SUPREME
COURT OF CANADA
Citation: Edmonton (City) v. Edmonton East (Capilano) Shopping
Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293
|
Appeal
heard: March 23, 2016
Judgment
rendered: November 4, 2016
Docket: 36403
|
Between:
City
of Edmonton
Appellant
and
Edmonton
East (Capilano) Shopping Centres Limited
(as
represented by AEC International Inc.)
Respondent
- and -
Attorney
General of British Columbia,
Assessment
Review Board for the City of Edmonton and
British
Columbia Assessment Authority
Interveners
Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis,
Wagner, Gascon, Côté and Brown JJ.
Reasons for Judgment:
(paras. 1 to
62)
Joint Dissenting Reasons:
(paras. 63 to
125)
|
Karakatsanis J. (Abella, Cromwell, Wagner
and Gascon JJ. concurring)
Côté and Brown JJ. (McLachlin C.J.
and Moldaver J. concurring)
|
Edmonton (City) v. Edmonton East (Capilano) Shopping Centres
Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293
City of Edmonton Appellant
v.
Edmonton East (Capilano) Shopping
Centres Limited
(as represented by AEC
International Inc.) Respondent
and
Attorney General of British Columbia,
Assessment Review Board for the City of
Edmonton and
British Columbia Assessment
Authority Interveners
Indexed as: Edmonton (City) v. Edmonton East (Capilano)
Shopping Centres Ltd.
2016 SCC 47
File No.: 36403.
2016: March 23; 2016: November 4.
Present: McLachlin C.J. and Abella, Cromwell, Moldaver,
Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
on appeal from the court
of appeal for alberta
Municipal
law — Taxation — Property assessments — Assessment Review Board for City of
Edmonton — Taxpayer filing complaint disputing municipal property assessment
amount — Board increasing property assessment as requested in City’s response
to complaint — Lower courts agreeing with taxpayer that Board cannot increase
property assessment — Whether Board had power to increase assessment —
Municipal Government Act, R.S.A. 2000, c. M‑26, s. 467.
Administrative law — Appeals — Standard of review —
Boards and tribunals — Assessment Review Board for City of Edmonton — Taxpayer
filing complaint disputing municipal property assessment amount — Board
increasing property assessment as requested in City’s response to complaint —
Standard of review applicable to Board’s decision to increase taxpayer’s
property assessment — Whether Board’s decision reasonable — Municipal
Government Act, R.S.A. 2000, c. M‑26, s. 470.
The
taxpayer Company owns a shopping centre in Edmonton, Alberta. For the 2011
taxation year, the City of Edmonton assessed the value of the mall at
approximately $31 million. The Company disputed this assessment by filing
a complaint with the Assessment Review Board. The Company’s position was that
the assessed value exceeded the market value of the mall and was inequitable
when compared to the assessed value of other properties. It sought a reduction
in the assessed value to approximately $22 million.
When
reviewing the Company’s submissions and evidence, the City discovered what it
determined was an error in its original assessment. The City requested that the
Board increase the assessed value of the shopping centre to approximately
$45 million. While the Company expressed concern about the City’s change
in position, it did not dispute the Board’s power to increase the assessment in
this case. Under s. 467(1) of the Municipal Government Act, after
hearing a complaint, an assessment review board may “change” the assessment or
“decide that no change is required.” The Board ultimately increased the
assessment to approximately $41 million. A decision of an assessment
review board may be appealed to the Court of Queen’s Bench, with permission, on
a question of law or jurisdiction of sufficient importance to merit an appeal.
On appeal to the Alberta Court of Queen’s Bench, the chambers judge set aside
the Board’s decision and remitted the matter to the Board for a hearing de
novo. This order was affirmed on appeal to the Alberta Court of Appeal.
This Court must determine what the appropriate standard of review is for the
Board’s implicit decision that it could increase the Company’s property
assessment and determine if the Board’s decision withstands scrutiny on that
standard.
Held
(McLachlin C.J. and Moldaver, Côté and Brown JJ. dissenting): The
appeal should be allowed, the decision of the Court of Appeal set aside and the
Board’s decision reinstated.
Per
Abella, Cromwell, Karakatsanis, Wagner and Gascon JJ.: The standard of
review in this case is reasonableness. Unless the jurisprudence has already
settled the applicable standard of review, the reviewing court should begin by
considering whether the issue involves the interpretation by an administrative
body of its own statute or statutes closely connected to its function. If so,
the standard of review is presumed to be reasonableness. This presumption of
deference on judicial review respects the principle of legislative supremacy
and the choice made to delegate decision making to a tribunal, rather than the
courts. A presumption of deference on judicial review also fosters access to
justice to the extent the legislative choice to delegate a matter to a flexible
and expert tribunal provides parties with a speedier and less expensive form of
decision making.
In
this case, the framework from Dunsmuir v. New Brunswick, 2008 SCC
9, [2008] 1 S.C.R. 190, provides a clear answer. The substantive issue here —
whether the Board had the power to increase the assessment — turns on the
interpretation of s. 467(1) of the Act, the Board’s home statute. The
issue does not fall within one of the four categories identified in Dunsmuir
as calling for correctness review. Accordingly, the standard of review is
presumed to be reasonableness.
A
statutory right of appeal is not a new category of correctness and should not
be added to the list of correctness categories enumerated in Dunsmuir.
Recognizing issues arising on statutory appeals as a new category to which the
correctness standard applies would go against strong jurisprudence from this
Court.
The
presumption of reasonableness is grounded in the legislature’s choice to give a
specialized tribunal responsibility for administering the statutory provisions,
and the expertise of the tribunal in so doing. Expertise arises from the specialization of functions
of administrative tribunals like the Board which have a habitual familiarity
with the legislative scheme they administer. Expertise may also arise where
legislation requires that members of a given tribunal possess certain qualifications.
However, expertise is not a matter of the qualifications or experience of any
particular tribunal member. Rather, expertise is something that inheres in a
tribunal itself as an institution.
This
Court has often applied a reasonableness standard on a statutory appeal from an
administrative tribunal, even when the appeal clause contained a leave
requirement and limited appeals to questions of law, or to questions of law or jurisdiction. In light of
this strong line of jurisprudence — combined with the absence of unusual
statutory language — there was no need for the Court of Appeal to engage in a
long and detailed contextual analysis. Inevitably, the result would have been
the same. The presumption of
reasonableness is not rebutted here.
The contextual approach can generate uncertainty and
endless litigation concerning the standard of review. As in British Columbia,
legislatures can specify the applicable standard of review; unfortunately
explicit legislative guidance is not common.
The
Board’s decision to increase the Company’s property assessment was reasonable.
Given that the Company did not dispute the Board’s power to increase the
assessment in this case, it is not surprising the Board did not explain why it
was of the view that it could increase the assessment. Accordingly, the Board’s
decision should be reviewed in light of the reasons which could be offered in
support of it. It was reasonable for the Board to interpret s. 467(1) of
the Act to permit it to increase the Company’s property assessment at the
City’s request. While s. 460(3) of the Act provides
that only assessed persons and taxpayers may make complaints, the scheme of the
Act does not require that municipalities be empowered to file a “complaint”
against an assessment. The Act provides other mechanisms by which
municipalities can change or seek changes to an assessment. The Board’s interpretation of
s. 467(1) of the Act is consistent with the ordinary meaning of
“change” in s. 467(1) and the overarching policy goal of the Act, to ensure
assessments are correct, fair and equitable. The alternative would permit
taxpayers to use the complaints process to prevent assessments made in error
from being corrected, thereby frustrating the Act’s purpose.
Per
McLachlin C.J. and Moldaver, Côté and Brown JJ. (dissenting): The
appropriate standard of review of the Assessment Review Board’s decision is
correctness. The legislature of Alberta created a municipal assessment
complaints regime that allows certain questions squarely within the expertise of
an assessment review board to be reviewed on a deferential standard through the
ordinary mechanism of judicial review. The legislature, however, also
designated certain questions of law and jurisdiction — for which standardized
answers are necessary across the province — to be the subject of an appeal to
the Court of Queen’s Bench. The statutory scheme and the Board’s lack of
relative expertise in interpreting the law lead to the conclusion that the
legislature intended that the Board’s decisions on such questions be reviewed
on a correctness standard. As a result, even were the Board’s interpretation
presumptively owed deference on the basis that the Board is interpreting its
home statute, this presumption of deference has been rebutted by clear signals of
legislative intent. Consistency in the understanding and application of these
legal questions is necessary, and only courts can provide such consistency.
The
existence of a statutory right of appeal can, in combination with other
factors, lead to a conclusion that the proper standard of review is
correctness. A statutory right of appeal, like a privative clause, is an
important indicator of legislative intent and, depending on its wording, it may
be at ease with judicial intervention. But a statutory right of appeal is not a
new “category” of correctness review. The ostensibly contextual standard of
review analysis should not be confined to deciding whether new categories have
been established. An approach to the standard of review analysis that relies exclusively
on categories and eschews any role for context risks introducing the vice of
formalism into the law of judicial review. In every case, a court must
determine what the appropriate standard of review is for this question decided
by this decision maker. This is not to say that a full contextual standard of
review analysis must be conducted in every single case. Where a standard of
review analysis is performed and the proper standard of review is determined
for a particular question decided by a particular decision maker, that standard
of review should apply in the future to similar questions decided by that
decision maker. Disregard for the contextual analysis would represent a
significant departure from Dunsmuir and from this Court’s post‑Dunsmuir
jurisprudence.
The
question at issue here is not one which falls within the Board’s expertise. An
administrative decision maker is not entitled to blanket deference in all
matters simply because it is an expert in some matters. An administrative
decision maker is entitled to deference on the basis of expertise only if the
question before it falls within the scope of its expertise, whether specific or
institutional. Expertise is a
relative concept. It is not absolute. While the Board may have familiarity with the application of the
assessment provisions of the Act, the legislature has recognized that the
Board’s specialized expertise does not necessarily extend to general questions
of law and jurisdiction. The Board’s decisions may, instead, be appealed on these
questions of law and jurisdiction. The legislature created a tribunal with
expertise in matters of valuation and assessment. In light of this lack of
relative expertise on questions of law and jurisdiction, it cannot be
maintained that a presumption applies that the legislature intended that the
Board’s determinations on questions of law and jurisdiction be owed deference.
Applying the proper
standard, the Board erred in increasing the Company’s property assessment in
this case and the appeal should be dismissed. The Board’s decision to increase
the assessed value based on the City’s submissions must be quashed because the
Board considered information that it was statutorily prohibited from
considering. Assessment review boards have jurisdiction only to adjudicate the
issues that are raised in the assessed person’s complaint form. The Board in
this case erred by hearing and partially accepting the City’s new and revised
assessment based on an entirely new classification, one which was not the
subject of the Company’s complaint. The word “change” in s. 467(1) of the
Act should be given its ordinary and grammatical meaning. The Board is not
precluded from ever increasing an assessment; however, the Board’s decision‑making
authority in this case was limited to the specific matters that were raised in
the Company’s complaint. The Board had no authority to inquire into the
fairness and equity of the assessment generally and to consider or accept
elements of the new assessment proposed by the City in increasing the
assessment.
Cases Cited
By Karakatsanis J.
Applied:
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; distinguished:
Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3,
[2015] 1 S.C.R. 161; approved: Edmonton (City) v. Army & Navy
Department Stores Ltd., [2002] A.M.G.B.O. No. 126 (QL); referred
to: Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1
S.C.R. 720; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16,
[2015] 2 S.C.R. 3; Canadian Artists’ Representation v. National Gallery of
Canada, 2014 SCC 42, [2014] 2 S.C.R. 197; McLean v. British Columbia
(Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Canadian
Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57, [2015] 3 S.C.R. 615; Alberta
(Information and Privacy Commissioner) v. Alberta Teachers’ Association,
2011 SCC 61, [2011] 3 S.C.R. 654; Smith v. Alliance Pipeline Ltd., 2011
SCC 7, [2011] 1 S.C.R. 160; Bell Canada v. Bell Aliant Regional
Communications, 2009 SCC 40, [2009] 2 S.C.R. 764; Sattva Capital Corp. v.
Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633; Ontario (Energy
Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147; ATCO
Gas and Pipelines Ltd. v. Alberta (Utilities Commission), 2015 SCC 45,
[2015] 3 S.C.R. 219; Dr. Q v. College of Physicians and Surgeons of British
Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226; Law Society of New Brunswick
v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247; Rogers Communications Inc. v.
Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35,
[2012] 2 S.C.R. 283; Canada (Citizenship and Immigration) v. Khosa, 2009
SCC 12, [2009] 1 S.C.R. 339; National Corn Growers Assn. v. Canada (Import
Tribunal), [1990] 2 S.C.R. 1324; Newfoundland and Labrador Nurses’ Union
v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R.
708; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Canadian
Natural Resources Ltd. v. Wood Buffalo (Regional Municipality), 2012 ABQB
177, 535 A.R. 281.
By Côté and Brown JJ. (dissenting)
Dr.
Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19,
[2003] 1 S.C.R. 226; C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC
29, [2003] 1 S.C.R. 539; Monsanto Canada Inc. v. Ontario (Superintendent of
Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152; Osborne v.
Rowlett (1880), 13 Ch. D. 774; Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190; Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339; Sattva Capital Corp. v. Creston Moly
Corp., 2014 SCC 53, [2014] 2 S.C.R. 633; McLean v. British Columbia
(Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Smith v.
Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; Bell Canada v.
Bell Aliant Regional Communications, 2009 SCC 40, [2009] 2 S.C.R. 764; Edmonton
(City) v. Edmonton (City) Assessment Review Board, 2010 ABQB 634, 503 A.R.
144; Associated Developers Ltd. v. Edmonton (City), 2011 ABQB 592, 527
A.R. 287; Edmonton (City) v. Edmonton (Composite Assessment Review Board),
2012 ABQB 118, 534 A.R. 110; Habtenkiel v. Canada (Citizenship and
Immigration), 2014 FCA 180, [2015] 3 F.C.R. 327; R. v. D.L.W., 2016
SCC 22, [2016] 1 S.C.R. 402; Townsend v. Kroppmanns, 2004 SCC 10, [2004]
1 S.C.R. 315; Pushpanathan v. Canada (Minister of Citizenship and
Immigration), [1998] 1 S.C.R. 982; Canada (Director of Investigation and
Research) v. Southam Inc., [1997] 1 S.C.R. 748; National Corn Growers
Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; Canada (Deputy
Minister of National Revenue) v. Mattel Canada Inc., 2001 SCC 36, [2001] 2
S.C.R. 100; Moreau‑Bérubé v. New Brunswick (Judicial Council),
2002 SCC 11, [2002] 1 S.C.R. 249; Rogers Communications Inc. v. Society of
Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2
S.C.R. 283; United Brotherhood of Carpenters and Joiners of America, Local
579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; Alberta
(Information and Privacy Commissioner) v. Alberta Teachers’ Association,
2011 SCC 61, [2011] 3 S.C.R. 654; Canada (Canadian Human Rights Commission)
v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; Canadian
Natural Resources Ltd. v. Wood Buffalo (Regional Municipality), 2012 ABQB
177, 535 A.R. 281; Prince Albert (City) v. 101027381 Saskatchewan Ltd.,
2009 SKCA 59, 324 Sask. R. 313; 79912 Manitoba Ltd. v. Winnipeg City
Assessor (1998), 131 Man. R. (2d) 264; Orange Properties Ltd. v.
Winnipeg City Assessor (1996), 107 Man. R. (2d) 278; Harris v. Minister
of National Revenue, [1965] 2 Ex. C.R. 653, aff’d [1966] S.C.R. 489; Canada
v. Last, 2014 FCA 129, [2015] 3 F.C.R. 245; Edmonton ARB, Decision
No. 0098 139/11, August 24, 2011; Edmonton ARB, Decision No. 0098
174/10, August 4, 2010; Canadian Natural Resources Ltd. v. Wood Buffalo
(Regional Municipality), 2014 ABCA 195, 575 A.R. 362; Immeubles
B.P. Ltée v. Ville d’Anjou, [1978] C.S. 422; Executive Director of
Assessment (N.B.) v. Ganong Bros. Ltd., 2004 NBCA 46, 271 N.B.R. (2d) 43.
Statutes and Regulations Cited
Administrative Tribunals Act, S.B.C.
2004, c. 45, ss. 58, 59.
Assessment Act, R.S.B.C. 1996,
c. 20, s. 32.
Assessment Act, R.S.N.S. 1989,
c. 23, s. 62(2).
Assessment Act, R.S.O. 1990,
c. A.31, s. 40.
Cities Act, S.S. 2002, c. C‑11.1,
s. 197(3).
Competition Tribunal Act, R.S.C. 1985,
c. 19 (2nd Supp .), s. 13(1) .
Copyright Act, R.S.C. 1985, c. C‑42 .
Income Tax Act, R.S.C. 1985, c. 1
(5th Supp .).
Matters Relating to Assessment and Taxation Regulation, Alta. Reg. 220/2004, ss. 4(1)(a), 15.
Matters Relating to Assessment Complaints Regulation, Alta. Reg. 310/2009, ss. 8(2), 9, 10(2), 15(1).
Municipal Assessment Act, C.C.S.M.,
c. M226, ss. 42, 43.
Municipal Government Act, R.S.A. 2000,
c. M‑26, ss. 15, 23, 26, 30, 31, 43 to 45, 47, 47.1, 205, 207,
208, 285, 293(1), 299, 300, 305, 305.1, 308, 309(1)(c), 317 to 325, 324, 370,
381, 390, 409.3, 425.1, 436.23, 452, 453 to 457, 454, 460, 460.1(2), 465, 467,
470, 470.1(2), 476.1, 484.1, 486, 514 to 517, 527.1, 534, 570 to 580, 571,
708.02.
Authors Cited
Alberta. “2015 Alberta Assessment Quality Minister’s Guidelines”
(online:
www.municipalaffairs.alberta.ca/documents/as/2015_Assessment_Quality_Ministers_Guidelines.pdf).
Alberta. Legislative Assembly. Alberta Hansard, 2nd Sess.,
27th Leg., April 21, 2009, p. 735.
Bilson, Beth. “The Expertise of Labour Arbitrators” (2005), 12 C.L.E.L.J.
33.
Breyer, Stephen. “Judicial Review of Questions of Law and Policy”
(1986), 38 Admin. L. Rev. 363.
Brown, Donald J. M., and John M. Evans, with the
assistance of David Fairlie. Judicial Review of Administrative Action in
Canada. Toronto: Thomson Reuters, 2013 (loose‑leaf updated May 2016,
release 1).
Daly, Paul. “Struggling Towards Coherence in Canadian Administrative
Law? Recent Cases on Standard of Review and Reasonableness” (forthcoming, McGill
L.J.).
Daly, Paul. “The Unfortunate Triumph of Form over Substance in
Canadian Administrative Law” (2012), 50 Osgoode Hall L.J. 317.
Dyzenhaus, David. “The Politics of Deference: Judicial Review and
Democracy”, in Michael Taggart, ed., The Province of Administrative Law.
Oxford: Hart, 1997, 279.
Hart, H. L. A. The Concept of Law, 3rd ed. Oxford:
Oxford University Press, 2012.
Mullan, David J. “Establishing the Standard of Review: The
Struggle for Complexity?” (2004), 17 C.J.A.L.P. 59.
Sossin, Lorne. “Empty Ritual, Mechanical Exercise or the Discipline
of Deference? Revisiting the Standard of Review in Administrative Law” (2003),
27 Adv. Q. 478.
APPEAL
from a judgment of the Alberta Court of Appeal (Berger, Slatter and
Rowbotham JJ.A.), 2015 ABCA 85, 643 W.A.C. 210,
599 A.R. 210, 12 Alta. L.R. (6th) 236, 80 Admin. L.R. (5th) 240, 382 D.L.R. (4th) 85, 34 M.P.L.R. (5th) 204, [2015] 5 W.W.R. 547,
[2015] A.J. No. 217 (QL), 2015 CarswellAlta 324 (WL Can.), affirming a
decision of Rooke A.C.J., 2013 ABQB 526, 570 A.R. 208, 14 M.P.L.R. (5th) 252,
[2013] A.J. No. 979 (QL), 2013 CarswellAlta 1745 (WL Can.), which set
aside the decision of the Assessment Review Board, No. 0098 56/11,
August 2, 2011. Appeal allowed, McLachlin C.J. and Moldaver, Côté and
Brown JJ. dissenting.
Cameron J.
Ashmore and Tanya Boutin, for the appellant.
Gilbert J.
Ludwig, Q.C., James B. Laycraft,
Q.C., Guy Régimbald and Brian K. Dell, for the
respondent.
Written submissions only by Katherine Webber, for the
intervener the Attorney General of British Columbia.
Katharine L.
Hurlburt, Q.C., for the intervener the
Assessment Review Board for the City of Edmonton.
R. Bruce E.
Hallsor and Colin G. Simkus, for the
intervener the British Columbia Assessment Authority.
The
judgment of Abella, Cromwell, Karakatsanis, Wagner and Gascon JJ. was delivered
by
Karakatsanis J. —
I.
Introduction
[1]
Alberta residents may dispute their municipal
property assessment before a local assessment review board. When one Edmonton
taxpayer did so, the Assessment Review Board decided to increase the
assessment the taxpayer had disputed. The taxpayer appealed, submitting that
when a taxpayer disputes an assessment the Board lacks the statutory power to
increase the assessment and may only lower or confirm it. The Alberta Court of
Queen’s Bench agreed with the taxpayer, as did the Court of Appeal. The City of
Edmonton now appeals to this Court.
[2]
This appeal raises two issues: (1) What is the
appropriate standard of review for the Board’s implicit decision that it could
increase the assessment? (2) Does the decision withstand scrutiny on that
standard?
[3]
For the following reasons, I conclude that the
standard of review for the Board’s decision is reasonableness and that it was
reasonable for the Board to find it had the power to increase the assessment.
Accordingly, I would allow the appeal and reinstate the decision of the Board.
II.
Facts
[4]
Edmonton East (Capilano) Shopping Centres
Limited (the “Company”) owns the Capilano Shopping Centre in Edmonton, Alberta.
For the 2011 taxation year, the City of Edmonton assessed the value of the mall
as approximately $31 million.
[5]
In March 2011, pursuant to s. 460 of the Municipal
Government Act, R.S.A. 2000, c. M-26 (“MGA”), the Company disputed
this assessment by filing a complaint with the Assessment Review Board for the
City of Edmonton. The Company’s position was that the assessed value exceeded
the market value of the mall and was inequitable when compared to the assessed
value of other properties. It sought a reduction in the assessed value to
approximately $22 million.
[6]
When reviewing the Company’s submissions and
evidence, the City discovered what it determined was an error in its original
assessment. The City originally classified the mall as a “community centre”
with the value of the rent from its anchor tenant, Wal-Mart, assessed at $3.50
per square foot. The City now said the mall should have been classified as a
“power centre” with the value of the rent from Wal-Mart assessed at $11.50 per
square foot. This change in position was based in large part on the City’s
review of the assessed value of the rents from three other Wal-Marts in
Edmonton. In June 2011, the City informed the Company that it would seek an
increase from the Board. In its written submissions to the Board, the City
requested that the Board increase the assessed value to approximately $45
million.
