling or employment, or
(iii) an activity providing goods or services,
whether or not for profit and however organized or formed, including a co-operative or association of persons;
(b) “by-election” means an election to fill a vacancy on a council other than at a general election;
(c) “chief administrative officer” means a person appointed to a position under section 205;
(d) “chief elected official” means the person elected or appointed as chief elected official under section 150;
(e) “council” means
(i) the council of a city, town, village, summer village, municipal district or specialized municipality,
(ii) repealed 1995 c24 s2,
(iii) the council of a town under the Parks Towns Act, or
(iv) the council of a municipality incorporated by a special Act;
(f) “council committee” means a committee, board or other body established by a council under this Act;
(g) “councillor” includes the chief elected official;
(h) “designated officer” means a person appointed to a position established under section 210(1);
(i) “elector” means a person who is eligible to vote in the election for a councillor under the Local Authorities Election Act;
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RSA 2000 Section 1 MUNICIPAL GOVERNMENT ACT Chapter M-26
(j) “enactment” means
(i) an Act of the Legislature of Alberta and a regulation made under an Act of the Legislature of Alberta, and
(ii) an Act of the Parliament of Canada and a statutory instrument made under an Act of the Parliament of Canada,
but does not include a bylaw made by a council;
(k) “general election” means an election held to fill vacancies on council caused by the passage of time, and includes a first election;
(k.1) “growth management board” means a growth management board established under Part 17.1;
(l) “Land Compensation Board” means the Land Compensation Board established under the Expropriation Act;
(m) “local authority” means
(i) a municipal authority,
(ii) a regional health authority under the Regional Health Authorities Act,
(iii) a regional services commission, and
(iv) the board of trustees of a district or division as defined in the School Act;
(n) “market value” means the amount that a property, as defined in section 284(1)(r), might be expected to realize if it is sold on the open market by a willing seller to a willing buyer;
(o) “Minister” means the Minister determined under section 16 of the Government Organization Act as the Minister responsible for this Act;
(p) “municipal authority” means a municipality, improvement district and special area and, if the context requires, in the case of an improvement district and special area,
(i) the geographical area of the improvement district or special area, or
(ii) the Minister, where the improvement district or special area is authorized or required to act;
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RSA 2000 Section 1 MUNICIPAL GOVERNMENT ACT Chapter M-26
(q) “Municipal Government Board” means the Municipal Government Board established under Part 12, and includes any panel of the Board;
(r) “municipal purposes” means the purposes set out in section 3;
(s) “municipality” means
(i) a city, town, village, summer village, municipal district or specialized municipality,
(ii) repealed 1995 c24 s2,
(iii) a town under the Parks Towns Act, or
(iv) a municipality formed by special Act,
or, if the context requires, the geographical area within the boundaries of a municipality described in subclauses (i) to (iii);
(t) “natural person powers” means the capacity, rights, powers and privileges of a natural person;
(u) “owner” means
(i) in respect of unpatented land, the Crown,
(ii) in respect of other land, the person who is registered under the Land Titles Act as the owner of the fee simple estate in the land, and
(iii) in respect of any property other than land, the person in lawful possession of it;
(v) “parcel of land” means
(i) where there has been a subdivision, any lot or block shown on a plan of subdivision that has been registered in a land titles office;
(ii) where a building affixed to the land that would without special mention be transferred by a transfer of land has been erected on 2 or more lots or blocks shown on a plan of subdivision that has been registered in a land titles office, all those lots or blocks;
(iii) a quarter section of land according to the system of surveys under the Surveys Act or any other area of land described on a certificate of title;
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RSA 2000 Section 1 MUNICIPAL GOVERNMENT ACT Chapter M-26
(w) “pecuniary interest” means pecuniary interest within the meaning of Part 5, Division 6;
(x) “population” means population as defined and determined in accordance with the regulations;
(y) “public utility” means a system or works used to provide one or more of the following for public consumption, benefit, convenience or use:
(i) water or steam;
(ii) sewage disposal;
(iii) public transportation operated by or on behalf of the municipality;
(iv) irrigation;
(v) drainage;
(vi) fuel;
(vii) electric power;
(viii) heat;
(ix) waste management;
(x) residential and commercial street lighting,
and includes the thing that is provided for public consumption, benefit, convenience or use;
(y.1) “regional services commission” means a regional services commission under Part 15.1;
(z) “road” means land
(i) shown as a road on a plan of survey that has been filed or registered in a land titles office, or
(ii) used as a public road,
and includes a bridge forming part of a public road and any structure incidental to a public road;
(aa) “tax” means
(i) a property tax,
(ii) a business tax,
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RSA 2000 Section 2 MUNICIPAL GOVERNMENT ACT Chapter M-26
(iii) a business revitalization zone tax,
(iii.1) a community revitalization levy,
(iv) a special tax,
(v) a well drilling equipment tax,
(vi) a local improvement tax, and
(vii) a community aggregate payment levy;
(bb) “taxpayer” means a person liable to pay a tax;
(cc) “whole council” means
(i) all of the councillors that comprise the council under section 143,
(ii) if there is a vacancy on council and the council is not required to hold a by-election under section 162 or 163, the remaining councillors, or
(iii) if there is a vacancy on council and the Minister orders that the remaining councillors constitute a quorum under section 160 or 168, the remaining councillors.
(2) For the purposes of this Act, a municipality or group of municipalities controls a corporation if
(a) the municipality or group of municipalities hold, other than by way of security only, securities of the corporation to which are attached more than 50% of the votes that may be cast to elect directors of the corporation and, if exercised, are sufficient to elect a majority of the directors of the corporation, or
(b) all or a majority of its members or directors are appointed by the municipality or group of municipalities. RSA 2000 cM-26 s1;2005 c14 s2;2013 c17 s2
Application of Act 2(1) This Act applies to all municipalities and improvement districts.
(2) If there is an inconsistency between this Act and
(a) repealed 1995 c24 s3,
(b) the Parks Towns Act, or
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RSA 2000 Section 285 MUNICIPAL GOVERNMENT ACT Chapter M-26
(w.1) “travel trailer” means a trailer intended to provide accommodation for vacation use and licensed and equipped to travel on a road;
(x) “year” means a 12-month period beginning on January 1 and ending on the next December 31.
(2) In this Part and Parts 10, 11 and 12, a reference to a parcel of land that is held under a lease, licence or permit from the Crown in right of Alberta or Canada includes a part of the parcel.