[7]
While the Company expressed concern about the
City’s change in position, it did not dispute the Board’s power to increase the
assessment in this case.
[8]
The Board ultimately increased the assessment to
approximately $41 million. On appeal to the Alberta Court of Queen’s Bench, the
chambers judge set aside the Board’s decision and remitted the matter to the
Board for a hearing de novo. This order was affirmed on appeal to the
Alberta Court of Appeal.
III.
The Statutory Scheme and Provisions
[9]
Alberta’s MGA regulates property
assessments in the province. The scheme operates on an annual basis, with
municipalities preparing assessments each year (s. 285). Property assessors are
subject to an overarching duty to prepare assessments “in a fair and equitable
manner” (s. 293(1)).
[10]
The MGA permits any “assessed person” or
“taxpayer” to contest a municipal property assessment before an assessment
review board (s. 460). After hearing a complaint, an assessment review board
may “change” the assessment or “decide that no change is required” (s. 467(1)).
“An assessment review board must not alter any assessment that is fair and
equitable, taking into consideration . . . the valuation and other standards
set out in the regulations” (s. 467(3)). The valuation standard for most
property is its “market value” (Matters Relating to Assessment and Taxation
Regulation, Alta. Reg. 220/2004, s. 4(1)(a)).
[11]
A decision of an assessment review board may be
appealed to the Court of Queen’s Bench, with permission, on “a question of law
or jurisdiction of sufficient importance to merit an appeal” (s. 470(1) and (5)
MGA). Where the appeal is granted, the matter is referred 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” (s. 470.1(2)).
[12]
In some circumstances, assessments may also be
changed outside the complaints process. “If it is discovered that there is an
error, omission or misdescription in any of the information shown on the
assessment roll . . . the assessor may correct the assessment roll for the
current year only” (s. 305(1) MGA). However, if a complaint has been
made about a property, “the
assessor must not correct or change the assessment roll in respect of that
property” until an assessment review board has made a decision or the complaint
has been withdrawn (s. 305(5)).
IV.
Decisions Below
A.
Assessment Review Board, No. 0098 56/11, August
2, 2011
[13]
The Board noted the Company’s position that the
City should not be able to effectively submit a new assessment based on a power
centre classification. The Board did not address this argument except to say
“the Board decided to continue the merit hearing and place appropriate weight
on the evidence presented”. Implicit in the Board’s analysis was a decision that it had the
authority to increase the assessment should it so choose.
[14]
On the merits of the assessment, the Board
agreed in part with the City: it found that the mall was “something more” than
a community centre, though not quite a power centre. It assessed the value of
the rent from Wal-Mart at $10.50 per square foot, reasoning in part that it
would be inequitable for the assessed value to be as low as $3.50 per square
foot when other nearby Wal-Marts had been assessed at $10.50 or $11.50 per
square foot. The Board increased the overall assessment to approximately $41
million.
B.
Court of Queen’s Bench, 2013 ABQB 526, 570 A.R.
208 — Rooke A.C.J.
[15]
The Court of Queen’s Bench granted permission to
appeal, including on the issue of whether the Board “was entitled to proceed on
a new assessment” (para. 14, quoting 2012 ABQB 445, at para. 60 (CanLII)).
[16]
Rooke A.C.J. stated that the issue on appeal was
a true question of jurisdiction of the kind discussed in Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, and the standard of review was
correctness.
[17]
Turning to the substantive issue, the chambers
judge concluded that when a taxpayer complains about an assessment, the
municipality must defend the assessed amount as correct and cannot ask the
Board to change the assessment. Noting that, under the MGA, only
assessed persons and taxpayers may complain about an assessment (s. 460(3)),
the chambers judge reasoned that the City had tried to do indirectly what it
cannot do directly. He concluded the Board lacked jurisdiction to increase the
assessment at the City’s request, set aside the Board’s decision and remitted
the matter to the Board for a hearing de novo.
C.
Court of Appeal, 2015 ABCA 85, 599 A.R. 210 —
Slatter, Berger and Rowbotham JJ.A.
[18]
Writing for the court, Slatter J.A. agreed that
the standard of review was correctness. While he did not agree that the issue
on appeal was a true question of jurisdiction, he concluded that the decisions
of a tribunal subject to a statutory right of appeal (or a right to apply for
leave to appeal), rather than ordinary judicial review, should be reviewed on
the correctness standard.
[19]
On the substantive issue, the Court of Appeal
concluded that s. 467(1) does not empower the Board to increase an assessment
at the City’s request. The City did not have the right to seek an increase: it
was not empowered to make a complaint under s. 460(3). The court agreed with
the chambers judge that the City’s power to correct errors (s. 305) did not
apply here, because there was no error; the City simply changed its mind. The
Court of Appeal concluded that the Board erred in increasing the assessment and
dismissed the City’s appeal.
V.
Analysis
A.
Standard of Review
[20]
In this case, Slatter J.A. said: “The day may
come when it is possible to write a judgment like this without a lengthy
discussion of the standard of review” (para. 11). That day has not come, but it
may be approaching. In Wilson v. Atomic Energy of Canada Ltd., 2016 SCC
29, [2016] 1 S.C.R. 720, my colleague Abella J. expressed an interest in
revisiting the standard of review framework. The majority appreciated Justice
Abella’s efforts to stimulate a discussion on how to clarify or simplify our
standard of review jurisprudence to better promote certainty and
predictability. In my view, the principles in Dunsmuir should provide
the foundation for any future direction. However, any recalibration of our
jurisprudence should await full submissions. This appeal was argued on the
basis of our current jurisprudence and I proceed accordingly.
[21]
The Dunsmuir
framework balances two important competing principles: legislative supremacy,
which requires the courts to respect the choice of Parliament or a legislature
to assign responsibility for a given decision to an administrative body; and
the rule of law, which requires that the courts have the last word on whether
an administrative body has acted within the scope of its lawful authority
(paras. 27-31).
(1)
Presumption of Reasonableness
[22]
Unless the jurisprudence has already settled the
applicable standard of review (Dunsmuir, at para. 62), the reviewing
court should begin by considering whether the issue involves the interpretation
by an administrative body of its own statute or statutes closely connected to
its function. If so, the standard of review is presumed to be reasonableness (Mouvement
laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3, at
para. 46). This presumption of deference on judicial review respects the
principle of legislative supremacy and the choice made to delegate decision
making to a tribunal, rather than the courts. A presumption of deference on
judicial review also fosters access to justice to the extent the legislative
choice to delegate a matter to a flexible and expert tribunal provides parties
with a speedier and less expensive form of decision making.
[23]
The Dunsmuir framework provides a clear
answer in this case. The substantive issue here — whether the Board had the
power to increase the assessment — turns on the interpretation of s. 467(1) of
the MGA, the Board’s home statute. The standard of review is presumed to
be reasonableness.
(2)
Categories That Rebut the Presumption of
Reasonableness
[24]
The four categories of issues identified in Dunsmuir
which call for correctness are constitutional questions regarding the division
of powers, issues “both of central importance to the legal system as a whole
and outside the adjudicator’s specialized area of expertise”, “true questions
of jurisdiction or vires”, and issues “regarding the jurisdictional
lines between two or more competing specialized tribunals” (paras. 58-61). When
the issue falls within a category, the presumption of reasonableness is
rebutted, the standard of review is correctness and no further analysis is
required (Canadian Artists’ Representation v. National Gallery of Canada,
2014 SCC 42, [2014] 2 S.C.R. 197, at para. 13; McLean v. British Columbia
(Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at para. 22).
(a)
Is the Issue on Appeal a True Question of
Jurisdiction?
[25]
The chambers judge found, and the Company submits,
that whether the Board had the power to increase the assessment is a true
question of jurisdiction reviewable on correctness. The Court of Appeal did not
agree that this issue was a true question of jurisdiction.
[26]
This category is “narrow” and these questions,
assuming they indeed exist, are rare (Canadian Broadcasting Corp. v.
SODRAC 2003 Inc., 2015 SCC 57, [2015] 3 S.C.R. 615, at para. 39; Alberta
(Information and Privacy Commissioner) v. Alberta Teachers’ Association,
2011 SCC 61, [2011] 3 S.C.R. 654, at paras. 33-34). It is
clear here that the Board may hear a complaint about a municipal assessment.
The issue is simply one of interpreting the Board’s home statute in the course
of carrying out its mandate of hearing and deciding assessment complaints. No
true question of jurisdiction arises.
(b)
Is a Statutory Right of Appeal a New Category of
Correctness?
[27]
The Court of Appeal concluded that when the
decisions of a tribunal are subject to a statutory right of appeal (or a right
to apply for leave to appeal), rather than ordinary judicial review, the
standard of review on such appeals is correctness. It determined that a
statutory appeal should be recognized as “an addition to or a variation of” the
list of correctness categories enumerated in Dunsmuir (Court of Appeal
reasons, at para. 24). Slatter J.A. reasoned that the existence of a statutory
right of appeal is a strong indication that the legislature intended the courts
to show less deference than they would in an ordinary judicial review.
[28]
I disagree. In my view, recognizing issues
arising on statutory appeals as a new category to which the correctness
standard applies — as the Court of Appeal did in this case — would go against
strong jurisprudence from this Court.
[29]
At least six recent decisions of this Court have
applied a reasonableness standard on a statutory appeal from a decision of an
administrative tribunal (McLean; Smith v. Alliance Pipeline
Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; Bell Canada v. Bell Aliant
Regional Communications, 2009 SCC 40, [2009] 2 S.C.R. 764; Sattva
Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633; Ontario
(Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3
S.C.R. 147; ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission),
2015 SCC 45, [2015] 3 S.C.R. 219).
[30]
In Saguenay, this Court confirmed that
whenever a court reviews a decision of an administrative tribunal, the standard
of review “must be determined on the basis of administrative law principles . .
. regardless of whether the review is conducted in the context of an
application for judicial review or of a statutory appeal” (para. 38, per Gascon
J.; see also Dr. Q v. College of Physicians and Surgeons of British Columbia,
2003 SCC 19, [2003] 1 S.C.R. 226, at paras. 17, 21, 27 and 36; Law Society
of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at paras. 2 and
21).
[31]
The Court of Appeal relied on this Court’s
decision in Tervita Corp. v. Canada (Commissioner of Competition), 2015
SCC 3, [2015] 1 S.C.R. 161, where the statutory appeal clause was
referred to when finding the standard of review was correctness (para. 36).
However, the Court in Tervita relied upon the unique statutory language
of that particular appeal clause: a decision of the tribunal was appealable “as
if it were a judgment of the Federal Court” (Competition Tribunal Act,
R.S.C. 1985, c. 19 (2nd Supp .), s. 13(1) ). Obviously, judgments of the Federal
Court do not benefit from deference on appeal (except on questions of fact, for
entirely different reasons). Tervita does not stand for the proposition
that all issues arising on all statutory appeals are reviewable on the
correctness standard.
(3)
Contextual Analysis
[32]
The Court of Appeal also conducted a review of
the relevant contextual factors to support the conclusion that the standard of
review is correctness. The presumption of reasonableness may be rebutted if the
context indicates the legislature intended the standard of review to be
correctness (Saguenay, at para. 46; Rogers Communications Inc.
v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC
35, [2012] 2 S.C.R. 283, at para. 16).
[33]
The presumption of reasonableness is grounded in
the legislature’s choice to give a specialized tribunal responsibility for
administering the statutory provisions, and the expertise of the tribunal in so
doing. Expertise arises from the specialization of
functions of administrative tribunals like the Board which have a habitual
familiarity with the legislative scheme they administer: “. . . in many
instances, those working day to day in the implementation of frequently complex
administrative schemes have or will develop a considerable degree of expertise
or field sensitivity to the imperatives and nuances of the legislative regime”
(Dunsmuir, at para. 49, quoting D. J. Mullan, “Establishing the
Standard of Review: The Struggle for Complexity?” (2004), 17 C.J.A.L.P.