(3) For the purposes of this Part and Parts 10, 11 and 12, any document, including an assessment notice and a tax notice, that is required to be sent to a person is deemed to be sent on the day the document is mailed or otherwise delivered to that person. RSA 2000 cM-26 s284; 2007 cA-37.2 s82(17); 2007 c42 s3;2009 c29 s2
Division 1 Preparation of Assessments
Preparing annual assessments 285 Each municipality must prepare annually an assessment for each property in the municipality, except linear property and the property listed in section 298. RSA 2000 cM-26 s285;2002 c19 s2
286 Repealed 1994 cM-26.1 s286.
287 Repealed 1994 cM-26.1 s287.
288 Repealed 1994 cM-26.1 s288.
Assessments for property other than linear property 289(1) Assessments for all property in a municipality, other than linear property, must be prepared by the assessor appointed by the municipality.
(2) Each assessment must reflect
(a) the characteristics and physical condition of the property on December 31 of the year prior to the year in which a tax is imposed under Part 10 in respect of the property, and
(b) the valuation and other standards set out in the regulations for that property.
(3) Each assessment of a railway must be based on a report provided by December 31 to each municipality the railway runs through by the person that operates the railway, showing
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RSA 2000 Section 292 MUNICIPAL GOVERNMENT ACT Chapter M-26
(5) For the purposes of this section, linear property that is a pipeline must be assessed separately and not as a system of pipelines. RSA 2000 cM-26 s291;2008 c24 s2
Assessments for linear property 292(1) Assessments for linear property must be prepared by the assessor designated by the Minister.
(2) Each assessment must reflect
(a) the valuation standard set out in the regulations for linear property, and
(b) the specifications and characteristics of the linear property
(i) as contained in the records of the Alberta Utilities Commission, the Energy Resources Conservation Board or the Alberta Energy Regulator on October 31 of the year prior to the year in which a tax is imposed under Part 10 in respect of the linear property, or
(ii) on October 31 of the year prior to the year in which a tax is imposed under Part 10 in respect of the linear property, as contained in the report requested by the assessor under subsection (3).
(3) If the assessor considers it necessary, the assessor may request the operator of linear property to provide a report relating to that property setting out the information requested by the assessor.
(4) On receiving a request under subsection (3), the operator must provide the report not later than December 31.
(5) If the operator does not provide the report in accordance with subsection (4) or the assessor has reasonable grounds to believe that the information provided in the report is inaccurate, the assessor must prepare the assessment using the most accurate information available about the linear property. RSA 2000 cM-26 s292;2007 cA-37.2 s82(17);2008 c37 s2; 2012 cR-17.3 s95
Duties of assessors 293(1) In preparing an assessment, the assessor must, in a fair and equitable manner,
(a) apply the valuation and other standards set out in the regulations, and
(b) follow the procedures set out in the regulations.
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RSA 2000 Section 294 MUNICIPAL GOVERNMENT ACT Chapter M-26
(2) If there are no procedures set out in the regulations for preparing assessments, the assessor must take into consideration assessments of similar property in the same municipality in which the property that is being assessed is located.
(3) An assessor appointed by a municipality must, in accordance with the regulations, provide the Minister with information that the Minister requires about property in that municipality. RSA 2000 cM-26 s293;2002 c19 s3;2009 c29 s4
Right to enter on and inspect property 294(1) After giving reasonable notice to the owner or occupier of any property, an assessor may at any reasonable time, for the purpose of preparing an assessment of the property or determining if the property is to be assessed,
(a) enter on and inspect the property,
(b) request anything to be produced to assist the assessor in preparing the assessment or determining if the property is to be assessed, and
(c) make copies of anything necessary to the inspection.
(2) When carrying out duties under subsection (1), an assessor must produce identification on request.
(3) An assessor must, in accordance with the regulations, inform the owner or occupier of any property of the purpose for which information is being collected under this section and section 295. RSA 2000 cM-26 s294;2002 c19 s4
Duty to provide information 295(1) A person must provide, on request by the assessor, any information necessary for the assessor to prepare an assessment or determine if property is to be assessed.
(2) An agency accredited under the Safety Codes Act must release, on request by the assessor, information or documents respecting a permit issued under the Safety Codes Act.
(3) An assessor may request information or documents under subsection (2) only in respect of a property within the municipality for which the assessor is preparing an assessment.
(4) No person may make a complaint in the year following the assessment year under section 460 or, in the case of linear property, under section 492(1) about an assessment if the person has failed to provide the information requested under subsection (1) within 60 days from the date of the request. RSA 2000 cM-26 s295;2002 c19 s5
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RSA 2000 Section 304 MUNICIPAL GOVERNMENT ACT Chapter M-26
(g) whether the property is assessable for public school purposes or separate school purposes, if notice has been given to the municipality under section 156 of the School Act;
(g.1) if the property is linear property, the date the Minister declares the linear property assessment complete;
(h) if the property is exempt from taxation under Part 10, a notation of that fact;
(i) any other information considered appropriate by the municipality or by the Minister, as the case may be. RSA 2000 cM-26 s303;2002 c19 s7;2005 c14 s6
Recording assessed persons 304(1) The name of the person described in column 2 must be recorded on the assessment roll as the assessed person in respect of the assessed property described in column 1.
Column 1 Column 2 Assessed Assessed property person
(a) a parcel of land, unless (a) the owner of the parcel otherwise dealt with in of land; this subsection;
(b) a parcel of land and the (b) the owner of the parcel improvements to it, of land; unless otherwise dealt with in this subsection;
(c) a parcel of land, an (c) the holder of the lease, improvement or a parcel licence or permit or, in of land and the the case of a parcel of improvements to it held land or a parcel of land under a lease, licence or and the improvements to permit from the Crown in it, the person who right of Alberta or occupies the land with Canada or a municipality; the consent of that holder or, if the land that was the subject of a lease, licence or permit has been sold under an agreement for sale, the purchaser under that agreement;
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RSA 2000 Section 304 MUNICIPAL GOVERNMENT ACT Chapter M-26
Column 1 Column 2 Assessed Assessed property person
(d) a parcel of land forming (d) the holder of the lease, part of the station licence or permit or the grounds of a railway or person who occupies the part of a right of way for land with the consent of a railway, irrigation that holder; works as defined in the Irrigation Districts Act or drainage works as defined in the Drainage Districts Act, that is held under a lease, licence or permit from the person who operates the railway, or from the irrigation district or the board of trustees of the drainage district;
(e) a parcel of land and the (e) the holder of the lease, improvements to it held licence or permit or the under a lease, licence or person who occupies the permit from a regional land with the consent of airports authority, where that holder; the land and improvements are used in connection with the operation of an airport;
(f) a parcel of land, or a part (f) the holder of the lease, of a parcel of land, and licence or permit; the improvements to it held under a lease, licence or permit from the owner of the land where the land and the improvements are used for
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RSA 2000 Section 304 MUNICIPAL GOVERNMENT ACT Chapter M-26
Column 1 Column 2 Assessed Assessed property person
(i) drilling, treating, separating, refining or processing of natural gas, oil, coal, salt, brine or any combination, product or by-product of any of them,
(ii) pipeline pumping or compressing, or
(iii) working, excavating, transporting or storing any minerals in or under the land referred to in the lease, licence or permit or under land in the vicinity of that land.
(g) machinery and equipment (g) the owner of the used in the excavation or machinery and transportation of coal or equipment; oil sands as defined in the Oil Sands Conservation Act;
(h) improvements to a parcel (h) the person who owns or of land listed in section has exclusive use of the 298 for which no improvements; assessment is to be prepared;
(i) linear property; (i) the operator of the linear property;
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RSA 2000 Section 304 MUNICIPAL GOVERNMENT ACT Chapter M-26
Column 1 Column 2 Assessed Assessed property person
(j) a designated (j) the owner of manufactured home on a site in a manufactured (i) the designated home community and manufactured any other improvements home, located on the site and or owned or occupied by the person occupying the (ii) the manufactured designated manufactured home community home; if the municipality passes a bylaw to that effect;
(k) a designated (k) the owner of the manufactured home designated manufactured located on a parcel of home if the municipality land that is not owned by passes a bylaw to that the owner of the effect. designated manufactured home together with any other improvements located on the site that are owned or occupied by the person occupying the designated manufactured home.
(2) When land is occupied under the authority of a right of entry order as defined in the Surface Rights Act or an order made under any other Act, it is, for the purposes of subsection (1), considered to be occupied under a lease or licence from the owner of the land.
(3) A person who purchases property or in any other manner becomes liable to be shown on the assessment roll as an assessed person
(a) must provide to the Minister, in the case of linear property, or
(b) must provide to the municipality, in the case of property other than linear property,
written notice of a mailing address to which notices under this Part and Part 10 may be sent.
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RSA 2000 Section 305 MUNICIPAL GOVERNMENT ACT Chapter M-26
(4) Despite subsection (1)(c), no individual who occupies housing accommodation under a lease, licence or permit from a management body under the Alberta Housing Act is to be recorded as an assessed person if the sole purpose of the lease, licence or permit is to provide housing accommodation for that individual.
(5) A bylaw passed under subsection (1)(j)(ii) on or after January 1, 1996 and before May 24, 1996 has no effect.
(6) A bylaw passed under subsection (1)(j)(ii)
(a) must be advertised,
(b) has no effect until the beginning of the year commencing at least 12 months after the bylaw is passed,
(c) must indicate the criteria used to designate the assessed person, and
(d) may apply to one or more manufactured home communities.
(7) When a bylaw is passed under subsection (1)(j)(ii), the owner of the designated manufactured home is the assessed person for the purpose of making a complaint under section 460(1) relating to the designated manufactured home. RSA 2000 cM-26 s304;2005 c14 s7;2008 c37 s3
Correction of roll 305(1) If it is discovered that there is an error, omission or misdescription in any of the information shown on the assessment roll,
(a) the assessor may correct the assessment roll for the current year only, and
(b) on correcting the roll, an amended assessment notice must be prepared and sent to the assessed person.
(2) If it is discovered that no assessment has been prepared for a property and the property is not listed in section 298, an assessment for the current year only must be prepared and an assessment notice must be prepared and sent to the assessed person.
(3) If exempt property becomes taxable or taxable property becomes exempt under section 368, the assessment roll must be corrected and an amended assessment notice must be prepared and sent to the assessed person.
(4) The date of every entry made on the assessment roll under this section or section 477 or 517 must be shown on the roll.
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RSA 2000 Section 305.1 MUNICIPAL GOVERNMENT ACT Chapter M-26
(5) If a complaint has been made under section 460 or 488 about an assessed property, the assessor must not correct or change the assessment roll in respect of that property until a decision of an assessment review board or the Municipal Government Board, as the case may be, has been rendered or the complaint has been withdrawn.
(6) Despite subsection (5), subsection (1)(b) does not apply if the assessment roll is
(a) corrected as a result of a complaint being withdrawn by agreement between the complainant and the assessor, or
(b) changed under section 477 or 517. RSA 2000 cM-26 s305;2002 c19 s8;2009 c29 s7
Report to Minister 305.1 If an assessment roll is corrected under section 305 or changed under section 477 or 517, the municipality must, in the form and within the time prescribed by the regulations, report the correction or change, as the case may be, to the Minister. 2002 c19 s9
Severability of roll 306 The fact that any information shown on the assessment roll contains an error, omission or misdescription does not invalidate any other information on the roll or the roll itself. 1994 cM-26.1 s306
Inspection of roll 307 Any person may inspect the assessment roll during regular business hours on payment of the fee set by the council. 1994 cM-26.1 s307
Division 3 Assessment Notices
Assessment notices 308(1) Each municipality must annually
(a) prepare assessment notices for all assessed property, other than linear property, shown on the assessment roll referred to in section 302(1), and
(b) send the assessment notices to the assessed persons in accordance with the regulations.
(2) The assessor designated by the Minister must annually
(a) prepare assessment notices for all assessed linear property shown on the assessment roll referred to in section 302(2),
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RSA 2000 Section 322.1 MUNICIPAL GOVERNMENT ACT Chapter M-26
(b) ensure that any guideline established under subsection (2) is published in a form and manner that the Minister considers appropriate.
(5) Subsection (4) applies only to guidelines established under subsection (2) on or after July 1, 2007. RSA 2000 cM-26 s322;2002 c19 s14;2005 c14 s10; 2007 c16 s2;2009 c29 s12
Validation of Minister’s Guidelines 322.1(1) In this section,
(a) “Minister’s Guidelines” means
(i) the following guidelines referred to in the Matters Relating to Assessment and Taxation Regulation (AR 220/2004):
(A) Alberta Assessment Quality Minister’s Guidelines;
(B) Alberta Farm Land Assessment Minister’s Guidelines;
(C) Alberta Linear Property Assessment Minister’s Guidelines;
(D) Alberta Machinery and Equipment Assessment Minister’s Guidelines;
(E) Alberta Railway Assessment Minister’s Guidelines,
(ii) any previous versions of the guidelines named in subclause (i) that are referred to in the previous regulations, and
(iii) the 2005 Construction Cost Reporting Guide established by the Minister and any previous versions of the Construction Cost Reporting Guide established by the Minister,
and includes any manuals, guides and handbooks referred to or incorporated into any of the guidelines or guides referred to in subclauses (i) to (iii);
(b) “previous regulations” means
(i) the Matters Relating to Assessment and Taxation Regulation (AR 289/99), and
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RSA 2000 Section 323 MUNICIPAL GOVERNMENT ACT Chapter M-26
(ii) the Standards of Assessment Regulation (AR 365/94).