59, at p. 93; see also Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R.
339, at para. 25). Expertise may also arise where
legislation requires that members of a given tribunal possess certain
qualifications. However, as with judges, expertise is not a matter of the
qualifications or experience of any particular tribunal member. Rather,
expertise is something that inheres in a tribunal itself as an institution: “.
. . at an institutional level, adjudicators . . . can be presumed to hold
relative expertise in the interpretation of the legislation that gives them
their mandate, as well as related legislation that they might often encounter
in the course of their functions” (Dunsmuir, at para. 68). As this Court has often remarked, courts “may not be as well
qualified as a given agency to provide interpretations of that agency’s
constitutive statute that make sense given the broad policy context within
which that agency must work” (McLean, at para. 31, quoting National
Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, at p.
1336, per Wilson J.).
[34]
As discussed, this Court has often applied a
reasonableness standard on a statutory appeal from an administrative tribunal,
even when the appeal clause contained a leave requirement and limited appeals
to questions of law (see, e.g., Sattva), or to
questions of law or jurisdiction (see, e.g., McLean, Smith, Bell
Canada). In light of this strong line of jurisprudence — combined with the
absence of unusual statutory language like that at issue in Tervita —
there was no need for the Court of Appeal to engage in a long and detailed
contextual analysis. Inevitably, the result would have been the same as in
those cases. The presumption of reasonableness is not rebutted.
[35]
I would add this comment. The contextual
approach can generate uncertainty and endless litigation concerning the
standard of review. Subject to constitutional constraints, the legislature can
specify the applicable standard of review. In British Columbia, for example,
the legislature has displaced almost the entire common law on the standard of
review (see the Administrative Tribunals Act, S.B.C. 2004, c. 45, ss. 58
and 59). Unfortunately, clear legislative guidance on the standard of review is
not common.
B.
Was It Reasonable for the Board to Find It Could
Increase the Assessment?
(1)
Reasonableness Review in the Absence of Reasons
[36]
A decision cannot be reasonable unless it “falls
within a range of possible, acceptable outcomes” (Dunsmuir, at para. 47,
per Bastarache and LeBel JJ.). Reasonableness is also concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process” (ibid.). When a tribunal does not give reasons,
it makes the task of determining the justification and intelligibility of the
decision more challenging.
[37]
When procedural fairness requires a tribunal to
provide some form of reasons, a complete failure to do so will amount to an
error of law (Newfoundland and Labrador Nurses’ Union v. Newfoundland and
Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at paras.
20-22).
[38]
However, when a tribunal’s failure to provide
any reasons does not breach procedural fairness, the reviewing court may
consider the reasons “which could be offered” in support of the decision (Dunsmuir,
at para. 48, quoting D. Dyzenhaus, “The Politics of Deference: Judicial Review
and Democracy”, in M. Taggart, ed., The Province of Administrative Law
(1997), 279, at p. 286). In appropriate circumstances, this Court has, for
example, drawn upon the reasons given by the same tribunal in other decisions (Alberta
Teachers, at para. 56) and the submissions of the tribunal in this Court (McLean,
at para. 72).
[39]
The City gave the Company notice that it would
be seeking to increase the assessment. In its written submissions to the Board,
the City ultimately requested that the Board increase the assessment. The
Company filed a lengthy response to the City’s submissions and evidence. At the
hearing, the Company argued that the City’s proper role was to “defend the
assessment” and “respond to the evidence provided by the complainant”. However,
in response to a question from the Board, the Company clarified that it was not
disputing the Board’s power to increase the assessment in this case:
[Counsel for the City] has
suggested that we are taking issue with your jurisdiction to make a change.
We’re not. The legislation certainly allows the Assessment Review Board to
decrease or increase the assessment. You have that power.
(A.R.,
vol. 2, at p. 85)
[40]
Therefore, it is hardly surprising the Board did
not explain why it was of the view that it could increase the assessment: the
Company expressly conceded the point. Parties “cannot gut the deference owed to
a tribunal by failing to raise the issue before the tribunal and thereby
mislead the tribunal on the necessity of providing reasons” (Alberta
Teachers, at para. 54). Accordingly, I shall review the Board’s
decision in light of the reasons which could be offered in support of
it.
(2)
Was the Board’s Decision Reasonable?
[41]
The Board proceeded on the basis that s. 467(1)
allowed it to increase the assessment at the City’s request. In my view, this
was a reasonable interpretation of the legislation.
[42]
Section 467(1) reads:
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.
[43]
Section 460 provides in relevant part:
460(1) A person wishing to make a complaint about any assessment or tax
must do so in accordance with this section.
. . .
(3) A complaint may be made only by an assessed person or a taxpayer.
. . .
(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;
. . .
(c)
an assessment;
[44]
In a case that raised the same issue (Edmonton
(City) v. Army & Navy Department Stores Ltd., [2002] A.M.G.B.O. No. 126
(QL)), the Alberta Municipal Government Board (which formerly heard appeals
from the Board and had similar expertise) discerned the meaning of
s. 467(1) by examining the words of the provision in their entire context
and in their grammatical and ordinary sense, in harmony with the object and
scheme of the MGA. This is consistent with this Court’s well-established
approach to statutory interpretation (Rizzo & Rizzo Shoes Ltd. (Re),
[1998] 1 S.C.R. 27, at para. 21).
[45]
On its face, the language of s. 467(1) empowers
the Board to “change” an assessment with respect to “any matter referred to in
section 460(5)”. Section 460(5) references “an assessment” of value. As the
Municipal Government Board reasonably observed in Army & Navy (at
para. 114), as a matter of ordinary language, the word “change” includes
“increase”.
[46]
This grammatical and ordinary meaning of s.
467(1) is consistent with the purpose of the MGA. The Court of Appeal
said that the broad term “change” was used because some of the matters that can
be subject to complaint, for example, the “description of a property” (s. 460(5)(a)),
are not numerical in nature. However, the Municipal Government Board in Army
& Navy noted that to interpret “change” to mean only “confirm or lower”
would frustrate the overarching intent of the MGA, being to ensure that
assessments are “current, correct, fair and equitable” (para. 114). This
reasoning is compelling. The importance of fairness and equity to the
assessment process is repeatedly emphasized throughout the MGA: for
example, s. 293(1) provides that property assessors are subject to an
overarching duty to prepare the assessment “in a fair and equitable mannerˮ;
s. 467(3) directs the Board to consider fairness and equity when making
its decisions; and s. 324(1) provides that the Minister of Municipal Affairs
may quash an assessment if the Minister is of the opinion that it is not fair
and equitable. As the Board emphasizes in its submissions, if it cannot
increase an assessment that is below market value, other taxpayers would
effectively bear more than their fair share of the overall tax burden. It was
reasonable for the Board to conclude that such a result would run contrary to —
not further — the MGA’s objects.
[47]
The Board is not simply an adjudicator
responding only to the parties’ record and submissions, as evidenced by its
inquisitorial powers (s. 465) and power to refer an assessment to the Minister
even when it is not the subject of a complaint (s. 476.1). Within the
complaints process, the Board’s role is to determine whether the assessment is
fair and equitable (s. 467(3)). Outside the complaints process, the Board may
refer an assessment it “considers unfair and inequitable” to the Minister, who
may investigate or quash the assessment (s. 476.1). Interpreting s. 467(1)
in the manner urged by the Board is consistent with its mandate under ss.
467(3) and 476.1 of ensuring assessments are fair and equitable.
[48]
The Board’s view that s. 467(1) allows it to
increase an assessment is also consistent with the scheme of the MGA.
[49]
Section 460(3) provides that only assessed
persons and taxpayers may make complaints. The courts below concluded that
municipalities may not seek increases from the Board, for that would be
tantamount to making a complaint. The Court of Appeal quoted with approval from
Canadian Natural Resources Ltd. v. Wood Buffalo (Regional Municipality),
2012 ABQB 177, 535 A.R. 281: “A complaint belongs to the taxpayer, not the
Municipality” (para. 166, per Sulyma J.).
[50]
But the scheme of the MGA does not
require that municipalities be empowered to file a “complaint” against an
assessment. The MGA provides other mechanisms by which municipalities
can change or seek changes to an assessment.
[51]
Section 305 provides in relevant part:
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.
…
(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.
[52]
Section 305(1) permits an assessor (i.e., a
municipality) to correct the assessment role if there is an “error, omission or
misdescription”. The Court of Appeal interpreted s. 305(1) as a narrow
provision that permits municipalities to correct only minor errors of a
typographical or similar nature. This, it said, was consistent with a
municipality’s inability to make a complaint; the statutory scheme intended
that the municipality would have to wait until the following year. However, by
its ordinary meaning, “error” is not limited to typographical or similar
errors. Consistent with the language of the provision, it is reasonable to
conclude that s. 305(1) empowers a municipality to change an assessment it
later determines is too low — i.e., was made in error. The Municipal Government
Board reached this conclusion in Army & Navy: “. . . the intent of
Section 305 is to allow assessment authorities to correct errors discovered on
the assessment roll whether they are of an administrative nature or to do with
a change in an assessment” (para. 124).
[53]
Nor is the Court of Appeal’s restrictive reading
of s. 305(1) required by “Canadian expectations about the imposition of taxes”,
specifically the expectation that “retroactive taxation is possible, but not
presumed” (para. 39). Although changes to an assessment will often produce tax
consequences, the municipal taxing bylaw itself remains constant. Changes to an
assessment do not amount to retroactive taxation in the sense that term is
normally understood. Rather, an error has been corrected in the underlying
assessment. Put simply, the taxpayer’s tax liability now corresponds to what
the law provides it always should have been for that year.
[54]
Thus, a municipality can directly correct an
error in an assessment if no complaint is pending (s. 305(1)) or, if a
complaint is pending, the municipality can ask the Board to correct the error
and increase the assessment (s. 467(1)). Properly understood, a complaint does
not “belong” to anyone. It is a process through which the Board, with
assistance from the taxpayer and municipality (and potentially other persons at
the Board’s request), determines the correct, fair and equitable value for the
assessment.
[55]
Section 305(5), which provides that an assessor
“must not correct or change” an assessment “until a decision of an assessment
review board . . . has been rendered or the complaint has been withdrawn”, is
designed to protect the integrity of the complaints process. When a taxpayer
files a complaint, s. 305(5) prevents the municipality from altering the
assessment unilaterally, rendering the complaint moot and potentially leading
to a new complaint about the new assessment. Instead of resolving a dispute
about a revised assessment in a separate proceeding, the municipality can
simply explain at the hearing of the first complaint its reasons for wanting to
revise the assessment, and the Board can change the assessment as it deems
necessary. In the context of an annual scheme, this pursuit of administrative
efficiency makes sense. After the Board has determined the correct assessed
value and rendered its decision, s. 305(5) does not prevent the
municipality from correcting an error, omission or misdescription in any of the
other information shown on the assessment roll (for example, the name and
mailing address of the assessed person).
[56]
The Company also relies on the Matters
Relating to Assessment Complaints Regulation, Alta. Reg. 310/2009. The
Company notes that a taxpayer has 60 days to review an assessment and file a
complaint (s. 309(1)(c) MGA), but only 7 days to reply to a
municipality’s response to a complaint (Matters Relating to Assessment
Complaints Regulation, s. 8(2)(b) and (c)). Thus, if a municipality discovers
an error outside the complaints process and increases an assessment under s.