(2) The Minister’s Guidelines are declared valid as of the dates on which they were established, and no assessment prepared pursuant to the Minister’s Guidelines shall be challenged on the basis of the validity of the Minister’s Guidelines
(a) in any existing or future proceeding under this or any other Act, or
(b) in any existing or future action, matter or proceeding before a court.
(3) The Minister’s Guidelines are deemed to be guidelines established under section 322(2). 2007 c16 s3
Minister’s power to prepare assessments 323 If it appears to the Minister that in any year a council will be unable to carry out its obligation under section 285, the Minister may cause any or all of the assessments in the municipality to be prepared and the council is responsible for the costs. 1994 cM-26.1 s323
Minister’s power to quash assessments 324(1) If, after an inspection under section 571 or an audit under the regulations is completed, the Minister is of the opinion that an assessment
(a) has not been prepared in accordance with the rules and procedures set out in this Part and the regulations,
(b) is not fair and equitable, taking into consideration assessments of similar property, or
(c) does not meet the standards required by the regulations,
the Minister may quash the assessment and direct that a new assessment be prepared.
(2) On quashing an assessment, the Minister must provide directions as to the manner and times in which
(a) the new assessment is to be prepared,
(b) the new assessment is to be placed on the assessment roll, and
(c) amended assessment notices are to be sent to the assessed persons.
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RSA 2000 Section 325 MUNICIPAL GOVERNMENT ACT Chapter M-26
(3) The Minister must specify the effective date of a new assessment prepared under this section. RSA 2000 cM-26 s324;2002 c19 s15
Minister’s power to alter an equalized assessment 325 Despite anything in this Act, the Minister may adjust an equalized assessment at any time. 1994 cM-26.1 s325
Part 10 Taxation Division 1 General Provisions
Definitions 326 In this Part,
(a) “requisition” means
(i) repealed 1995 c24 s45,
(ii) any part of the amount required to be paid into the Alberta School Foundation Fund under section 174 of the School Act that is raised by imposing a rate referred to in section 174 of the School Act,
(iii) any part of the requisition of school boards under Part 6, Division 3 of the School Act, or
(iv) repealed 2008 cE-6.6 s55,
(v) the amount required to be paid to a management body under section 7 of the Alberta Housing Act;
(b) “student dormitory” means a housing unit
(i) that is used in connection with a purpose referred to in section 362(1)(c), (d) or (e) or with a college incorporated under a private Act of the Legislature, and
(ii) the residents of which are students of a facility used in connection with a purpose referred to in section 362(1)(c), (d) or (e) or with a college incorporated under a private Act of the Legislature,
but does not include a single family residence and the land attributable to that residence;
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RSA 2000 Section 454 MUNICIPAL GOVERNMENT ACT Chapter M-26
(e) “provincial member” means a person appointed as a provincial member to a composite assessment review board by the Minister under section 454.2(2) or (3);
(f) “tax notice” includes a supplementary tax notice;
(g) “tax roll” includes a supplementary tax roll.
(2) In this Part, a reference to an assessment review board means a local assessment review board or a composite assessment review board, as the case requires. RSA 2000 cM-26 s453;2009 c29 s13
Assessment review boards established 454(1) A council may by bylaw at any time establish one or more local assessment review boards and one or more composite assessment review boards.
(2) Despite subsection (1), a council must by bylaw on receiving a complaint under section 461 establish a local assessment review board or a composite assessment review board, depending on the type of complaint, to hear the complaint. RSA 2000 cM-26 s454;2009 c29 s14
Appointment of members to local assessment review board 454.1(1) A council must
(a) appoint 3 persons as members to each local assessment review board,
(b) prescribe the term of office of each member appointed under clause (a) and the manner in which vacancies are to be filled, and
(c) prescribe the remuneration and expenses, if any, payable to each member appointed under clause (a).
(2) Despite subsection (1) but subject to the conditions prescribed by the regulations, a council may establish a local assessment review board consisting of only one member appointed by the council.
(3) The members of each local assessment review board must choose a presiding officer from among themselves. 2009 c29 s15
Appointment of members to composite assessment review board 454.2(1) A council must
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RSA 2000 Section 454.3 MUNICIPAL GOVERNMENT ACT Chapter M-26
(a) appoint 2 persons as members to each composite assessment review board,
(b) prescribe the term of office of each member appointed under clause (a) and the manner in which vacancies are to be filled, and
(c) prescribe the remuneration and expenses, if any, payable to each member appointed under clause (a).
(2) The Minister must, in accordance with the regulations, appoint one provincial member to each composite assessment review board.
(3) Despite subsections (1) and (2) but subject to the conditions prescribed by the regulations, a council may establish a composite assessment review board consisting of only a provincial member appointed by the Minister.
(4) The provincial member is the presiding officer of a composite assessment review board. 2009 c29 s15
Qualifications of members 454.3 A member of an assessment review board may not participate in a hearing of the board unless the member is qualified to do so in accordance with the regulations. 2009 c29 s16
Clerk 455(1) The council must appoint a designated officer to act as the clerk of the assessment review boards having jurisdiction in the municipality and prescribe the remuneration and duties of that person.
(2) The clerk must not be an assessor. 1994 cM-26.1 s455
Joint establishment of assessment review boards 456 Two or more councils may agree to establish jointly the assessment review boards to have jurisdiction in their municipalities. 2000 c29 s16
Acting members 457(1) The chief elected official may appoint a person as an acting member of
(a) a local assessment review board, or
(b) a composite assessment review board
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RSA 2000 Section 458 MUNICIPAL GOVERNMENT ACT Chapter M-26
if any member, other than a provincial member, is unable for any reason to attend a hearing of the board.
(2) The Minister must, in accordance with the regulations, appoint a person as an acting provincial member of a composite assessment review board if the provincial member is unable for any reason to attend a hearing of the board. RSA 2000 cM-26 s457;2009 c29 s17
Quorum 458(1) Two members of a local assessment review board referred to in section 453(1)(d)(i) constitutes a quorum of the local assessment review board.
(2) The provincial member and one other member of a composite assessment review board referred to in section 453(1)(c)(i) constitutes a quorum of the composite assessment review board. RSA 2000 cM-26 s458;2009 c29 s18
Decision 459 A decision of a majority of the members of an assessment review board is the decision of the assessment review board. 1994 cM-26.1 s459
Complaints 460(1) A person wishing to make a complaint about any assessment or tax must do so in accordance with this section.
(2) A complaint must be in the form prescribed in the regulations and must be accompanied with the fee set by the council under section 481(1), if any.
(3) A complaint may be made only by an assessed person or a taxpayer.
(4) A complaint may relate to any assessed property or business.
(5) A complaint may be about any of the following matters, as shown on an assessment or tax notice:
(a) the description of a property or business;
(b) the name and mailing address of an assessed person or taxpayer;
(c) an assessment;
(d) an assessment class;
(e) an assessment sub-class;
(f) the type of property;
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RSA 2000 Section 460.1 MUNICIPAL GOVERNMENT ACT Chapter M-26
(g) the type of improvement;
(h) school support;
(i) whether the property is assessable;
(j) whether the property or business is exempt from taxation under Part 10.
(6) There is no right to make a complaint about any tax rate.
(7) A complainant must
(a) indicate what information shown on an assessment notice or tax notice is incorrect,
(b) explain in what respect that information is incorrect,
(c) indicate what the correct information is, and
(d) identify the requested assessed value, if the complaint relates to an assessment.
(8) A complaint about a local improvement tax must be made within one year after it is first imposed.
(8.1) Despite subsection (8), where a local improvement tax rate has been revised under section 403(3), a complaint may be made about the revised local improvement tax whether or not a complaint was made about the tax within the year after it was first imposed.
(8.2) A complaint under subsection (8.1) must be made within one year after the local improvement tax rate is revised.
(9) Repealed 1995 c24 s71.
(10) A complaint must include the mailing address of the complainant if the mailing address of the complainant is different from the address shown on the assessment notice or tax notice.
(11) An assessment review board has no jurisdiction to deal with a complaint about linear property or an amount set by the Minister under Part 9 as the equalized assessment for a municipality. RSA 2000 cM-26 s460;2009 c29 s19
Jurisdiction of assessment review boards 460.1(1) A local assessment review board has jurisdiction to hear complaints about any matter referred to in section 460(5) that is shown on
(a) an assessment notice for
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RSA 2000 Section 461 MUNICIPAL GOVERNMENT ACT Chapter M-26
(i) residential property with 3 or fewer dwelling units, or
(ii) farm land,
or
(b) a tax notice other than a property tax notice.
(2) Subject to section 460(11), a composite assessment review board has jurisdiction to hear complaints about any matter referred to in section 460(5) that is shown on an assessment notice for property other than property described in subsection (1)(a). 2009 c29 s20
Address to which a complaint is sent 461(1) A complaint must be filed with the designated officer at the address shown on the assessment or tax notice, not later than the date shown on that notice.
(2) On receiving a complaint, the designated officer referred to in section 455 must set a date, time and location for a hearing before an assessment review board in accordance with the regulations. RSA 2000 cM-26 s461;2009 c29 s21
Notice of assessment review board hearing 462(1) If a complaint is to be heard by a local assessment review board, the designated officer must
(a) within 30 days after receiving the complaint, provide the municipality with a copy of the complaint, and
(b) within the time prescribed by the regulations, notify the municipality, the complainant and any assessed person other than the complainant who is affected by the complaint of the date, time and location of the hearing.
(2) If a complaint is to be heard by a composite assessment review board, the designated officer must
(a) within 30 days after receiving the complaint, provide the municipality with a copy of the complaint, and
(b) within the time prescribed by the regulations, notify the Minister, the municipality, the complainant and any assessed person other than the complainant who is affected by the complaint of the date, time and location of the hearing. RSA 2000 cM-26 s462;2009 c29 s22
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RSA 2000 Section 463 MUNICIPAL GOVERNMENT ACT Chapter M-26
Absence from hearing 463 If any person who is given notice of the hearing does not attend, the assessment review board must proceed to deal with the complaint if
(a) all persons required to be notified were given notice of the hearing, and
(b) no request for a postponement or an adjournment was received by the board or, if a request was received, no postponement or adjournment was granted by the board. RSA 2000 cM-26 s463;2009 c29 s23
Proceedings before assessment review board 464(1) Assessment review boards are not bound by the rules of evidence or any other law applicable to court proceedings and have power to determine the admissibility, relevance and weight of any evidence.
(2) Assessment review boards may require any person giving evidence before them to do so under oath.
(3) Members of assessment review boards are commissioners for oaths while acting in their official capacities. 1994 cM-26.1 s464
Notice to attend or produce 465(1) When, in the opinion of an assessment review board,
(a) the attendance of a person is required, or
(b) the production of a document or thing is required,
the assessment review board may cause to be served on a person a notice to attend or a notice to attend and produce a document or thing.
(2) If a person fails or refuses to comply with a notice served under subsection (1), the assessment review board may apply to the Court of Queen’s Bench and the Court may issue a warrant requiring the attendance of the person or the attendance of the person to produce a document or thing. RSA 2000 cM-26 s465;2009 c53 s119
Protection of witnesses 466 A witness may be examined under oath on anything relevant to a matter that is before an assessment review board and is not excused from answering any question on the ground that the answer might tend to
(a) incriminate the witness,
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RSA 2000 Section 467 MUNICIPAL GOVERNMENT ACT Chapter M-26
(b) subject the witness to punishment under this or any other Act, or
(c) establish liability of the witness
(i) to a civil proceeding at the instance of the Crown or of any other person, or
(ii) to prosecution under any Act,
but if the answer so given tends to incriminate the witness, subject the witness to punishment or establish liability of the witness, it must not be used or received against the witness in any civil proceedings or in any other proceedings under this or any other Act, except in a prosecution for or proceedings in respect of perjury or the giving of contradictory evidence. 1994 cM-26.1 s466
Division 2 Decisions of Assessment Review Boards
Decisions of assessment review board 467(1) An assessment review board may, with respect to any matter referred to in section 460(5), make a change to an assessment roll or tax roll or decide that no change is required.
(2) An assessment review board must dismiss a complaint that was not made within the proper time or that does not comply with section 460(7).
(3) An assessment review board must not alter any assessment that is fair and equitable, taking into consideration
(a) the valuation and other standards set out in the regulations,
(b) the procedures set out in the regulations, and
(c) the assessments of similar property or businesses in the same municipality.
(4) An assessment review board must not alter any assessment of farm land, machinery and equipment or railway property that has been prepared correctly in accordance with the regulations. RSA 2000 cM-26 s467;2009 c29 s24
Assessment review board decisions 468(1) Subject to the regulations, an assessment review board must, in writing, render a decision and provide reasons, including any dissenting reasons,
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RSA 2000 Section 468.1 MUNICIPAL GOVERNMENT ACT Chapter M-26
(a) within 30 days from the last day of the hearing, or
(b) before the end of the taxation year to which the complaint that is the subject of the hearing applies,
whichever is earlier.