305(1), the taxpayer will have 60 days to respond; but if a municipality
discovers an error within the complaints process and seeks an increase from the
Board, the taxpayer will have only 7 days to respond. The Company says it is
implausible that the legislature intended to require a taxpayer to respond much
more quickly to a change sought within the complaint process than to one made
outside the complaint process, so it must be that a municipality cannot seek an
increase from the Board when a taxpayer complains.
[57]
There are two plausible reasons why the
legislature would have created a shorter time period for a taxpayer to reply to
a municipality’s response to its complaint than the time period to file a
complaint in the first place. First, the legislature has empowered the Board to
grant extensions of time and adjournments: where a municipality does seek an
increase in response to a complaint, the Board can ensure the taxpayer has
sufficient time to prepare its reply (Matters Relating to Assessment
Complaints Regulation, ss. 10(2) and 15(1)). Natural justice and fairness
require that the taxpayer have enough time to respond, and the statutory scheme
accommodates this. Accordingly, any perceived sense of injustice is largely
illusory.
[58]
Second, in the interests of administrative
expediency, it makes sense that the legislature would have established a
shorter time horizon within the complaint process. In the normal course, the
municipality will respond to a complaint by defending its original assessment.
A municipality will respond to a complaint by seeking an increase only when it
discovers an error, which is not likely to occur often. By establishing a
presumptively shorter time period to reply to a municipality’s response to a
complaint, while allowing the Board to grant extensions of time when
appropriate, the twin goals of administrative efficiency and fairness are both
advanced. A lengthier time period for a reply would simply not be required in
the majority of cases.
[59]
Section 9(4) of the Matters Relating to
Assessment Complaints Regulation also does not require a restrictive
interpretation of “change” in s. 467(1). Section 9(4) of the Regulation relates
to ss. 299 and 300 of the MGA, which permit an assessed person to ask a
municipality for “sufficient information to show how the assessor prepared the assessment” (s. 299) of their property or any other property. Section 9(4) of the Regulation provides that the Board “must
not hear any evidence from a municipality relating to information that was
requested by a complainant under section 299 or 300 of the Act but was not
provided to the complainant”.
[60]
As the heading of s. 9 of the Regulation —
“Failure to disclose” — makes clear, s. 9(4) simply provides a remedy for
non-disclosure. For example, if the municipality has information relating to an
assessment and does not, upon request, disclose it under s. 299 or s. 300, then
the municipality cannot rely on that information before the Board. This is a
traditional remedy for non-disclosure of evidence. Properly understood,
s. 9(4) does not preclude a municipality from changing its mind about an
assessment and leading evidence to support its position, as long as it
discloses the evidence within the prescribed time limit. Section 8(2)(b) of the
Regulation establishes that time limit: it requires the municipality to
disclose its evidence at least 14 days before the hearing. This paragraph would
serve little purpose if the municipality’s entire case already had to be
disclosed to a complainant under s. 299 or s. 300. It is therefore unsurprising
that s. 299 and s. 300 were not raised by the parties or addressed in the
decisions below.
[61]
To conclude, it was reasonable for the Board to
interpret s. 467(1) to permit it to increase the assessment at the City’s
request. As the Municipal Government Board concluded in Army & Navy,
this interpretation is consistent with the ordinary meaning of “change” and the
overarching policy goal of the MGA, to ensure assessments are correct,
fair and equitable. The alternative would permit taxpayers to use the
complaints process to prevent assessments made in error from being corrected,
thereby frustrating the MGA’s purpose.
VI.
Conclusion
[62]
The standard of review is reasonableness and the
Board’s decision was reasonable. Accordingly, I would allow the appeal, set
aside the decision of the Court of Appeal and reinstate the Board’s decision. I
would award the City its costs in this Court and the courts below, payable by
the Company only. I would not award costs to or against the Board.
The reasons of
McLachlin C.J. and Moldaver, Côté and Brown JJ. were delivered by
Côté and Brown JJ. (dissenting) —
I.
Introduction
[63]
We are of the view that the appropriate standard
of review of the City of Edmonton Assessment Review Board’s decision is
correctness. The legislature of Alberta created a municipal assessment
complaints regime that allows certain questions squarely within the expertise
of an assessment review board to be reviewed on a deferential standard through
the ordinary mechanism of judicial review. The legislature, however, also
designated certain questions of law and jurisdiction — for which
standardized answers are necessary across the province — to be the
subject of an appeal to the Court of Queen’s Bench. Where the court quashes a
decision, its answers to these questions are binding on the Board. This leads
to the unavoidable conclusion that the legislature intended correctness review
to be applied to these questions.
[64]
As to the merits, we are of the view that the
Board’s decision in this case should be quashed. Assessment review boards have
jurisdiction only to adjudicate the issues that are raised in the assessed
person’s complaint form. The Board in this case erred by hearing and partially
accepting the City of Edmonton’s new and revised assessment based on an
entirely new classification, one which was not the subject of Edmonton East
(Capilano) Shopping Centres Limited’s (“Company”) complaint.
II.
Standard of Review
[65]
The “overall aim” of the standard of review
analysis has always been “to discern legislative intent, keeping in mind the
constitutional role of the courts in maintaining the rule of law”: Dr. Q v.
College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003]
1 S.C.R. 226, at para. 26. As Binnie J. once remarked, the standard of review
analysis “is necessarily flexible” as it seeks “the polar star of legislative
intent”: C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1
S.C.R. 539, at para. 149.
[66]
In our view, taken together, the statutory
scheme and the Board’s lack of relative expertise in interpreting the law lead
to the conclusion that the legislature intended that the Board’s decisions on
questions of law and jurisdiction appealed to the Court of Queen’s Bench be
reviewed on a correctness standard. As a result, even were the Board’s
interpretation presumptively owed deference on the basis that the Board is
interpreting its home statute, this presumption of deference has been rebutted
by clear signals of legislative intent.
A.
Contextual Analysis of the Statutory Scheme and
Signals of Legislative Intent
[67]
As we will explain, the nature of the relevant
statutory scheme demonstrates that the legislature intended correctness review
be applied to decisions on questions of law and jurisdiction for which leave to
appeal is granted to the Court of Queen’s Bench. Any expertise of the Board
does not overcome this clear indication of legislative intent. Indeed, we are
of the view that the legislature has indicated that the Board lacks relative
expertise to decide those questions.
[68]
Before addressing this legislative context,
however, we wish to make some preliminary comments on the statutory right of
appeal in s. 470 of the Municipal Government Act, R.S.A. 2000, c.
M-26 (“Act”).
(1)
A Statutory Right of Appeal Is Not a Category of
Correctness Review
[69]
In response to the reasons of Slatter J.A. in
the Court of Appeal (2015 ABCA 85, 599 A.R. 210), the majority questions
whether a statutory right of appeal is a new “category” of correctness review.
Relying on recent decisions of this Court, it concludes that no such category of
correctness review exists because the reasonableness standard has been applied
in other cases where statutory rights of appeal are present.
[70]
We agree that a statutory right of appeal is not
a new “category” of correctness review. However, the ostensibly contextual
standard of review analysis should not be confined to deciding whether new
categories have been established. An approach to the standard of review
analysis that relies exclusively on categories and eschews any role for context
risks introducing the vice of formalism into the law of judicial review, as it
seeks to “secure a measure of certainty or predictability at the cost of
blindly prejudging what is to be done in a range of future cases, about whose
composition we are ignorant”: H. L. A. Hart, The Concept of Law (3rd ed.
2012), at pp. 129-30.
[71]
In every case, a court must determine what the
appropriate standard of review is for this question decided by this
decision maker. This is not to say that a full contextual standard of review
analysis must be conducted in every single case. The applicable standard of
review is a question of law: Monsanto Canada Inc. v. Ontario (Superintendent
of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152, at para. 6.
Questions of law forming part of the ratio decidendi of a decision are
binding on lower courts as a matter of stare decisis: Osborne v.
Rowlett (1880), 13 Ch. D. 774, at p. 785. Where a standard of review
analysis is performed and the proper standard of review is determined for a
particular question decided by a particular decision maker, that standard of
review should apply in the future to similar questions decided by that decision
maker.
[72]
In Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, this Court made room for the simple operation of the
doctrine of precedent in this manner. It recognized that a full contextual
standard of review analysis need not be performed in every case, since the
appropriate standard of review has often been settled in the jurisprudence. But
“[t]his simply means that the analysis required is already deemed to have been
performed and need not be repeated” (para. 57). It does not mean that the
contextual analysis itself should be curtailed in favour of categories that are
themselves “both over- and under-inclusive”: P. Daly, “The Unfortunate Triumph
of Form over Substance in Canadian Administrative Law” (2012), 50 Osgoode
Hall L.J. 317, at p. 342. Despite the “attractive simplicity” of the
category-based approach, eschewing context in favour of categories is
“seriously overbroad”: S. Breyer, “Judicial Review of Questions of Law and
Policy” (1986), 38 Admin. L. Rev. 363, at p. 373. Disregard for the
contextual analysis would represent a significant departure from Dunsmuir
and from this Court’s post-Dunsmuir jurisprudence.
(2)
The Statutory Scheme
[73]
Because context always matters, we do not agree
that the existence of a statutory right of appeal cannot, in combination with
other factors, lead to a conclusion that the proper standard of review is
correctness. A statutory right of appeal, like a privative clause, “is an
important indicator of legislative intent” and, depending on its wording, it
“may be at ease with [judicial intervention]”: Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 55, per
Binnie J. In our view, the wording of this statutory appeal clause, in
combination with the legislative scheme, points to the conclusion that the
legislature intended that a more exacting standard of review be applied to
questions appealed to the Court of Queen’s Bench.
[74]
The majority says, however, that a contextual
analysis is unnecessary here in light of this Court’s recent decisions of Sattva
Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633; McLean
v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R.
895; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1
S.C.R. 160; and Bell Canada v. Bell Aliant Regional Communications, 2009
SCC 40, [2009] 2 S.C.R. 764. With respect, we do not read those decisions as supportive
of our colleagues’ position, because none of them states or even implies that a
right of appeal is not a relevant factor in the contextual analysis.
[75]
Section 470 of the Act grants a statutory
right of appeal with leave to the Court of Queen’s Bench on a “question of law
or jurisdiction” (s. 470(1)) where a 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” (s. 470(5)). If a question of
law or jurisdiction is appealed to the Court of Queen’s Bench and the Court of
Queen’s Bench decides the question and refers the matter back to the Board,
“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” (s. 470.1(2)).
[76]
It is only questions of law and jurisdiction
that are “of sufficient importance to merit an appeal” that may be appealed
pursuant to s. 470 of the Act. All other questions may still be the subject of
judicial review: Edmonton (City) v. Edmonton (City) Assessment Review Board,
2010 ABQB 634, 503 A.R. 144, at paras. 10-12; Associated Developers Ltd. v.
Edmonton (City), 2011 ABQB 592, 527 A.R. 287, at paras. 17-24; Edmonton
(City) v. Edmonton (Composite Assessment Review Board), 2012 ABQB 118, 534
A.R. 110, at para. 78.
[77]
In our view, the legislature’s decision to enact
a limited right of appeal rather than a full right of appeal indicates that the
legislature intended these questions to be reviewed by the Court of Queen’s
Bench for correctness.