(2) Despite subsection (1), in the case of a complaint about a supplementary assessment notice, an amended assessment notice or any tax notice other than a property tax notice, an assessment review board must render its decision in writing in accordance with the regulations. RSA 2000 cM-26 s468;2009 c29 s25
Costs of proceedings 468.1 A composite assessment review board may, or in the circumstances set out in the regulations must, order that costs of and incidental to any hearing before it be paid by one or more of the parties in the amount specified in the regulations. 2009 c29 s26
Effect of order relating to costs 468.2 An order of the composite assessment review board under section 468.1 may be registered in the Personal Property Registry and at any land titles office and, on registration, has the same effect as if it were a registered writ of enforcement issued after judgment has been entered in an action by the Court of Queen’s Bench. 2009 c29 s26
Notice of decision 469 The designated officer appointed under section 455 must, within 7 days after an assessment review board renders a decision, send the board’s written decision and reasons, including any dissenting reasons, to the persons notified of the hearing under section 462(1)(b) or (2)(b), as the case may be. RSA 2000 cM-26 s469;2009 c29 s27
Appeal 470(1) An appeal lies to the Court of Queen’s Bench on a question of law or jurisdiction with respect to a decision of an assessment review board.
(2) Any of the following may appeal the decision of an assessment review board:
(a) the complainant;
(b) an assessed person, other than the complainant, who is affected by the decision;
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RSA 2000 Section 470 MUNICIPAL GOVERNMENT ACT Chapter M-26
(c) a municipality, if the decision being appealed relates to property that is within the boundaries of that municipality;
(d) the assessor for a municipality referred to in clause (c).
(3) An application for permission to appeal must be filed with the Court of Queen’s Bench within 30 days after the persons notified of the hearing receive the decision under section 469, and notice of the application for permission to appeal must be given to
(a) the assessment review board, and
(b) any other persons as the judge directs.
(4) If an applicant makes a written request for materials to the assessment review board for the purposes of the application for permission to appeal under subsection (3), the assessment review board must provide the materials requested within 14 days from the date on which the written request is served.
(5) On hearing the application and the representations of those persons who are, in the opinion of the judge, affected by the application, the judge may grant permission to appeal if the judge is of the opinion that the appeal involves a question of law or jurisdiction of sufficient importance to merit an appeal and has a reasonable chance of success.
(6) If a judge grants permission to appeal, the judge may
(a) direct which persons or other bodies must be named as respondents to the appeal,
(b) specify the question of law or the question of jurisdiction to be appealed, and
(c) make any order as to the costs of the application that the judge considers appropriate.
(7) On permission to appeal being granted by a judge, the appeal must proceed in accordance with the practice and procedure of the Court of Queen’s Bench.
(8) Notice of the appeal must be given to the parties affected by the appeal and to the assessment review board.
(9) Within 30 days from the date that the permission to appeal is obtained, the assessment review board must forward to the clerk of the Court of Queen’s Bench the transcript, if any, and the record of the hearing, its findings and reasons for the decision. RSA 2000 cM-26 s470;2009 c29 s28;2014 c13 s35
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RSA 2000 Section 470.1 MUNICIPAL GOVERNMENT ACT Chapter M-26
Decision on appeal 470.1(1) On the hearing of an appeal,
(a) no evidence other than the evidence that was submitted to the assessment review board may be admitted, but the Court of Queen’s Bench may draw any inferences
(i) that are not inconsistent with the facts expressly found by the assessment review board, and
(ii) that are necessary for determining the question of law or the question of jurisdiction,
and
(b) the Court may confirm or cancel the decision.
(2) In the event that the Court of Queen’s Bench cancels a decision, the Court must refer the matter back to the assessment review board, and the board must rehear the matter and deal with it in accordance with the opinion of or any direction given by the Court on the question of law or the question of jurisdiction.
(3) No member of the assessment review board is liable for costs by reason of or in respect of an application for permission to appeal or an appeal under this Act.
(4) If the Court of Queen’s Bench finds that the only ground for appeal established is a defect in form or a technical irregularity and that no substantial wrong or miscarriage of justice has occurred, the Court may deny the appeal, confirm the decision of the assessment review board despite the defect or irregularity, and order that the decision takes effect from the time and on the terms that the Court considers proper. 2009 c29 s28;2014 c13 s35
Technical irregularities 471(1) If there has been substantial compliance with this Part, the decision of an assessment review board is not invalid because of a defect in form, a technical irregularity or informality.
(2) An assessment review board may correct any error or omission in its decision. 1994 cM-26.1 s471;1996 c30 s44
472 to 476 Repealed 1995 c24 s73.
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RSA 2000 Section 476.1 MUNICIPAL GOVERNMENT ACT Chapter M-26
Division 4 General Matters
Referral of unfair assessment to Minister 476.1 An assessment review board may refer any assessment that it considers unfair and inequitable to the Minister and the Minister may deal with it under sections 324 and 571. 2009 c29 s29
Required changes to rolls 477 The municipality must make any changes to its assessment roll or tax roll, or both, that are necessary to reflect the decision of an assessment review board. 1994 cM-26.1 s477;1995 c24 s74
Right to continue proceedings 478 A person who becomes an assessed person or taxpayer in respect of a property or business when a complaint about the property or business is being dealt with under this Part may become a party to any proceedings started by the previous assessed person or taxpayer. 1994 cM-26.1 s478
Obligation to pay taxes 479 Making a complaint under this Part does not relieve any person from the obligation to pay any taxes owing on any property or business or any penalties imposed for late payment of taxes. 1994 cM-26.1 s479
Prohibition 480(1) A member of an assessment review board must not hear or vote on any decision that relates to a matter in respect of which the member has a pecuniary interest.
(2) For the purposes of subsection (1), a member of an assessment review board has a pecuniary interest in a matter to the same extent that a councillor would have a pecuniary interest in the matter as determined in accordance with section 170. RSA 2000 cM-26 s480;2009 c29 s30
Fees 481(1) Subject to the regulations made pursuant to section 484.1(q), the council may set fees payable by persons wishing to make complaints or to be involved as a party or intervenor in a hearing before an assessment review board and for obtaining copies of an assessment review board’s decisions and other documents.
(2) If the assessment review board makes a decision in favour of the complainant, the fees paid by the complainant under subsection (1) must be refunded.
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Municipal Government Act, RSA 2000, c M-26, as it appeared prior to January 1, 2010
Correction of roll 305(1) If it is discovered that there is an error, omission or misdescription in any of the information shown on the assessment roll,
(a) the assessor may correct the assessment roll for the current year only, and (b) on correcting the roll, an amended assessment notice must be prepared and sent to the assessed person.
(2) If it is discovered that no assessment has been prepared for a property and the property is not listed in section 298, an assessment for the current year only must be prepared and an assessment notice must be prepared and sent to the assessed person.
(3) If exempt property becomes taxable or taxable property becomes exempt under section 368, the assessment roll must be corrected and an amended assessment notice must be prepared and sent to the assessed person.
(4) The date of every entry made on the assessment roll under this section must be shown on the roll.
Decisions of assessment review board 467(1) An assessment review board may make any of the following decisions:
(a) dismiss a complaint that was not made within the proper time or that does not comply with section 460(7); (b) make a change with respect to any matter referred to in section 460(5); (c) decide that no change to an assessment roll or tax roll is required.
(2) An assessment review board must not alter any assessment that is fair and equitable, taking into consideration assessments of similar property or businesses in the same municipality. 78
Province of Alberta
MUNICIPAL GOVERNMENT ACT
MATTERS RELATING TO ASSESSMENT AND TAXATION REGULATION
Alberta Regulation 220/2004
With amendments up to and including Alberta Regulation 184/2012
Office Consolidation
© Published by Alberta Queen’s Printer
Alberta Queen’s Printer 7th Floor, Park Plaza 10611 - 98 Avenue Edmonton, AB T5K 2P7 Phone: 780-427-4952 Fax: 780-452-0668 E-mail: [email protected] Shop on-line at www.qp.alberta.ca 79
MATTERS RELATING TO ASSESSMENT Section 2 AND TAXATION REGULATION AR 220/2004
(m) “overall ratio” means the weighted ratio for a group of properties, calculated using the median assessment ratios for subgroups of properties within that group;
(n) “regulated property” means
(i) land in respect of which the valuation standard is agricultural use value,
(ii) a railway,
(iii) linear property, or
(iv) machinery and equipment. AR 220/2004 s1;307/2006;245/2008
Part 1 Standards of Assessment
Mass appraisal 2 An assessment of property based on market value
(a) must be prepared using mass appraisal,
(b) must be an estimate of the value of the fee simple estate in the property, and
(c) must reflect typical market conditions for properties similar to that property.
Valuation date 3 Any assessment prepared in accordance with the Act must be an estimate of the value of a property on July 1 of the assessment year.
Valuation standard for a parcel of land 4(1) The valuation standard for a parcel of land is
(a) market value, or
(b) if the parcel is used for farming operations, agricultural use value.
(2) In preparing an assessment for a parcel of land based on agricultural use value, the assessor must follow the procedures set out in the Alberta Farm Land Assessment Minister’s Guidelines.
(3) Despite subsection (1)(b), the valuation standard for the following property is market value:
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MATTERS RELATING TO ASSESSMENT Section 5 AND TAXATION REGULATION AR 220/2004
(a) a parcel of land containing less than one acre;
(b) a parcel of land containing at least one acre but not more than 3 acres that is used but not necessarily occupied for residential purposes or can be serviced by using water and sewer distribution lines located in land that is adjacent to the parcel;
(c) an area of 3 acres located within a larger parcel of land where any part of the larger parcel is used but not necessarily occupied for residential purposes;
(d) an area of 3 acres that
(i) is located within a parcel of land, and
(ii) can be serviced by using water and sewer distribution lines located in land that is adjacent to the parcel;
(e) any area that
(i) is located within a parcel of land,
(ii) is used for commercial or industrial purposes, and
(iii) cannot be serviced by using water and sewer distribution lines located in land that is adjacent to the parcel;
(f) an area of 3 acres or more that
(i) is located within a parcel of land,
(ii) is used for commercial or industrial purposes, and
(iii) can be serviced by using water and sewer distribution lines located in land that is adjacent to the parcel.
(4) An area referred to in subsection (3)(c), (d), (e) or (f) must be assessed as if it is a parcel of land.
(5) The valuation standard for strata space, as defined in section 86 of the Land Titles Act, is market value. AR 220/2004 s4;307/2006
Valuation standard for improvements 5(1) The valuation standard for improvements is
(a) the valuation standard set out in section 7, 8 or 9, for the improvements referred to in those sections, or
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MATTERS RELATING TO ASSESSMENT Section 9 AND TAXATION REGULATION AR 220/2004
(3) For the purposes of section 298(1)(z) of the Act, an assessment must be prepared for machinery and equipment that is part of linear property as described in section 284(1)(k) of the Act, and the assessment must reflect 100% of its value. AR 220/2004 s8;307/2006
Valuation standard for machinery and equipment 9(1) The valuation standard for machinery and equipment is that calculated in accordance with the procedures referred to in subsection (2).
(2) In preparing an assessment for machinery and equipment, the assessor must follow the procedures set out in the Alberta Machinery and Equipment Assessment Minister’s Guidelines.
(3) For the purposes of section 298(1)(z) of the Act, an assessment must be prepared for machinery and equipment that is not part of linear property as described in section 284(1)(k) of the Act, and the assessment must reflect 77% of its value. AR 220/2004 s9;307/2006
Quality standards 10(1) In this section, “property” does not include regulated property.
(2) In preparing an assessment for property, the assessor must have regard to the quality standards required by subsection (3) and must follow the procedures set out in the Alberta Assessment Quality Minister’s Guidelines.
(3) For any stratum of the property type described in the following table, the quality standards set out in the table must be met in the preparation of assessments:
Property Type Median Coefficient of Assessment Dispersion Ratio Property containing 0.950 - 1.050 0 - 15.0 1, 2 or 3 dwelling units All other property 0.950 - 1.050 0 - 20.0
(4) The assessor must, in accordance with the procedures set out in the Alberta Assessment Quality Minister’s Guidelines, declare annually that the requirements for assessments have been met.