[78]
The legislature must have known that judicial
review is available for any question not covered by a limited right of appeal (Habtenkiel
v. Canada (Citizenship and Immigration), 2014 FCA 180, [2015] 3 F.C.R. 327,
at para. 35; see also D. J. M. Brown and J. M. Evans, Judicial
Review of Administrative Action in Canada (loose-leaf), at p. 3-9),
given that the legislature is presumed to know the law: R. v. D.L.W.,
2016 SCC 22, [2016] 1 S.C.R. 402, at para. 21, per Cromwell J.; Townsend v.
Kroppmanns, 2004 SCC 10, [2004] 1 S.C.R. 315, at para. 9. The legislature
only designated some questions to be the subject of this right of appeal,
thereby signalling its intention that these important questions of law and
jurisdiction be treated differently from all other questions which are subject
to ordinary judicial review. These issues, after all, transcend the particular
context of a disputed assessment and have broader implications for the municipal
assessment regime. Had the legislature merely intended to provide for a
different procedure than judicial review to enhance administrative efficiency
within the yearly cycle created by the legislature, it would have enacted a
full statutory right of appeal with a shorter limitation period than ordinary
judicial review. After all, questions of fact and mixed fact and law would also
benefit from a shorter limitation period to enhance administrative efficiency
within the yearly cycle. We note, in this regard, the similarity between the
wording of s. 470(5) and the statutory right of appeal that was considered in Pushpanathan
v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982,
in respect of which Bastarache J., for this Court, said:
First, s. 83(1) would be
incoherent if the standard of review were anything other than correctness. The
key to the legislative intention as to the standard of review is the use of the
words “a serious question of general importance” . . . . The
general importance of the question, that is, its applicability to numerous
future cases, warrants the review by a court of justice. Would that review
serve any purpose if the Court of Appeal were obliged to defer to incorrect
decisions of the Board? Is it possible that the legislator would have
provided for an exceptional appeal to the Court of Appeal on questions of
“general importance”, but then required that despite the “general importance”
of the question, the court accept decisions of the Board which are wrong in
law, even clearly wrong in law, but not patently unreasonable? The only way
in which s. 83(1) can be given its explicitly articulated scope is if the Court
of Appeal — and inferentially, the Federal Court, Trial Division — is permitted
to substitute its own opinion for that of the Board in respect of questions of
general importance. [Emphasis added; para. 43.]
[79]
That correctness review was legislatively
intended is supported by other aspects of the statutory scheme. Section
470.1(2) of the Act provides that, where the Court of Queen’s Bench “cancels a
decision”, it must refer the matter back to the 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”. This strongly suggests that correctness review is the standard
that the legislature intended to be applied to these questions, because giving
“direction” on a pure and distilled question of law and jurisdiction would be inconsistent
with reasonableness review. The fundamental premise of reasonableness review is
that “certain questions that come before administrative tribunals do not lend
themselves to one specific, particular result”: Dunsmuir, at para. 47.
However, the fundamental premise of s. 470.1(2) is that pure questions of
law and jurisdiction appealed to the Court of Queen’s Bench do lend themselves
to one specific, particular result because the Court of Queen’s Bench is bound
to provide direction on these pure questions of law and jurisdiction and
the Board is prohibited from reaching a different result on those questions
when the matter is remitted to it.
[80]
Further, as Slatter J.A. noted at the Court of
Appeal, the municipal assessment regime set out in the Act is applied by local
and composite assessment review boards in municipalities across the province.
Each assessment review board is a unique entity established by the local
municipal council (s. 454). Because each assessment review board is a distinct
entity, there is no overarching institutional body capable of promoting
consistency in the interpretation and application of the Act between them. We
echo the concern of Slatter J.A. that “it is undesirable for the Municipal
Government Act to mean different things in different parts of the province”
(para. 30). Consistency in the understanding and application of these legal
questions is necessary, and only courts can provide such consistency. And, to
reiterate, the legislature of Alberta has done so here by providing assessed
persons a right to appeal certain questions to the courts, which are, in turn,
tasked with providing binding rulings on those questions: s. 470.1(2) of
the Act.
B.
Expertise
[81]
In our view the question at issue is not one
which falls within the Board’s expertise. Indeed, the Board’s lack of expertise
in statutory interpretation suggests that the legislature would have wanted
courts to review Board answers on questions of law on a more exacting standard.
[82]
We acknowledge that the notion of “expertise” has
become a catch-all trigger for deferential review in this Court’s
jurisprudence, since an administrative decision maker is simply presumed to be
an expert in matters regarding the application of its home statute. We wish,
therefore, to be clear: our point of departure from the majority is whether the
presumption has been rebutted. And we add this: in strengthening the
presumption by ignoring or explaining away any factors that might rebut it, the
majority risks making this presumption irrebuttable.
[83]
Despite its prevalence, this presumption of
expertise has rarely been given much explanation or content in our
jurisprudence: L. Sossin, “Empty Ritual, Mechanical Exercise or the Discipline
of Deference? Revisiting the Standard of Review in Administrative Law” (2003),
27 Adv. Q. 478, at pp. 490-91; B. Bilson, “The Expertise of Labour
Arbitrators” (2005), 12 C.L.E.L.J. 33, at p. 41. As McLachlin C.J.
explained in Dr. Q, expertise “can arise from a number of sources and
can relate to questions of pure law, mixed fact and law, or fact alone” (para.
29). Some administrative decision makers are required to possess expert
qualifications or experience in a particular area as a condition of
appointment: Canada (Director of Investigation and Research) v. Southam Inc.,
[1997] 1 S.C.R. 748, at paras. 50-53. Other administrative decision makers may
accumulate “a measure of relative institutional expertise” by habitually making
findings of fact in a particular specialized legislative context: Dr. Q,
at para. 29; National Corn Growers Assn. v. Canada (Import Tribunal),
[1990] 2 S.C.R. 1324, at p. 1336, per Wilson J. This specific or institutional
expertise may command deference, though the question of expertise is “closely
interrelated” to the nature of the question that forms the basis of the
application for judicial review: Canada (Deputy Minister of National
Revenue) v. Mattel Canada Inc., 2001 SCC 36, [2001] 2 S.C.R. 100, at para.
32. In other words, an administrative decision maker is not entitled to blanket
deference in all matters simply because it is an expert in some matters. An
administrative decision maker is entitled to deference on the basis of
expertise only if the question before it falls within the scope of its
expertise, whether specific or institutional.
[84]
A constant in this Court’s jurisprudence both
pre- and post-Dunsmuir is that expertise is a relative concept. It is
not absolute: Pushpanathan, at para. 33; Dr. Q, at para.
28; Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11,
[2002] 1 S.C.R. 249, at para. 50; Rogers Communications Inc. v. Society of
Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2
S.C.R. 283, at para. 15, per Rothstein J. As Sopinka J.
explained in United Brotherhood of Carpenters and Joiners of America, Local
579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, “a lack of relative
expertise on the part of the tribunal vis-à-vis the particular issue
before it as compared with the reviewing court is a ground for a refusal of
deference” (p. 335). An administrative decision maker often possesses greater
relative expertise in interpreting and applying its constituting statute in the
context of administering a specialized regime: Pushpanathan, at
para. 36; Dunsmuir, at para. 54; Smith, at para. 80,
per Deschamps J., dissenting on this point. But this is not an absolute rule,
as a legislature may always indicate that the expertise of an administrative
decision maker in interpreting and administering its home statute is not
greater relative to the courts: see, e.g., Rogers Communications, at
para. 16.
[85]
The legislature therefore has a role to play in
designating and delimiting the presumed expertise of an administrative decision
maker. The majority’s view that “expertise is something that inheres in a
tribunal itself as an institution” (para. 33) risks transforming the
presumption of deference into an irrebuttable rule. Courts must not infer from
the mere creation of an administrative tribunal that it necessarily possesses
greater relative expertise in all matters it decides, especially on questions
of law. After all, “some administrative decision makers have considerable legal
expertise . . . . Others have little or none”: Alberta (Information and
Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011]
3 S.C.R. 654, at para. 84, per Binnie J., concurring. Respect for legislative
supremacy must leave open to the legislature the possibility of creating a
non-expert administrative decision maker, or creating an administrative
decision maker with expertise in some areas but not others. Rothstein J. gave
effect to this possibility in Rogers Communications, holding that the
concurrent jurisdiction shared by the courts and the Copyright Board under the Copyright
Act, R.S.C. 1985, c. C-42 , led to the inference “that the legislative
intent was not to recognize superior expertise of the Board relative to the
court with respect to such legal questions” (para. 15). We must therefore
examine the legislative scheme to determine whether the legislative intent was
to recognize the superior expertise of the Board or the courts on matters
forming the subject of an appeal pursuant to s. 470.
[86]
The Act is a broad statute that covers a vast
array of municipal government issues. The Board at issue here is a composite
assessment review board, created pursuant to s. 454 of the Act with
jurisdiction to only hear complaints about certain assessments by taxpayers and
assessed persons, and to deal only with the issues listed in s. 460(5) of the
Act. The Alberta legislature delegated to other boards and administrative
decision makers the simultaneous task of interpreting and applying provisions
of the Act, such as the Municipal Government Board (s. 486); growth management
boards (s. 708.02); the Minister of Municipal Affairs (in the context of the
assessment provisions of the Act, see ss. 317 to 325, 370, 381, 390, 409.3,
425.1, 436.23, 452, 453 to 457, 476.1, 484.1, 514 to 517, 527.1 and 570 to
580); the chief administrative officer of each municipal council (ss. 205, 207
and 208); the Land Compensation Board (ss. 15, 23, 26 and 534); and the Alberta
Utilities Commission (ss. 30, 31, 43 to 45, 47 and 47.1), among others. It is
therefore incorrect to characterize a specific composite assessment review
board as an expert tribunal tasked with administering the Act. We cannot
presume greater relative expertise without first examining the statutory scheme
that creates the administrative decision maker.
[87]
The question, then, is whether the Alberta
legislature intended to recognize superior expertise in assessment review
boards or in the courts with respect to the specific questions appealed
pursuant to s. 470 of the Act. As the majority acknowledges, this case is, in
part, about the interpretation of s. 467 of the Act. Statutory interpretation
does not fall within the specialized expertise of the Board, since its
day-to-day work focuses on complex matters of valuation of property. We note
that the majority relies on this Court’s jurisprudence for the proposition that
a court may not be as qualified as a board to interpret the board’s home
statute given “the broad policy context within which” the board must work
(para. 33). That may be true in the application of one’s governing statute.
However, it is not so in these circumstances, where the matter is one of legal
interpretation going to jurisdiction, not practical application. While the
Board may have familiarity with the application of the assessment provisions of
the Act, the legislature has recognized that the Board’s specialized expertise
does not necessarily extend to general questions of law and jurisdiction. The
Board’s decisions may, instead, be appealed on these questions of law and
jurisdiction.
[88]
In light of this lack of relative expertise on
questions of law and jurisdiction, it cannot be maintained that a presumption
applies that the legislature intended that the review board’s determinations on
questions of law and jurisdiction be owed deference. The legislature created a
tribunal with expertise in matters of valuation and assessment. But the
legislature placed that tribunal within a statutory scheme that would allow
municipalities and assessed persons to appeal questions of law and
jurisdiction, while still implicitly permitting judicial review on all other
questions. This, in our view, is a clear signal by the legislature that the
tribunal it created is not entitled to deference from the courts on questions
of law and jurisdiction appealed pursuant to s. 470, while it must be afforded
deference on other matters. Such clearly expressed legislative intent should be
respected, by applying correctness review in this case.
[89]
We note the concern that a contextual analysis
can generate uncertainty and prolonged litigation concerning the applicable
standard of review. But the lode star of legislative supremacy and the rule of
law remains. The contextual standard of review analysis ensures that
legislative intent is respected and the rule of law is protected when courts
review decisions of administrative actors. And context does not cease to be relevant
once the standard of review is selected. Even if the applicable standard of
review were reasonableness, it is a contextual analysis — guided by
the principles of legislative supremacy and the rule of law — that
defines the range of reasonable outcomes in any given case: P. Daly,
“Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on
Standard of Review and Reasonableness” (forthcoming, McGill L.J.), at p.
21. In short, “context simply cannot be eliminated from judicial review” (ibid.,
at p. 16).