(5) Repealed AR 307/2006 s6. AR 220/2004 s10;307/2006
8 82
Province of Alberta
MUNICIPAL GOVERNMENT ACT
MATTERS RELATING TO ASSESSMENT COMPLAINTS REGULATION
Alberta Regulation 310/2009
With amendments up to and including Alberta Regulation 215/2012
Office Consolidation
© Published by Alberta Queen’s Printer
Alberta Queen’s Printer 7th Floor, Park Plaza 10611 - 98 Avenue Edmonton, AB T5K 2P7 Phone: 780-427-4952 Fax: 780-452-0668 E-mail: [email protected] Shop on-line at www.qp.alberta.ca 83
MATTERS RELATING TO ASSESSMENT Section 9 COMPLAINTS REGULATION AR 310/2009
respondent to respond to or rebut the evidence at the hearing, and
(ii) provide to the respondent and the composite assessment review board an estimate of the amount of time necessary to present the complainant’s evidence;
(b) the respondent must, at least 14 days before the hearing date,
(i) disclose to the complainant and the composite assessment review board the documentary evidence, a summary of the testimonial evidence, including a signed witness report for each witness, and any written argument that the respondent intends to present at the hearing in sufficient detail to allow the complainant to respond to or rebut the evidence at the hearing, and
(ii) provide to the complainant and the composite assessment review board an estimate of the amount of time necessary to present the respondent’s evidence;
(c) the complainant must, at least 7 days before the hearing date, disclose to the respondent and the composite assessment review board the documentary evidence, a summary of the testimonial evidence, including a signed witness report for each witness, and any written argument that the complainant intends to present at the hearing in rebuttal to the disclosure made under clause (b) in sufficient detail to allow the respondent to respond to or rebut the evidence at the hearing.
Failure to disclose 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.
(2) A composite assessment review board must not hear any evidence that has not been disclosed in accordance with section 8.
(3) A composite assessment review board must not hear any evidence from a complainant relating to information that was requested by the assessor under section 294 or 295 of the Act but was not provided to the assessor.
(4) A composite assessment review board must not hear any evidence from a municipality relating to information that was
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MATTERS RELATING TO ASSESSMENT Section 10 COMPLAINTS REGULATION AR 310/2009
requested by a complainant under section 299 or 300 of the Act but was not provided to the complainant.
Abridgment or expansion of time 10(1) A composite assessment review board may at any time, with the consent of all parties, abridge the time specified in section 7(d).
(2) Subject to the timelines specified in section 468 of the Act, a composite assessment review board may at any time by written order expand the time specified in section 8(2)(a), (b) or (c).
(3) A time specified in section 8(2)(a), (b) or (c) for disclosing evidence or other documents may be abridged with the written consent of the persons entitled to the evidence or other documents.
Division 3 General Procedural Matters
Complaint fees 11(1) The fees payable by persons wishing to make a complaint or be involved as a party in a hearing by an assessment review board are those fees set out in Schedule 2.
(2) If a complainant withdraws a complaint on agreement with the assessor to correct any matter or issue under complaint, any complaint filing fee must be refunded to the complainant.
Joint jurisdiction 12 If a property is used or designated for multiple purposes in circumstances where both a local assessment review board and a composite assessment review board have jurisdiction to hear a complaint with respect to the property, the complaint must be heard by the composite assessment review board.
Decision of assessment review board 13(1) For the purposes of section 468 of the Act, a decision of an assessment review board must include
(a) a brief summary of the matters or issues contained on the complaint form,
(b) the board’s decision in respect of each matter or issue,
(c) the reasons for the decision, including any dissenting reasons, and
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(d) any procedural or jurisdictional matters that arose during the hearing, and the board’s decision in respect of those matters.
(2) The clerk of composite assessment review board must, within 7 days of a composite assessment review board rendering a decision, provide the Minister with a copy of that decision.
(3) A municipality must retain a record of all decisions of a local assessment review board for at least 5 years.
Record of hearing 14(1) An assessment review board must make and keep a record of each hearing in accordance with subsection (2).
(2) A record of a hearing must include
(a) the complaint form,
(b) all documentary evidence filed in the matter,
(c) a list of witnesses who gave evidence at the hearing,
(d) a transcript or recording of the hearing or, in the absence of a transcript or recording, a summary of all testimonial evidence given at the hearing,
(e) all written arguments presented at the hearing,
(f) a written list that is prepared at the end of the hearing that identifies those matters or issues from the complaint form about which evidence was given or argument was made at the hearing, and
(g) the decision of the assessment review board referred to in section 13.
(3) If evidence given at a hearing is recorded by means of a sound-recording machine, a party to a hearing may request a copy of the sound recording or the transcript of the sound recording if the party pays for the cost of preparing the copy or transcript.
Postponement or adjournment of hearing 15(1) Except in exceptional circumstances as determined by an assessment review board, an assessment review board may not grant a postponement or adjournment of a hearing.
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(2) A request for a postponement or an adjournment must be in writing and contain reasons for the postponement or adjournment, as the case may be.
(3) Subject to the timelines specified in section 468 of the Act, if an assessment review board grants a postponement or adjournment of a hearing, the assessment review board must schedule the date, time and location for the hearing at the time the postponement or adjournment is granted.
Personal attendance not required 16(1) Parties to a hearing before an assessment review board may attend the hearing in person or may, instead of attending in person, file a written presentation with the clerk of the assessment review board.
(2) A party who files a written presentation under subsection (1) must provide a copy of it to the other parties,
(a) in the case of a hearing before a local assessment review board, at least 3 days before the hearing;
(b) in the case of a hearing before a composite assessment review board, at least 7 days before the hearing.
Independent legal advice 17 An assessment review board may only seek legal advice from a lawyer who is independent from the parties to a hearing.
Part 2 Matters before Municipal Government Board
Documents to be filed by complainant 18(1) If a complaint is to be heard by the Municipal Government Board, the complainant must
(a) complete and file with the administrator a complaint containing the information set out in section 19, and
(b) pay the appropriate complaint fee set out in Schedule 2 at the time the complaint is filed.
(2) If a complainant does not comply with subsection (1),
(a) the complaint is invalid, and
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(4) The Minister may only appoint as a provincial member a current member of the Municipal Government Board. AR 310/2009 s48;215/2012
Part 5 Training and Qualifications
Training requirements 49(1) Every clerk and administrator must
(a) successfully complete a training program set or approved by the Minister, and
(b) every 3 years successfully complete a refresher training program set by the Minister.
(2) In order for a member of an assessment review board or a panel of the Municipal Government Board to be qualified to participate in a hearing, the member must
(a) successfully complete a training program set or approved by the Minister, and
(b) every 3 years successfully complete a refresher training program set by the Minister. AR 310/2009 s49;215/2012
Ineligibility 50 A person may not be a member of an assessment review board or the Municipal Government Board if the person
(a) is an assessor,
(b) is an employee of the municipality for which the assessment review board is established, or
(c) is an agent.
Part 6 General Matters
Agent authorization 51 An agent may not file a complaint or act for an assessed person or taxpayer at a hearing unless the assessed person or taxpayer has prepared and filed with the clerk or administrator an assessment complaints agent authorization form set out in Schedule 4.
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