[90]
We note the chambers judge’s conclusion that the
issue in this case is a true question of jurisdiction: 2013 ABQB 526, 570 A.R.
208. As the majority explained in Dunsmuir, a true question of
jurisdiction asks “whether or not the tribunal had the authority to make the
inquiry”, and added that “[a]dministrative bodies must . . . be
correct in [these] determinations”: at para. 59; Canada (Canadian Human
Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3
S.C.R. 471, at para. 18. In light of our conclusion above, however, it is
not necessary to also consider whether the question at issue falls within that
category.
III.
Merits
[91]
The majority characterizes the issue in this
case as whether s. 467 of the Act allowed the Board to “increase the assessment
at the City’s request” (para. 41). We agree that the word “change” in s. 467(1)
should be given its ordinary and grammatical meaning, and that the Board is not
precluded from ever increasing an assessment. However, in our view, the Board’s
decision-making authority in this case was limited to the specific matters that
were raised in the Company’s complaint. The Board had no authority to inquire
into the fairness and equity of the assessment generally and to consider or
accept elements of the new assessment proposed by the City in increasing the
assessment.
[92]
In our view, this conclusion is supported by
five considerations. First, this conclusion respects the assessment complaints
procedure set out in the Act and in various regulations. These limit the
jurisdiction of the review board to precisely those matters identified on the
complaint form and, where applicable, to the information provided by the
municipality in response to an access to information request pursuant to ss.
299 and 300 of the Act. There is no space under the Act for municipalities to
act as a de facto appellant of its own assessment. Second, to hold
otherwise, as the majority does, would allow municipalities to circumvent s.
305 of the Act, which only permits municipalities to correct errors, omissions,
or misdescriptions in an assessment when a complaint is not pending. Third, a
contrary interpretation would undermine taxpayers’ reliance on the information
provided by the municipality in its notice of assessment and in any document
disclosed pursuant to an access to information request under ss. 299 and 300 of
the Act. Fourth, to hold otherwise would also allow municipalities to
circumvent certain prescribed notice periods intended to benefit assessed
persons. Fifth, the Act does not place an obligation on the Board to ensure
that all assessments are “fair” and “equitable”.
A.
Overview of the Board’s Jurisdiction
[93]
In general terms, the complaints procedure
before the Board is a vehicle for taxpayers to contest the fairness,
correctness and equity of yearly municipal tax assessments. It is in this sense
that the complaint belongs to the taxpayer: Canadian Natural Resources Ltd.
v. Wood Buffalo (Regional Municipality), 2012 ABQB 177, 535 A.R. 281, at
para. 166. The Board’s narrow jurisdiction reflects the complaint procedure’s
limited function, and confines the Board’s decision-making authority to only
those specific matters that were outlined in the City’s original assessment,
and which were subsequently raised by the taxpayer in his or her complaint.
[94]
This understanding of the assessment complaints
process flows from the following provisions of the Act. A complaint regarding
an assessment may be about any of the matters listed in s. 460(5) of the Act
shown on the assessment notice. However, a “complaint may be made only
by an assessed person or a taxpayer” (s. 460(3)). This restricted scope on
who may bring a complaint distinguishes the complaints process outlined in the
Act from legislation in a number of other jurisdictions where
municipalities are explicitly provided with a right to appeal an assessment
and, as a result, where review boards have the power to raise an assessment in
response to a municipality’s appeal: see Assessment Act, R.S.B.C. 1996,
c. 20, s. 32; Assessment Act, R.S.O. 1990, c. A.31, s. 40; Assessment
Act, R.S.N.S. 1989, c. 23, s. 62(2); The Cities Act,
S.S. 2002, c. C-11.1, s. 197(3); The Municipal Assessment Act,
C.C.S.M., c. M226, ss. 42 and 43; Prince Albert (City) v. 101027381
Saskatchewan Ltd., 2009 SKCA 59, 324 Sask. R. 313; 79912 Manitoba Ltd.
v. Winnipeg City Assessor (1998), 131 Man. R. (2d) 264 (C.A.), at para. 4; Orange
Properties Ltd. v. Winnipeg City Assessor (1996), 107 Man. R. (2d) 278
(C.A.).
[95]
This feature of the Act’s complaint
process resembles appeals from assessments under the federal Income Tax Act,
R.S.C. 1985, c. 1 (5th Supp .). The Minister of National Revenue has no right to
appeal assessments under that Act, and it has long been settled that a
taxpayer’s appeal cannot, in light of this, result in an increased assessment: Harris
v. Minister of National Revenue, [1965] 2 Ex. C.R.
653, aff’d on other grounds, [1966] S.C.R. 489. In Canada v. Last, 2014 FCA 129,
[2015] 3 F.C.R. 245, Dawson J.A. observed that
Harris is authority for the proposition that on appeal from an assessment,
the question to be answered is whether the Minister’s assessment is higher than
it should be. However, Harris is also authority for the proposition that
a taxpayer’s appeal cannot result in an increased assessment. This is because
the Act does not give any right of appeal to the Minister and any increase to
an assessment would in effect allow the Minister to appeal from her own
assessment. This principle is to be applied to each source of income. [para.
23]
[96]
Nowhere does the Act authorize the
assessment review board to inquire generally into the fairness and equity of
the challenged assessment. Instead, the assessment review board has
jurisdiction only “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)”(s. 460.1(2)). A plain reading of this
provision reveals two restrictions on the assessment review board’s
jurisdiction. The review board is limited to hearing “complaints”, and these
complaints must be “about” a matter “shown on an assessment notice”. Section
9(1) of the Matters Relating to Assessment Complaints Regulation, Alta.
Reg. 310/2009 (“MRAC”), reinforces these restrictions by adding that the
review board “must not hear any matter in support of an issue that is not
identified on the complaint form”. Giving this provision full effect, composite
assessment review boards have refused to hear issues raised by assessed persons
that were not identified in the assessed person’s complaint form: see, e.g.,
Edmonton ARB, Decision No. 0098 139/11, August 24, 2011, at pp. 2-3;
Edmonton ARB, Decision No. 0098 174/10, August 4, 2010.
[97]
Section 9(4) of the MRAC restricts this
jurisdiction further where a request for information is made by an assessed
person or taxpayer. Sections 299 and 300 of the Act provide the assessed person
with the right to ask the municipality for access to the assessment record, as
well as a summary of the assessment. These “let the assessed person see or
receive sufficient information to show how the assessor prepared the assessment
of that person’s property” (s. 299(1)) and “let the assessed person see or
receive a summary of the assessment of any assessed property in the
municipality” (s. 300(1)). Section 9(4) of the MRAC provides that
the review board “must not hear any evidence from a municipality relating to
information that was requested by a complainant under section 299 or 300 of the
Act but was not provided to the complainant”.
[98]
In our view, these provisions confine the Board
to considering only matters arising from the City’s original assessment notice
that were the subject of complaint by an assessed person or taxpayer on the
prescribed complaint form. As a result, once a complaint has been filed, the
onus lies on the complainant to identify errors in the City’s assessment, and
the City can do nothing more than defend its own assessment. To read s. 9(4) as
not precluding a municipality from changing its mind about an assessment and
leading evidence to support its position would fail to account for s. 9(1) of
the MRAC which expressly precludes the Board from hearing “any matter in
support of an issue that is not identified on the complaint form”. The review
board’s jurisdiction leaves no space for the City to act as a de facto appellant
of its own assessment. This would explain why the complainant must disclose to
the City and to the review board its documentary evidence, a summary of its
testimonial evidence, and any written argument in support of its complaint 42
days before the hearing date (s. 8(2)(a) MRAC), while the City is
only bound to provide such disclosure to the complainant 14 days before
the hearing date (s. 8(2)(b) MRAC).
[99]
This interpretation also reflects the fact that
the complaints process is pleading-driven, a feature reflected in assessment
review boards’ persistent refusal to consider issues that were not initially
included in the complaint form. If respected, a pleading-driven process usually
has the effect of streamlining and simplifying proceedings, enhancing the
efficiency of this administrative regime.
[100]
While it is true that the Board has the power to
“change” an assessment roll with respect to any matter referred to in s.
460(5), this power must be interpreted in light of the Board’s jurisdiction, as
set out in s. 460.1(2) of the Act and in ss. 9(1) and 9(2) of the MRAC.
To hold otherwise would fail to read these provisions as forming a consistent
whole, since it would mean that the Board has the power to make decisions on
matters it has no authority to hear.
[101]
For these reasons, we would adopt the conclusion
of Sulyma J. who concluded in Wood Buffalo, at para. 166, that
[a] complaint belongs to the
taxpayer, not the Municipality. It gives the taxpayer an opportunity to
demonstrate what the correct number should be . . . . The
Municipality cannot then come in and ask the [Review Board] to change the
assessment to an altogether different number; it can only defend the assessed
amount as correct.
[102]
This conclusion is also consistent with the
Minister’s description of the purpose of amendments to the complaints process
in 2009, being to “provide taxpayers with the understandable, objective,
and fair complaint and appeal system they deserve”: Alberta Hansard, 2nd
Sess., 27th Leg., April 21, 2009, at p. 735 (emphasis added). The complaint and
appeal system were clearly intended to belong to “taxpayers”. The Act must be
interpreted in a manner consistent with this overarching purpose. An interpretation
that would allow the City to hijack the complaint process by (1) using a new
classification that was not identified on the complaint form or disclosed
pursuant to the ss. 299 and 300 request (since it did not exist at the time of
the request), (2) disclosing that new classification to the complainant a mere
14 days before the hearing, and (3) asking the Board to increase the taxpayer’s
assessment based on that new classification irrespective of the subject matter
or merits of the actual complaint, is, in our respectful view, an
interpretation that does not provide taxpayers with an understandable,
objective, or fair complaint system. Nor does it respect the clear policy
choice of the Alberta legislature.
[103]
As already noted (at para. 91), we do not mean
to suggest that the assessment review boards can never increase an assessment.
It is worth remembering that both an assessed person and any other taxpayer may
file a complaint (s. 460(3) of the Act). It is conceivable that a taxpayer may
file a complaint to have the assessed value on another property
increased, so that the overall tax burden is more equitably distributed. In
our view, assessment review boards could raise an assessment in these
circumstances, where it is in response to a taxpayer’s complaint and where the
assessment review board’s intervention is limited to matters raised in that
complaint.
B.
Section 305 of the Act
[104]
Our view on the merits of this appeal is
affirmed by s. 305 of the Act. It allows a municipality to correct an
“error, omission or misdescription” on the assessment roll and send the
taxpayer a revised notice of assessment:
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.
(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.
[105]
The assessor is entitled to correct errors on
the assessment roll at any time within 120 days of the end of the tax year for
which the assessment was prepared, or 90 days following the final expiry date
to appeal a decision on an assessment that is made by the Board or a court
(“2015 Alberta Assessment Quality Minister’s Guidelines” (online), s. 2.4,
adopted pursuant to Matters Relating to Assessment and Taxation Regulation,
Alta. Reg. 220/2004, s. 15). However, the assessor’s ability to correct those
errors is suspended while a complaint about the property is pending
(s. 305(5)). It resumes once a decision is rendered or the complaint is
withdrawn, though subject to the time limits set out above (s. 305(5)). Any
correction to the assessment roll must be reported to the Minister (s. 305.1).
[106]
The Act does not grant an assessor the
right to complain about its own assessment — that right belongs only to “an
assessed person or a taxpayer” (s. 460(3)). Instead, it grants the assessor the
right to correct errors on the assessment roll before a complaint is submitted
by an assessed person or taxpayer, or after a decision is rendered by the Board
(or the complaint is withdrawn). The Act therefore prohibits the assessor from
“correcting” errors on the assessment roll while a complaint is pending before
the Board, and it denies the assessor the right to complain about its own
assessment before the Board.
[107]
The City nevertheless submits that a
municipality is entitled to ask the Board to correct an error and increase the
assessment if a complaint is pending. It suggests the prohibition on
corrections to the assessment roll in s. 305(5) is designed to avoid complaints
about unilaterally corrected assessments being piled on to an underlying
complaint. Instead, the hearing is confined: “. . . the municipality
can simply explain at the hearing of the first complaint its reasons for
wanting to revise the assessment, and the Board can change the assessment as it
deems necessary” (majority reasons, para. 55). With respect, this
rationale does not account for the complaint procedure set out in the Act. If
the assessed person requests access to the assessment record and to a summary
of the assessment under ss. 299 and 300 of the Act, and then makes a
complaint about the assessment to the Board, the municipality is prohibited from
raising or relying on any information at the hearing that was not provided to
the assessed person pursuant to the s. 299 or s. 300 request: s. 9(4) MRAC.
The Board is also prohibited from hearing any matter in support of an issue not
identified on the assessed person or taxpayer’s complaint form (s. 9(1)), or
any evidence that was not properly disclosed (s. 9(2)).
[108]
Far from being entitled to raise any error on
the assessment roll before the Board and have that error corrected, the City is
quite limited in the issues it can raise and rely on before the Board. Even if
the municipality could ask the Board to correct errors for it, it could not ask
the Board to correct any error it might discover in the assessment — the
Board may correct only those errors that happen to be related to the issues
identified on the taxpayer’s complaint form. It also cannot rely on any
information relating to the assessment — even information that shows
an error on the assessment roll that could be corrected but for the complaint — that
it may have discovered after any s. 299 and s. 300 requests were fulfilled.
[109]
To interpret the Act as permitting the City to
ask the Board to correct any errors it may discover while the complaint is
pending makes portions of s. 305 and the associated regulations redundant. If
the municipality could ask the Board to correct any error, and if the Board
were to have an overarching obligation to ensure that all assessments are fair,
equitable, and correct — a point which we will return to below — then
there would be no reason why the legislature would grant the municipality under
s. 305(5) the ability to correct an error after a decision of an assessment
review board has been rendered: the error would already have been corrected by
the Board. As s. 305(5) states:
(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.
In other words, if the
Board does indeed have an obligation to ensure all assessments are correct,
then any decision rendered by the Board affirming or altering an assessment
must result in a correct assessment. A correct assessment does not, by
definition, admit of any subsisting errors.
[110]
To conclude otherwise risks leaving meaningless
the power of an assessor to correct errors on the assessment roll following a
decision of the Board — which is expressly granted by s. 305(5).
C.
Reliance and a Chilling Effect on Complaints
[111]
Were the review board’s jurisdiction to extend
beyond the parameters of the Company’s complaint, municipalities would by
implication be allowed to tax on one basis, and then later defend their
assessments on another. This would have the effect of undermining a taxpayer’s
reliance on the City’s assessment notice, as well as on any information the
taxpayer might obtain through a request for access to the City’s assessment
record under s. 299 of the Act. As the Court of Appeal of Alberta noted in Canadian
Natural Resources Ltd. v. Wood Buffalo (Regional Municipality),
2014 ABCA 195, 575 A.R. 362:
The central
purpose of taxpayer information rights is to provide taxpayers with information
about the preparation of their tax assessments. In deciding whether to make a
complaint and, if so, on what grounds, the taxpayer must know what it can rely
upon. Reliance is defeated if the Municipality is permitted to defend a tax
assessment on a basis different from that disclosed before the complaint was
brought. Indeed, if a Municipality can defend an assessment on a basis
different to that disclosed in a s. 299 response, a taxpayer will be prevented
by s. 9(1) of MRAC from contesting the new basis for assessment (because
the taxpayer’s complaint form will have stated the issues in reliance on the
information disclosed in the s. 299 response). [Emphasis added; para. 20.]
[112]
Not only is reliance undermined, taxpayers going
forward face the real, unexpected and legislatively unintended risk that a
review board may increase an assessment in response to their complaint.
In Immeubles B.P. Ltée v. Ville d’Anjou, [1978] C.S. 422, Rothman J.,
then of the Quebec Superior Court, worried with regard to a similar complaint
process that “ratepayers could find themselves penalized for having exercised
their rights”, and that this “would almost certainly discourage some ratepayers
from exercising” these rights (p. 425). A similar concern was voiced by
Robertson J.A. in Executive Director of Assessment (N.B.) v. Ganong Bros.
Ltd., 2004 NBCA 46, 271 N.B.R. (2d) 43, who observed that the purpose of
the taxpayer’s appeal was to “provide property owners with a meaningful right
of appeal from an assessment that the Director is prepared to defend”, and not
to “provide the Director with a weapon to discourage otherwise potentially
valid appeals to the Appeal Board” (para. 129). We agree, and would add that to
decide otherwise would make fewer potentially unfair and inequitable
assessments subject to the scrutiny of assessment review boards. Again, this
chilling effect undermines the policy choice of the Alberta legislature.
D.
Notice Periods Intended to Benefit Assessed
Persons
[113]
Allowing the City to respond to a complaint by
effectively submitting to the Board an entirely new assessment would undermine
certain notice periods intended to benefit taxpayers. Each municipality must
annually prepare assessment notices for all assessed property and send them to
the assessed persons: s. 308 of the Act. Under normal
circumstances, once an assessment notice has been prepared and sent to the
assessed person, a complaint may be made within 60 days after that notice (or
an amended assessment notice) is sent: s. 309(1)(c). The assessed person may
make use of this period to request copies of the assessment record: s. 299(1)
and (1.1).
[114]
In this case, the City did not amend its
assessment roll, nor did it send the Company an amended notice of assessment.
It would have been barred from doing so by s. 305(5) of the Act. Instead, the
City simply presented its new assessment in the course of its submissions on
the Company’s complaint. As a result, the Company was denied its 60-day period
to consider whether and how to contest the City’s proposed assessment. The City
was only bound by its disclosure requirements under the MRAC. These
disclosure requirements only required the City to reveal its documentary
evidence, a summary of its testimonial evidence, and its written argument 14
days before the hearing date: s. 8(2) MRAC.
[115]
By allowing the City to present a virtually new
assessment to the Company only 14 days before the hearing, the Board denied the
Company adequate time to prepare arguments that could respond to this new
assessment. The Company’s ability to seek an adjournment if it needed more time
to respond is beside the point: the legislature prescribed these notice periods
to ensure fairness and objectivity in the complaints process, not to avoid
adjournments. The Court must take care not to undermine the intended effect of
these notice periods, thereby frustrating the clear and simple complaints
procedure the Alberta legislature chose to enact. A taxpayer would never know
whether his or her complaint would be heard based on the original assessment
which the taxpayer chose to complain about, or a new assessment sprung on him
or her 14 days before the hearing — a new assessment which, in turn, may
necessitate an adjournment, delay, and increased costs as the taxpayer works to
determine how he or she wishes to respond to it.
E.
Fair and Equitable Assessment
[116]
While fairness and equity are, of course,
features of the legislative scheme, the Board itself does not have a
free-standing obligation or right to ensure all assessments are fair and
equitable. The Board is simply an adjudicator that is limited to responding to
the matters raised in the taxpayer’s or assessed person’s complaint. Its
jurisdiction is limited only to hearing and adjudicating complaints of
taxpayers. It is true that the Board is prohibited from altering an
assessment that it deems to be fair and equitable (s. 467(3) of the Act), but
this does not mean that it must in every case determine the correct, fair and
equitable value for the assessment. Its jurisdiction is limited to reviewing
the matters indicated on the complaint form, not determining the fairness and
correctness of each assessment de novo.
[117]
Fairness and equity in municipal assessments are
achieved in the Act through the operation of the Act as a whole, not through
the jurisdiction of review boards. The assessor itself has a duty to ensure
that the assessment is fair and equitable (s. 293(1) of the Act). The
municipality qua assessor has no right to complain about an assessment because,
in exercising its yearly responsibility to assess property, it already has a
statutory duty to produce a fair and equitable assessment. Instead, the
municipality was given the ability to correct errors on the assessment roll (s.
305) and taxpayers and assessed persons were given a right to complain about
assessments (s. 460).
[118]
Nor is, the Board responsible for ensuring that
assessments are prepared according to the statutorily prescribed criteria. This
responsibility lies with the Minister. The Alberta legislature did not create a
scheme that would require the Board to allow unfair or inequitable assessments
to remain on the assessment roll. If the Board’s jurisdiction precludes it from
considering certain matters that go to the fairness or equity of an assessment,
the Board may use its power to refer any assessment it deems to be unfair or
inequitable to the 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.
[119]
If the Board chooses to refer an inequitable or
unfair assessment to the Minister, the Minister is empowered to inquire into
the preparation of the assessment (s. 571 of the Act). If the Minister
concludes that the assessment is not fair or equitable, the Minister may order
that the assessment be quashed and a new assessment prepared:
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.
(3) The Minister must specify the effective date of a new assessment
prepared under this section.
[120]
It is therefore the Minister who has a
freestanding obligation to ensure that all assessments are fair and equitable
and that they conform to the statutory criteria. The Board has no such
authority.
F.
Application
[121]
In this case, the Company identified the “issues
of complaint” on the prescribed complaint form as follows: “The assessed value
of this property is greater than its actual market value.” It requested
information pursuant to ss. 299 and 300 relating to the preparation of the
original assessment, and indicated on its complaint form that this information
was provided. The Company therefore prepared its complaint according to the
original assessment and the information disclosed to it about that assessment.
[122]
In response to the complaint, the City indicated
to the Company that it intended to alter the classification maintained in the
original assessment and seek an increase in the assessed value from the Board.
This was disclosed to the Company 14 days before the date set for hearing,
well after the Company received information relating to the preparation of the
original assessment, and well after the Company prepared its complaint based on
that original assessment.
[123]
The original classification of the property
formed the basis of the Company’s complaint. The Company characterized the mall
as a “lower-tier community shopping centre”, located in “one of the lowest
purchasing power neighbourhoods in greater Edmonton”. Vacancy rates in the mall
were high, causing a decline in the value of the mall. The ultimate basis of
the Company’s complaint was that the mall was “assessed at value comparable to
that applied to better property”, based on the original classification of the
property.
[124]
Further, given that the basis of the complaint
was that the assessed value of the mall exceeded its market value given its
classification as a “lower-tier community shopping centre”, the Board was
limited to considering the matter as framed on the complaint form: s. 9(1) MRAC.
Because the Board considered information that it was statutorily prohibited
from considering, the Board’s decision to increase the assessed value based on
the City’s submissions must be quashed.
IV.
Conclusion
[125]
The appropriate standard of review is
correctness. Applying that standard, we conclude that the Board erred in
increasing the assessment in this case. We would therefore dismiss the appeal
and affirm the decisions of the Court of Queen’s Bench and Court of Appeal. The
matter should be remitted to the Board for a hearing de novo. We would
award costs to the Company in this Court and the courts below, payable by the
City only. Costs should be awarded against the Board in the courts below only.
Appeal
allowed with costs, McLachlin C.J.
and Moldaver, Côté and Brown JJ. dissenting.
Solicitor for the
appellant: City of Edmonton, Edmonton.
Solicitors for the
respondent: Wilson Laycraft, Calgary; Gowling WLG (Canada), Ottawa.
Solicitor for the
intervener the Attorney General of British Columbia: Attorney General of
British Columbia, Vancouver.
Solicitors for the
intervener the Assessment Review Board for the City of Edmonton: Emery
Jamieson, Edmonton.
Solicitors for the
intervener the British Columbia Assessment Authority: Crease Harman,
Victoria.